Delhi District Court
Smt Somwati vs Dda on 12 September, 2024
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IN THE COURT OF MS. DISHA SINGH, CIVIL JUDGE-02
WEST DISTRICT, TIS HAZARI COURTS, DELHI
SUIT NO.606941/2016
CNR NO. DLWT03-000008-1995
IN THE MATTER BETWEEN: -
1. Smt. Somwati
W/o Sh. R.S. Azad (since deceased) through LRs:-
i) Sh. Dinesh Chand
S/o Sh. R.S. Azad
ii). Ms. Laxmi
D/o Sh. R.S. Azad
iii). Sh. R.S. Azad
S/o Late Sh. Kanhia Singh
All R/o Flat no.675, Air Force Naval Officers Enclave,
Plot No.11, Sector-7, Dwarka, New Delhi-45.
iv). Smt. Meena
W/o Sh. R.N. Patra
R/o Flat No.258, SFS Flats DDA,
Sector-1, Dwarka, New Delhi.
v). Smt. Neetu
W/o Sh. Ashish Ahuja
R/o H-6, Lajpat Nagar-II,
New Delhi-110024.
Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-1/39
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2). Sh. Ram Swaroop Azad
(LR No.111)
S/o Sh. Kanhia Singh
Flat No.675, Air Force Naval Officers Enclave,
Plot No.11, Sector-7, Dwarka, New Delhi
..........................PLAINTIFFS
VERSUS
1. The Delhi Development Authority
Through its Vice Chairman,
Land & Building Department,
Vikas Sadan, INA, New Delhi.
2. Smt. Rama Sharma (proceeded ex-parte vide order dated 29.11.2004)
W/o Sh. Ravi Dutt Sharma
R/o E.P.T. 18, Probhat Marg,
Dev Nagar, New Delhi.
3. Sh. Harvinder Singh Sohni (proceeded in absentia)
36/52, Ram Kuteer,
Bei Kunth Dham, Punjabi Bagh, New Delhi.
.....................DEFENDANTS
Suit filed on :- 15.02.1995
Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-2/39
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Judgment Reserved on :- 10.09.2024
Date of decision :- 12.09.2024
SUIT FOR DECLARATION, CANCELLATION AND
PERMANENT INJUNCTION
JUDGMENT
By this judgment, this Court shall adjudicate the suit filed by the plaintiffs against the defendants seeking decree pf declaration, cancellation and permanent injunction. Before adjudicating upon the issues framed in the present suit, it is vital to first state the pleadings in the present suit concisely, which are as follows:
Pleadings of the Plaintiffs:
1. The plaintiffs have instituted the present suit seeking the decree of declaration in favour of the plaintiff and against the defendants, thereby declaring that the possession of the plaintiffs with respect to flat no.200, LIG, Pocket-2, Block-B, Sector-17, Rohini, Delhi i.e., the suit property/flat, is legal and the notice issued for the cancellations, if any, to Smt. Rama Sharma is null and void and is not binding upon the plaintiff and to further pass a decree of permanent injunction in favour of the plaintiffs and against the defendants thereby restraining the Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-3/39 -4- defendant no.1, its officials, employees, associates, workers, agents and the persons working on its behalf from taking forcible possession of the flat and from trespassing into the said flat.
2. It has been averred in the plaint that, the defendant no.2 applied with defendant no.1 for allotment of a residential flat under the IVth scheme of Registration for intending purchasers of flats and deposited as sum of Rs.1,500/- with defendant no.1 vide receipt bearing no.7290 dated 28.02.1979. That subsequently after the deposit of the said amount, the defendant no.1 vide demand note/file no.L015 (271) 90/RD/NP with respect to LIG Category in NP/RS Scheme vide registration no. 45865, priority being no.1225, registration agency, Rohini, called upon the defendant no.2 to deposit a sum of Rs.95,440.83p/- till 28.06.1990. The said sum of Rs.95,440.83p/- was deposited by defendant no.2 with defendant no.1 on 18.06.1990 (photocopy of the said receipt is enclosed).
3. It has been further averred that, after the deposit of the said balance amount, the defendant no.1 allotted the suit flat bearing no.200, LIG Pocket-2, Block-B, Sector-17, Rohini, Delhi to defendant no. no.2 and the possession of the same was delivered to defendant no.2 by defendant no.1. It has been further averred that just after booking of the said flat, as the defendant no.2 was not in the sound financial Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-4/39 -5- position, she contacted the defendant no.3 for selling her rights with respect to the said flat and as such the defendant no.3 paid some advance amount to defendant no.2 and started looking for the intending transferee/ purchaser.
4. It has been further averred that plaintiff no.1 was in need of a residential flat and as such when she came in contact with defendant no.3, who was also working as property dealer in real estate offered the said flat to the plaintiff no.1 and the plaintiff no.1 paid a sum of Rs.15,000/- to defendant no.2 & 3 through her husband i.e. plaintiff no.2 and a receipt for the said sum was duly prepared by defendant no.2 and the said amount was paid to defendant no.3 in the presence of defendant no.2. That the said receipt was duly witnessed by defendant no.3. That subsequently thereafter a sum of Rs.1,02,000/- was also paid by the plaintiffs for which a receipt was duly signed by defendant no.2. The said amount was also paid at the instance of defendant no.3 as per the agreement for transfer so entered with defendant no.3, who had promised to get all the receipts and necessary documents executed from the allottee i.e. defendant no.2.
5. It has been further averred that after the amount was deposited with defendant no.1 by defendant no.2 vide the said receipt dated 18.06.1990 bearing no.535133 and after Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-5/39 -6- verifying the payments etc. the said flat was handed over to defendant no.2 by defendant no.1 vide possession letter dated 12.10.1990 along with the inventory of the fittings and fixtures and the necessary form C & D etc. That the test report was also given by DESU concerned Engineer along with the possession letter and the physical possession of the same was handed over to defendant no.2. It is further submitted that the water connection was also granted and the payment of the same was also received by defendant no.1 vide receipt dated 26.07.1990 (photocopy of the same filed).
