Delhi District Court
All At vs (I) Municipal Corporation Of Delhi on 9 June, 2022
IN THE COURT OF :
Dr. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
Regular Civil Appeal no. 32/2012 (54770/2016)
In the matter of:
(i) Sh. Mange Ram
S/o Late Sh. Sher Singh
(ii) Sh. Suraj Bhan
S/o Late Sh. Sher Singh
(ii) Sh. Bharat Singh
S/o Late Sh. Sher Singh
All at:
R/o H. N. 62, Village Munirka, New Delhi.
......Appellants
Versus
(i) Municipal Corporation of Delhi
Through Its Commissioner
Town Hall, Chandni Chowk,
Delhi
(ii) Delhi Development Authority,
Through its ViceChairman
Vikas Sadan, New Delhi.
....Respondents
RCA no. 32/2012 (54770/2016)
Mange Ram & Ors. Vs. MCD & Anr.
Page no.1 of 30
Date of Institution of Appeal : 30.08.2011
Date of transfer to this court : 06.09.2012
Date of reserving judgment : 09.06.2022
Date of pronouncement : 09.06.2022
Appearance :
1. Sh. Rajeshwar Dagar & Ms. Manjula Khatri, Advocates ld.
counsels for the appellants.
2. None for the respondent no.1/MCD.
3. Sh.Arvind Gupta and Ms. Deepa Chauhan, Advocates Ld.
counsel for respondent no. 2/DDA.
REGULAR CIVIL APPEAL AGAINST THE JUDGMENT/DECREE
DATED 22.07.2011 PASSED IN CIVIL SUIT NO. 10/09/04
J U D G M E N T:
1. The present appeal has been filed against the impugned Judgment/decree dated 22.07.2021 passed in Civil Suit No. 10/09/04 (in short, the impugned judgment) titled as "Mange Ram & Others Vs. Municipal Corporation of Delhi. The parties i.e. the appellants/plaintiffs and respondents/defendants are hereinafter referred to as the plaintiffs and defendants as per their litigative status before the Ld. Trial Court.
2. Brief facts relevant for disposal of the present appeal are ike this :
(i) plaintiffs were the proprietors/owners in the village and agriculturalist by profession, but now the land of plaintiffs and the other residents/proprietors/owners of village Munirka had been RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.2 of 30 acquired by the Government and no agricultural land had been left in the village. It is averred by plaintiff that land bearing khasra no.824 admeasuring 8 Bighas 7 Biswas (in short, the said property) situated in the revenue estate of village Munirka, New Delhi, which is shown as common property and Shamlat Deh of all the land owners/proprietors, who owned any land in the revenue estate of village Munirka, New Delhi, was divided amongst such co owners/cosharers in proportionate share as the area of land owned by them respectively.
(ii) It is further averred that said property was partitioned about 30 years ago, and the share of plaintiffs came about 248 sq. yards, as such plaintiffs are owner in possession of piece of land admeasuring 248 sq. yards falling in khasra no. 824 situated in village Munirka, New Delhi (in short, the suit property) which was shown in red colour in the site plan and plaintiffs have been using the suit property as Gher/Gitwar i.e. out house for their animals but now same is being used for performing family functions.
(iii) It is further averred that the suit property is situated within the boundary wall which is of the entire land falling in khasra no. 824 situated in village Munirka, New Delhi. The report of Local Commissioner dated 21.04.1997 was filed and plaintiffs filed application seeking amendment of plaint to incorporate the exact khasra number of the suit property. The Ld. trial court vide order RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.3 of 30 dated 15.05.2004 rejected the application u/O VI R 17 CPC on the ground that it will change the entire nature of the case and in the original plaint, the relevant para sought to be amended, were sworn by the plaintiff on the basis of his personal knowledge. However, Hon'ble High Court vide order dated 16.11.2006 only permitted the change of khasra no. to 742 from existing khasra no. 824. In amended plaint, it has been averred by plaintiffs that the suit property is situated in khasra no. 742, Old Lal Dora Abadi in the revenue estate of village Munirka, New Delhi and it is shown as common property Old Lal Dora land in khasra no. 742.
(iv) It is further averred that after partition of the said property, plaintiffs became owner in possession of the suit property falling in Old Lal Dora khasra no. 742, situated in village Munirka, New Delhi. It is further averred that plaintiffs have been in continuous possession of said property from last 30 years. However, staffs of defendants on 27.08.1994 came to the suit property for the purpose of plantation of trees. They tried to plant trees in the suit property and they further tried to forcibly occupy the suit property but plaintiffs obstructed the staff of defendants and did not allow the defendant's staff to plant any tree on the suit property.
