Delhi District Court
Sh. Ved Prakash vs Delhi Development Authority on 26 March, 2018
1
IN THE COURT OF SH. DEEPAK VATS, CIVIL JUDGE, DELHI
(WEST)02
SUIT NO.608473/16
Sh. Ved Prakash
S/o Sh. Pyare Lal,
R/o A18/6, Mange Ram Park,
Budh Vihar, PhaseII, Delhi.
..........................PLAINTIFF
VERSUS
1. Delhi Development Authority
Vikas Sadan, INA Market,
New Delhi
Through its Vice Chairman
2. Station House Officer
P.S. Sultanpuri, Delhi.
.....................DEFENDANTS
Suit filed on - 04/12/2006
Judgment Reserved on - 13/03/2018
Date of decision - 26/03/2018
SUIT FOR PERMANENT INJUNCTION
JUDGMENT: By this judgment I shall dispose of a suit for permanent injunction filed by the plaintiff against the defendants. Before adjudicating upon the issues framed in the present suit, I feel it necessary to dwell upon the plethora of pleadings in the present suit.
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Pleadings of the plaintiff :
1. The brief facts of the case as per the plaint are that the plaintiff is the sole and absolute owner of built up property bearing No.A18/6 measuring 50sq. Yds. forming part of Khasra No.48//4, situated at Mange Ram Park, Budh Vihar, PhaseII, in the area of Village Pooth Kalan, Delhi (hereinafter referred to as suit property) which he had purchased, 25sq. Yds. each, from Smt. Prem Wati W/o Sh. Chander Dev and from Sh. Narender Dev Bhardwaj S/o Sh. Budh Sain on 06/09/01 and 14/06/1989 respectively against consideration and execution of various sale and purchase documents.
It is further the case of plaintiff that in the year 1993 a survey of the aforesaid area was conducted by defendant no.1/DDA for regularization of authorized colony and accordingly a site plan was got prepared by the residents of the area and was submitted with the defendant no.1. It is averred that plaintiff is in occupation and possession of the said property without any interruption and defendant no.1 has no right, title or interest over the same.
It is averred that the land comprised in Khasra No.47/1, 47//2 and 48/5/3 within the area of Village Pooth Kalan in the colony known as Mange Ram Park Extn. Budh Vihar, PartII, behind Braham Shakti Hospital, Delhi was acquired by defendant no.1. It is further stated that defendant no.1 wanted to remove the illegal encroachers from there and to demolish the unauthorised construction for which police assistant was taken and an FIR was also got registered.
It is further averred that in the demolition drive carried out by the defendant no.1 on 18/09/06, it not only demolished the construction in Khasra No.47/1, 42/2 and 48/5/3 of said Village Pooth Kalan, Delhi but also caused substantial damage to the property of the plaintiff which forms part of Khasra No.48//4 and does not fall in the above said khasras and has never been acquired by the defendant no.1 nor it has any right, title or interest over the same. It is Suit No.608473/16 Page2/13 3 stated that the plaintiff is still in the possession of suit property comprising the construction which was not demolished. It is averred that no notice was ever served by the defendant no.1 before carrying out the demolition drive.
It is further the case of the plaintiff that on 30/11/06 some officials of the defendant no.1 accompanied with subordinates of defendant no.2 came to the property of plaintiff and asked him to leave from there and threatened that if the plaintiff does not voluntarily vacate the same, the entire construction would be demolished and plaintiff would be thrown out by using force.
It is further averred that the acts of the defendants is wrong, illegal, unlawful, arbitrary, malafide and without any right or claim and they are adamant to demolish the entire construction and to dispossess the plaintiff forcibly.
Hence, finding no other efficacious remedy, the present suit has been filed by the plaintiff seeking a decree of permanent injunction in his favour thereby permanently restraining the defendants from causing any further damage to the property of plaintiff bearing No.A18/6 measuring 50sq. Yds. forming part of Khasra No.48//4, situated at Mange Ram Park, Budh Vihar, PhaseII, in the area of Village Pooth Kalan, Delhi and also from dispossessing him from the said house.