6. It has been further averred that just after taking the possession of the said flat, since the defendant no.2 was not in a position to occupy the same due to her financial reasons, she as per the agreement with defendant no.3, executed a General Power of Attorney which was irrevocable in favour of plaintiff no.2 along with other documents as are prevalent for transfer of property in Delhi, including the agreement to appoint Arbitrator, agreement to sell, wherein the amount paid was also acknowledged to have been received, affidavits, Will as well as also executed a rent agreement in favour of plaintiff no.1 and since from the date of handing over the possession by defendant no.1 & 2, the plaintiffs are in continuous use and occupation/possession of the said flat till today.
Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-6/39 -7-
7. It has been further averred that the plaintiffs were peacefully enjoying the said property as lawful occupants of the same having all the rights as per the documents mentioned. That the plaintiffs were surprised and shocked to see a notice affixed on the premises/flat of the plaintiffs bearing no.15(271)90/LIC/NP/RD, somewhere in the month of October, 1994, wherein it was mentioned that the payment of the said flat deposited vide challan no.535133 dated 18.06.1990 for Rs.95,440.83p/- by the addressee Mrs. Rama Sharma was found fake on verification from the bank and also called upon her to show-cause and reply within 15 days. That the plaintiff no.2 went to the office of defendant no.1 to enquire about the said notice and when the plaintiff no.2 contacted the officials of defendant no.1, he was informed that the file of the said flat at the time is not with them since the CBI enquiry has been initiated by them and the file is under investigation with CBI officers and they have also lodged a report against defendant no.1 but subsequently it was revealed that the CBI after enquiry found, defendant no.2, defendant no.3, Sh. Virender Sharma, an employee of defendant no.1 and one Sh. Surjit Singh having as all of them being conspired in the said affair.
8. It has been further averred that either defendant no.1 has issued the said notice with an ulterior motive being some of the officers might be interested in the flat or the staff of Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-7/39 -8- the defendant no.1 has colluded in the issue of the said receipt and since the documents were properly issued in favour of defendant no.2 and plaintiff no.1 has purchased the rights after seeking the said documents and the originals of which are in possession of the plaintiffs, the plaintiffs are having full rights in the said flat being the bonafide purchasers and they are liable to be declared as the owners of the said flat having purchased the possessory rights and being in occupation of the said flat.
9. It has been further averred that the defendant no.1 either due to collusion with its staff or with some ulterior motives have issued the said notice for cancellation of the said flat for which the defendant no.1 has got no right and the plaintiffs are entitled to be in peaceful possession and occupation of the same.
10.It has been further averred that no notice U/s 53B of the DDA Act can be served on defendant no.1 since the officers of defendant no.1 have threatened to take the possession of the flat in question immediately and in case the plaintiffs wait for the service of the notice, the purpose of filing the present suit shall become infructuous as the nature of the relief is urgent and as such the exemption may kindly be granted to the plaintiff from serving the said notice upon defendant no.1. That defendant no.1, its officers, employees and other persons working on their Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-8/39 -9- behalf have no right to trespass into the said flat or to take its possession forcefully. Hence in such circumstances, the present suit has been filed by the plaintiffs.
11.It is pertinent to mention that defendant no.2 Smt. Rama Sharma was proceeded ex-parte vide order dated 29.11.2004 and vide order dated 02.02.2005, the right of defendant no.3 Sh. Harvinder Singh Sohni to file WS was fortified and he was accordingly proceeded in absentia.
Pleadings of the Defendant: -
12.Written statement was filed on behalf of defendant no.1 only, denying the allegations as contained in the plaint wherein, inter alia, it was submitted by defendant no.1 that the suit is not maintainable for want of notice U/s 53B of DD Act, 1958 which is mandatory before filing any suit against the answering defendant; that the suit has not been properly valued for the purpose of Court fee and jurisdiction and that this Court is barred under the provision of Section 15 of PP Act, 1971 as the eviction proceedings have already been initiated. It has been further submitted that Smt. Rama Sharma got herself registered as an intending purchaser of flat under LIG category by depositing a sum of Rs.1,500/-. That she was allotted flat no.22, pkt.II, Block-B, Sector-17, Rohini. That the allotment letter was issued accordingly. That the allottee Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-9/39 -10- furnished certain documents for possession along with a copy of challan in respect of deposit of Rs.95,440.83/- on account of cost of flat demanded by DDA. That relying upon the documents along with copy of challan for payment of Rs.95,440.83p/-, the possession letter along with conveyance deed form was issued on 26.07.1990 and physical possession was handed over to the allottee Smt. Rama Sharma on 12.10.1990. That after a period of 4 years approx, it was found that the bank challan no.531133 (ought to have been challan no. 535133 being a typographical error) dated 18.06.1990 for Rs.95,440.83/-
was forged and no such amount was ever deposited by the allottee with the bank. That the allotment of the flat was cancelled. That the matter was referred to CBI against Smt. Rama Sharma and Sh. Harvinder Singh, Sh. Virender Kumar (DDA employees) etc. That the eviction proceedings under the provision of PP Act for eviction of unauthorized occupant of the flat were initiated.
13.It has been further submitted that, Smt. Rama Sharma sold out the said flat to Smt. Somvati W/o Sh. R.Z. Azad by executing power of attorney, agreement to sell etc. It has been further submitted that since the possession of the said flat was obtained illegally on the basis of forged challan by the allottee Smt. Rama Sharma from whom the plaintiff has purchased this flat and, therefore, the plaintiff cannot have better title or right then the original allottee. That the Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-10/39 -11- allegations made against defendant no.1 are wrong, baseless and, therefore, denied. That the plaintiff has no locus standi to file the present suit.