(v) Plaintiff no.1 went to PS Vasant Vihar for lodging a complaint against officials of defendants but local police refused to register his complaint. On 02.09.1994, officials of defendants again came and RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.4 of 30 started breaking the Khor and removed the Kuchha Tin Shed and started doing illegal & unlawful work of plantation of trees but due to intervention of plaintiffs and their family members, officials of defendants could not occupy the suit property.
3. Defendants filed written statement. The defendant no. 1 submitted that the plaintiffs have no right, title or interest in the suit property which belonged to defendants in as much as 8 acres of land was acquired by DDA/defendant no. 2 and handed over the same to defendant no.1 on 26.08.1987 for development/maintenance of park thereon. The suit property is public land and defendant had provided boundary wall around the entire piece of land admeasuring 8 acres. Plaintiffs intend to grab a piece of land and the defendant reserves its right to take removal action u/s 322 of the Act which does not require any notice or opportunity, therefore, suit is not maintainable.
4. It is submitted that the suit property is in continuous, constructive and physical possession of defendant since, it was handed over to it by DDA in 1987. The land is surrounded by boundary wall and lot of public money has been spent to develop and maintain the park. Plaintiffs have no legal right, title or interest in the suit property, since no partition has taken place as per law. According to the provisions of The Delhi Land Reforms Act, partition of such land must take place before claiming ownership title over the land.
RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.5 of 30
5. It is submitted that plaintiffs have not come to the Court with clean hands and have misled the Court in order to achieve wrongful gain for themselves. Plaintiffs, in original plaint, had stated that the plaintiffs were owners in possession of the suit property which was part of khasra no. 824 and the land in their possession was about 247 Sq. Yards. The suit property was actually a part of khasra no. 825/2/31 and same had already been acquired by DDA vide award no. 1938 and placed at the disposal of DDA we.f. 03.01.1968 u/s 22(1) of DD Act.
6. It is submitted that plaintiffs, thereafter, moved an application under Order VI R 17 CPC and have now changed the very description and location of the suit property. Plaintiffs making it well neigh impossible to correctly identify the suit property. The facts remains that the suit land is still very much situated in the same part of khasra no. 825/2/31. Plaintiffs have intentionally changed the khasra no. 742 to a nonacquired land. Suit property actually falls in khasra no. 825/2/31 Min. of village Mohammadpur, Village Munirka. The suit property is falling, neither in khasra no. 824 as originally pleaded by plaintiffs in original plaint nor in khasra no. 742 as now pleaded in amended plaint. Suit property was already acquired and handed over to MCD for development of the same.
7. It is submitted that present proceedings to challenge the acquisition proceedings cannot be done and is not permissible by the means of Civil Suit. Acquisition proceedings under the Land RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.6 of 30 Acquisition Act can only be challenged under the specific provision of the said code and same cannot be entertained by ordinary civil court, therefore, present suit is not maintainable. Present suit is bad in law on account of nonservice of statutory notice u/s 53B of the Delhi Development Act prior to filing of the present suit. Present suit also bad in law as it is a suit for injunction simpliciter whereas the plaintiffs ought to have first claimed right or title or established the same over the suit property and for the same they ought to have filed a suit for declaration.
8. It is further submitted that plaintiffs do not have any locus standi to file the present suit even as per the pleadings of the plaint, the land being claimed by plaintiffs is shown as common property/land of villagers on which no individual person have any right, title or interest.
9. It is submitted that plaintiffs have subverted and sabotage the process of justice by misleading the Court and have tampered with pleadings of suit by making unauthorized amendments to the original plaint. As per the application u/O VI R 17 CPC, only relief sought was that khasra no.824 was to be replaced with khasra no. 742, however, plaintiffs have also made other substantial changes which are unauthorized and not permitted by Ld. Trial Court in as much the area of the suit property have been changed from the description of suit property as detailed in paras no. 2 & 3 of the original plaint and also further alterations and additions RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.7 of 30 have also been made in paras no. 5,6,7,13 & 15 of the original plaint which is an attempt to improve the case of plaintiffs in an surreptitious manner.