Pleadings of the defendants :
2. The amended WS was filed on behalf of defendant no.1 wherein certain preliminary objections were taken namely, plaintiff has no locus standi to file the present suit as Khasra No.47//2 of Village Pooth Kalan stands acquired vide Award No.20/8586 and same is part of Rohini Residential Scheme. It is contended that the plaintiff has not valued the suit properly for the purpose of court fees and jurisdiction. It is further contended that the suit is not maintainable as the plaintiff is seeking declaration in the garb of permanent injunction. It is contended that Union of India and LAC are necessary parties of Suit No.608473/16 Page3/13 4 the present suit, hence, the suit is bad for nonjoinder of necessary parties. It is further contended that plaintiff has not come to the court with clean hands and has suppressed the material facts from this court.
In reply on merits, the defendant no.1 has denied all the averments made in the plaint as false and frivolous and it has been prayed that the suit of the plaintiff be dismissed with costs. It is claimed that suit property lies in Khasra No.47//2 which has been duly acquired, possession of which has been taken and the same has been placed at the disposal of defendant no.1. It is further stated that the plaintiff encroached upon land of defendant no.1 and the said encroachment was removed on 18/09/06 and thereafter the plaintiff re encroached upon the land of defendant no.1. It is thus stated that suit of plaintiff is without any substance.
3. Subsequently, the WS was filed on behalf of defendant no.2 wherein certain preliminary objections were taken namely, the suit of the plaintiff is not maintainable against the answering defendant. It is contented that defendant no.2 cannot be served directly and he can only be served through Commissioner of Police. It is further contended that defendant no.2 is a Government Servant and plaintiff should have filed the present suit as per the provisions of Order27 R.5
(a) CPC. It is alleged that suit of the plaintiff is not maintainable as no notice U/S 140 of D.P. Act and U/S 80 of CPC have been served by the plaintiff upon the answering defendant. It is contended that the plaintiff has not come to the court with clean hands and has suppressed the material facts. It is further contended that the suit is bad for misjoinder and nonjoinder of necessary party as the answering defendant is not a necessary party as plaintiff is only seeking the relief qua defendant no.1. Plaintiff has no cause of action to file the present suit and same is liable to be rejected U/O 7 R.11 CPC and is also hit by the provisions of Section 41(h) of Specific Relief Act.
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In reply on merits, the defendant no.2 has denied all the averments made in the plaint as false and frivolous and it has been prayed that the suit of the plaintiff be dismissed with costs.
4. Replication has also been filed on behalf of plaintiff to the WS of defendants wherein the averments made in the WS were denied and those made in the plaint were reiterated and reaffirmed.
5. It is pertinent to mention here that issues were framed in the matter vide orders dt.05/12/08. Perusal of the record further shows that vide order dt.24/09/12 the issue no.3 was amended and was reframed as under : "Whether the plaintiff has no locus standi to file the present suit as the suit property stands acquired and its possession has been handed over to DDA on 13/11/1985 and it was also placed at the disposal of DDA vide notification dt.10/04/1986 U/S 22(1) of DD Act? OPD"
Further perusal of the order dt.24/09/12 reveals that issue regarding locus standi was mentioned as issue no.3, however, perusal of order dt.05/12/08 vide which issues were originally framed shows that issue regarding locus standi was issue no.2 and not issue no.3. It appears that same is a typographical error in order dt.24/09/12. Accordingly, the error stands corrected and issue no.3 as stated in the order dt.24/09/12 is being read as issue no.2.
