Delhi District Court
-1- Jagbir Singh & Ors. vs . Dda & Anr. on 22 October, 2009
-1- Jagbir Singh & Ors. Vs. DDA & Anr.
IN THE COURT OF SH. ANIL KUMAR, ACJ/ARC,
COURT NO. 53, KARKARDOOMA COURTS, DELHI.
Suit no. 717/06
In the matter of :
1.Sh. Jagbir Singh, S/o Sh. Sujan Singh
2. Sh. Shiv Raj Singh, S/o Sh. Sujan Singh
3. Sh. Ranbir Singh S/o Sh. Sujan Singh
4. Sh. Hari Singh S/o Late Sh. Hargian Singh (All Residents of village Samaspur Jagir, Delhi) .....Plaintiffs Versus
1. Delhi Development Authority, Through its Vice Chairman, Vikas Sadan, New Delhi.
2. Delhi Vidyut Board Through its Chairman, Shakti Bhawan, I.P. Estate, New Delhi. .....Defendants Date of Institution of suit : 21.07.1998 Date of decision : 22.10.2009 Judgment :
This is a suit for permanent injunction filed by the plaintiffs for restraining the defendants from dispossessing the plaintiffs from their land
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measuring 50' X 201' which is lying in front of their house towards the southern side thereof and depriving of the plaintiffs their rightful use the village Phirni situated in village Samaspur Jagir, Delhi adjoining it and which have been shown in red in the site plan, and/or interfering with their possession and use thereof in any manner whatsoever may be passed in favour of the plaintiffs and against the defendants.
2. The case of the plaintiffs is that they were the original inhabitants of Village Samaspur-Jagir, Delhi and were owners in possession of 21 bighas 11 biswas of land in Khasra no. 37/2, of the village within the Old Lal Dora area. It was further submitted by the plaintiffs that there was an open land lying vacant in front of their houses which was being used by the plaintiffs as Gher and Gitwar for tying their cattles and storing fodders etc., since time immorial. The open land measuring 55 ' X 201 ' and the trees planted by the plaintiffs were also existing there. There was a water tank constructed by the plaintiffs about 15 years back for storing water for their cattle. There also existed a Khoonta upon the said land on which the plaintiffs used to tie their cattle. The grievance of the plaintiffs is that the defendants are threatening to dispossess the plaintiffs from the said land by using force. It is further submitted by the plaintiffs that on 18.07.1988, the officials of the defendants came to the spot and started measuring the said land. On enquiry they told that they had come to take possession of the said land and also intended to put barbed wires around it. There was also a Phirni
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along with the land of the plaintiffs of which the defendants intended to take possession by closing it with barbed wire. It is submitted by the plaintiffs that the said Phirni was a common passage and the defendants could not take possession of the same. On intervention, the defendants officials left the spot but threatened to come again with police force. Since the threat continued the plaintiffs had filed this suit praying for a decree of permanent injunction to restrain the defendants from dispossessing the plaintiffs from the land measuring 55' X 201' lying in front of their houses towards Southern side end depriving the plaintiffs of their rights to use the Village Phirni situated in the Village Phirni situated in the village adjoining to the said land.
3. The defendant/DDA has contested the suit primarily on the ground that the plaintiffs had no locus stand to file the present suit; further that the suit was bad for want of notice under Section 53-B, DD Act. It was admitted by the defendant that Khasra no. 37/2 of Village Samaspur-Jagir was in the abadi of Lal Dora of the village and that the houses of the plaintiffs fell in the Lal Dora area but the open land lying vacant in front of the plaintiff's houses fell in Khasra no. 48 min and 49 min of the village. It was submitted by defendants that the said khasra numbers had been notified under Section 4, 6 and 17 vide Notification dated 12.04.1988 and 26.04.1988 and the physical possession was taken over by LAC vide letter dated 01.06.1988. These khasra numbers had been placed at the disposal of DDA vide Notification under Section 21 of DD Act dated 07.07.1988 and the land
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in dispute had been allotted to the Electrical Grid Sub Station for supply of electricity to Mayur Vihar Group Housing Flats. The plaintiffs had been illegally using the land by laying their cattle and storing fodder, but that did not mean that the plaintiffs had become the owner or had acquired the property. It was categorically submitted that the plaintiffs had no right, title or interest over the suit property.
4. The defendant no. 2/DESU has contested the suit primarily on the ground that the suit was not maintainable against the defendant/DESU in its present form and the suit was bad for want of legal notice under Section 478 of DMC Act. On merits, it was submitted that the suit land fell in Khasra no. 48 and 49 min of Village of Samaspur-Jagir, Delhi which stood notified under Section 4, 6 and 7 of the Act and the possession of the same had been taken over from LAC/L & B Deptt. on 01.06.1988, and the land had been placed at the disposal of DDA vide Notification under Section 22 (1) of DD Act dated 07.07.1988. Thereafter, the land had been handed over to DESU for Electric Sub Station. The plaintiffs were only trying to grab the land in dispute and that the plaintiffs had no right, title or interest in the suit property.