10. Defendant no. 2 filed written statement and submitted that at the first instance, in the original plaint, the Plaintiff had stated that the Plaintiffs were the owners in possession of the suit property, which was part of khasra no. 824 of Village Munirka and that the measurement of the said land in their possession was about 248 sq. yds. However, when Defendant no. 2, in its written statement, clearly stated that the suit land was actually a part of Khasra no. 825/2/31 and that the same had already been acquired by the DDA and placed at the disposal of the DDA w.e.f. 03.01.1968 U/s 22 (1) of the D.D. Act, the plaintiffs cleverly filed an application under Order VI Rule 17 C.P.C and have now changed the very description and location of the suit property. The plaintiffs not only have changed the khasra no, but they have also removed the measurements thereof, thereby making it wellnigh impossible to correctly identify the suit land. However, the fact remains that the suit property is still very much the same, i.e. part of Khasra no. 825/2/31 of Village Munirka, which has already been acquired by the DDA and handed over to the MCD.
11. The plaintiffs have intentionally changed the khasra no. to 742 as this khasra no. is an unacquired land. The plaintiffs have removed all descriptions and measurements that were originally RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.8 of 30 given in the original plaint from the amended plaint and now the suit property is hardly in a position to be identified from the pleadings in the amended plaint. This makes the pleadings and description of the land rather vague.
12. That as already submitted in the original written statement the suit property actually falls in khasra no. 825/2/31 min. of Village Mohammadpur, Village Munirka, and neither in Khasra no 824, as originally pleaded by the plaintiffs in the original plaint; nor in khasra no. 742 as now pleaded in the amended plaint. The suit property, which is shown in the site plan filed by the Plaintiffs, was already acquired. The plaintiffs by simply changing the khasra no. of their own sweet will cannot change the location of the suit property, and the fact remains that the suit property, as already stands acquired and transferred to the MCD for development.
13. It is submitted that the present suit is also bad in law on account of nonservice of the statutory notice u/s 53B of the Delhi Development Act prior to filing of the present suit. The service of the said notice is a condition precedent to the filing of a suit, and the nonservice thereof renders the suit liable to be dismissed.
14. That the present suit is also bad in law as it is a suit for injunction simpliciter whereas the Plaintiffs ought to have first claimed right or title, or established the same over the suit property, and for the same they ought to have filed a suit for declaration. The RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.9 of 30 present suit is in fact a suit for declaration in the garb of a suit for injunction, as the Plaintiffs did not want to pay the requisite court fee and also in order to sabotage the process of justice Thus, the present suit in its present form is not maintainable and deserves to be dismissed.
15. That even otherwise, without prejudice to the other objections, the plaintiffs do not have any locus standi to file the present suit as, as even as per the pleadings of the plaint, the land being claimed by the plaintiffs is shown as the common property/land of the villagers on which no individual person or the plaintiffs have any right, title or interest. Thus, the plaintiffs cannot claim any individual rights in the said suit land and the present suit is misconceived, baseless and false. It is thus obvious that the suit has been filed with the clear malafide intention to usurp and grab the acquired land, which has to be developed by the MCD for public use as a green belt. Thus, the present suit is liable to be dismissed for lack of locus standi with heavy cost.
16. It is submitted that the plaintiffs have subverted and sabotage the process of justice by misleading this Hon'ble Court and have tempered with the pleadings of the suit by making unauthorized amendments to the original plaint. As per the original application under Order VI Rule 17 C.P.C, the only relief sought substantially was that the khasra no. 824 was to be replaced with khasra no. 742. However, in reality, the plaintiffs have also made other substantial RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.10 of 30 changes, which are unauthorized and not permitted by this Hon'ble Court. It is not difficult to identify and locate these changes as they are very much on the record. Thus, it is prayed that the plaintiffs may be directed to file a fresh amended plaint containing only those averments to the pleadings therein which have been permitted specifically by the Hon'ble Court, and that the amended plaint presently placed on the record may be removed therefrom.
17. Plaintiffs had filed replication reiterating the contents of the plaint and denied the averments made in WS. After considering the pleading of the parties, the following issues were framed by the ld. trial Court :
(a) Whether the suit has been valued properly for the purposes of Court Fee and jurisdiction? OPD
(b) Whether the plaintiff is owner of khasra no. 742, Munirka Village, Delhi? OPP
(c) Whether the suit of the plaintiff is barred u/s 477 & 478 of DMC Act? OPD
(d) Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for ? OPP
(e) Relief.
18. Thereafter, the plaintiff led evidence. The plaintiff no.1 Sh. Mange Ram has filed his evidence as PW1 and has deposed on the same lines as averred in the amended plaint.
19. In crossexamination, plaintiff no. 1admitted that in his original plaint he had mentioned khasra no. 824, Munirka and the RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.11 of 30 land was in Lal Dora and not shamlat. He claimed that khasra no. 824 was common property and khasra no. 742 was Lal Dora. He claimed that they were owners in possession of khasra no. 824 & khasra no. 742. He further claimed that the said property was not partitioned and khasra no. 742 was in the individual ownership of the plaintiffs. He, however, claimed that the share in khasra no. 824 was 248 sq. yards. He has also admitted that in the original plaint, he had mentioned that he was the owner of the Shamlet land in proportion to his share and that the Shamlet land bearing no. 824 was partitioned.