Now the issue fremed in the matter vide order dt.05/12/2008 will be read as under :
1. Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP
2. Whether the plaintiff has no locus standi to file the present suit as the suit property stands acquired and its possession has been handed over to DDA on 13/11/1985 and it was also placed at the Suit No.608473/16 Page5/13 6 disposal of DDA vide notification dt.10/04/1986 U/S 22(1) of DD Act? OPD
3. Whether the suit of plaintiff is not maintainable for want of mandatory notice U/S 140 Delhi Police Act? OPD
4. Whether the suit of plaintiff is not maintainable for nonjoinder of necessary parties? OPD
5. Relief.
6. In order to prove his case plaintiff got examined only one witness I.e. himself as PW1 and led his evidence by way of affidavit which is Ext. PW1/A. Some documents were also exhibited by PW1 which are as under : The site plan is exhibited as Ext. PW1/1. The photocopies of GPA, Will, Receipt, Agreement to Sell, Affidavit and Possession letter are exhibited as Ext. PW1/2 (OSR) to PW1/7 (OSR) respectively. PW1 was also cross examined by the counsel for defendant no.1/DDA only.
On the other hand, defendant no.1/DDA got examined only one witness I.e. Sh. Tej Pal, Kanoongo, Rohini Zone, Land Management Department, DDA as DW1 and he tendered his evidence by way of affidavit Ext. DW1/A. Some documents were also exhibited by DW1 which are as under : The copy of Award No.20/8586 is Ext. DW1/1. The copy of the possession proceedings dt.13/11/1985 is Ext. DW1/2 {(OSR) original of the same is available in the case titled as Indira Wati V/s DDA}. Ext. DW1/3 (OSR) is the copy of the notification dt.10/04/1986 U/S 22 (1) of DD Act. The akshijra/rough location plan is Ext. DW1/4. The attested copy of demolition diary is Ext. DW1/5 (OSR). DW1 was also crossexamined by the counsel for plaintiff.
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7. The arguments have been heard and the record has been carefully perused. Now, I shall give my issuewise findings which are as under : I shall take up the issues no.1 & 2 together and decide them as common question of law and fact is involved.
8. ISSUE NO.1 & 2 Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP Whether the plaintiff has no locus standi to file the present suit as the suit property stands acquired and its possession has been handed over to DDA on 13/11/1985 and it was also placed at the disposal of DDA vide notification dt.10/04/1986 U/S 22(1) of DD Act? OPD The onus to prove issue no.1 was upon the plaintiff and the onus to prove the issue no.2 was upon the defendants.
The bone of contention between the parties is as to in which khasra number the suit property lies I.e. Khasra No.48//4 (as claimed by the plaintiff) or Khasra No.47//2 (as claimed by the defendant). Perusal of record shows that in the original WS the defendant/DDA did not challenge the claim of the plaintiff that suit property lies in Khasra No.48//4. Rather, in the original WS it was claimed that Khasra No.48//4 stands acquired, though possession of the same was not taken. It was further stated in the original WS that no demolition proceedings had been initiated in Khasra No.48//4. During the pendency of the suit an application U/O 6 R.17 CPC, filed on behalf of the defendant/DDA, was allowed vide order dt.03/05/12 and the defendant DDA was allowed to amend its WS. In the amended WS the defendant took a Uturn and claimed that the suit property lies in Khasra No.47//2 and the same was encroached upon by the plaintiff. It was stated that the said encroachment was removed by the defendant/DDA on 18/09/06 though the plaintiff again encroached upon the suit property. In the amended WS it has not been explained as to on which date the alleged re Suit No.608473/16 Page7/13 8 encroachment of the suit property was done by the plaintiff. The encroachment of the plaintiff was stated to have been removed on 18/09/06 and the present suit was filed on 21/11/06, it means that the alleged first encroachment was removed only two months before the filing of the present case. The date on which the suit property was allegedly reencroached has not been mentioned by the defendant, however, as per the claim of defendant the alleged reencroachment must have been done within the two months of removal of alleged first encroachment. In the given circumstances, it is inconceivable that within the said two months the plaintiff again encroached upon the suit property and raised construction over it and defendant no.1 did not take any prompt action to prevent the plaintiff from reencroaching the suit property.
