Delhi High Court
Sh. Surat Singh (Deceased) Thr. Lrs Smt. ... vs Delhi Development Authority on 24 September, 2018
Author: Valmiki J.Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 806/2018
% 24th September, 2018
SH. SURAT SINGH (DECEASED) THR. LRS SMT.
CHANDERWATI & ORS. ..... Appellants
Through: Mr. J.C. Mahindro and Mr.
Lavish Seth, Advocates (Mobile
No. 9810138091).
versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular First Appeal under Section 96 of the Code
of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit
(since deceased and now represented through legal heirs) impugning
the Judgment of the Trial Court dated 29.05.2018 by which the trial
court has dismissed the suit filed by the plaintiff for declaration,
possession and mesne profits under Section 6 of the Specific Relief
Act, 1963.
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2. As seen from the heading of the suit, as also para 14 of
the plaint, the subject suit was a suit under Section 6 of the Specific
Relief Act, i.e. claiming possession within six months of the alleged
dispossession.
3. In the present suit therefore no issue arises of claim of
possession by the appellants/plaintiff of the suit property in terms of
an ownership title, and the right to possession of the suit property is
only claimed as per the possessory title and of dispossession within six
months prior to the subject suit having been filed on 23.10.2002. In
such a suit, therefore, the appellants/plaintiff can only succeed in case
the appellants/plaintiff have proved to have been in possession of the
suit property within six months prior to filing of the suit.
4. Before we turn to the relevant issue of whether the
appellants/plaintiff were in possession of the suit property within six
months prior to filing of the suit, for the suit to be successful under
Section 6 of the Specific Relief Act, the following undisputed facts
may be noticed.
5(i). The plaintiff, Sh. Surat Singh, had earlier filed a Suit No.
177/1989 against the respondent/defendant/Delhi Development
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Authority (DDA) for permanent injunction claiming right to the suit
property bearing no. WZ-324-A, Mauza Village Shakurpur, Delhi-
110034 admeasuring 1100 sq. yds. In the earlier suit, though, lessee
rights were claimed in the suit property, rights on account of
possession were also claimed. Rights in the suit property were pleaded
on the fact that the suit property was located in and formed part of
Khasra no. 30/27 of Village Shakurpur. As per para 1 of the plaint, in
the said earlier suit the property no. WZ-324-A was said to be an area
of 1100 square yards, and the property was said to be leased to the
plaintiff, Sh. Surat Singh, by the Sarpanch of the Gram Sabha of the
Village Shakurpur for 99 years on 05.04.1960. In the earlier suit
plaint, it was also claimed that since 05.04.1960, the plaintiff, Sh.
Surat Singh, was a perpetual lessee in possession of the suit property
and he had constructed out a residential-cum-commercial premises
consisting of 8 shops, baithak and a hall, with an open courtyard.
Paras 1 to 3 of the earlier suit plaint in Suit No. 177/1989 read as
under :
"1. That the plaintiff Shri Surat Singh is the perpetual lessee
and in occupation of all that plot of land as well as the super-
structure made thereon measuring 1100 square yards and forming
part of Khasra No. 30/27 Mauza Shakurpur Delhi State Delhi ever
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since 5.4.1960. The said plot of land was acquired as perpetual
lessee by the plaintiff from the Sarpanch of the Gram Sabha Village
Shakurpur Delhi State Delhi for a period of 99 years for a
consideration of RS.1485/- and the same is continuously under the
actual occupation of the plaintiff ever since 5.4.1960.
2. That the plaintiff got constructed the residential cum
commercial premises on the said plot of land which is detailed and
shown in the site plan of the premises filed along with the plaint.
3. That the above said property bearing house No.WZ-324-A
Mauza Shakurpur Delhi comprising of eight shops, a baithak and a
hall besides open court yard, with a total area of 1100 square yards,
and forming part of the Khasra No.30/27 Mauza Shakur Pur Delhi
State Delhi is situate within the Lal Dora of the said village which
fact was confirmed and certified by the S.D.M. Punjabi Bagh Delhi
vide his Lal Dora Certificate bearing No.SDM/PB/831 dated
15.4.1981 addressed to the plaintiff."
(underlining added)
5(ii). In the earlier suit plaint of Suit No. 177/1989, it was
claimed by the plaintiff Surat Singh that the DDA on 29.04.1989 had
sought to demolish the suit property and had succeeded in partially
demolishing the same but the DDA was not successful in complete
demolition and dispossession because of opposition of respectable
persons in the area. Therefore, the earlier Suit No. 177/1989 was filed
by the plaintiff Sh. Surat Singh, seeking the relief of injunction as per
para 16 of the plaint, which is reproduced as under:-
"16. It is, therefore, respectfully prayed as under:-
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(a) That a decree for permanent injunction be passed in favour
of the plaintiff and against the defendants, restraining the defendants
their agents, their servants or their employees from in any manner
disturbing the lawful occupation and possession of the suit property
or from damaging, demolishing the suit property bearing No.WZ-
324-A Mauza Shakurpur Delhi State forming part of Khasra
No.30/27 as shown in the site plan of the suit property/premises filed
on record.