20. He has admitted that he claimed only 248 sq. yards in the original plaint and the amended suit is with respect to more land. He further claimed that in the year 1994, MCD started encroaching upon the land in khasra no. 824 and claimed that the total area of the suit land is 1650 sq. yards including 248 sq. yards. He admitted that the Shamlet land and Lal Dora land are not the same. He claimed that placing on record of revenue documents is job of revenue department. He claimed the the land is partly hillock.
21. In his crossexamination, PW1 admitted that he could not tell the boundaries of khasra no. 742 in which the suit property is located. He admitted that he was not sure about the khasra no. 742 in which the suit property is situated is adjoining to the land of khasra no. 825/2/31 which belonged to DDA.
RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.12 of 30
22. PW2 Sh. Jai KrishanKanoongo testified that local commissioner proceedings were conducted on 21.04.1997 in his presence. He claimed that khasra no. 742 is Lal Dora property. The suit property is Gram Sabha Land which is for the use of all the villagers for common community purposes but the custody and legal rights are with the SDM of the area concerned. He claimed that at the time of visit by Tehsildar on 12.05.1997, the witness saw foundation filled and the uplas and concluded that the plaintiff's were in possession on the saying of the plaintiffs. He claimed that he ascertained the area of suit land by approximation in view of claim of the plaintiffs, but he did not carryout any physical measurement for the same. He further claimed that he has no original record as the same is with Halka Patwari.
23. PW4 Sh. Kishan Kumar has deposed on oath that the plaintiffs are the owners of the suit property. In crossexamination, he admitted that he is the neighbour of the plaintiff. He further admitted that the plaintiff's cattle used to be tethered on the land and they use to play together as children and the land was close to his house. The land in question is good land on which they used to play.
24. PW5 Sh. Sardar Singh has also claimed that the plaintiff is the owner of the suit property. However, in crossexamination he could not tell the khasra no. of the suit property.
RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.13 of 30
25. Plaintiff closed his evidence and thereafter, defendant led evidence.
26. DW1 Jai Bhagwan, Area Patwari has testified that the suit property is part of khasra no. 825, village Md. Pur, Munirka, Delhi and stands acquired vide award no.1938 dated 31.12.1966 in terms of copy of possession letter is Ex.D2W12 and the copy of notification is Ex.D2W1/3. He further deposed that the DDA also transferred the suit land to MCD for development as green belt vide letter dated 18.12.1986, copy of the said letter is Ex. D2W1/4 and the Aks Shizra of the suit land is Ex.D2W1/5.
27. DW2 Karan Veer Singh, Section Officer, Horticulture, South Zone deposed on behalf of MCD and he claimed that the suit property is a public land meant for park. He claimed that there exists a boundary wall around the entire piece of land and MCD has been maintaining the same as a park till date by planting trees, plants and bushes/digging a tube well/boundary wall. The land is in possession of MCD as a public park. He claimed that local commissioner appointed by the Court visited the suit property in 2010 and the plaintiff and his lawyer were also present at that time. He claimed that the plaintiffs want to forcibly occupy and encroach upon the suit property with illegal motives to grab the land. The supervisor of the park has also lodged a report in this regard in PS Vasant Vihar, which is Ex.DW2/1.
RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.14 of 30
28. Ld. Trial Court after hearing arguments of the parties, dismissed the suit of plaintiffs.
29. Being aggrieved by the impugned judgment/decree passed by ld. trial Court, the plaintiffs has filed the present appeal.
30. During the course of arguments, the ld. counsel for the plaintiffs has raised the following contentions :
(i) Ld. Trial Court failed to consider that the suit property is forming part of Old Lal Dora in khasra no. 742, Village Munirka, Delhi and as per Section 8 of The Delhi Land Reforms Act read with Rule 5 under the said Act, the properties in Lal Dora continued to be owned by the individual proprietor, even after the commencement of DLR Act and the personal law was applicable to such lands.
(ii) Ld. Trial Court failed to consider that in the Lal Dora area no individual declaration/ownership rights were granted to any person and there is no record of ownership in respect of the Lal Dora area land in entire Delhi. The concept of ownership in the Lal Dora is as per possession of the individual proprietor.