14.That, it is further pertinent to mention that, defendant no. 2 and 3 never joined the proceedings despite service of summons. Accordingly, their defence was struck-off for not filing any written statement and were proceeded ex- parte for non-appearance vide orders dated 29.11.2004 and 02.02.2005.
15.Replication was also filed on behalf of the plaintiffs to the written statement of the defendant no.1/DDA, wherein the all averments made in the written statement were denied and those made in the plaint were reiterated and reaffirmed.
Issues: -
16.From the pleadings of the parties, following issues were framed in the suit vide order dated 20.04.2005: -
(1) Whether the suit is bad for want of notice U/s 53B, DD Act? OPD (2) Whether the original allottee Smt. Rama Sharma got the allotment of the suit flat in her favour by way of forged documents? If so, its effect? OPD (3) Whether the suit is bad for provisions U/s 15 of PP Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-11/39 -12- Act? OPD (4) Whether the plaintiff is entitled for decree of declaration, as prayed? OPP (5) Whether the plaintiff is entitled for decree of permanent injunction, as prayed for? OPP (6) Relief.
Plaintiffs Evidence: -
17.In order to prove his case, the plaintiffs got examined three witnesses i.e. Sh. Vijay Kumar Srivastava, Asst. Ahlmad from the Court of Sh. Rakesh Pandit, Ld. ACMM (South), Saket as PW-1, Sh. Dinesh Azad as PW-2 and Sh. Chander Mohan, Registration Clerk, Sub-Registrar Office, Sikandrabad, District Bulendsehar, UP and they deposed as under: -
a). PW-1 Sh. Vijay Kumar Srivastava brought the summoned record i.e. case file bearing FIR No.32/95 from the Court of Sh. Rakesh Pandit, Ld. ACMM, Saket. He exhibited the copy of the FIR no.32/95 PS Kotla Mubarakpur as Ex.PW1/1 (OSR). PW-1 after seeking certain documents as placed in file, compared/matched the same with the record brought by him and accordingly marked/exhibited the same as under: -
Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-12/39 -13- Identification Description Mark Ex.PW-1/1 (OSR) Copy of FIR no.32/95, PS Kotla Mubarkapur.
Ex.PW-1/2 (OSR) Copy of show cause notice issued to Smt. Rama Sharma by Dy. Director, DDA.
Ex.PW-1/3 (OSR) Copy of letter dated 26.02.1990 issued by DDA to defendant no.2.
Mark-A Copy of challan dated 18.06.1990. Mark-B Copy of receipt dated 20.10.1990 Ex.PW-1/4 (OSR) Copy of certificate issued by DDA dated 26.07.1990.
Ex.PW-1/5 (OSR) Copy of document issued by DDA to Mrs. Rama Sharma with regard to water meter.
Ex.PW-1/6 (OSR) Copy of letter with regard to inventory of electrical fitting issued by defendant no.1 to defendant no.2.
Ex.PW-1/7 (OSR) Copy of document issued by defendant no.1 to defendant no.2 with regard to deposit of payment of Rs.95,440.83p/- vide bank challan no.535/33 dated
18.06.1990.
Ex.PW-1/8 (OSR) Copy of allotment letter issued by defendant no.1 to defendant no.2 dated 26.07.1990.
Mark-C Copy of GPA executed by defendant no.2 Smt. Rama Sharma in favour of plaintiff no.2 namely Sh. Ram Swaroop Azad S/o Sh. Kanhai Singh.
Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-13/39 -14- Mark-D Copy of agreement to sell and purchase executed in between Rama Sharma and Late Smt. Somwati W/o Sh. R.S. Azad.
Mark-E Copy of special power of attorney executed by Smt. Rama Sharma in favour of late Smt. Somwati.
Ex.PW-1/9 (OSR) Copy of affidavit filed in the office of defendant no.1/DDA by defendant no.2 Smt. Rama Sharma.
Mark-F Copy of Will executed by Smt. Rama Sharma in favour of Smt. Somwati dated 12.10.1990.
Ex.PW-1/10 Copy of rent agreement executed by
(OSR) Smt. Rama Sharma in favour of Smt.
Somwati dated 12.10.1990.
Ex.PW-1/11 Copy of agreement to sell executed in
(OSR) between Smt. Rama Sharma and Smt.
Somwati dated 12.10.1990.
Mark-G Copy of receipt dated 12.10.1990 for a
sum of Rs.1,02,000/- executed by Smt.
Rama Sharma.
Ex.PW-1/12 Copy of the booklet with regard to
(OSR) procedure for handing over the
possession of the flats to allottees
containing 46 pages and two maps
(describing the rooms and other
facilities in flats).
PW-1 was also cross-examined on behalf of defendant no.1/DDA at length. During cross-examination PW-1 marked copy of seizure memo of case FIR no.32/95 dated Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-14/39 -15- 27.01.1995 U/s 420/468/471/120 IPC PS K.M. Pur, New Delhi as Mark-X.
b). PW-2 Sh. Dinesh Azad led his evidence by way of affidavit which is Ex.PW-2/X wherein he reiterated the averments made in the plaint. PW-2 also relied upon certain documents which are as under: -
Identification Description
Mark
Ex.PW-2/1 GPA dated 02.10.1990.
Ex.PW-2/2 Appointment of arbitrator.
Ex.PW-2/3 Receipt.
Ex.PW-2/4 Affidavit with regard to transfer of flat.