(b) The costs of the proceedings be also awarded in favour of
the plaintiff and against the defendants.
(c) Such other or further relief deemed fit and proper under the
circumstances of the case be also awarded in favour of the plaintiff
and against the defendant."
6. The respondent/defendant in its written statement in the
earlier Suit No. 177/1989 pleaded that the Khasra No. 30/27 on which
the suit property was said to be located was not owned by the plaintiff
Sh. Surat Singh and it was denied that the plaintiff Sh. Surat Singh
was lessee thereof from the Sarpanch of the village, and that in fact
the Gram Sabha land comprised of Khasra No. 30/27 which vested in
the Central Government on urbanization of the Village Shakurpur, and
thereafter placed at the disposal of respondent/defendant vide
Notification S.O. No. 2190 dated 20.08.1974. The land comprising in
Khasra No. 30/27 as per the respondent/defendant was sought to be
illegally encroached upon by the appellants/plaintiff, Sh. Surat Singh,
who was seeking to make unauthorized construction but the
RFA 806/2018 Page 5 of 30
unauthorized construction was removed. Therefore, the earlier suit
filed by the appellants/plaintiff Sh. Surat Singh was prayed to be
dismissed by the respondent/defendant in the earlier suit by denying
any title or possession of the plaintiff Sh. Surat Singh.
7(i). In this earlier Suit No. 177/1989 an injunction application
was filed by the plaintiff/ Sh. Surat Singh under Order XXXIX Rules
1 & 2 CPC but this application was dismissed by the court of Sh.
Rakesh Garg, the then Sub-Judge, Delhi vide Order dated 08.07.1993.
Appeal filed against the said Order dated 08.07.1993 was dismissed by
the Appellate Court of Sh. J.P. Sharma, ADJ, Delhi vide his Order
dated 04.08.1998 by imposing costs of Rs. 3,000/- on Sh. Surat Singh.
7(ii) Sh. Surat Singh, however, again trespassed and raised
unauthorized construction which was thereafter demolished on
26.10.1998. The respondent/defendant then fenced the land so that the
same cannot be encroached upon.
7(iii) One other application was then filed by Sh. Surat Singh
under Order XXXIX Rules 1 & 2 CPC which was again dismissed
vide order dated 09.03.2001, and an appeal against that order was
dismissed by the Appellate Court of Sh. Brijesh Kumar, ADJ, Delhi
RFA 806/2018 Page 6 of 30
vide his order dated 19.11.2001 imposing costs of Rs. 5,000/- upon
Sh. Surat Singh for being deposited in the Legal Aid Board. In the
order dated 19.11.2001, the Appellate Court had observed that Sh.
Surat Singh was already dispossessed and removed from the site by
demolishing the constructed portion and that an attempt of occupation
of the land by Sh. Surat Singh in the garb of injunction order is an
abuse of the process of law and that the second injunction application
filed was an abuse of the process of law.
8. That after the second injunction application was
dismissed by the Appellate Court on 19.11.2001, the plaintiff, Sh.
Surat Singh, withdrew his suit on 16.09.2002 alleging that he came to
know on 27.05.2002 that the suit property did not fall and was not
comprised in Khasra No. 30/27.
9. The present suit was thereafter filed by Sh. Surat Singh
pleading that he did not have any ownership title to the suit property
but that he had a possessory title to the suit property from 1953-1954,
and at least since 1960 when the building is said to be constructed.
The difference between para 1 of the present suit plaint and para 1 of
the plaint in the earlier suit is stark because in para 1 of the suit plaint
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of the earlier Suit No. 177/1989 the suit property was said to be 1100
square yards whereas in the present suit the property no. WZ-324-A
was said to be of 500 square yards. Whereas in the earlier suit
possession was claimed of the suit property WZ-324-A to be only
from 1960, in the present suit plaint possession was claimed to exist
since 1953-1954. I have already reproduced above para 1 of the suit
plaint in the earlier Suit No. 177/1989 and to compare and contrast the
same for the contradictions of the plaintiff Sh. Surat Singh, para 1 of
the plaint in the present suit is reproduced below :
"1. That within the extended Lal Dora of Village Shakurpur, Delhi
and in side the Phirni there has been existing a plot of land bearing No.
WZ-324-A measuring 500 Sq. yds. and after the settlement and
consolidation of the said Village completed in the year 1953-54 the said
plot has been continuously in the possession of the plaintiff. The
aforesaid plot is more specifically shown in red colour in the site plan
annexed and shall hereinafter be referred to as Suit Property. It is stated
that the plaintiff had constructed his building over the aforesaid plot
around the year 1960 and the plaintiff has been in continuous,
uninterrupted, peaceful and actual physical possession of his said
property till 30.05.2002 when the officials, agents, representatives of
the defendant with Police Aid dispossessed the plaintiff from his suit
property."
