Delhi District Court
Sh. Sukhbir Singh vs Municipal Corporation Of Delhi on 22 January, 2020
IN THE COURT OF AJAY NAGAR,
COMMERCIAL CIVIL JUDGE (WEST), TIS HAZARI COURTS,
DELHI.
CS No: 606895/16
Sh. Sukhbir Singh
S/o Sh. Narain Singh
R/o Village Maidan Garhi
Tehsil Mehrauli
New Delhi-110030. ...Plaintiff
VERSUS
1. Municipal Corporation of Delhi
Town Hall, Chandni Chowk,
New Delhi-110006.
Through its Commissioner
2. Delhi Development Authority
Vikas Sadan, I.N.A.,
New Delhi.
Through its Vice-Chairman
3. The S.H.O
Police Station Ambedkar Nagar
New Delhi-110062. ... Defendants
Date of Filing : 28.06.1989
Date of Judgment : 22.01.2020
JUDGMENT
1. Present suit has been filed by the plaintiff praying therein to pass a decree of perpetual injunction in favour of the plaintiff and against the defendants restraining defendants permanently from demolishing any part of the structures raised on the said land bearing Khasra No. 1088/1032/445, Village Khirki, Tehsil Mehrauli, New Delhi, either by themselves or through their CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 1 / 22 agents or servants.
2. It is inter-alia averred by the plaintiff that the plaintiff is the owner of plot of land bearing Khasra No. 1088/1032/445 and is in exclusive possession of the agriculture land measuring 1 Bigha and 18 Biswas in Village Khirki, Tehsil Mehrauli, New Delhi. That the plaintiff out of the said land, which has construction of a small farm house on it, agreed to sell a part of the land measuring about one bigha along with constructed portion to Sh. Sanjeev Kumar Gupta and executed a General Power of attorney in his favour for consideration. That on 23.06.1989, the employees of defendant no. 1 came to the site of the plaintiff at aforesaid Khasra bearing No. 1088/1032/445 and threatened to demolish the structures existing on the land. That no notice U/Sec. 343 of MCD Act or any other notice was ever served by the defendant no. 1. That the plaintiff agitated the act of defendant no. 1 as the said old structure of year 1977 was under the policy of Government.
It is further averred by the plaintiff that the suit property is now forming part of Colony known as "Khirki Extension Colony". That the said Khirki Extension Colony finds due mentioned in the list of 1432 unauthorised colonies which are being proposed to be regularized under the policy of the Government of India. That the said colony of the plaintiff has been shown at serial No. 513 being registration No. 738 of the said list. That the Hon'ble High Court of Delhi vide various orders protected those properties falling in said unauthorised colonies till the outcome of any decision of regularizing the said unauthorised colonies. That the employees of the defendant no. 1 could not take the CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 2 / 22 demolition action due to the intervention of the residents of the locality but they have threatened openly to come again. That the land is freehold land and was although acquired by defendant no. 2 but the said acquisition has already been set aside by two judgments of Hon'ble Mr. Justice G.C. Jain and Hon'ble Mr. Justice S.B. Wad (J) and of Hon'ble Mr. Justice N. Goswami and Hon'ble Mr. Justice M.K. Chawla (J).
It is further averred by the plaintiff that the structure is an old structure and is in the existence since the year 1977 and stands regularized as per policy of the Delhi Municipal Corporation. That no notice under Section 343 or any other provisions of Delhi Municipal Corporation Act or Delhi Development Act has been served upon the plaintiff. That the structures of the plaintiff also stood regularized and cannot be demolished under any provision of law.
It is further averred by the plaintiff that the area in which the property of the plaintiff is situated is known as village Khirki, Teshil Mehrauli, New Delhi, with the Lal Dora and the same has not been notified as an area falling within the limits of either the Delhi Municipal Corporation or the Delhi Development Authority and none of the defendants have, therefore, any jurisdiction to either issue any notice or give a threat to demolish the structures existing at the site. That without giving first a notice as provided by Section 345 of Act, the Commissioner has no power whatever to issue a notice or show cause under section 343 of the Act.