(iii) Ld. Trial Court has erred in law in taking adverse inference of the fact that initially when the suit was filed, khasra number was mentioned as 824 which was a Shamlat Deh area and when land was demarcated, it was found that the same was part of Old Lal RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.15 of 30 Dora Abadi situated in khasra no.742, however, the ownership is on the same footing and Ld. Trial Court failed to consider law laid down by Hon'ble Delhi High Court in the case of "Gram Sabha Budhela Vs. Dharam Singh" 25 (1984) DLT 394.
(iv) Ld. Trial Court failed to consider that as far as MCD is concerned, it nowhere stated the details of khasra number of the areas entrusted to it for development of part except stating that they are maintaining the park in 8 acres area and that too without any plans or details.
(v) Ld. Trial Court failed to consider that it is the only DDA who had come out with the specific plea that the suit property was falling in khasra no. 825/2/31, however, no document filed or proved by DDA.
(vi) Ld. Trial Court failed to consider that the land was demarcated in the presence of the officials of defendants, who from 1997 till 2007 did not prefer any objection against the demarcation report filed on record by Local Commissioner.
(vii) Ld. Trial Court failed to consider that the demarcation report itself was a, prima facie, evidence in favour of the plaintiffs and if at all the said demarcation report was not to be relied upon, the Ld. Court could have ordered for fresh demarcation.
RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.16 of 30
(viii) Ld. Trial Court failed to consider that the witnesses of the plaintiffs had categorically stated that the suit property was in possession of the plaintiffs and their ancestors, which was never acquired and so the presumption of title was in favour of the plaintiffs.
(ix) Ld. Trial Court failed to consider that the Local Commissioner appointed by the Court, who had found not only Khor but also the dung cakes prepared by the agriculturalist from the dungs of their cattle.
(x) Ld. Trial Court failed to consider that there was a Kotha which had been demolished by the MCD illegally and unauthorizedly whose remains were there on the spot.
(xi) Ld. Trial Court has grossly erred in not considering the site plan of the suit property filed by the plaintiffs which was showing that the park is at a distance from the suit property.
(xii) Ld. Trial Court erred in observing that plaintiffs in their evidence have increased the area of disputed land from 248 Sq. Yards to 1650 Sq. Yards and further erred in observing that suit property is part of the park.
RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.17 of 30
(xiii) Ld. Trial Court erred in observing that plaintiffs have failed to describe the disputed land and also erred in relying upon the handing over report of DDA and acquisition award. The Ld. trial court further erred in observing that the disputed land fits in the description given in the "handing over report". Ld. Trial Court erred in relying upon the "handing over report" of DDA as well as by acquisition award that the disputed land fits in the description given in the "handing over report".
(xiv) Ld. Trial Court committed a grave error in observing that description of the suit property given by the plaintiffs does not tally with the description given by the local commissioner and also erred in observing that plaintiffs are not aware about the extent of land they owned or is not aware about the nature of the land plaintiffs owned. In this regard, it is respectfully submitted that initially khasra no. mentioned in the original plaint was 824, which was a Shamlat Deh area and when the land was demarcated, it was found that same is part of Old Lal Dora Abadi khasra no. 742 and the details of such khasra no. were incorporated in the amended plaint.
(xv) Ld. Trial Court committed a grave error in observing that plaintiffs have not mentioned the area of suit property in the plaint and the plaint filed is vague or lacks material particulars.
RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.18 of 30 (xvi) Ld. Trial Court committed a grave error in holding that plaintiffs are by filling present suit trying to usurp public land.
(xvii) Ld. Trial Court erred in relying upon in judgment passed in the case of Syed Mohd. Vs. Badagra Jumayath Palli Dheras Committee 2004 (7) SCC 708, Ram Niwas Vs. Jai Ram 2000 (3) CCC 379 and Paras Ram vs. Sukhdev Prasad 1980 (6) ALR 586 as the facts and circumstances of those cases were totally different and are not applicable in the facts and circumstances of present case.
31. Per contra, Ld. Counsel for defendant no.2 has filed reply to his appeal is not maintainable in the eyes of law as plaintiffs have not approached this Court with clean hands and has concealed the material facts from this Court, which are sufficient for dismissal of the present appeal. It is well settled preposition of law that a person who does not approach the Court with clean hands and has concealed the material facts from this Court, hence, the present appeal is liable to be dismissed.
32. It is submitted that the suit property falls in khasra no. 825/2/31 Min. of Village Mohammadpur Munirka and as per land record of DDA, khasra no. 825/2/31 has been acquired vide Award No. 1938 and placed at the disposal of DDA w.e.f. 03.01.1968 vide notification under Section 22(1) of Delhi Development Act 1957 and the same has been handed over to MCD for its development on RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.19 of 30 dated 26.08.1987. The plaintiffs have no title, right and interest in the suit property. It is well settled principle of law that no injunction can be granted against true owner, is a well settled proposition of law as held by Hon'ble Supreme Court of India.
