Delhi District Court
Subhash Gupta vs Dda on 6 November, 2023
-1-
IN THE COURT OF MS. DISHA SINGH, CIVIL JUDGE
(WEST)-02, DELHI
SUIT NO.7103/2016
CNR NO. DLWT03-000006-1993
Sh. Subhash Gupta
S/o Sh. Ram Kumar Gupta
R/o A-1/191, Janak Puri
New Delhi.
..........................PLAINTIFF
VERSUS
Delhi Development Authority
through its Vice Chairman,
Vikas Sadan, INA, New Delhi.
.....................DEFENDANT
Suit filed on :- 16.10.1993
Judgment Reserved on :- 04.11.2023
Date of decision :- 06.11.2023
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
By this judgment, the undersigned shall dispose of the suit filed by plaintiff against the defendant/DDA seeking decree of Suit No.7103/2016 Subhash Gupta Vs. DDA Page-1/63 -2- permanent injunction. Before adjudicating upon the issues framed in the present suit, it is vital to first state the pleadings in the present suit concisely, which are as follows:
Pleadings of the Plaintiff: -
1. The plaintiff has filed the present suit seeking decree of permanent injunction in favour of the plaintiff and against the defendant thereby restraining the defendants, its employees, servants, officials, representatives, agents etc. from dispossessing and/or interfering in the peaceful possession of the plaintiff and further restraining them from raising boundary wall/fencing etc. over the suit land bearing Khasra no.408, surrounded in east by Road, in west by boundary wall of DESU, in south by DDA land and in north by sewer line and rain drain and situated in the revenue estate of Mehrauli, New Delhi.
2. It has been averred in the plaint that the plaintiff is the owner in possession of property/land bearing Khasra no.408, situated in Village Mehrauli, New Delhi surrounded by East- road; west- boundary wall of DESU; north- sewer line/rain drain and south by DDA land. It has been further averred that the suit property is an old property which has been purchased by the plaintiff from its previous owner for valuable consideration, against sale deed duly registered in the office of Sub-Registrar. That, the property stands in the name of the plaintiff as per relevant revenue records.
Suit No.7103/2016 Subhash Gupta Vs. DDA Page-2/63 -3-
3. It has been further averred that some persons of the locality were not in good terms with the plaintiff and have been causing harassment to the plaintiff in connivance with the officials of the government department by making false complaints against the plaintiff. That, in order to harass the plaintiff, the officials of the defendant visited the suit property several times on different occasions without any rhyme or reason.
4. It has been further averred that in order to avoid the controversies regarding situation of land etc, the plaintiff applied for demarcation of land to the competent authority and the demarcation was affected by the authorities. Accordingly, a report was prepared after inspection on 22.05.1992, wherein it was clearly mentioned that the suit property i.e., Khasra no.408 is situated in its correct and right situation and some portion of Khasra no.408 belonging to plaintiff has been illegally and unauthorizedly occupied by the DDA.
5. It has been further averred that on 12.05.1993, the officials of defendant made an attempt to dispossess the plaintiff from the suit property forcibly, with the help of police and tried to encroach upon the plaintiff's land/property, on the plea that the suit land does not pertain to Khasra no.408, but it pertains to Khasra no. 413, 414 and 430, as they alleged. While in fact the land in question pertains to Khasra no.408, as per every record available and the site in question.
Suit No.7103/2016 Subhash Gupta Vs. DDA Page-3/63 -4- Aggrieved from the said illegal and unlawful action of encroaching of the plaintiff's land, the plaintiff filed a suit for permanent injunction against the defendants, bearing suit no.85/93, titled as Subhash Gupta Vs. Vinod Verma & Ors. in which the Court was pleased to grant ex-parte ad-interim injunction on 12.05.1993. However, the said suit was rejected later on by the Court on 04.10.1993 on the short ground of filing the suit without ad-valorem court fees.
6. It has been further averred that the defendant is nothing more than a stranger to the suit property and it has not right to encroach upon the land/property of the plaintiff. The suit property has never been acquired or notified by any of the department and the plaintiff is the absolute owner of the same.
7. It has been further averred that the defendant's officials were so adamant to take the action of illegally dispossessing the plaintiff from the suit property that they demolished the old superstructure over the suit land, even after passing of the stay order dated 12.06.1993 and 15.05.1993.
