Delhi District Court
Smt. Sangeeta W/O Lt. Sh. Chattar Pal ... vs Delhi Development Authority on 15 July, 2016
IN THE COURT OF ANURAG SAIN, ADJ02 (EAST),
KARKARDOOMA COURTS, DELHI
RCA No.: 196/16
Chattarpal (deceased),
through Lrs
1. Smt. Sangeeta w/o Lt. Sh. Chattar Pal Singh
2. Master Sanjay @ Vicky s/o Lt. Sh. Chattar Pal Singh
3. Master Bhanu s/o Lt. Sh. Chattar Pal Singh
4. Ms. Bhawana d/o Lt. Sh. Chattar Pal Singh
5. Master Vishal Shreemali s/o Lt. Sh. Chattar Pal Singh
6. Master Aman s/o Lt. Sh. Chattar Pal Singh
All R/o 5/9/3, block5, Geeta Colony, Delhi110031.
.......Appellants
Versus
1. Delhi Development Authority,
Through its Vice President,
Vikas Sadan, INA, New Delhi
2. Govt. of N.C.T Delhi
Through its Chief Secretary,
Indraprastha Secretariat,
New Delhi.
3. The Commissioner of Police
Through SHO
Police Station Geeta Colony, Delhi110031.
.......Respondent
Date of institution of appeal : 14.12.2011 Date of reserving judgment : 15.07.2016 Date of pronouncement : 15.07.2016 JUDGMENT
1. The present appeal u/s 96 of CPC is against the Judgment and RCA No.: 196/16 Decree dated 07.10.2011 passed by Sh. Saurabh Kulshreshtha CCJARC Judge (East) KKD Courts Delhi whereby the Ld. Trial Court has dismissed the suit of the plaintiff on the ground that plaintiff (since deceased) through LRs has failed to prove their case.
2. Brief facts of the case are that the appellant/plaintiff (since deceased) claims himself to a permanent resident of property bearing no. 5/9/3B, Geeta Colony, Delhi31 and the land is located at Khasra no. 391/23/68 (Khureji Khas) measuring 1 bighas 18 biswas, Geeta Colony, Delhi31 is possessed and irrigated by his late grand father and father since 1970 and the appellant/plaintiff and his elder brother have been running a nursery at the same place, even after the death of their father. It is averred that a small house has been constructed on a small portion of this land bearing no. 5/9/3B, Geeta Colony, Delhi 31 and he is regularly paying house tax in respect of the said house. It is averred that appellant/plaintiff and his family are in occupation of the said land and the house continuously since 1970 and now 34 years have been passed and the plaintiff is in continuous possession of the said property therefore, he has become the owner of the said land by way of adverse possession and defendant no.1 DDA has no right, title or interest in the suit property. It is further averred that respondent RCA No.: 196/16 no.1/DDA has no right over such properrty because the property does not belong to DDA. The Khasra no. 23, Chariga Junebi, Gandhi Nagar, Delhi admeasuring about 46.90 acres was under their possession and they are cultivating upon the said land and therefore also prays for demarcation so that it can be proved that the plaintiff is not in the possession of land of DDA even otherwise. It is further averred by the appellant that the appellant approached Hon'ble High Court of Delhi in WA No. 720/02 which was dismissed as withdrawn with the liberty to take the legal course to some other proceedings. It is further averred that since the Hon'ble High Court could not go in disputed question of facts and evidence in writ jurisdiction or latter patent jurisdiction therefore he has approached the court. On these premise, appellant/plaintiff has filed the suit with following prayers (I) for declaration declaring him as the owner of the suit property i.e. Khasra no. 391/23/68 (Khureji Khas) measuring 1 bighas 18 biswas, Geeta Colony, Delhi31 along with house no. 5/9/3B, Geeta Colony, Delhi31 against the defendants on the basis of adverse possession, (ii) grant of mandatory injunction, (iii) grant of permanent injunction against the defendant, (iv) for direction for demarcation of the land.