33. Ld. Counsel for defendant no.1 has filed reply to the present appeal and submitted that the appeal is barred by limitation and no sufficient ground or cause has been shown or substantiated for the delay in question. The plaintiffs have no locus standi to file the present appeal as they have no right, title or interest in the suit property in question which belongs to and vests in the MCD. DDA had acquired 8 acre of land and handed over the same to MCD on 26.08.1987 for development/maintenance of park thereon, which is being maintained as such by the MCD. The suit property is in possession of MCD. The land in question is a MPL/public land meant for the park. The MCD has provided the boundary wall around the entire piece of land measuring 8 acres of which the suit land is a part and parcel thereof. The plaintiffs intend to grab a piece of said land which ought not to be permitted by this Court. From the above said facts and circumstances of the case, sequence of events, pleadings of the parties, material on record and submission made by the counsel for the parties, the following points of determination have arisen for adjudication in the present appeal.
(i) Whether plaintiffs are owner in possession of the suit property allegedly falling in Khasra no. 742 i.e. old Lal dora Lane.
RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.20 of 30
(ii) Whether the suit property alleged falls in khasra no.
825/2/31 which belonged to the DDA/Defendant no.2 and handed over to defendant no. 1 by Defendant no. 2 for development of the green belt.
34. The contention of the plaintiff is that the suit property is situated in the khasra no. 742 i.e. in the old lal dora abadi, which was inadvertently mentioned as khasra no. 824 measuring 8 bighas 7 biswas situated in revenue estate of village Munirka, New Delhi and in the original plaint and the suit property is shown as a common land i.e. old Lal Dora abadi and the suit property is used by the plaintiff's as out house for tethering of cattles of and performing various other family functions. The plaintiff being cosharer/coowner in the lal dora abadi land since the time of their forefather and for that no ownership is required to be proved.
35. The contention of the counsel for the defendant no. 1 /MCD is that the suit property is falling in the khasra no. 825/2/31 which was acquired and later on handed over by the DDA/ Defendant no. 2 to the defendant no. 1 / MCD.
36. The sole question that arises of consideration is whether the suit property is falling in khasra no. 742 situated in the old lal dora abadi or the suit property is falling in khasra no. 825/2/31 and secondly whether the plaintiffs are the owner of the suit property falling in khasra no. 742 situated in the old lal dora abadi.
RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.21 of 30
37. It may be noted that the case of the plaintiff's as averred in the original plaint is as under:
(i) That Plaintiffs were the owners of Land measuring 248 sq. yards.
(ii) That Khasra No.824 Village Munirka measured 8 bighas 7 biswas.
(iii) That this Khasra / land was described as shamaltdeh/ Panchayat land.
(iv) That this Shamlat land came to the plaintiff's onwership as a result of division amongst the coowner/ cosharers who were proprietors of the village.
(v) That since land was panchayat land, there was no revenue record thereto.
(vi) That the said land was not acquired land.
(vii) That MCD/ officials were proceeding to develop the said property as a park by planting trees etc and thereby disturbing the peaceful possession and enjoyment of the plaintiffs.
(viii) That official of the MCD staff was alleging this ownership and possession of the part of the Shamlat land i.e. the said property.
38. However, after filing of the report by the Local Commissioner, the plaintiff amended the plaint and averred that the suit property is falling in khasra no. 742 in the old lal dora abadi situated in the revenue estate of munirka, which already stood divided into the coowners / covillagers.
39. It may also be noted that in the original plaint, plaintiff has prayed that the suit property is admeasuring 248 sq. yards. PW1 in his crossexamination admitted that he has given the description of RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.22 of 30 the suit property as situated in the lal dora abadi and in the amended plaint and PW1 has also given the area of the suit property in the site plan and the total area of the suit property is 1650 sq. yards including 248 sq. yards. He admitted that original suit and the amended suit are in respect of different khasra number. PW1 also admitted that initial suit was in respect 248 sq. yards and the amended suit is in respect of more land.
40. It may be relevant to mention here that the PW1 has testified that the suit property is situated in old lal dora abadi, therefore, no separate Khatoni, Jamabandi are being prepared in favour of the plaintiff. The plaintiff has claimed possession of the suit property in terms of the documents Ex. PW1/2 to Ex. PW1/4. Ex. PW1/2 is the application moved by applicant Mange Ram for issuance of lal dora certificate and the said application has been rejected by the concerned officer by making endorsement that village stood urbanized, therefore, no lal dora certificate can be issued. So is the case with the application (Ex. PW1/3) moved by Bharat Singh and the application Ex. PW1/4 moved by Suraj Bhan.