It is further averred by the plaintiff that the impugned property was subject matter of Section 4,5-A, 6 and 9 of the Land Acquisition Act eventually acquired by the competent CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 3 / 22 authority and later transferred to the Delhi Development Authority under Section 12 of the Act. However, the said acquisition was quashed by the Hon'ble High Court of Delhi in the case of Sh. B.R. Gupta Vs. Union of India & Ors. Hence, defendant DDA has no jurisdiction, interest or title in the suit property.
Lastly, it is prayed by the plaintiff that a decree of perpetual injunction may be passed in favour of the plaintiff and against the defendants restraining them permanently from demolishing any part of the structures raised on the said land bearing Khasra No. 1088/1032/445, Village Khirki, Tehsil Mehrauli, New Delhi, either by themselves or through their agents or servants.
3. Thereafter, the defendants were served and written statement was filed by the defendant no. 1 & 2. It is inter-alia contended by the defendant No. 1 in its W.S. that the suit is barred by the provision of Section 477/478 of the DMC Act 1957 for want of service of statutory notice. That the plaintiff has not come to the court with clean hands and has suppressed material facts from this court and as such is not entitled to any relief whatsoever in view of Section 41 (I) of the Specific Relief Act. That the plaintiff has wrongly stated that the area in question stands declared 'Development Area' as alleged, and has suppressed the fact that the area in question stands declared 'Urbanized way back' and, therefore, is no more a 'Development Area'. That after its urbanization, the provisions of the DMC Act and the Building Bye-laws are applicable therein including the suit premises and the same is liable for action as CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 4 / 22 per the provisions of the D.M.C. and as such also the suit is liable to be dismissed. That the defendant no. 1 has not so far booked the suit property as on the date of the institution of the present suit or subsequent thereof for having carried out unauthorised construction. That the defendant could not take action as plaintiff intentionally and deliberately avoided to supply the site plan.
It is further contended by the defendant no. 1 that the khasra number is a land measuring about 1000 to 1500 sq. yards and therefore, it is very difficult to identify the suit property out of the said big khasra. Thus, the suit property could not be so far booked for having carried out unauthorised construction. That the building activities of the MCD are very much applicable at the area in question including the suit premises and the defendant no. 1/ MCD undertakes to initiate appropriate action against the unauthorised construction at the suit premises upon receipt of the correct detail of the premises in question U/Sec. 343/344 of the DMC Act, 1957.
It is also contended by the defendant that it is admitted to the extent that no notice U/Sec. 343/344 of the DMC Act, 1957 has so far been issued due to insufficient details of the property. That the MCD is empowered to initiate action under Section 343/344 of the DMC Act against the unauthorised constructions in the area in question. That the entire area of Village Khirki has ceased to be rural area and since 1963 onwards, building activities regarding the entire village Khirki is being manned and controlled by the MCD. That the plaintiff has no cause of action against the defendant/MCD on the dates, as alleged.
Lastly, it is prayed by defendant no. 1 that the suit of the CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 5 / 22 plaintiff may be dismissed.
4. In its Written Statement, defendant no. 2/ DD have inter- alia submitted that the suit filed by the plaintiff is not maintainable as the plaintiff is not in possession of the land. That the plaintiff has framed a suit in endeavour to encroach upon the land which belongs to DDA. That the defendant no. 1 is neither a necessary nor proper party in this case in view of the allegations levelled by the plaintiff. That the suit so filed by the plaintiff is barred under the provisions of Section 41(i) & (j) of Specific Relief Act.