(Underlining Added)
10. The first aspect to be considered and noticed is that the
present suit is clearly barred under Order II Rule 2 CPC. Order II
Rule 2 CPC bars the filing of a subsequent suit when on an earlier
RFA 806/2018 Page 8 of 30
claim made by a plaintiff, he could have sought the relief but he did
not do the same in that earlier suit, and therefore in a subsequent suit,
such relief, as per the claim in the earlier suit, in law, cannot be
claimed in the subsequent suit filed. It is noted that the earlier suit
was withdrawn in terms of the order dated 16.09.2002, and admittedly
no permission was granted by the order dated 16.09.2002 for filing of
any fresh suit. The earlier suit plaint filed was a conjoint plaint with
respect to title of a perpetual lessee of the plaintiff Sh. Surat Singh in
the suit property WZ-324-A and also of possession of the subject
property since 1960, whereas the present suit is only based upon the
possession of the subject property, from 1960 and in fact earlier from
1953-1954, and therefore in essence the earlier suit was also on the
claim and cause of action of possession of the suit property by the
plaintiff, Sh. Surat Singh, and the present suit is also on the basis of
the possessory title of Sh. Surat Singh. Since the earlier suit was
withdrawn without liberty to file a fresh suit, therefore the present suit
was clearly barred under Order II Rule 2 CPC and this has rightly
been decided by the trial court in favour of the respondent/defendant
and against the appellants/plaintiff in terms of para 21 of the
RFA 806/2018 Page 9 of 30
impugned judgment. The present suit therefore was clearly barred
under Order II Rule 2 CPC and was thus liable to be and was rightly
dismissed by the trial court by applying the Order II Rule 2 CPC.
11. Let us now go on the basis that the present suit could not
be dismissed under Order II Rule 2 CPC, and therefore let us examine
as to whether the appellants/plaintiff were entitled to the relief under
Section 6 of the Specific Relief Act. The appellants/plaintiff therefore
will have to prove their possession of the suit property within six
months prior to filing of the present suit on 23.10.2002 i.e.
appellants/plaintiffs will have to prove by evidence that they were in
in possession of the suit property within six months prior to
23.10.2002. As per the plaint, the plaintiff, Sh. Surat Singh, has
pleaded that he was dispossessed by the respondent/defendant by
demolishing the suit property on 30.05.2002. The legal possession,
protected under Section 6 of the Specific Relief Act, for the said
possession to be actionable in a court of law, must be settled
possession. What is settled possession for the purpose of Section 6 of
the Specific Relief Act has been expounded by the Supreme Court in
its judgment in the case of Rame Gowda (D) by Lrs. v. M. Varadappa
RFA 806/2018 Page 10 of 30
Naidu (D) by Lrs. and Anr. (2004 )1 SCC 769 and the relevant paras
of this judgment are paras 9 and 10, and these paras read as under:-
"9. 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. Delhi Admn:AIR 1968 SC 702, Puran
Singh. v. State of Punjab:(1975) 4 SCC 518 and Ram
Rattan. v. State of Uttar Pradesh:(1977) 1 SCC 188. The authorities
need not be multiplied. In Munshi Ram case(supra), 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 re-enter and re-instate
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. A stray act of trespass, or a
possession which has not matured into settled possession, can be
obstructed or removed by the true owner even by using necessary
force. In Puran Singh case (supra), the Court clarified that it is
difficult to lay down any hard and fast rule as to when the possession
of a trespasser can mature into settled possession. The 'settled
possession' must be (i) effective, (ii) undisturbed, and (iii) to the
knowledge of the owner or without any attempt at concealment by
the trespasser. The phrase settled possession does not carry any
special charm or magic in it nor is it a ritualistic formula which can
be confined in a strait-jacket. An occupation of the property by a
person as an agent or a servant acting at the instance of the owner
will not amount to actual physical possession. The court laid down
the following tests which may be adopted as a working rule for
determining the attributes of 'settled possession' (SCC p. 527, para
12):
RFA 806/2018 Page 11 of 30
i) that the trespasser must be in actual physical possession of the
property over a sufficiently long period;
ii) that the possession must be to the knowledge (either express
of implied) of the owner or without any attempt at concealment
by the trespasser and which contains an element of animus
possidendi. The nature of possession of the trespasser would,
however, be a matter to be decided on the facts and
circumstances of each case;
iii) the process of dispossession of the true owner by the
trespasser must be complete and final and must be acquiesced
to by the true owner; and
iv) that one of the usual tests to determine the quality of settled
possession, in the case of culturable land, would be whether or
not the trespasser, after having taken possession, had grown any
crop. If the crop had been grown by the trespasser, then even the
true owner has no right to destroy the crop grown by the
trespasser and take forcible possession.