3. Written Statement was filed by respondent/defendant no.1 RCA No.: 196/16 wherein respondent/defendant no.1 contended that the land in question falls in Khasra no.23, Chariga Junebi, Gandhi Nagar, Delhi admeasuring about 46.90 acres falling in khasra no. 23 including land was acquired and handed over to the respondent/defendant no.1 on 24.9.1984. It is further averred that appellant/plaintiff has not filed any title documents on record and only a copy of Khasra girdavari has been filed which also shows Government of India as the owner. It is further averred that appellant/plaintiff has filed only house tax receipts which do not create any right, title or interest in the property. It is averred that the statutory notice under section 53B of DDA has not been served upon the respondent. It is further averred that the encroachment upon the suit property was removed and thereafter the appellant/plaintiff filed a Writ Petition no. 5352/2000 and finally the same was decided against the plaintiff on 29.08.2002 and thereafter the appellant/plaintiff filed an appeal and the same was also dismissed as withdrawn on 14.07.2004. It is denied that appellant/plaintiff is in continuous possession of the aforesaid property for the last 30 years and therefore become the owner of the suit property by way of adverse possession. The defendant no.2 filed written statement stating that the land question falls in the revenue estate of Village Chariga Junebi, Delhi and the revenue record RCA No.: 196/16 of the village is under the jurisdiction of the DDA and the suit is bad for nonservice of notice under Section 80 CPC. Defendant no.3 after filing their written statement, vide order dt. 16.05.2008 was deleted from the array of the parties.
4. Replication was filed by the plaintiff to the written statement filed by defendants.
5. After the completion of pleadings following issues were framed on 30.05.2005:
(i). Whether the plaintiff is entitled to permanent injunction as claimed? OPP
(ii).Whether the plaintiff is entitled to mandatory injunction as claimed for? OPP
(iii).Whether the plaintiff is entitled to declaration as claimed for? OPP
(iv).Whether the suit of the plaintiff bad for non service of the statutory notice u/s 53B of DD Act? OPD no.1
(v).Whether the suit of plaintiff is bad for non serving the statutory notice u/s. 80 CPC before filing the present suit? OPD no.2
(vi). Relief.
6. The plaintiff had led his evidence as PW1 and deposed on the lines of the plaintiff. In support of his case, he also examined his neighbours Sh. Baljit Singh and Sh. Mahinder Kumar as PW2 & PW3, Sh. Sahshi Karan Nasa, Naib Tehsildar from RCA No.: 196/16 DDA as PW4 and Sh. Sukhbir Sharma, Sub Registrar, Births and Deaths as PW5. On the other hand to disprove the case of the plaintiff, defendant no.1 examined Sh. S.K. Nasa, Kanungo from DDA as DW1. Thereafter, after hearing arguments, ld. Trial Court vide its order and judgment dt. 07.10.2011 dismissed the suit of the the appellant/plaintiff.
7. The appellant challenged the judgment and decree dt. 07.10.2011 before the Appellate Court inter alia on the grounds that the Ld. Trial Court failed overlooked and failed to appreciate the fact that the appellants/plaintiff are the actual and physical possession much before the notification issued by the DDA; ld. Trial Court failed to appreciate that the acquisition of land has to be governed by 'the land Acquisition Act, 1894, and the said provisions of law has not been looked into; the respondents admitted that they take over the land including the suit land on as is here is basis and thus appellant are entitled to have compensation of 2/3rd share of the suit property but since the compensation amount has not been released till date thus, the order of Ld. Trial Court is liable to be dismissed; the judgment is illegal and against the law of the law; impugned judgment is bad in the principles of natural justice, equity, arbitrary, perverse and against the 'Public Policy of India", illegal and not sustainable in the eyes of law. In these premises RCA No.: 196/16 appellant/plaintiff prays for setting aside the Judgment and Decree dated 07.10.2011.
8. The appeal of the appellant was dismissed vide order dt. 17.09.2013 being time barred. Against the said dismissal order dt. 17.09.2013, appellant preferred CM(M) no. 54/14 before Hon'ble High Court of Delhi and the Hon'ble High Court vide its order dt 14.11.2014 set aside the order dt. 17.09.2013 and directed that the appeal is to be heard and adjudicated on merits in accordance with law.
9. After the matter was remanded back to this court in terms of the order dt. 14.11.2014 of Hon'ble High Court of Delhi in CM(M) no. 54/14, the appellant has filed an application u/o 41 rule 27 CPC r/w Section 151 CPC for leading additional evidence.