It is also contended by the defendant no. 2 that the plaintiff has no legal right or ownership with respect of the suit land and the suit has been framed alleging bare possession thereof by pleading reliance on alleged documents like Agreement to Sell, Power of Attorney, entry in Khasra Girdawari etc., which are neither cognizable nor enforceable at court of Law. That the land made subject matter of the suit was property of Department of Rehabilitation, Government of India. That the said department after negotiations and with sanction of the President of India transferred entirely of the land comprising Khasra No. 1088/1032/445 in village khirkee, along with other land totaling approximately 1020 acres of land in favour of defendant/ authority. That in 1982, the defendant/ authority was entrused with suit land by Government of India, Ministry of Supply and Rehabilitation (Department of Rehabilitation) by a package deal dated 02.09.1982. That the said package deal approximately 1020 acres of land including the suit land was transferred to the defendant authority on payment of Rs. 30 CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 6 / 22 crore. That in pursuance to the package deal, physical possession of the area of land measuring 52 bigha 10 biswas was handed over to the defendant/authority by the Government of India, Department of Rehabilitation on 22/23 December, 1987. That the structure appearing in khasra in suit was demolished by the Authority on 6th April, 1988 and development of such land was undertaken after removal of encroachment appearing thereon and thereafter.
It is further contended by the defendant that the plaintiff has neither any legal entitlement nor locus standi nor legal authority to seek any relief against the defendant. That the plaintiff under the garb of the present suit seeks to claim declaration of title/interest in the suit land and the suit as framed is not maintainable in the absence of statutory notice prescribed by section 54 of the Delhi Development Act, 1957. That it is denied that the plaintiff is the owner of the plot of land bearing Khasra No. 1088/1032/445. That the plaintiff if at all has got occupation/possession of the said suit land is illegal and unauthorised.
Defendant has also contended that no copy of the Power of Attorney executed in favour of Sh. Sanjeev Kumar Gupta appears to have been filed on record. That in any case no copy of the Attorney has been furnished to the defendant. That the plaintiff or any other person in occupation of the suit land has no right to sell, transfer or alienate the suit lands or any part thereof because they themselves have no right, title or interest to the same. That neither the suit land is in possession of the plaintiff nor any super structure is existing thereon. That at the time of handing over and taking over the possession of the suit land i.e. CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 7 / 22 22/23.12.1987, it is submitted that the suit land was without any structure or boundary wall and the same was a vacant plot of land.
It is also contended by the defendant that a demolition was carried out in the vicinity where the suit land is existing in the year 1988 after taking over the land by virtue of package deal dated 02.09.1982. That if any restrain order is passed against the Municipal Corporation of Delhi by the Hon'ble High Court, the same has nothing to do with the answering defendant. It is specifically denied that the employees of the answering defendant approached the plaintiff at the site with the purpose of carrying on demolition. That the plaintiff was neither in possession of the suit land nor any structure was existing thereon. That the demolition report dated 06.04.1988 clearly shows that there was no structure existing on the suit land. That if at all there is any structure existing over the suit land that has been constructed only after obtaining the interim order from this court. That the reliance of the judgment in paragraph no. 8 is of no relevance as far as the present suit is concerned. That at the time of taking over the possession of the suit land, the said land was lying vacant and it appears that structures, if any, have come up only during the last two years. It is denied that the structures have been regularized. That the plaintiff has not stated as to under what policy the structure stands regularized. That no cause of action has arisen in favour of the plaintiff and against the answering defendant.
5. Thereafter, on the basis of the pleadings and submissions of the parties following issues were framed:-
CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 8 / 22ISSUES:-
(1). Whether the plaintiff is the owner of the land bearing Khasra No. 1088/1032/445 situated at Village Khirki, Tehsil Mehrauli, New Delhi ?
(2). Whether the plaintiff has put up structure on the said land and same has been regularized by the defendant ? If so, its effect ?
(3). Whether the defendants had threatened to demolish the premises of the plaintiff illegally, arbitrarily or in a lawful manner without serving proper notices ? (4). Whether the suit of the plaintiff is barred U/Sec. 41-I and 41-J of The Specific Relief Act ? (OPD) (5). Whether the plaintiff is entitled to the injunction prayed for ?