10. In the case of Munshi Ram [AIR 1968 SC 702 : (1968) 2
SCR 455 : 1968 Cri LJ 806] and Puran Singh [(1975) 4 SCC
518 : 1975 SCC (Cri) 608] the Court has approved the statement
of law made in Horam v. R. [AIR 1949 All 564 : 50 Cri LJ 868]
wherein a distinction was drawn between the trespasser in the
process of acquiring possession and the trespasser who had
already accomplished or completed his possession wherein the
true owner may be treated to have acquiesced in; while the
former can be obstructed and turned out by the true owner even
by using reasonable force, the latter may be dispossessed by the
true owner only by having recourse to the due process of law for
requiring possession over his property."
(Emphasis Supplied)
12. A reading of the aforesaid paras clearly show that mere
stray acts of trespass or flimsy acts of possession will not amount to
settled possession. Also, settled possession can only be that
possession which is acquiesced to by the owner of the property.
RFA 806/2018 Page 12 of 30
Unless there is acquiescence to possession, there cannot be settled
possession as is stated by the Supreme Court in paras 9 and 10 of its
judgment in the case of Rame Gowda (D) by Lrs.(supra) which have
been reproduced above. In the light of the ratio of the judgment of the
Supreme Court in the case of Rame Gowda (D) by Lrs.(supra, let us
now see whether the appellants/plaintiff have proved to be in settled
possession of the suit property as on 30.05.2002 and on which date it
is pleaded that the appellants/plaintiff were dispossessed by
demolition of the 'constructed' property.
13. It has already been stated above that in the year 1989 the
plaintiff, Sh. Surat Singh, was dispossessed by demolishing the illegal
constructions made on the suit property. Sh. Surat Singh was clearly
therefore dispossessed in the year 1989 itself. As per the suit plaint
filed by Sh. Surat Singh in the earlier case, the date of dispossession
and demolition is 29.04.1989. The earlier Suit No.177/1989 was filed
on 05.05.1989. The plaintiff Sh. Surat Singh was therefore not in
possession of the suit property on 05.05.1989 when the earlier suit was
filed and this has been so held against Sh. Surat Singh in two earlier
orders dismissing the two injunction applications under Order XXXIX
RFA 806/2018 Page 13 of 30
Rules 1 and 2 CPC and also in two appellate orders. Therefore, the
plaintiff Sh. Surat Singh was only repeatedly encroaching upon the
suit property and the respondent/defendant was repeatedly
demolishing the suit property and dispossessing, the appellants/
plaintiff , and therefore these acts of intermittent trespass and illegal
possession by Sh. Surat Singh of the suit property cannot be said to be
settled possession of the suit property as per settled law. The suit
property of the plaintiff, Sh. Surat Singh, was demolished repeatedly,
first in the year 1989, then on 26.10.1998, and finally on 30.05.2002,
and these facts become clear from the earlier suit plaint wherein in
para 2 it was stated by Sh. Surat Singh that the property which was
constructed on WZ-324-A consisted of eight shops, baithak and hall
with an open courtyard, but the Local Commissioner's report, filed in
the earlier suit on 17.02.2000, shows that what existed on the plot no.
WZ-324-A was not a pucca construction but a temporary construction
with only a tin shed roof. Para 3 of the Local Commissioner's report
dated 17.02.2000 reads as under:-
"3. That in the plot No. 324-A, Shakurpur Village, there is no pucca
construction except a kaccha kotha covered by tin-shed, as shown in the
site plan. There were many Ricshaws around 40-50, in number which
belongs to the plaintiff. The plot was covered by wire fencing on its
RFA 806/2018 Page 14 of 30
boundary as shown in site plan. One electronic & water meter was also
in the plot."
14. In this regard it is also required to be noted that
appellants/plaintiff in the present suit plaint in para 5 admits that on
29.04.1989 and 08.10.1996 the property WZ-324-A was "partially
demolished", and which is in fact a clear admission that there was in
fact demolition of the property WZ-324-A by the
respondent/defendant on these two dates. Though the plaintiff, Sh.
Surat Singh, claims that property the was "partially demolished", the
demolition was complete and ouster of Sh. Surat Singh from the
illegal encroachment of the suit property was complete, and this is
otherwise an indubitable position as seen from para 3 of the report of
the Local Commissioner which has already been reproduced above
wherein it is stated that there was no pucca construction and just
temporary construction with a tin shed roof. Further, the plot was
bounded by wire fencing only i.e. there was no boundary wall.
15. Therefore, it is held that the appellants/plaintiff were not
in possession of the suit property within six months prior to filing of
the present suit on 23.10.2002, and therefore, this present suit cannot
RFA 806/2018 Page 15 of 30
be decreed under Section 6 of the Specific Relief Act as against the
true owner being respondent/defendant.