Secondly, the manner in which the alleged reencroachment was done by the plaintiff has also not been shown in the amended WS or the evidence of the defendant. Keeping in mind the aforesaid discussion, coupled with the fact that suit property was earlier admitted to be in Khasra No.48//4 and not in Khasra No.47//2 and also keeping in view the GPA, Deed of Will, Receipt, Agreement to Sell, Affidavit and Possession Letter Ext. PW1/1 (OSR) to Ext. PW1/7 (OSR), wherein the suit property is stated to be lying in Khasra No.48//4, it can be said that the initial onus lay upon the plaintiff to prove that suit property lies in Khasra No.48//4 has been discharged. Then, the onus lay upon the defendant/DDA to disprove that the suit property lies in Khasra No.48//4 and to prove that the same lies in Khasra No.47//2. No demarcation report has been filed on behalf of defendant/DDA to show that the suit property lies in Khasra No.47//2. In the amended WS the defendant/DDA has claimed that the demolition proceedings were carried out on 18/09/06, whereby interalia, the alleged encroachment of the plaintiff over the suit property was removed. The demolition report is Ext. DW1/5. Perusal of the demolition report Ext. DW1/5 does not anywhere show as to in which khasra number the said demolition was Suit No.608473/16 Page8/13 9 carried out, accordingly the defendant/DDA has failed to prove that the demolition report dt.18/09/06 pertains to suit property. Apart from this no other document has been placed on record to show that the suit property lies in Khasra No.47//2. Accordingly, it is concluded that the plaintiff has been successful in proving, on the scale of preponderance of probabilities, that the suit property lies in Khasra No.47/4 and not in Khasra No.48/2.
Now that it has been concluded that suit property lies in Khasra No.48//4 it has to be seen what right the parties have with respect to the suit property. As far as the plaintiff is concerned, he has placed on record Ext. PW 1/2 to Ext. PW1/7 to show that the suit property was purchased by the plaintiff from Smt. Prem Wati and from Sh. Narender Dev Bhardwaj (25sq. Yds. each). Admittedly, the said documents are not registered and thus the same are hit by Section17 (1) of Registration Act, thus the same cannot result into transfer of rights in suit property in favour of plaintiff. Also Smt. Prem Wati and Sh. Narender Dev Bhardwaj from whom the plaintiff has claimed to have purchased the suit property have not been examined by the plaintiff. Further, previous chain of documents showing that Smt. Prem Wati and Sh. Narender Dev Bhardwaj were the owners of the suit property has not been filed, neither any witness has been produced to prove the same. Further, the said documents are dt.06/09/2001 and award No.20/8586, MarkDW1/1 (filed by the defendant/DDA and not denied by the plaintiff), through which the suit property was acquired is dt.11/11/1985. Thus, the said documents have been executed after the award was issued. The said transfer is also hit by Section3 & 4 of the Delhi Land (Restrictions on Transfer) Act, 1972 which provides that after the issuance of award the acquired land cannot be transferred. The documents Ext. PW1/2 (OSR) to Ext. PW1/7 (OSR), through which the plaintiff has sought to prove that he has purchased the suit property, do not bear signature of the plaintiff. Thus the documents are invalid and void and it can be inferred that the Suit No.608473/16 Page9/13 10 plaintiff has failed to prove his ownership over the suit property.
However, one thing which the plaintiff has been successful in proving is that the plaintiff has been in possession of the suit property. The plaintiff has claimed that he has built pucca house on the suit property part of which has been demolished by defendant no.1. In the plaint the plaintiff has categorically stated that he is still in occupation and possession of the remaining portion (after part demolition) of the suit property. The same has not been denied by the DDA. It has been stated in the amended WS by the defendant/DDA that the plaintiff illegally encroached upon the suit property, be that as it may, one thing which can be deduced from it is that the possession of the plaintiff has been unequivocally admitted by the defendants. Also the claim of plaintiff regarding construction of suit property has not at all been challenged by the DDA.