(6). Whether DDA became owner of the suit property by virtue of Package Deal dated 02.09.1982 as stated in Para-6 of Preliminary Objections of Written Statement ? (This Additional issue was framed in compliance with the order of Hon'ble High Court).
(7). Relief.
6. Thereafter, the matter was fixed for Plaintiff's Evidence.
The plaintiff examined Sh. Sanjeev Gupta as PW-1, Sh. Balwant Samant, Allotment Clerk, Delhi Jal Board as PW-2, Sh. Prem Kumar K.R. Additional Manger (Marketing) from IGL, R.K. Puram, Sector-9, New Delhi-22 as PW-3, Sh. Virender Pratap Singh, Sr. Asstt. Urban Development, Delhi Secretariat, Delhi as PW-4, Sh. Dharmender Singh, Security Guard, RWA, Khirki Extension Colony, Cariappa Marg, M.B. Road, New Delhi as CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 9 / 22 PW-5. Thereafter, plaintiff closed his evidence.
Thereafter, the matter was fixed for defendant's Evidence. Defendant no. 2 examined Sh. Rajbir Singh, Kanoongo as D2W1. D2W2 Sh. Vinod Sharma, Superintendent, L & D.O, Nirman Bhawan, New Delhi could not produce the summoned record. D2W3 Sh. Rattan Pal Singh (CDV), Office Assistant, SDM office, Saket, New Delhi. Sh. R.D. Rathi, Assistant Director (Survey), S & S-II Branch, DDA, Vikas Sadan, INA, New Delhi as D2W4.
All the witnesses were cross examined at length.
7. I have carefully gone through the pleadings, testimonies, documents, written submissions, case law relied upon and entire record and I have also heard the arguments at length advanced by Ld. Counsels for the parties.
8. My issue-wise findings are as under:-
(1). Whether the plaintiff is the owner of the land bearing Khasra No. 1088/1032/445 situated at Village Khirki, Tehsil Mehrauli, New Delhi ?
(6). Whether DDA became owner of the suit property by virtue of Package Deal dated 02.09.1982 as stated in Para-6 of Preliminary Objections of Written Statement ? (This Additional issue was framed in compliance with the order of Hon'ble High Court).
9. Since the issue no. 1 & 6 are inter-connected, these are being dealt with simultaneously.
Perusal of record shows that the plaintiff has claimed to be owner on the basis of unregistered Agreement to sell, CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 10 / 22 attorney and receipt etc. On the other hand, the defendant no. 2/DDA has claimed to be owner of suit property on the basis of Title Deed dated 02.09.1982 executed between department of Rehabilitation, Government of India and DDA/defendant no. 2.
10. Perusal of amended plaint paragraph no.8 filed by the plaintiff shows that the plaintiff himself has stated that "land is freehold and was although acquired by defendant no. 2 but the said acquisition has already been set aside by two judgments of Mr. Justice G.C. Jain and Mr. S.B. Wad (J) and of Mr. Justice N.N. Goswami and Justice M.K. Chawla (J)". As such, the plaintiff has admitted the acquisition of suit property by defendant no. 2/DDA. Although, the plaintiff has claimed to have been set aside such acquisition by Hon'ble High Court but perusal of record shows that the plaintiff has taken the vague defence of setting aside of the acquisition by the DDA/ defendant no. 2. No citation has been mentioned by the plaintiff. The plaintiff has not specified in the plaint how aforementioned judgment of hon'ble High Court is applicable to the present case. It was duty of the plaintiff to prove the fact but he has miserably failed to do so.
Although, the issue has been framed whether plaintiff is owner of the suit property but the present case is not the suit for declaration of title, it is a case filed by the plaintiff seeking perpetual injunction against the defendant no. 1 & 2 restraining them from demolition of suit property. Moreover, plaintiff has admitted the acquisition by the DDA/ defendant no. 2. Besides, the plaintiff has also impliedly admitted the package deal dated CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 11 / 22 02.09.1982. Moreover, the main issue before this court is whether the plaintiff is entitled to perpetual injunction restraining defendant no. 1 & 2 from demolishing the suit property.