PW-2 was also cross-examined on behalf of defendant no.1/DDA at length.
c). PW-3 Sh. Chander Mohan, Registration Clerk, Sub- Registrar Office, Sikandrabad, District Bulendsehar, U.P. brought the summoned record i.e. original General Power of Attorney dated 15.10.1990 at page no.635 to 642 vide registration no.4390 in Jild No.183, Bahi no.4 and exhibited the certified copy of the same as Ex.PW-3/1 (colly) (OSR). PW-3 also compared the photocopy of the same on the judicial file and stated that same is correct as per their record.
Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-15/39 -16- PW-3 was also cross-examined on behalf of defendant no.1/DDA.
Thereafter, the plaintiffs' evidence was closed vide separate statement made by LR of plaintiff on 06.09.2017 and the matter thereafter proceeded for defence evidence.
Defendant Evidence: -
18.In defence, the defendant no.1/DDA got examined only one witness i.e. Sh. Pramod Kumar, Asst. Director, then posted at VC Secretariat, VC Office, DDA as D1W-1, who tendered his evidence by way of affidavit which is Ex.D1W-1/A. D1W-1 also relied upon certain documents which are as under: -
Identification Mark Description
Ex.D1W-1/1 (OSR) Copy of demand-cum-allotment
letter.
Mark-A Copy of challan no.535133 dated
18.06.1990 for Rs.95,440.83p/-
Ex.D1W-1/2.
Ex.D1W-1/3 (OSR) Copy of possession letter dated 26.07.1990.
Ex.D1W-1/4 (OSR) Copy of handing over/taking over on 12.10.1990.
Ex.D1W-1/5 (OSR) Copy of letter dated 11.05.1994 of Central Bank of India.
Ex.D1W-1/6 (OSR) Copy of letter dated 12.10.1994.
Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-16/39 -17- Ex.D1W-1/7 Police complaint dated 16.11.1994. Ex.D1W-1/8 (OSR) Copy of letter dated 08.11.1994.
D1W-1 was also cross-examined by the counsel of plaintiffs at length.
Thereafter, DE was closed on behalf of defendant no.1 vide order dated 20.11.2019. No DE was advanced on behalf of defendant no. 2 and 3 being ex-parte.
Decision with reasons: -
19.The final arguments have been extensively heard on behalf of both the parties at length and the entire record has been carefully perused. During the final arguments, the parties relied upon their pleadings and evidence advanced, as already stated above and the same is not being reiterated for brevity. Now, let us deliberate upon the factual matrix and evidences in the matter at hand and issue-wise findings thereon.
20.Issue No. (1): -
(1) Whether the suit is bad for want of notice U/s 53B, DD Act? OPD The onus to prove this issue was upon the defendant.
It has been contended by defendant no. 1/DDA that, the plaintiff has sought the relief of declaration of ownership, Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-17/39 -18- cancellation of show-cause notice i.e., Ex.PW-1/2(OSR) by DDA to defendant no. 2 and permanent injunction and therefore, the plaintiff was required to serve the mandatory notice to DDA in accordance with Section 53B of the Delhi Development Authority Act, 1957 [hereinafter "the DDA Act"] Before adverting further, let us first discuss Section 53B of the DDA Act, which reads as under:
"53B. Notice to be given of suits.--(1) No suit shall be instituted against the Authority, or any member thereof, or any of its officers or other employees, or any person acting under the directions of the Authority or any member or any officer or other employee of the Authority in respect of any act done or purporting to have been done in pursuance of this Act or any rule or regulation made thereunder until the expiration of two months after notice in writing has been, in the case of the Authority, left at its office, and in any other case, delivered to, or left at the office or place of abode of, the person to be sued and unless such notice states explicitly the cause of action, the nature of relief sought, the amount of compensation claimed and the name and place of residence of the intending plaintiffs and unless the plaint contains a statement that such notice has been so left or delivered.
(2) No suit such as is described in sub-section (1) shall, unless it is a suit for recovery of immovable Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-18/39 -19- property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.
(3) Nothing contained in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit.]"
[Emphasis Supplied] That, a bare reading of Section 53B of the DDA Act transpires that, the legislative intent behind such a provision is to ensure that, a government authority such as DDA is not entrapped in surprise litigations. Section 53B of the DDA Act ensures that, the DDA is informed of the grievance of the plaintiff beforehand and take care of the same at its end without getting into a litigation, if possible, or have sufficient time under its hand to seek proper instructions and prepare for the matter due to its hierarchical structure.
In the present matter, the plaintiff is seeking the relief of the decree of declaration thereby declaring that the possession of the plaintiffs with respect to the flat no.200, LIG, Pocket-2, Block-B, Sector-17, Rohini, Delhi [hereinafter "the suit property"] is legal and the notice issued for the cancellations, if any, to defendant no. 2 namely Smt. Rama Sharma is null and void and is not Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-19/39 -20- binding upon the plaintiff and to further pass a decree of permanent injunction in favour of the plaintiffs and against the defendants thereby restraining the defendant no.1, its officials, employees, associates, workers, agents and the persons working on its behalf from taking forcible possession of the flat and from trespassing into the said flat.
That, as per the plaint the cause of action inhered in the plaintiffs when the plaintiffs saw a notice affixed on the suit property of the plaintiffs, having it purchased from defendant no. 2, bearing no. 15 (271) 90 / LIC / NP / RD, somewhere in the month of October, 1994, wherein it was mentioned that the payment of the suit property/flat deposited vide challan no.535133 dated 18.06.1990 for Rs.95,440.83/- by defendant no. 2 was found fake on verification from the bank and also called upon her to show-cause and reply within 15 days. That, the plaintiff further found out upon visiting the office of DDA that, a CBI inquiry has been initiated against defendant no.2 and
3. It has been further averred in the plaint that, no notice U/s 53B of the DDA Act could be served upon DDA since the officers of DDA had threatened to take the possession of the flat in question immediately and in case the plaintiffs had waited for the service of the notice, the purpose of Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-20/39 -21- filing the present suit would have been defeated as the nature of the relief is urgent and as such the exemption may kindly be granted to the plaintiff from serving the said notice upon DDA. It has been further averred in the plaint that, DDA, its officers, employees and other persons working on their behalf have no right to trespass into the suit property or to take its possession forcefully. It has been further averred that, in such emergent circumstances, the present suit was filed by the plaintiffs.