Now, that it has been proved that the plaintiff is in possession of suit property, the right of DDA over the suit property needs to be looked into. The defence taken by the DDA was that the suit property lies in Khasra No.47//2. As discussed above, the suit property lies in Khasra No.48//4 and it is the admitted position of the defendant that the land comprising Khasra No.48//4 has been notified but possession has not been taken and thus the land has also not been placed at the disposal of the defendant/DDA. Moreover, DW1 in his cross examination has clearly admitted that the DDA has nothing to do with the land falling in Khasra No.48//4. Thus, as such, the DDA has no right in Khasra No.48//4. Thus, when it is clear that the plaintiff is in possession of the suit property and that the defendant/DDA has no right over the suit property, the right of plaintiff weighs heavier than the right of defendants over the suit property.
Now, this court is guided by the following observation made by a three Judge Bench of Hon'ble Supreme Court made in case titled as 'Rame Gowda V/s M. Varadappa Naidu, {(2004) 1 SCC 769}'.
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"It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram V/s Delhi Admn., Puran Singh V/s State of Punjab and Ram Rattan V/s State of U.P. The authorities need not be multiplied. In Munshi Ram case it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may reenter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost."
"Para12..........In Kallappa Rama Londa case the learned Single Judge has upheld the maintainability of a suit merely seeking injunction, without declaration of title and on dealing with several decided cases the learned judge has agreed with the proposition that where the suit for declaration of title and injunction is filed, and the title is not clear, the question of title will have to be kept open without denying the plaintiff's claim for injunction in view of the fact that the plaintiff has been in possession and there is nothing to show that the plaintiff has gained possession by any unfair means just prior to the suit."
Admittedly, the plaintiff is in possession of suit property. Also it is the admitted position that some part of the suit property has not been demolished and the same is under the possession of the plaintiff. As such, it can be deduced Suit No.608473/16 Page11/13 12 that the plaintiff has been in settled possession of the suit property and the same can be removed only by following the due process of law and not otherwise. Counsel for defendant no.1 has placed on record certain judgments of Hon'ble High Court of Delhi and Hon'ble Supreme Court wherein it was held that no injunction can be passed against a true owner, however, the same are not applicable in the present case, because as discussed earlier the defendant no.1 has failed to prove that it h as any right over the suit property.
Accordingly, both these issues are decided in favour of plaintiff and against the defendants.
9. ISSUE NO.3 Whether the suit of plaintiff is not maintainable for want of mandatory notice U/S 140 Delhi Police Act? OPD The onus to prove this issue was upon the defendants.
Defendant no.2 was proceeded exparte on 08/11/17. No evidence has been led on behalf of defendant no.2, SHO P.S. Sultanpuri to prove this issue. Accordingly, this issue is decided against the defendants and in favour of plaintiff.
10. ISSUE NO.4 Whether the suit of plaintiff is not maintainable for nonjoinder of necessary parties? OPD The onus to prove this issue was upon the defendants.
No evidence has been led by the defendant/DDA to prove the present issue. Moreover, it is settled law that the suit is not maintainable for misjoinder of parties only where a necessary party has not been impleaded. In the present case the plaintiff has been able to show that he has been in settled possession of the suit property and that his possession has been threatened by the defendant/DDA as such the only necessary party which was to be impleaded was DDA.
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Accordingly the present issue is decided against the defendants and in favour of the plaintiff.
11. ISSUE NO.5 RELIEF In view of the findings given on issues no.1 to 4, documents placed on record, pleadings of the parties and evidence led by the parties, the plaintiff has proved his case on the scale of preponderance of probabilities. Accordingly, suit of the plaintiff is decreed and following reliefs are awarded to the plaintiff :
1. A decree of permanent injunction in favour of plaintiff and against the defendants thereby permanently restraining the defendants from causing any further damage to the property bearing No.A18/6 measuring 50sq. Yds. forming part of Khasra No.48//4, situated at Mange Ram Park, Budh Vihar, PhaseII, in the area of Village Pooth Kalan, Delhi and also from dispossessing him from the said property, without following due process of law.
2. Costs of the suit.
Decree sheet be prepared accordingly. File be consigned to record Digitally signed room after completing the necessary formalities. DEEPAK by DEEPAK VATS VATS Date: 2018.03.26 16:50:48 +0530 (Deepak Vats) Civil Judge (West)2, Delhi Pronounced in the open court on 26/01/2018.
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