In a case law Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors on 25 March, 2008 CASE NO. Appeal (civil) 6191 of 2001, DATE OF JUDGMENT: 25/03/2008; it was observed as under:
"17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
It is further observed that:
11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has aright to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 12 / 22 cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property.
A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 13 / 22 in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
14. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs."
11. I have perused the record carefully. Even, the possession report dated 23.12.1987 and demolition proceedings Ex. D2W- 1/3 and D2W1/4 manifestly shows that possession was taken by DDA/defendant no. 2 in the year 1987 and the demolition proceedings were carried out by defendant no. 2.
12. It is well settled that the public record and documents have the more authenticity than any other documents. These documents always has the preference over the documents produced by the plaintiff which were unregistered documents and were not registered within time as stipulated under Indian Registration Act.
CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 14 / 2213. It is the matter of common knowledge that a public officer/ public servant keeps changing or transferring or gets retired after a period but the documents signed by such official/ officer becomes a part of record and when a document becomes older, it is not possible or if possible it is very difficult to produce such officer without unreasonable delay. Although, copy of the letter dated 02.09.1982 package deal Mark-D2/A has been produced by the defendant no. 2 but the original could not be produced but the possession of the DDA/ defendant no. 2 is already proved as discussed earlier.
Although, the additional issue has been framed at the instance of the plaintiff that "whether defendant no. 2/DDA became owner of suit property by virtue of package deal dated 02.09.1982." But in my considered view, as discussed earlier, the real controversy/ issue is whether the plaintiff is entitled to perpetual injunction against DDA and MCD restraining them from demolition of suit property and not whether such package deal was proved or not when the possession of DDA/ defendant no. 2 is already proved by virtue of other documents. Even otherwise, the acquisition by defendant no. 2/ DDA of the suit property has been admitted by the plaintiff in his plaint.
14. Perusal of record shows that the plaintiff has claimed to be owner of the suit property and claimed in possession thereof but he has not mentioned how he became the owner of the suit property. Perusal of record also shows that the attorney Sh. Sanjeev Kr. Gupta has claimed that Sh. Sukhbir Singh is the owner of the suit property but he has not placed on record any chain of the documents showing the ownership qua suit CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 15 / 22 property.
It is pertinent to mention that even the documents in respect of ownership of Sh. Sukhbir Singh have not been placed on record. Perusal of the record shows that the plaintiff has placed on record Ex. PW-1/1 certified copy of Khasra Girdawari for the year 1980-81-1984, as well as Ex. PW-1/2 for the year 1992-1996. Perusal of these documents does not show that plaintiff or Sh Sukhbir Singh is the owner of the suit property. It merely shows that Sh. Sukhbir Singh have been shown as cultivator with rent and on the other hand, Govt. of India, Ministry of Rehabilitation has been shown as owner of the suit property. Moreover, PW-1/2 also shows Government of India, Ministry of Rehabilitation as owner of the suit property and Sh. Sanjeev Gupta as cultivator.
15. As such, these documents do not show the ownership of the plaintiff. As far as PW-1/5 Property Tax receipt are concerned, these are not conclusive of ownership of the plaintiff. A person does not become owner of the property by paying the property tax.
16. I have also gone through the PW-1/3 General Power of Attorney relied upon by the plaintiff which does not inspire the confidence of this court as no details thereof have been shown by the plaintiff in the plaint itself and he has merely stated that he is owner of the suit property and he has not mentioned how he has become the owner thereof.
CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 16 / 22Perusal of this GPA shows that Executant Sh. Sukhbir Singh has merely stated that he is the owner and in possession of agriculture land but he has not mentioned in the GPA how he has become the owner of the suit property. Even he has not mentioned that he is in lawful possession of the land. Perusal of record also shows that these documents which have been placed on record by the petitioner are only in favour of Sh. Sanjeev Gupta. No reliable document as to ownership by Sh. Sukhbir Singh has been placed on record as mentioned earlier.
It is well settled that a person cannot pass a better title than he himself has. Moreover, the plaintiff has not disputed the ownership of Ministry of Rehabilitation, Govt. of India. Moreover, plaintiff has also admitted the acquisition by the DDA in the plaint itself. As such, the burden was on the plaintiff to prove that such acquisition was set aside by the judgment of Hon'ble High Court as claimed in his plaint but he has been unable to do so as no cogent or convincing document has been placed on record to substantiate this fact and he has taken a vague plea of setting aside of such acquisition by Hon'ble High Court.
17. I have also gone through the testimonies of all the witnesses including PW-1 Sh. Sanjeev Gupta. The relevant portion of which is as under:-
"In as much as ownership documents are concerned, I have filed a copy of registered GPA a/w agreement to sell. It is correct that no sale deed was executed in respect of suit property as the sale deed was executed in the area concerned during the year 1988. The GPA has been registered in the year 1988 and not in the year 1998. The GPA was executed in my as well as in favour of Sh. Ajay Gupta S/o Sh. S.K. Gupta. It is wrong to suggest that CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 17 / 22 whatever documents have been filed by me are doctored documents to support my case. No chain of documents have been filed by me with respect to the suit property. It is correct that in para 4 of my affidavit Ex. PW-1/A the term "Defendant no. 1" connotes to MCD. MCD officials did not tell any reason as to why they came to demolish my property. At the time when the MCD officials visited, no machine for demolition was brought by them. Vol. Later on, the MCD officials came with the demolition machines.
It is correct that in para no. 5 of my affidavit Ex. PW-1/A, the term "Defendant no. 1" connotes to MCD. DDA Officials also came to the suit property for demolition of the same prior to filing of the present case and after filing of the present case. DDA officials came for demolition somewhere in the year 1989. I have not mentioned in my affidavit Ex. PW-1/A that the DDA officials had also come for demolition of the suit property. It is wrong to suggest that DDA officials never came to the suit property for demolition. I had not checked the ID cards of the persons who came for demolition.
I have not filed any document to show that constructions existing at the plot prior to the year 1977. It is correct that I have stated in para no. 13 of my affidavit that the defendant are not coming to demolish my property after coming of the policy of regularization of unauthorised colonies....
.... There is no separate Power of attorney specifically authorising me to pursue the case on behalf of Sh Sukhbir Singh. It is correct that land in question as originally belonging to Rehabilitation. I do not know if the land was transferred to DDA by department of Rehabilitation. There is no documents filed by me showing that I or my predecessor in interest have acquired interest in the land from the Department of Rehabilitation."
18. As such, perusal of testimony of PW-1 Sh. Sanjiv Kr. clearly shows that he himself has admitted during the cross examination that land in question originally belonged to Department of Rehabilitation. On the other hand, the defendants have also claimed that the land in question belonged to Department of Rehabilitation, Govt. of India. As such, it is undisputed fact that the land in question belonged to Department of Rehabilitation.
CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 18 / 22Perusal of record shows that the plaintiff has been unable to prove that how he became the owner of the property whether it was purchased by him from Department of Rehabilitation or from any other person. Even, the plaint does not reflect this fact. Moreover, testimony of PW-1 also shows that the PW-1 has not denied that the land was transferred to DDA by Department of Rehabilitation and he has merely stated that he does not know if the land was transferred to DDA by Department of Rehabilitation. During the cross examination, PW-1 also admitted that he has not filed any document on record to show that he or his predecessor in interest have acquired interest in the land from the Department of Rehabilitation.