In light of the above, it is evidently clear that the cause of action has inhered in plaintiff upon the action of DDA itself and that, DDA is well aware of the facts and circumstances of the present matter. Further, the plaintiff has also sought the relief of permanent injunction being an urgent relief. Furthermore, this Court is of the opinion that, serving notice upon DDA under Section 53B might have rendered the present matter infructuous. Accordingly, this Court is of the considered opinion that, the plaintiffs have been rightly exempted from service of notice under Section 53B of the DDA Act, upon DDA.
Hence, issue no. (1) is decided in favour of the plaintiffs and against defendant no.1/DDA.
21.Issue No. (2): -
(2) Whether the original allottee Smt. Rama Sharma got Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-21/39 -22- the allotment of the suit flat in her favour by way of forged documents? If so, its effect? OPD The onus to prove this issue was upon defendant no.
1/DDA.
In this regard it has been contended by DDA that, defendant no. 2 namely Smt. Rama Sharma got herself registered as an intending purchaser of a flat under LIG category by depositing a sum of Rs.1,500/-. It has been further averred by DDA in their written statement that, defendant no. 2 was allotted the suit property and the allotment letter was also issued in her favour. It has been further averred that, the allottee furnished certain documents for possession along with a copy of challan in respect of deposit of Rs.95,440.83/- on account of cost of flat demanded by DDA. That relying upon the documents along with copy of challan for payment of Rs.95,440.83p/- submitted by defendant no. 2, the possession letter along with conveyance deed form was issued to defendant no. 2 on 26.07.1990 and physical possession was handed over to the allottee Smt. Rama Sharma i.e., defendant no. 2 on 12.10.1990. It has been further averred by DDA that, after a period of 4 years approx, it was found that the bank challan no.535133 dated 18.06.1990 for Rs.95,440.83/- was forged and no such amount was ever deposited by the allottee with the bank and as such the allotment of the suit Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-22/39 -23- property/flat was cancelled. It was further submitted by DDA that, the matter was referred to CBI against defendant no. 2 and 3, one Sh. Virender Kumar (DDA employees) etc. It has been further submitted that, the eviction proceedings under the provision of Public Premises Act have also been initiated for eviction of unauthorized occupants of the suit property.
That, in order to prove this issue, DDA got examined D1W-1 Sh. Pramod Kumar, Asst. Director, VC Office, DDA. D1W-1 tendered in evidence Ex.D1W-1/1 (OSR) being a copy of demand-cum-allotment letter. That, the copy of challan no.535133 dated 18.06.1990 for Rs.95,440.83p/- was tendered as Mark-A. Further D1W-1 tendered in evidence, the copy of possession letter dated 26.07.1990 as Ex.D1W-1/3 (OSR), the copy of handing over/taking over on 12.10.1990 as Ex.D1W-1/4 (OSR), the copy of letter dated 11.05.1994 of Central Bank of India as Ex.D1W-1/5 (OSR), copy of letter dated 12.10.1994 as Ex.D1W-1/6 (OSR), police complaint dated 16.11.1994 as Ex.D1W-1/7 (OSR) and the copy of letter dated 08.11.1994 as Ex.D1W-1/8 (OSR).
That, a careful perusal of all these documents transpires that, originally defendant no. 2 was allotted the suit property vide demand-cum-allotment letter Ex. D1W-1/1 by DDA and DDA handed over the possession of the suit Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-23/39 -24- property to defendant no. 2 vide Ex. D1W-1/4 (OSR) on the basis of the challan bearing no. 535133 i.e., Mark-A depicting the payment of the consideration amount of the suit property by defendant no. 2 in the bank account of DDA. However, Ex. D1W-1/5(OSR) categorically states that, with reference to the verification of challan no. 535133, no such challan no. 535133 of Rs.95,440.83/- was received by the Central Bank of India at Vikas Minar Branch in cash on 18.06.1990 in contradistinction to the representation made by defendant no. 2 by furnishing the challan dated 18.06.1990 i.e., Mark-A to DDA as a condition precedent to the allotment. At this stage it is further pertinent to mention that, defendant no. 2 and 3 never joined the proceedings, let alone enter the witness box and accordingly were proceeded ex-parte. This further empowers this Court to draw an adverse inference against defendant no. 2 and 3.
Further this Court is of the opinion that, DDA has been able to prove this issue on the scale of preponderance of the probabilities, since defendant no. 2 and 3 never led any evidence to rebut the same despite service of letter of cancellation of allotment of suit flat dated 12.10.1994 Ex. D1W-1/6(OSR), to no avail. As such, defendant no. 2 and 3 are deemed to have admitted the allegations and case of DDA. It is further pertinent to mention that, even plaintiff could not place any evidence on record to prove otherwise Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-24/39 -25- or to rebut the testimony of DW-2 during his cross- examination. Further, DDA in their WS has, however, mentioned the number of challan dated 18.06.1990 as 531133. However, in their evidence affidavit, DDA has mentioned the correct number of the challan dated 18.06.1990 as 535133 and same is a typographical error. At this stage it is further pertinent to mention that the plaintiffs have mentioned the correct challan no. 535133 in their pleadings and have also filed the copy of the same. This Court is of the further opinion that same has not caused any prejudice to any of the parties since all the parties have the knowledge of the challan no. 535133 being fake and in dispute. Further, the parties have been contesting the present matter without any objections in this regard.