10. Trial Court record has been received.
11.Ld. counsel for the appellant argued on the line of his grounds of appeal. Ld. counsel for the appellant has contended that the court below has misread the evidence and findings of the court below are based on surmises and conjectures and prays for the setting aside of the judgment and decree dt. 17.09.2013.
12.On the other hand, ld. Counsel for the respondent/defendant argued that that there is no illegality, perversity and impropriety in the judgment and decree. On these premise, he prayed for the dismissal of the present appeal.
RCA No.: 196/16
13.I have heard ld. counsels for the parties and have carefully perused the record.
14.From the arguments of the parties the following points arose for consideration of this court.
(i)Whether the judgment and decree passed by the court below are illegal and gross misreading of evidence hence cause miscarriage of justice?
(ii)Whether there is misinterpretation of evidence?
(iii)Whether the impugned judgment and decree are illegal and not sustainable in the eyes of law?
15.The appellant/plaintiff in his plaint have averred that he has become the owner of the suit property by way of adverse possession and therefore plaintiff is entitled for the ownership on the ground of of adverse possession.
16.In the prayer clause the plaintiff has claimed a decree of declaration declaring him to be the owner of the property for the reasons so stated in the plaint. Clause (iii) of the prayer clause is reproduced as under :
"Pass a decree of declaration of ownership of the plaintiff by way of adverse possession over such suit property."
17.Before giving any observations as to what does adverse possession means or what are its essential ingredients, what is to be seen is Can the plaintiff file suit for declaration for RCA No.: 196/16 declaring himself to be the owner by way of adverse possession?
18.The aforesaid preposition has been dealt with by the Hon'ble Supreme Court in the case titled as Gurudwara Sahib Vs. Gram Panchayat Village Sirthala and another Civil Appeal No. 8244/13 decided on 16.09.2013. In the said case, the appellant is the original plaintiff who had filed the suit for decree of declaration to the effect that it had become owner of the suit property by adverse possession. Declaration was also sought to the effect that the Revenue record showing ownership of respondent no.1 herein i.e. Gram Panchayat (Defendant in the suit) is liable to be corrected in the name of the Appellant and the action already held by the Gram Panchayat of the land in dispute is null and void. Consequential relief of permanent injunction restraining Gram Panchayat from dispossessing the appellant from the disputed land was also prayed for. This suit was partly decreed by the trial court granting relief of injunction. First appear against that part of the judgment whereby relief of declaration was denied was dismissed by the learned Additional District Judge and the Second Appeal preferred by the Appellant has also been dismissed by the High Court of Punjab and Haryana vide judgment dated 22 nd September, 2011. Undeterred by successive failures, the RCA No.: 196/16 appellant has knocked at the door of Hon'ble Supreme Court with the plea that is suit be decreed in entirety. The appellant claimed ownership by adverse possession on the ground that it is in possession of the land in dispute for sufficiently long period which fact has been established and, therefore, his suit could not be dismissed.
19. The Hon'ble Supreme Court in para 7 of the judgment had specifically held that a person cannot seek a declaration to the fact that adverse possession has matured into ownership. The same are as under :
In the second appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable. There cannot be any quarrel to this extent the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.
20. The Hon'ble High Court in Sh. Ashok Kumar v. Surjit Kaur & Others AIR 2014 Delhi 1 has held in para 17 of the judgement that :
RCA No.: 196/16 "Though this court in Manmohan Service Station v. Mohd. Haroon Japanwala, 54 (1994) DLT 552: (AIR 1994 Del 337) held that a suit for declaration of title acquired by adverse possession and for restraining person claiming to be title owner from selling the property to be maintainable but the Supreme Court recently in Gurudwara Sahib v. Gram Panchayat, MANU/SC/0939/2013 held that even if plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership; only if proceedings are filed against such person arrayed as defendant, can he use his adverse possession as a shield/defence. The suit from which this appeal arises, insofar as for declaration of title by way of adverse possession, thus in any case appears to be not maintainable."
21.The Hon'ble High Court of Karnataka in RFA No. 459/13 titled as Smt. M.S. Meenakshamma Vs. State of Karnataka and Others decided on 30.06.2014 relied upon the judgment of Hon'ble Supreme Court in Gurudwara Singh Sabha has held the similar view.