16. Learned counsel for the appellants/plaintiff laboured to
show that there existed electricity connections and electricity bills in
the name of the plaintiff, Sh. Surat Singh, since 1978 and also that the
property tax was paid since 1984. However, these are not the aspects
which this Court has to consider in this suit for possession filed under
Section 6 of the Specific Relief Act because even if the possession of
the plaintiff, Sh. Surat Singh, existed in 1978 or 1980 when there was
a factory license or as per other house tax records of 1984, such
possession by Sh. Surat Singh of the suit property was an illegal
encroachment of a public land and illegal acts of trespass in law
cannot amount to settled possession of property for invoking Section 6
of the Specific Relief Act. Acquiescence by the owner of the property
to settled possession of an encroacher is a sine qua non, and in the
facts of the present case there is no acquiescence shown of the
respondent/defendant to the possession of the plaintiff Sh. Surat Singh
of the suit property. In fact as already stated above, repeated
demolitions and dispossession have been carried out by the
RFA 806/2018 Page 16 of 30
respondent/defendant with respect to the property and on account of
repeated illegal encroachments being made by the appellants/plaintiff
on the suit property. Therefore it is held that the subject suit had to fail
because appellants/plaintiff were not in settled possession of the suit
property within the meaning of the expression as required for Section
6 of the Specific Relief Act.
17. Counsel for the appellants/plaintiff also sought to place
reliance upon Orders passed by the Revenue Authorities dated
30.01.1991, 17.12.1993 and 22.09.1999. These are orders passed by
by Ld. SDM dated 30.01.1991, the order passed by Ld. Financial
Commissioner dated 17.12.1993 and order passed by Ld. Revenue
Assistant dated 22.09.1999. Reliance placed by the appellants/plaintiff
to the aforesaid revenue orders is misconceived for various reasons.
Firstly, none of these orders are for the period of six months prior to
filing of the subject suit on 23.10.2002. In any case, these orders will
not apply because these orders pertain to Khasra no. 30/27 and the
admitted case of the appellants/plaintiff is that the suit property does
not fall in Khasra no. 30/27. These three orders dated 30.01.1991,
17.12.1993 and 22.09.1999 read as under:
RFA 806/2018 Page 17 of 30
Order dated 30.1.1991
"COURT OF THE SUB DIVISIONAL MAGISTRATE (P. BAGH) :
DELHI
Case No. 1455/89
Gaon Sabha Shakur Pur Vs. Surat Singh
ORDER
This order shall dispose of the proceedings u/s 86A of Delhi Land Reforms Act in respect of land bearing Khasra Nos. 35/27 (1-1) Delhi. The Halqa Patwari has reported that respondent has/have illegally encroached upon the Gaon Sabha land situated in village Shakur Pur. I am satisfied with the report of the halqa Patwari that the respondent(s) has/have taken illegal possession of the gaon Sabha land mentioned above and as such is liable to be ejected therefrom with immediated effect. I order accordingly. Let a copy of this order be sent to Tehsildar(Delhi) for information and necessary action.
sd-
ANNOUNCED: (VIPUL MITTRA) 30.1.1991 SUB DIVISIONAL MAGISTRATE (P. BAGH)"
Order dated 17.12.1993 (MADAN JHA, F.C.) "1. This is a revision petition under section 187 of the Delhi Land Reforms Act, 1954 (called the Act) against the order dated 30.1.91, passed by H.C. Gaur, S.D.M. (Punjabi Bagh)/Revenue Assistant, Delhi, ordering the ejectment of the petitioner from land bearing Khasra No. 30/27(1-1) situated in the revenue estate of village Shakurpur, Delhi, under section 86-A of the Act.
2. Learned counsel for the petitioner has been heard. He has firstly sought to argue that the entire proceedings culminating in the passing of the impugned order are a nullity and that, therefore, the impugned order does not hold good. Dilating on his submissions on this point, the RFA 806/2018 Page 18 of 30 learned counsel submitted that the petitioner had filed an application for correction of khasra girdwari entered in respect of the suit land in his favour, as the petitioner had been in possession of the said land recorded in the column of occupation. He added that instead of deciding the said application of the petitioner, which according to the learned counsel was uncalled for and had been filed on the wrong advice given to the petitioner, the learned lower court converted the proceedings into initiating the case under Section 86 A of the Act. This action, the learned counsel has stressed, is totally uncalled for and against the legal procedure. He thus sought to maintain the entire proceedings, emanating from the application are liable to be quashed.
3. I do not find any force in the above contention of the learned counsel. It is an undisputed fact that the land in suit stands recorded in the khata of the Gaon Sabha. Also that the petitioner has been in its unauthorised occupation. That being so, I hold that the learned Revenue Assistant was well within his rights to initiate proceedings under section 86-A of the Act under his suo moto jurisdiction conferred upon him under the Act. This first argument of the learned counsel for the petitioner thus stands turned down.