As such, testimony of the PW-1 manifestly shows that the plaintiff has miserably failed to prove the facts as alleged by him in his plaint. Moreover, during the cross examination he has stated that DDA officials also came to the suit property for demolition but perusal of plaint clearly shows that such allegations were made by the plaintiff only against the defendant no.1 MCD and not against the defendant no. 2 DDA. Moreover, no cogent, convincing and reliable record has been produced by the plaintiff to prove the fact of threat of demolition by the DDA/defendant no. 2.
19. As such, in view of the discussion as earlier, issue no. 1 is decided against the plaintiff and in favour of defendant No. 2. Accordingly, issue no. 6 is decided against the plaintiff and in favour of defendant no. 2.
CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 19 / 22(2). Whether the plaintiff has put up structure on the said land and same has been regularized by the defendant ? If so, its effect ?
20. Perusal of record shows that plaintiff has claimed that the structure on the suit property is old one and under the policy of the government, the structures existing prior to year 1977 were to be regularized. That land is freehold land and was although acquired by the defendant no. 2/ DDA but the said acquisition have been set aside by two judgments.
On the other hand, defendants have denied the contentions of the plaintiff and inter-alia stated that suit property was subject matter of department of Rehabilitation which was entrusted to DDA in 1982 by Ministry of Rehabilitation and handed over to DDA in December 1987 and the structure appearing in Khasra in suit was demolished by the authority on 06.04.1988.
I have gone through the record and the documents relied upon. D2W-1/3, D2W1/1, D2W-1/2 have been placed on record which also show that defendant no. 2 has the better title than the plaintiff has.
Perusal of record shows that the plaintiff has miserably failed to prove his contentions by leading the cogent and convincing documentary or oral evidence.
21. As such, this issue is decided in favour of defendant No. 2 and against the plaintiff.
CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 20 / 22(3). Whether the defendants had threatened to demolish the premises of the plaintiff illegally, arbitrarily or in a lawful manner without serving proper notices ?
22. Perusal of record shows that the plaintiff has claimed that defendant no. 1/ MCD has tried to demolish the suit property. On the other hand, the defendant no. 1 & 2 have denied this fact.
It is pertinent to mention that a decree has already been passed by the Hon'ble High Court while having original jurisdiction of the present case against defendant no. 1/ MCD vide order dated 29.11.1991. As far as decree against defendant no. 2 is concerned, the plaintiff has not sought this sort of relief against defendant no. 2 and he has not made any allegations against the DDA in respect of official of DDA and he has merely stated that officials of the defendant no. 1 came to the suit property to demolish it.
23. As such, this issue become infructuous in view of discussion earlier.
(4). Whether the suit of the plaintiff is barred U/Sec. 41-I and 41-J of The Specific Relief Act ? (OPD) (5). Whether the plaintiff is entitled to the injunction prayed for ?
24. Perusal of record shows that the defendant has taken the ground that the suit of the plaintiff is barred U/Sec. 14-I and J of Specific Relief Act. On the other hand, the plaintiff has denied CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 21 / 22 this.
Since the issue no. 1 & 6 have already been decided in favour of defendant and against the plaintiff, this issue is also decided in favour of defendant and against the plaintiff.
25. As far as issue no. 5 is concerned, in view of the discussions earlier and specifically the findings on issues no. 1 & 6, this issue is also decided in favour of defendants and against the plaintiff and it is held that the plaintiff is not entitled to the relief of perpetual injunction as prayed for by him.
RELIEF:-
26. In the light of the above discussions and findings, the suit of the plaintiff is dismissed.
27. Decree sheet shall be prepared accordingly.
28. File be consigned to Record Room after due compliance.
Announced in the open Court Digitally signed
by AJAY
on 22nd January, 2020. AJAY NAGAR
(This judgment contains 22 pages)
NAGAR Date:
2020.01.22
16:27:19 +0530
(AJAY NAGAR)
Commercial Civil Judge,
West District, THC, Delhi.
CS 606895/16 Sh. Sukhbir Singh Vs. M.C.D. & Ors. Page 22 / 22