22. In view of the facts of the case viz a viz the legal proposition, the present appeal of the appellant is liable to be dismissed as not maintainable. The relief of declaration on the basis of adverse possession cannot be asked as a 'positive relief', it can RCA No.: 196/16 only be used as a shield.
23. The counsel for the respondent argued that the appeal deserves to be dismissed on the ground that appellant has never issued any notice u/s 53 B of the DDA Act. The same is not disputed by the counsel for the appellant.
24.The Hon'ble High Court of Delhi in the case titled DCM Ltd. vs. Delhi Development Authority MANU/DE/0807/1995 in para 7 to 9 held that:
(7) On the second ground of non mentioning of service of notice, it is not in dispute that there is no averment made in the plaint that notice under Section 53B of the Delhi Development Act, 1957 had been sent or delivered to the defendant before institution of the suit. Section 53B of the Act says:
"(1) No suit shall be instituted against the Authority, or nay member thereof, or any of its officers or other employees 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 there under until the expiry 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 RCA No.: 196/16 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 plaintiff and unless the plaintiff contains a statement that such notice has been so left or delivered.
(2) No suit such as is described in subSection (1) shall unless it is a suit for recovery of immovable 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 SubSection (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." Admittedly, the suit is for declaration of title as regard immovable property and as per provisions of Subsection (2) of Section 53B of the Act, such a suit can be instituted only after expiry of six months from the date on which cause of action to the plaintiff has arisen, for which as per the provisions of Subsection (1), plaintiff is bound to serve a notice staling therein the cause of action, the nature of relief sought, the amount of compensation claimed and RCA No.: 196/16 the name, therein the cause of action, the nature of relief sought, the amount of compensation claimed and the name, and place of residence of the plaintiff and must state in the plaint that such a notice, as envisaged under Section 53B of the Act has been so left or delivered at the office of the defendant two months prior to the institution of the suit.
(8) The contention of learned Counsel for the plaintiff is that no such objection was raised as regards the service of notice, in the written statement which was filed on 6th May, 1992, Therefore, such an objection will be deemed to have been waived. No doubt the objection as regards the legality and validity of service of notice can always be waived. The objection is not as regards the legality or validity of notice.
The objection is that in the absence of allegation as regards nonmentioning the plaint is liable to be rejected. The notice which is required to be served on the defendant as is contemplated in Section 53B of the Act is similar to the notice, which is required to be served under Section 80 of the Code of Civil Procedure, in case a suit is to be filed against the Government or public authority. Section 53B of the Delhi Development Act like Section 80 of the Code of Civil Procedure is mandatory RCA No.: 196/16 and its compliance is imperative. The suit not complying with such like provisions cannot be entertained by any Court and if instituted must be rejected under Order 7 Rule 11 Civil Procedure Code. Reference in this regard may be made to a decision of the Supreme Court in Gangappa Gurupadappa Gugwadv. Rachawwa and Others, MANU/SC/0351/1970 : [1971]2SCR691 and Bichari Chowdhary v. State of Bihar, MANU/SC/0004/1984 : [1984] 3SCR309. Mere failure to raise objection in the written statement cannot per se be regarded as a waiver.
An objection was raised by the defendant in this application, which was moved on 29th August, 1992. Since plaint in this case was allowed to be amended, the defendants were permitted to file written statement to the amended plaint, in which there admittedly is a specific objection taken as regards the maintainability of the suit in the absence of service of notice under Section 53B of Delhi Development Act.
(9) Since admittedly, no notice was served before the institution of suit and no averment has been made in the plaint as regards plaintiff's having served notice upon the defendant before the institution of the suit, the plaint is liable to be rejected under order 7 Rule 11 Civil Procedure Code. Accordingly, the application is allowed and the plaint RCA No.: 196/16 stands rejected under order 7 Rule 11 Civil Procedure Code."
25.Admittedly, the appellant have not issued any notice to respondent no.1 or other respondents before the institution of the present suit nor sought the leave of the court for the same. Interestingly, appellant had not made any averment qua the same in his plaint as well. The submissions of the counsel for the appellant that he had filed WA No. 720/2012 before Hon'ble High Court of Delhi which was dismissed as withdrawn and which was passed in the presence of respondent no.1/DDA and thus, there is no need for giving notice as contemplated u/s 53 B of DDA Act and Section 80 of the CPC is devoid of any merits. The aforesaid judgment squarely applies to the facts of the case.