5. From the pleadings of parties, following issues were framed on 02.02.1989 :
i) Whether the portion in dispute falls within in Khasra no. 37/2 and defendant has right to save this property? If so, its effect?
ii) Whether plaintiff is entitled to the relief claimed for? OPP.
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6. Earlier this suit was dismissed vide order dt. 30.07.1996. But appeal filed by the plaintiff against judgment dt. 30.07.1996 was disposed off and remanded back by Ld. Appeallate Court vide order dt. 17.02.1997 with direction to proceed afresh trial and to appoint a Local Commissioner for site inspection and to provide opportunity to the parties to lead additional evidence on the issue framed or to press for fresh issues.
7. In support of his case plaintiff has got examined Sh. Kanwar Singh, Local Commissioner as PW 1, himself as PW 2, Sh. Chhotey Lal as PW 3, Sh. Sunil Arora, Halka Patwari as PW 4, Sh. Raj Kumar, LDC, SDM court Seelampur as PW 5 and proved on record site plan and Lal Dora Certificate as Ex. PW 2/1 & PW 2/2, Furd issued by the authorities in respect to the suit property as Ex. PW 2/3, water charges bill issued by MCD in respect of the suit property as Ex. PW 2/4, copy of Shizra of village Samaspur Jagir as Ex. PW 2/5, copy of Khasra Girdawar and Khautauni are Ex. PW 2/6 and PW 2/7, detail presence sheet of concerned persons during demarcation as Ex. PW 4/A, site plan prepared by the Tehsildar Preet Vihar as Ex. PW 4/B, demarcation report furnished by PW 4 as Ex. PW 4/C, photocopy of Lal Dora Certificate in the name of Jagbir Singh as Ex. PW 5/1 and photographs of suit property as Ex. DW1/X1 to DW1/X13.
Other hand, defendant no. 1 in support of its case has got examined Sh. Ravinder Singh, Patwari as DW 1 and got exhibited on record Award no. 1/90-91 as Ex. DW 1/1, copy of possession proceeding as Ex.
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DW 1/2, Notification No. F7(19)87 L&B dt. 07.07.1988 as Ex. DW1/3. Defendant no. 2 in support of its case has got examined Sh. Dabir Ahmed, Assistant Engineer as D2 W1, Sh. J.P. Grover, Assistant Planning IV as D2 W2 and proved on record site plan as Ex. DW 1/1.
8. PW 1 Sh. Kanwar Singh and PW 3 Sh. Chottey Lal are concerned with first demarcation proceeding. Since, on the direction of Ld. Appeallate Court demarcation of the disputed land has been conducted afresh hence I refrain myself from considering the testimony of these two witnesses.
9. I have heard Ld. counsel for both the parties and given my thought consideration to their respective submissions. I have gone through the evidence on record. My issue wise findings are as follows :-
Issue 1 : Whether the portion in dispute falls within in Khasra no.
37/2 and defendant has right to save this property? If so, its effect?
The dispute between the parties is about a piece of land situated in front of the house of the plaintiff. Plaintiff has claimed to be owner and in possession of this piece of land with say that this piece of land falls in khasra no. 37/2 of village Samaspur Jagir, Delhi. Plaintiff has further stated that khasra no. 37/2 is measuring 21 Bighas and 11 Bishwa and on this abadi of Samaspur Village exists and this is a Lal Dora area. Other hand, defendant has taken defence that the disputed piece of land not falls in khasra no. 37/2
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but in khasra no. 48 min and 49 min. It has been further stated by defendant no. 1 that land of khasra no. 48 min and 49 min was acquired by Govt. vide notification no. F7(19)87 L&B (i)(ii)(iii) dt. 12.04.1988 and 26.04.1988 and physical possession of this land was taken over by LAC/L&B and same was placed at the disposal of DDA and further this land was alloted to electric grid sub-station for supply of electricity to Mayur Vihar Group Housing Flats. Defendant no. 1 has admitted that house of the plaintiff is in Lal Dora of khasra no. 37/2 but disputed open land lying vacant in front of the plaintiff house falls in khasra no. 48 min and 49 min.
Defendant no. 2, has taken similar defence as taken by defendant no. 1. Defendant no. 2 has stated that disputed piece of land falls in khasra no. 48 min and 49 min not in khasra no. 37/2. It has been further stated by defendant no. 2 that land of khasra no. 48 min and 49 min has already been handed over to DESU for electric sub-station.
In view of above mentioned facts it is clear that dispute between the parties is on the point that whether disputed piece of land falls in khasra no. 37/2 or khasra no. 48 min and 49 min. It is not in dispute that land of khasra no. 48 min and 49 min has been acquired by Govt. and same was given to DDA for plan development and subsequently same was handed over/trasferred to DESU.
Ld. counsel for plaintiff has submitted that land in dispute is situated in khasra no. 37/2 and demarcation report also show that this
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disputed land is a part of khasra no. 37/2 of village Samaspur Jagir, Delhi. Other hand, Ld. counsel for defendant no. 1 DDA has submitted that demarcation can not be accepted because same has not been conducted as per prescribed manner. Ld. counsel for defendant no. 1 DDA has further submitted that plaintiff has failed to examine Local Commissioner who has conducted demarcation of disputed land and hence report of Local Commissioner is liable to be rejected. He has further submitted that objection on behalf of DDA is already on record and same is liable to be allowed and this suit is liable to be dismissed.