4. The learned counsel further submitted that otherwise also the impugned order is not in conformity with the procedure and the provisions of law. In this behalf, he has argued that no proper opportunity was granted to the petitioner to put up his case, that the facts that the petitioner has been in possession of the suit land since the year 1960 and that the proceedings were barred by limitation have not been taken into consideration and also that the effect of the land in suit, having been urbanised has been lost sight of by the court below. In other words, the learned counsel stressed that the impugned order has been passed in a mechanical manner without recording any specific reasons and that as such, the same is liable to be quashed on these legal infirmities also.
5. I find considerable force in these submissions of the learned counsel. The impugned order, on the face of it, is a mechanical and non-speaking order, which does not have the sanction of law. The contentions of the petitioner that he has been in adverse possession of the land since the year 1960 and that the ejectment proceedings were barred by limitation, are very vital and have a bearing on the disposal of the matter. Similarly, the effect of the urbanisation of a suit land has also to be taken into consideration. A reading of the impugned order squarely gives an impression that no notice/hearing was given to the petitioner by the learned Revenue Assistant before passing the impugned order. It appears RFA 806/2018 Page 19 of 30 that the order has been passed straight-way. This is against all the cannons of natural justice.
6. I am, therefore, of the considered view that the petitioner deserves a chance of being heard in this case by the trial court and that a reasoned and speaking order has to be passed.
7. Accordingly, I allow the revision petition, set aside the impugned ejectment order and remand the case to the Revenue Assistant for passing a fresh speaking and reasoned order on facts and merits after properly noticing the petitioner and giving findings on the points, so raised by him.
Case remanded. Order announced.
sd/-
(MADAN JHA) FINANCIAL COMMISSIONER, DELHI 17.12.93"
Order dated 22.9.1999 " ORDER This order shall dispose an application filed by the applicant- respondent under section 151 C.P.C. for hearing and decision of the case titled above as per Remand order of the Ld. Financial Commissioner, Delhi in Revision Petition no. 194/93 dated 17.12.93. Originally, the case titled above was filed by Gaon Sabha Shakurpur, Delhi and proceedings were started u/s 86A of D.L.R. Act. The case was decided against the respondent Surat Singh on the report of Halqa Patwari due to the encroachment made upon the land of the Gaon Sabha by the respondent Surat Singh. The case was decided and announced by the then Sub Divisional Magistrate (Punjabi Bagh), Delhi on 30.1.91. The Hon'ble Financial Commissioner, Delhi remanded the case to the Revenue Assistant. The Remand Order was passed by the Financial Commissioner, Delhi in a case no. 194/93-CA-Revision Petition under section 187 of the Delhi Reforms Act, 1954 on 17.12.93, affording a chance to the petitioner Surat Singh to be heard in this case by the trial court for the reason that the order passed by the trial court was not a speaking order in itself. The petitioner Surat Singh on remand of the RFA 806/2018 Page 20 of 30 case to the trial court filed the application u/s 151 C.P.C. for hearing in this court in light of the directions given by the Ld. Financial Commissioner, Delhi.
I have gone through this case thoroughly, keeping in view the directions given by the Ld. Financial Commissioner and also heard the Ld. Counsel and considered the documents tendered by the Ld. Counsel, Sh. Rana for respondent, I have come to the conclusion that the suit land is an urbanised one and 86A of the DLR Act is not applicable as such, I hereby drop the proceedings u/s 86A of the DLR Act. Announced in the open court on 13th day of August 1999. Given under my hand and seal of this court.
sd/-
(RANJANA DESWAL) REVENUE ASSISTANTS; S. VIHAR KANJHAWALA: DELHI"
18. It is therefore seen that the orders of the Revenue Authorities will not apply, not only because the aforesaid orders pertain to Khasra no. 30/27 and which Khasra no. is not in issue in the present case with the fact that these orders not only do not show settled possession of the appellants/plaintiff, much less within six months prior to filing of the present suit on 23.10.2002. This argument of the appellants/plaintiff is therefore rejected.
19. Reliance on behalf of the appellants/plaintiff was then placed upon a judgment dated 09.09.1980 passed by Senior Sub-Judge, First Class, Delhi, in a suit filed by Sh. Surat Singh against the MCD, and RFA 806/2018 Page 21 of 30 which judgment as per the appellants/plaintiff proves that Sh. Surat Singh was in possession of the suit property. Once again, this argument is misconceived because this order is dated 09.09.1980 and is therefore not within six months prior to 23.10.2002 for being considered in a suit under Section 6 of the Specific Relief Act. Also, the said judgment has been passed not against the respondent/defendant(DDA) but against the MCD, and therefore the said judgment will not bind the respondent/defendant(DDA) as the respondent/defendant(DDA) is not claiming through the Municipal Corporation of Delhi (MCD). Also, all that is held in the judgment dated 09.09.1980, and in which case the MCD was ex-parte, was that the premises of the plaintiff, Sh. Surat Singh, WZ-324-A cannot be demolished without notice. There is no finding of any settled possession in the said Judgment dated 09.09.1980 because the judgment is an ex-parte judgment as per the unilateral case of the plaintiff, Sh. Surat Singh, that no demolition can take place without serving of notice, and that also against the MCD and not the respondent/defendant(DDA). This Court therefore reject the reliance RFA 806/2018 Page 22 of 30 placed by the appellants/plaintiff upon the Judgment dated 09.09.1980.