26.The counsel for the appellant argued that this suit is not only suit for declaration but also for injunction and thus no notice is required.
27.As per Section 53B (3) of Delhi Development Act a notice is not required where the relief claimed is only pertains to injunction as it might frustrate the object of injunction by giving the notice to the respondent, however, in the present case the suit of the appellant/plaintiff was not per se suit for injunction but it was primarily suit for declaration to the effect RCA No.: 196/16 that he be declared owner of the suit property by way of adverse possession. Therefore, the appellant ought to have issued the notice to the respondent u/s 53 B of DDA Act and 53B(3) does not applies to the facts of the present case. Similarly, no notice under Section 80 of the CPC has been issued to respondent no.2. The trial court has rightly adjudicated the issue no.4 and 5 and calls for no interference.
28.Next, the counsel for the appellant argued that the Trial Court had wrongly rejected the relief of injunction as prayed by the appellant. He argued that the judgment so relied by the Trial Court in arriving to the conclusion whereby the Trial Court has decided the issue of permanent and mandatory injunction against the appellant, is not applicable to the facts of the case. The counsel for the appellant/plaintiff argued that it is a admitted case of the parties that the appellants are in possession of the suit property since long i.e. from 1970. The same is disputed by the counsel for the respondent.
29.In the cross examination of appellant as PW1 in the court below it has come on record that appellant admits that he is not the owner of the suit property i.e. the vacant land part of Khasra no.23, Chariga Junebi, Gandhi Nagar, Delhi admeasuring about 46.90 acres. He has got no title of ownership. It has further come in the cross examination that the respondent has RCA No.: 196/16 removed the unauthorised encroachment on 04.09.2000 with the help of police. He admits that the disputed land belongs to Government of India which was transferred to DDA. The appellant has examined Daljeet Singh as PW2. It has come in the cross examination of PW2 that the plaintiff and his family are not in continuous possession of the land since 1970 in land measuring 46.90 acres purchased by DDA of Khasra no.23, Chariga Junebi, Gandhi Nagar, Delhi. It has further come in his cross examination that there is no house bearing no. 5/9/3B, Geeta Colony, situated at Khasra no.23, Chariga Junebi, Gandhi Nagar, Delhi.
30.The appellant/plaintiff in support of his case before the Trial court, has examined Sh. S.K. Nasa, Naib Tehsildar, DDA Vikas Sadan as PW4. His cross examination was done on 13.12.2010. It has come in his chief examination that "as on this day, DDA is in physical possession of the suit property".
31.The respondent has also examined Sh. S.K. Nasa wherein this witness has tendered his evidence as DW1. In the chief examination, it has been stated by this witness that the appellant is not in the continuous possession of the property for the last 34 years. The land is a Government land. This witness was cross examined by the appellant. No suggestion was put to this witness qua the same. It is settled preposition of law that if you RCA No.: 196/16 allow the witness to go unrebutted then the same amounts to admitted. It has come in the cross examination that "I demolished the unauthorized encroachment of the plaintiff thrice". The respondent has exhibited the copy of the order dt. 29.08.2002 as Ex.DW1/1. It has been observed in the said order that the facts clearly shows that appellants have encorached upon the Government land and has no title to the property in question. From the above, it is clear that the appellants were never been in the continuous possession or settled possession of the suit property and are encroacher on the Government land and thus are not entitled for any relief, much less the relief of injunction. I find no infirmity in the judgment passed by Ld. Trial Court while deciding issue no.1 and issue no.2.
32.From the above discussion, there is no infirmity in the order passed by the Ld. Trial Court. The appeal is hereby dismissed. Since the court has already dismissed the appeal of the appellant, the court do not find any good reason for disposing off the application u/o 41 rule 27 CPC.
33.Decree sheet be prepared accordingly.
34.Trial Court record be sent to the ld. Trial Court with copy of this order.
RCA No.: 196/16
35.Appeal file be consigned to record room. Announced in the Open Court today on 15.07.2016 (Anurag Sain) Additional District Judge02, (East) Karkardooma Courts, Delhi RCA No.: 196/16