41. A bare perusal of the above said documents (exhibits PW1/2 to PW1/4 depicts that the said applicants were not issued the lal dora certificate even to prove factum of possession of the plaintiffs over the suit property situated in khasra no. 742 in the old lal dora abadi. The plaintiffs have lead no evidence as to what is the khasra RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.23 of 30 number of the suit property and what is the nature thereof is as much as earlier it was averred in the original plaint that the suit property ad measuring 248 sq. yards is situated in the khasra no. 824 allocated to the plaintiffs after partitions of the shamlat deh land situated in khasra no. 824. However, the plaintiff, later on, amended the plaint, and not only changed the khasra number of the suit property from khasra no. 824 (Shamlatdeh) to khasra no. 742 situated in the old lal dora abadi, but also the area of the suit property is for 248 sq yards after the Local Commissioner filed his report in the year 1997.
42. So far as the nature and location of the suit property is concerned. Plaintiff has not lead any evidence to prove as in which the khasra number, the suit property is situated. However, the Local Commissioners were appointed in this regard filed report during the pendency of the suit.
43. The local commissioner Sh. P.S. Dhariwal, Tehsildar, Vasant Vihar filed his report dated 13.05.1997 and operative part of the said report is that: "Similarly, the land lying to the Southern side of the khasra no. 823, which is also the land in dispute was demarcated according to the position as per Map i.e. it is a sub part of khasra no. 742 (lal dora) and not khasra no. 824, as contended by plaintiff. The assistance of the local residents of adjoining land was also sought as corroborating evidence in determining this position. The all concerned parties broadly agreed to this RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.24 of 30 demarcation. Hence, it was determined that the land in question is neither part of khasra no. 823 nor khasra no. 824 and instead is a part of khasra no. 742 i.e. lal dora 190809."
44. Both the parties filed the objection to the said report filed by the Local Commissioner dated 13.05.1997 and thereafter, the plaintiff amended the plaint and filed the amended plaint, the averment of whose are already reproduced in the forgoing paras of the judgment.
45. Thereafter, the trial court later on has appointed another local commissioner Mr. Prasanta Varma who filed his report dated 01.11.2010 and sum and substance of the said report is as under :
"In so far as the details of construction raised in the suit premises is concerned, I do not find any construction work being carried out in the suit property even though there was a long pit of about six inch depth in the portion ABC in the rough site plan. The suit property is more or less like a hillock of about 10 feet height from the normal adjacent ground level containing number of trees and lots of bushes and there are some huge stones on which fresh "upple"(the cakes meant for fire made of cow dung) etc. were being pasted for production. I could not make out from the portion of the suit premises where the plaintiff was showing me that earlier there were some hutments in between the stones and now there is an existence of the foundation like walls between the stones."
RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.25 of 30
46. A bare perusal of the said report depicts that the said Local Commissioner has not found the plaintiffs in the possession of the suit property as claimed by the plaintiffs.
47. It may be relevant to note here that thereafter, during the pendency of this appeal, counsel for parties have raised contentions regarding the exact khasra number where the suit property is situated and therefore, in order to settle the controversy regarding the location of the suit property, with the consent of the parties, the directions were issued by this court for demarcation of the suit property by TSM. The proceedings for the measurement of the suit property by TSM were conducted and the TSM report dated 30.08.2019 was filed wherein it is detailed that the suit property is situated in khasra no. 742 situated in the old lal dora abadi. The Ld. counsel for the MCD/defendant no.1 filed the objection dated 12.03.2020 to this report dated 30.08.2019 stating therein that the two earlier Local Commissioner reports have been filed and the plaintiff have not filed the objection to the said Local Commissioner report dated 01.11.2011 and the same has finality and even the report dated 12.05.1997 belied the case of plaintiff as pleading in the original plaint. The applicant/MCD/defendant no. 2 objected to the manner in which the said TSM report dated 30.08.2019 was prepared in as much as neither the officials of the defendant no. 1 and 2 were informed nor the officials of defendant no. 1 and 2 were present at the time of conducting the demarcation I the suit property through TSM.
RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.26 of 30
48. Therefore, keeping in the view of the facts and circumstances in which the said report was prepared, the said objections filed by MCD/defendant no. 1 were allowed and with the consent of the Counsel for the parties, the directions were issued for demarcation of the suit property through another TSM in the presence of the officials of defendant no. 1 and 2 as well as plaintiffs, their agents or associates. The second demarcation of the suit property through TSM was conducted. The second TSM report dated 18.12.2020 depicts that the demarcation of the suit property was conducted in the presence of the parties as well as in the presence of the officials of the defendant no. 1 and 2, however, plaintiff have refused to put their signatures on the said report. A perusal of this second TSM report dated 18.12.2020 depicts that the suit property is situated in khasra no. 825/2/31 which khasra number already stood acquired by the Government.
49. Two demarcation reports have been sought through the TSM so as to ascertain the exact khasra number where the suit property is situated. The first TSM report was prepared without the presence of the officials of the defendants. However, the second TSM report has been prepared in the presence of the parties as well as official of the defendants however, the plaintiffs refused to put their signatures on the said report. The plaintiff has filed objections to the report dated 18.12.2020, interalia submitting that this report is not the demarcation report in true sense of law. The ld. SDM, Vasant Vihar has prepared the report under the force and coercion of defendant RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.27 of 30 no. 1 & defendant no. 2 as they are the government agencies with malafide intention to raise further boundary dispute, directed the concerned Tehsildar to appoint another surveyor namely Bhardwaj Survey Consultants for carrying out the demarcation of khasra no. 825, Munirka, New Delhi. It is submitted that in the first report it has been mentioned that the revenue record is in bad condition, therefore it cannot be said that the said report could not be considered. The said report is extensive in nature and the defendant no. 1 and defendant no. 2 are making hue and cry just to manage the second report being government agencies. It is pertinent to mention that both the reports are prepared with the help of TSM machines and both are contrary to each other in as much as the second TSM report creates fresh boundary disputes. The second report has not been prepared as per the masavi, field book as the same has not been provided by revenue officials and, therefore, due to this reason the the same have not been placed on record along with second report. Therefore, the second demarcation report is wrongful and is liable to be not considered.
50. However, the said objections are devoid of force in as much as plaintiff has got prepared the first TSM report in the absence of officials of defendant no. 1 and defendant no. 2 and the said report was objected to by defendant no. 1 by filing objection, with the consent of ld. counsel for the parties directions were issued for the demarcation of the suit plot through second TSM and when the RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.28 of 30 second demarcation was prepared by the TSM in the presence of official of defendant no. 1 and defendant no. 2 as well as in the presence of representative of plaintiff, the said representative of the p[laintiff refused to put signature on the second TSM report prepared by the revenue officials. As such, these objections filed by the plaintiff to the second TSM report are hereby rejected.
51. As a sequel of the above discussion, it can be safely concluded that the suit property is situated in khasra no. 825/2/31, which khasra no. was already acquired and the DDA/defendant no. 2 handed over the same to the MCD.
52. It may be relevant to mention that the plaintiff even though were not supposed to prove the ownership of the suit property as the suit property is Shamlat Deh or old Lal dora abadi land yet the plaintiffs were at least supposed to prove their possession over the suit property. However, plaintiffs could not prove their possession over the suit property in terms of Ex.PW2/2 to Ex.PW2/4 or in terms of the report of the local commissioner filed before the Ld. Trial Court or the demarcations of the suit property, by way of TSM during the pendency of this appeal. The plaintiffs have also increased the area of the suit property from 248 square yards in the original plaint to 1650 sq. yards in the amended plaint and PW could not give any plausible explanation as to how the area of the suit property increased in the amended plaint. Therefore, PW1 was totally oblivious to the situation of the suit property, area of the suit property RCA no. 32/2012 (54770/2016) Mange Ram & Ors. Vs. MCD & Anr.
Page no.29 of 30 and location thereof and therefore, viewed from any angle, plaintiffs cannot be stated to have proved the factum of possession of the suit property. These points of determination are accordingly decided in favour of the defendants and against the plaintiffs.
53. From the abovesaid discussion, I found no ostensible reason to disagree with the finding so recoded by ld. Trial Court. This appeal being devoid of merits deserves to be dismissed and is hereby dismissed and disposed off accordingly.
Trial court record be sent back along with copy of this judgment.
Decree sheet be drawn accordingly.
Appeal file be consigned to the record room.
Digitally
signed by
VIJAY VIJAY KUMAR
Announced and dictated on KUMAR
DAHIYA
Date:
09th Day of June 2022. DAHIYA 2022.06.23
16:40:08
(V.K. DAHIYA)
+0530
ADDL.DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
RCA no. 32/2012 (54770/2016)
Mange Ram & Ors. Vs. MCD & Anr.
Page no.30 of 30