20. This Court would finally like to refer to the RTI Query dated 17.11.2009 relied upon by the appellants/plaintiff, and in fact this document shows that land in Khasra No. 30/27 of about 1 bigha and 1 biswas i.e. 1050 sq. yards was a Gram Sabha land and on urbanization of the village the same vested in the Government and later placed at the disposal of the DDA. This Letter dated 17.11.2009 of the respondent/defendant addressed to the plaintiff, Sh. Surat Singh, reads as under:-
"Delhi Development Authority Land Management (North Zone) L.S.C., L U-Block Pitampura, Delhi Ph. 011-27347363 F 5(24)/2006/RTI/LM/N2/DDA/919 Dt. 17/11/09 To Sh. Surat Singh S/o Sh. Hari Singh WZ-114/58 Shakurpur Village Delhi 34.
Sub: Information requested under RTI Act 2005.
Ref:- I.D. No.4989 Dt 20-10-09.
Dy No.426/RTI/LM/N2/DDA Dt 22/10/09.RFA 806/2018 Page 23 of 30
Please refer to your above mentioned R.T.I application bearing I.D. No.4989 received to the undersigned P.I.O on 22-10-2009 for providing you the requested information which is as under:
(1)The total area of Khasra No.30//27 of village Shakurpur is one Bigha and one Biswa (1-01).
(2)This land is being utilized as a Barat Garh (Community Hall) constructed by the M.C.D. (3) & (4) This land was a gram sabha land and at the time of urbanization of village Shakurpur it vested in Govt, which was later on placed at the disposal of DDA by the Delhi Govt L&B Department vide notification no.S.O 2190 Dt 20/8/74.
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Dy. Director(LM)N2 P.I.O/DDA"
21. Learned counsel for the appellants/plaintiff to show alleged possession of Sh. Surat Singh form 1953-1954 has placed reliance uopn a Lal Dora Certificate dated 15.04.1981 issued by the office of the Deputy Commissioner, Delhi, but such certificate in no manner helps the appellants/plaintiff because this certificate does not show that Sh. Surat Singh was in possession of the property WZ-324-A in 1953-1954. All that this certificate shows is that Sh. Surat Singh had applied for Lal Dora Certificate for the property WZ-324-A and that the number WZ-324-A falls in Khasra No. 30/27. In fact, and as already stated above, the appellants/plaintiff do not even claim any right to the land situated in Khasra No. 30/27 and which stand has been specifically given up in the suit, though in the earlier Suit No. 177/1989 it was claimed that the suit property was situated in Khasra No. 30/27. Finally, RFA 806/2018 Page 24 of 30 this Court would also like to note that the property WZ-324-A would not have existed as per such numbering in 1953-1954 because when we see the boundaries of the four sides of the property which is mentioned in this Certificate dated 15.04.1981, these boundaries are shown by existence of a Gali or lands of other persons without there being any numbers on the same.
Obviously, the numbers would have come into existence much later after the land of Village Shakurpur was urbanized. In order to appreciate the aforesaid aspects, the Lal Dora Certificate dated 15.04.1981 is reproduced below:-
" OFFICE OF THE DEPUTY COMMISSIONER, DELHI
No. SDM/PB/831 Dated : 15.4.81
LAL DORA CERTIFICATE
Shri Surat Singh s/o Hari Singh r/o House No.WZ-324-A, Shakurpur, Delhi has applied for the issue of Lal Dora Certificate in respect of House/Building No.WZ-324-A situated Shakurpur. As per report of the Patwari Halqa Shakurpur and field Kaniungo/Tehsildar Delhi house/building falls in Khasra No.30/27 which has been earmarked as Lal Dora during the settlement/consolidation operation of village Shakurpur in the year 1953-54. The said house/building is surrounded on the four sides as under:-
a) East- Gali
b) West- Phirni & Johar
c) North- Phirni & D.D.A. Land
d) South- Dharm Shal This certificate is issued to the applicant on his specific request for Electric connection.
sd/-
(VIVEK RAE) S.D.M./R.A. PUNJABI BAGH, DELHI."
RFA 806/2018 Page 25 of 30
22. From the aforesaid facts the following conclusions can be drawn:
(i) The appellants/plaintiff as per the present suit plaint did not claim any title to the property WZ-324-A, but only claim rights in the same on the basis of possession.