Further, plaintiff has placed reliance on the judgement dated 26.04.2014 passed by the Court of Ld. CMM (S) Saket Courts, New Delhi in FIR No.32/95 in case titled State v. Harvinder Singh. The same was put to D1W-1 during his cross-examination and was tendered as Ex. D1W-1/P1, to the effect that, in the said FIR case against defendant no. 3 herein and others for the offences under Section 419/420/467/471/120-B of the Indian Penal Code, 1860, the accused persons were acquitted for want of sufficient material and testimony of defendant no. 2 herein as she had already expired. However, it is pertinent to Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-25/39 -26- mention that, the acquittal of accused in the FIR matter has no bearing in the present matter since, defendant no. 2 was not made an accused; since, DDA initiated criminal proceedings against its employees. Further, the acquittal was not on merits and, rather, was on technical grounds. Furthermore, the present matter is a civil suit for deciding the ownership of plaintiffs. further, the standard of proof in a criminal matter is beyond reasonable doubts; rather, in civil matters it is preponderance of probabilities to be discharged by plaintiff. Since, Ex.D1W-1/5 could not be controverted by plaintiff in rebuttal evidence. Accordingly, DDA has been able to prove the issue at hand.
Accordingly, issue no. (2) is decided in favour of the defendant no. 1/DDA and against plaintiffs and defendant no. 2 and 3.
22.Issue No. (3): -
(3) Whether the suit is bad for provisions U/s 15 of PP Act? OPD The onus to prove this issue was upon defendant no.
1/DDA.
In this regard, defendant no.1/DDA placed on record and tendered in evidence the copy of letter dated 08.11.1994 as Ex.D1W-1/8 (OSR) w.r.t the initiation of eviction Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-26/39 -27- proceedings qua the suit property; since, defendant no. 2 failed to show cause/file any reply despite service of notice upon her all three addresses. However, due to the ongoing proceedings, the same could not been completed.
At this stage, it is pertinent to mention that the preamble to the Public Premises (Eviction of Unauthorized Occupants) Act. 1958 [hereinafter "the PP Act"] provides that, "An act to provide for the eviction of unauthorized occupants from public premises and for certain incidental matters" . Further, Section 2 (e), defines public premises as any premises belonging or taken on lease or requisitioned by or on behalf of the Central Government, Secretariat of either House of Parliament, Pubic Undertaking Company, any Corporation or Local Authority established / owned / controlled by Central Government, Company which is controlled by the Central Government, State Government including Metro Railway, University, Company under Major Court Trust Act, belonging to any State Government or Government of any Union Territory including NCT of Delhi, Cantonment Board, Authorities or Councils established under NDMC Act, DMC Act and any premises belonging to Delhi Development Authority.
Further, an unauthorized occupation has been defined U/s 2 (g) as the occupation by any person of public premises without authority for such occupation and includes the Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-27/39 -28- continuance in occupation by any person of the public premises after the authority whether by way of grant or any other mode of transfer, under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. Now the fact of the matter is that, the allotment of the suit property vide allotment letter dated 26.02.1990 Ex. D1W-1/1 (OSR) and possession letter dated 26.07.1990 Ex. D1W-1/3 (OSR) in favour of defendant no. 2 was cancelled by DDA vide letter dated 12.10.1994 Ex. D1W-1/6 (OSR) and eviction proceedings under the PP Act were initiated vide Ex. D1W-1/8 (OSR). Though, it was denied by PW-1, LR of plaintiffs, that the plaintiffs are not aware of any proceedings under PP Act. At the same time, it was further admitted by PW-1 that, neither any conveyance deed was executed by DDA in favour of original allottee defendant no. 2 nor in the favour of plaintiffs nor the name of plaintiffs stands mutated in DDA records nor defendant no. 2 or the plaintiffs were allowed by DDA to actually take over the possession of the suit property nor plaintiffs have ever resided in the suit property.
Furthermore, in accordance with Section 15 of the PP Act, the competent authority governing the eviction of unauthorised occupants of the public premises is the Estate Officer and not a Civil Court. That, Section 15 of the PP Act is reproduced hereunder for brevity:
Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-28/39 -29- "15. Bar of jurisdiction. - No court shall have jurisdiction to entertain any suit or proceeding in respect of--
(a) the eviction of any person who is in unauthorised occupation of any public premises, or
(b) xxx, or
(c) xxx, or (cc) xxx, or
(d) xxx, or
(e) xxx."
[Emphasis Supplied] In the above said circumstances, that the original allottee defendant no. 2 furnished a fake challan of payment made to DDA in light of the letter sent by the Central Bank of India dated 11.05.1994 Ex. D1W-1/5 (OSR) and thereafter defendant no. 2 failed to show cause/file any reply despite service of notice upon her all three addresses owing to which the eviction proceedings under the PP Act were initiated. As such, as per Section 15 of the PP Act, the concerned authority being the Estate Officer is competent to initiate the appropriate eviction proceedings against the unauthorised occupants.
Hence, issue no. (3) is decided in favour of the defendant no. 1/DDA and against the plaintiffs and defendant no. 2 and 3.
Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-29/39 -30-
23.Issue No. (4) and (5): -
(4) Whether the plaintiff is entitled for decree of declaration, as prayed? OPP (5) Whether the plaintiff is entitled for decree of permanent injunction, as prayed for? OPP That both the issues are being dealt with together. The onus to prove these issues was upon the plaintiffs.