Report of demarcation proceeding conducted by Sh. Suraj Prakash, Tehsildar, Preet Vihar, Delhi has been proved on record as Ex. PW 4/C and Nazri Naksha (Site Plan) prepared during demarcation proceeding has been proved as Ex. PW 4/B and Local Commissioner Sh. Suraj Prakash, Tehsildar has stated in his report that disputed land/suit property falls in village Abadi of Khasra no. 37/2.
DDA has filed objection on demarcation report mainly in respect to three fixed points taken by Local Commissioner for the purpose of demarcation of disputed land. I have gone through the each objection on behalf of DDA. I find no substance in the objection taken by DDA. All fixed points for demarcation were taken by Local Commissioner in the presence of representatives of both the defendants and on consent of all parties these fixed points were ascertained and fixed. Mr. Rajinder Singh,
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Nayab Tehsildar (LM/EZ) with staff participated in demarcation proceeding on behalf of DDA but no any question of objection raised by him in respect to any fixed points.
Further, I find that Local Commissioner has taken best available points for demarcation and these fixed points as well as area of different khasras has been duly cross-checked.
Apart from this I find that in view of contents of written statement and site plan Ex. DW 1/1, the land situated in south to village Abadi of Khasra no. 37/2 was transferred by DDA to DESU/DVB and on this land a power house was constructed. But no any objection has been filed on behalf of DESU/DVB or successor to demarcation report.
In so far as objection regarding non-examination of Local Commissioner is concerned, I find that there is no substance in this objection. Report of Local Commissioner is legal as per provision of order 26 rule 10 (2) CPC. In this respect reliance is placed on judgment of Hon'ble High Court of Delhi reported as 68 (1997) DLT 680.
The report of Local Commissioner to the effect that disputed land is situated in Khasra no. 37/2 is also supported by the site plan Ex. PW 2/1 and site plan Ex. DW 1/1 as well as Nazra Nakshi (site plan) Ex. DW 4/B. Site plan DW 1/1 has been prepared by DDA. As per this site plan the outer line of Khara no. 48 min and 49 min connected with Khasra no. 37/2 is a straight line. As per site plan prepared by Nayab Tehsildar and site plan
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filed by plaintiff which is Ex. PW 2/1 there is a house or property of others in the East of disputed property. If it is presumed that disputed land is falls in Khasra no. 48 min and 49 min then outer line of Khara no. 48 min and 49 min connected with Khasra no. 37/2 will take a different shape but not a straight line which will be in conflict with Ex. DW 1/1. Hence, there is no any probability that disputed land falls in Khasra no. 48 min and 49 min.
In view of above discussions, it is hold that suit property falls in Khasra no. 37/2 and the defendants have no any right and interest in this property. This issue is accordingly is decided in favour of plaintiffs and against the defendants.
Issue 2 : Whether plaintiff is entitled to the relief claimed for? OPP Onus to prove this issue is on plaintiffs. PW 1 has deposed that he is the owner and in possession of the suit property. PW 1 has further deposed that the open land lying in the front of the houses of the plaintiffs is being used as their Gher/ Gitwar for tying their cattle and storing fodder and there is also a water tank lying upon the said land. PW 1 has further deposed that there is a Phirni adjoining to land of the plaintiffs and defendant expressed their intention to even take possession of this Phirni which is a common passage used by villagers/public at large and the plaintiffs also have right to use the same. Plaintiffs have proved on record Lal Dora Certificate of disputed land as Ex. PW 2/2. PW 1 has further deposed that the officials of
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defendants are intended to take possession of suit property as well as Phirni. There is nothing in the cross-examination of PW 1 to discredit his testimony as mentioned above. The existence of Phirni adjoining the suit property is established from the demarcation report Ex. PW 4/C. In view of testimony of PW 1 and finding on Issue no. 1, I find that possession of plaintiffs over suit property is liable to be protected. Plaintiff is further entitled to use the Phirni.
By way of amendment of plaint, plaintiff has sought for relief of declaration regarding ownership. Plaintiffs have placed on record only Lal Dora Certificate in order to prove his ownership. I find no sufficient evidence to prove ownership of disputed land situated in village Abadi hence, relief of declaration can not be granted.
Accordingly this issue is decided.
Relief In view of discussions, obsevations and findings this suit is decreed in favour of plaintiffs and against the defendants and thereby defendants are restrained from dispossessing the plaintiffs from their land measuring 50' X 201' which is lying in front of their house towards the southern side thereof and depriving of the plaintiffs their rightful use the village Phirni situated in village Samaspur Jagir, Delhi adjoining it and which have been shown in red in the site plan, and/or interfering with their possession and use thereof in any manner whatsoever may be passed in favour of the plaintiffs and against the defendants.
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Decree sheet be prepared accordingly.
File be consigned to record room.
ANNOUNCED IN OPEN COURT
Dt. : 22/10/2009
(ANIL KUMAR)
ACJ/ARC (NE),
KKD, DELHI.
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