(ii) Though in the earlier suit, right was claimed in the property WZ-324-A on the ground that the same is situated in Khasra No. 30/27, however that stand is abandoned and the appellants/plaintiff do not claim that the suit property is part of land situated in Khasra No. 30/27, and which land is in fact Gram Sabha land, and possession of which has already been handed over for construction of a Community Hall, and which Community Hall exists as on date as per Letter dt.
17.11.2009 of Department/DDA which is reproduced above.
(iii) The appellants/plaintiff are rank encroachers of government land and repeated encroachments and illegal constructions made by the appellants/plaintiff have been demolished on three occasions on 29.04.1989, 26.10.1998 and 30.05.2002.
RFA 806/2018 Page 26 of 30
(iv) The appellants/plaintiff have miserably failed to prove their settled possession as required by law, and which settled possession is a sine qua non as per the ratio of the judgment of the Supreme Court in the case of Rame Gowda (D) by Lrs.(supra). Repeated acts of encroachments and trespass, and which have been thwarted by the respondent/defendant by demolition and dispossession, cannot in law be held to be a settled possession.
(v) The appellants/plaintiff have the habit of abusing the process of law. Two earlier injunction applications in the earlier Suit No. 177/1989 were dismissed as also two appeals filed there against, and thereafter, the earlier suit was withdrawn without any liberty to file the fresh suit, and therefore the present suit is clearly barred under Order II Rule 2 CPC.
(vi) The appellants/plaintiff have been time and again prevaricating and resorting to lies to suit their convenience because firstly it was claimed that the suit property falling in Khasra No. 30/27 and this stand of the plaintiff, Sh. Surat Singh, failed because Khasra No. 30/27 was found to be Gram Sabha land which on urbanization of the village vested in the Government, and thereafter, it vested with RFA 806/2018 Page 27 of 30 respondent/defendant and which land was thereafter given to the MCD which has constructed a Barat Ghar/Community Hall. Plaintiff, Sh. Surat Singh, thereafter withdrew his earlier suit, but took up a totally new case of possessory title in this suit plaint, not from 1960 as was claimed in the earlier Suit No. 177/1989 but from much earlier from 1953-1954. Also, earlier rights were claimed in an area of 1100 square yards but in the subject suit the area has mysteriously come down to 500 square yards. Reference in this regard is invited to para 1 of the earlier suit plaint and para 1 the present suit plaint.
(vii) All the documents filed and relied upon by the appellants/plaintiff show that the property WZ-324-A is in Khasra No. 30/27, and therefore appellants/plaintiff cannot succeed on the basis that property WZ-324-A does not fall in Khasra No. 30/27, but falls outside the same. Not only the documents filed by the appellants/plaintiff show property WZ-324-A falls in Khasra No. 30/27 Gram Sabha land/Government land/DDA land/MCD land, the appellants/plaintiff both in their pleadings and evidence are mysteriously silent that if the property WZ-324-A does not fall in Khasra No. 30/27, then the property falls in which Khasra no. of the RFA 806/2018 Page 28 of 30 Revenue Record of Village Shakurpur. The case of the appellants/plaintiff is therefore ex facie false to the knowledge of the appellants/plaintiff.
23. In view of the aforesaid discussion, there is no merit in the appeal. After arguments, I put it to the counsel for the appellants/plaintiff as to whether the appellants/plaintiff in view of the aforesaid facts still want to press the appeal and counsel for the appellants/plaintiff insists on inviting a judgment. Therefore, while dismissing the appeal, this Court in exercise of powers under Section 340 Code of Criminal Procedure, 1973 read with Section 209 the Indian Penal Code, 1860, directs the Registrar General of this Court to file a criminal complaint in the concerned court against the appellants/plaintiff for filing a false case and which is an offence under Section 209 IPC. This Court records a finding of facts that the appellants/plaintiff have filed a false case and therefore a complaint in writing be made to the Magistrate of First Class having jurisdiction. The matter be listed before the Registrar General for the Registrar General to take security for appearance of the appellants/plaintiff as accused in the criminal complaint case. This said appeal is also hereby dismissed with the exemplary costs of Rs. 5 lakhs against RFA 806/2018 Page 29 of 30 the appellants/plaintiff, and which costs of Rs. 5 lakhs will be deposited by the appellants/plaintiff within a period of six weeks from today with the website www.bharatkeveer.gov.in and it is noted that the costs which are imposed under Section 35 CPC are upon a successful party and that there is no provisions of imposing costs for abuse of the process of law on the dishonest litigants, and therefore, such costs are imposed under Section 151 CPC.
24. Appeal is accordingly dismissed with the aforesaid directions for registering of a criminal complaint against the appellants/plaintiff under Section 209 IPC.
25. List before the Registrar General 12.11.2018.
SEPTEMBER 24, 2018 VALMIKI J. MEHTA, J
ib
RFA 806/2018 Page 30 of 30