In order to prove their case, plaintiff side got examined three witnesses i.e., PW-1 being the Ahlmad of the Court of Ld. ACMM (S) Saket, Delhi; PW-2 being the son/LR of the plaintiffs and PW-3 being the Registration clerk, Sub- Registrar Officer, Secundrabad, Bulandshehar, U.P. That, PW-1 was called to compare the documents filed by plaintiffs from the originals which were attached in the FIR matter and tendered in evidence a plethora of documents. That a careful perusal of all the documents tendered in evidence by plaintiff side transpire that, the plaintiffs are claiming themselves to be the owner and in possession of the suit premises on the strength of the documents executed by defendant no.2 in favour of the plaintiff i.e. GPA dated 02.10.1990 i.e. Ex.PW-2/1, agreement to sell i.e. Mark-D, SPA i.e. Mark-E, Will dated 12.10.1990 as Mark-F, agreement to sell dated 12.10.1990 as Ex.PW-1/11 (OSR), copy of consideration receipt dated 12.10.1990 for a sum of Rs.1,02,000/- as Ex.PW-2/3 and Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-30/39 -31- an affidavit Ex.PW-2/4 with regard to transfer of possession of the suit property to the plaintiff. It is further the contention of the plaintiff that the plaintiffs were a bonafide purchaser of the suit property having purchased the same for a consideration of Rs.1,02,000/- duly paid by plaintiffs to defendant no.2 and after going through the documents of title with respect to suit property in favour of defendant no.2 i.e. demand letter dated 26.02.1990 Ex.PW- 1/3 (OSR), copy of challan dated 18.06.1990 bearing no.535133 i.e. Mark-A, possession letter dated 26.07.1990 Ex.PW-1/4 (OSR), documents with respect to issue of water meter and electrical fittings as Ex.PW-1/5 (OSR) and PW-1/6 (OSR), copy of allotment letter dated 26.07.1990 as Ex.PW-1/8 (OSR).
However, it is pertinent to mention that the challan bearing no. 535133 dated 18.06.1990 for a sum of Rs.95,440/- was found to be fake by defendant no.1/DDA, whereafter a show cause notice was issued upon defendant no.2 i.e. Ex.PW-1/2 (OSR). However, defendant no.2 failed to appear before DDA to file any reply or to make any payment and accordingly the allotment was cancelled vide letter dated 12.10.1994 i.e. Ex.D1W-1/6 (OSR). It has been further admitted by PW-2 during his cross-examination that the challan of payment made by defendant no.2 to DDA was found to be fake, therefore, neither any conveyance deed was issued in favour of defendant no.2 Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-31/39 -32- nor defendant no.2 or the plaintiffs were in fact allowed by DDA to take the physical possession of the suit property.
The plaintiff has further heavily relied upon the allotment letter issued by DDA to defendant no.2 i.e. Ex.PW-1/8 (OSR) to the effect that the suit property was transferred in the name of defendant no.2 and possession was handed over to defendant no.2. However, Ex.PW-1/8 (OSR) is in the form of a letter to the concerned department to the effect that the suit flat has been allotted to defendant no.2 and the possession of the same may be handed over to defendant no.2. However, same is not a conveyance deed by virtue of which the defendant no.2 was made an absolute owner of the suit property or to put it differently, it is evidently clear that the suit property was allotted to defendant no. 2 by DDA, however, she was not made an absolute owner of the same.
It is further pertinent to mention that it is the settled principle of law that- "no one can transfer a better title than what he himself possesses". In the present matter since neither any conveyance deed was executed in favour of defendant no.2 nor defendant no.2 was allowed to take the possession of the suit property owing to the cancellation of the allotment of the suit property in the name of defendant no.2. Accordingly, plaintiffs also cannot get any title better than the one which was possessed by the original allottee Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-32/39 -33- i.e. defendant no.2. It is further pertinent to mention that, the allotment of the suit property further stands cancelled by DDA.
Further, with respect to the contention of the plaintiffs that they are the bonafide purchasers, the plaintiffs have not been able to prove their bonafide as well as due diligence done by them, in as much as, it has been categorically admitted by PW-2 during his cross-examination that at the time of purchase of the suit property by the plaintiffs from defendant no.2, they neither saw the conveyance deed, if any, in favour of defendant no.2 nor did they make any enquiry with DDA with respect to the title of defendant no.2. PW-2 has further admitted during his cross- examination that, even the transfer documents issued by defendant no.2 in favour of plaintiff i.e. GPA, Agreement to Sell, Will, Affidavit and Receipt are also merely notarized. Further the GPA i.e., Ex.PW-3/1 (colly) (OSR) at Sikandarabad, Bulandshehar, UP. Further, during cross- examination, PW-2 was not able to explain why these documents were notarized at Sikandarabad, UP since none of the parties were residents of Sikandarabad, UP. At this stage, it is further pertinent to mention that, PW-2 further admitted that neither the defendant no.2 nor the plaintiffs were ever allowed by DDA to take over the possession of the suit property in view of the show cause notice issued and the cancellation of the allotment of suit property by Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-33/39 -34- DDA. PW-2 further admitted that despite alleged purchase of the suit property by plaintiffs in the year 1990, they have not gotten their names mutated in the records of DDA even till the filing of the suit in the year 1994. At this stage regard may be had to the relevant excerpts of the cross- examination of PW-2, which have been reproduced herein for brevity: -
"Notice was served upon DDA before filing the present suit. I do not know the date on which the notice was served (...) It is wrong to suggest that no notice was served upon DDA before filing the present suit (...) I do not know whether any enquiry was made regarding the flat in question from DDA. I am having the document regarding ownership of the property in question and the same are already on record (...) It is wrong to suggest that my father had not made any enquiry intentionally from DDA in respect of the flat prior to the purchase of flat. I do not know whether my father made any written enquiry from DDA. In fact as per my knowledge, he made an enquiry from DDA orally and he has seen the name of defendant no.2 in the list of allotment. Smt. Rama Sharma (defendant no.2) handed over the documents i.e. allotment letter, letter of possession and also various other documents, such as electricity connection, water fitting connection and other fitting and fixtures documents and also the receipt of payment of Rs.1,500/- and also the challan of Rs.95,440/-. I do not know whether my father enquired about the challan/payment of Rs.95,440/-
Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-34/39 -35- made by Smt. Rama Sharma to DDA. It is correct that amount of Rs.95,440/- (i.e. cost of the flat) has not been deposited in DDA. We came to know about the non-deposit of cost of flat mentioned above only after four years from the date of purchase of suit flat, when we were served with a show cause notice from DDA. It is correct that we have not made any payment to DDA. We have not seen any lease deed and conveyance deed in the name of Smt. Rama Sharma. We have not demanded the lease deed/conveyance deed from defendant no.2. I do not know whether we have enquired regarding lease deed/conveyance deed from DDA (...) The suit flat was purchased in the year 1990. Perhaps we have not applied for transfer of the mutation of the flat in our name from the date of purchase till the service of show cause notice from DDA and subsequently. It is correct that in the DDA record, the suit flat does not stand in our name (...) We have not served any notice to Rama Sharma regarding the fake payment. We had also not served any notice upon defendant no.3. Vol. Since, we have already made a complaint to DDA against defendant no.2 and 3 (...) We had not made any complaint against defendant no.2 and 3 to DDA (...) I do not know whether the allotment of this flat has been cancelled on the ground of fake challan for the amount of Rs.95,440/-. I do not know whether any eviction proceedings have been initiated by Estate Officer of DDA against the suit flat. It is correct that DDA never allowed us to take over the possession of suit flat. It is correct that due to fake challan to the amount of Rs.95,440/- executed by Smt. Rama Sharma, she was also not Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-35/39 -36- having the right, title or interest in the suit flat (...) No sale deed was executed by Smt. Rama Sharma in favour of our mother (...) It is correct that except the document placed on record, no other document was executed or is available with us (...) It is correct that on date of execution neither ourselves nor Smt. Rama Sharma used to reside in the area of Sikandarabad, District Bulandshehar, UP. I do not know at whose instance we had go to Sikandarabad to get registered the GPA (...) Apparently it is correct that stamp of Sub-Registrar are different on GPA and receipt. It is correct that remaining other documents are not registered with the Sub-Registrar, in fact they were notarized (...) It is wrong to suggest that we have no right, title or interest in the suit flat. It is wrong to suggest that documents were executed in respect of the suit flat despite having the knowledge of forgery of challan regarding the payment of Rs.95,440/- (...)".
[Emphasis Supplied] In the present matter since the plaintiffs have sought declaration to the effect that their possession of the suit property may be declared legal and hence in effect, the plaintiffs are seeking declaration of ownership with respect to the suit property. Accordingly, the burden of proving the entire case was upon the plaintiffs, however, the plaintiffs have not been able to discharge the said burden in so far as the plaintiffs were categorically required to prove any right, title or interest in the suit property having purchased it bonafide and after doing necessary due-diligence.
Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-36/39 -37- However, the plaintiffs have neither been able to prove their bonafide or any right, title, interest or the fact that they are in the settled possession of the suit property since the inception till date. Rather on the contrary, PW-2 has further admitted that they have never been in possession of the suit property as the same was never allowed by the DDA nor the name of the plaintiffs are mutated in the DDA records. Further, the plaintiffs have sought that the cancellation of the show cause notice Ex.PW-1/2 (OSR) issued by DDA to defendant no.2. However, as per the requirement of the Section 31 of the Specific Relief Act, 1963 the plaintiffs have also not been able to prove as to how the show cause notice issued against defendant no.2 is void or voidable against the plaintiffs in as much as the names of the plaintiffs were never mutated in the records of DDA with respect to the suit property nor plaintiffs took any steps for doing the same even until the filing of the present suit in the year 1995 despite having allegedly purchased the suit property in the year 1990 without any verification as a prudent would have done.
Further, with respect to the relief of permanent injunction since permanent injunction is in the form of a consequential relief and the plaintiffs have not been found entitled to the substantive relief of declaration, therefore, the plaintiffs are also not entitled to the equitable relief of permanent injunction. At this stage, it is further pertinent to Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-37/39 -38- mention that the suit of the plaintiff is also bad in light of Section 34 of the Specific Relief Act, 1963 which provides that no relief of declaration can be granted until and unless all possible consequential reliefs are sought. In the present matter, it is the admitted case of the plaintiffs that they have never been in possession of the suit property and further they have also not sought the relief of possession in the present suit. At this stage, it is further pertinent to mention that the plaintiffs have arrayed defendant no.2 and 3 as a mere proforma party in the present matter without seeking any relief from them despite coming to the knowledge that defendant no.2 had submitted a fake challan of consideration amount to DDA, for the reasons best known to the plaintiffs and thus, the plaintiffs have not approached this Court with clean hands.
Accordingly, this Court is of the considered opinion that the plaintiffs have grossly failed in proving their own case on the scale of preponderance of probabilities and thus, are not entitled to the reliefs of declaration, cancellation and permanent injunction sought.
Hence, issue no. (4) and (5) are decided against the plaintiffs and in favour of defendant no.1/DDA.
24.Issue no. (6) -
(6) Relief - That in light of the findings given on issues no.
Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-38/39 -39- (1) to (5) as afore-stated, pleadings of the parties, evidence led on both the sides and arguments heard, the plaintiffs have failed to discharged their burden on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiffs is hereby dismissed.
Parties to bear their own cost.
Let decree sheet be prepared accordingly.
File be consigned to record room after completing the necessary formalities.
Digitally signedDISHA by DISHA SINGH SINGH Date: 2024.09.12 17:35:50 +0530 (This judgment contains 39 pages and each page has been signed by the undersigned) (DISHA SINGH) Civil Judge-02, West, Announced in the open Court on Tis Hazari Courts, Delhi 12.09.2024 Suit No.606941/2016 Somwati & Ors. Vs. DDA & Ors. Page-39/39