8. It has been further averred that on 15.10.1993, the officials of the defendant along with some labourers came to the suit property, and the construction material was brought by them, they started digging foundation over the suit land for raising boundary wall and fencing over the suit land. The plaintiff resisted their illegal action and raised great hue and cry, whereupon all the neighbors and respectables gathered Suit No.7103/2016 Subhash Gupta Vs. DDA Page-4/63 -5- at the spot and it was with great difficulty that the defendant officials could be stopped from taking forcible action of digging the land for raising boundary wall and fencing etc. However, while leaving the spot, they left saying that they will come again very soon with more police force etc. to execute their threat of raising boundary wall and putting fencing wire and would dispossess the plaintiff from the suit land.
9. It has been further averred that the officials of the defendant while taking measurement had found that the land in question in fact falls under Khara no.408 of Village Mehrauli and it is very clear in the revenue records that the land in question does not pertain to Khasra no. 413, 414 and 430 as alleged by the defendants. It is also clear from the fact that the total lands situated surrounding Khasra no. 408 belongs to various government departments and possession of the same was given to the said departments by Land Acquisition Collector at the time of handing over and taking over of the possession and this land's possession was handed over by LAC at any point of time, as it has never been acquired by the government. That, once upon a time the land in suit was notified for acquisition, but the same could not be acquired by the government and later on the proceedings of acquisition were withdrawn and in this regard a stay has already been granted by the Court, which is still operative and in force. Hence, the present suit.
Suit No.7103/2016 Subhash Gupta Vs. DDA Page-5/63 -6- Pleadings of the Defendants: -
10. That, written statement was filed on behalf of defendant denying the allegations as contained in the plaint wherein, inter alia, it was submitted that the suit land does not form part of Khasra no.408, Village Mehrauli but is actually located in-:
i. Kh. No. 413 (Old No.2270/1160 min. measuring 2 Bighas 16 Biswas and Old No. 2270/1160 min. measuring 1 Bigha 16 Biswas);
ii. Kh. No. 414 (Old No.2542/2271/1160 min.
measuring 2 Bighas 16 Biswas and Old No.2542/2271/1160 min. measuring 1 Bigha 15 Biswas);
iii. Kh. No. 430 (Old No.2566/1170/2 measuring 11 Bighas 6 Biswas).
11. It has been further averred in the WS that, the suit land viz.
Khasra No.413, 414 and 430 has duly been acquired vide Award No.80-E/70-71 (Supplementary) dated 09.01.1981. That, the possession of the same has been taken over by the defendant/DDA vide possession proceedings dated 23.09.1981 and the entire said land has been placed at the disposal of the Defendant/DDA vide Notification dated 19.11.1981 issued under Section 22 (1) of the DDA Act, 1957.
12. It has been further stated that, the Khasra no.408 (old Suit No.7103/2016 Subhash Gupta Vs. DDA Page-6/63 -7- Khasra no.2552/1156) measuring 6 Bighas 7 Biswas which is alleged to be the suit land by the plaintiff was notified for acquisition under Section 4 and 6 of the Land Acquisition Act. However, one Sh. Hem Chand filed a W.P. (Civil) No. 789/85 challenging the aforesaid notification and the Hon'ble High Court of Delhi was pleased to stay the acquisition proceedings with respect to the Khasra no. 408. That, the captioned suit was filed in May 1993, but only against one Sh. Vinod Kumar and just to avoid the marking of the said suit to the Court designated to try the suits against the defendant/DDA, the plaintiff did not implead the defendant/DDA in that matter. Although, later on the Defendant/DDA and the Delhi Police were also impleaded to the said Suit. It has been further stated that, the aforesaid suit had been dismissed vide order dated 30.09.1993 by the Hon'ble Court of Sh. Shiv Narain Dhingra Ld. ADJ, Delhi. That plaintiff thereafter started raising construction over the suit land which forms part of Khasra No. 413, 414 and 430, Village Mehrauli after the ex-parte order dated 22.05.1993, were passed by the Hon'ble Court of Sh. P.D. Jarwal, Sub- Judge, Delhi.
13. It has been further stated on behalf of DDA that, the Khasra no. 408, Village Mehrauli, Delhi has already been declared as a 'Development Area' vide notification dated 18.03.1993 issued under Section 12 (1) of the DDA Act, 1957. It is further the case of defendant/DDA that, since the suit land forms part of a 'Development Area' vide order dated Suit No.7103/2016 Subhash Gupta Vs. DDA Page-7/63 -8- 07.04.1993 passed under Section 30 (1) of the Delhi Development Act, 1957, and that unauthorized construction was being done by the plaintiff thereon.
14. It has been further stated that, the suit property does not situate in Khasra no. 408 and therefore no construction was being raised in Khasra no.408 and since the aforesaid interim orders were with respect to the Khasra no. 408 and not with respect to the Khasra no. 413, 414 and 430. That the aforesaid unauthorized construction was demolished by the defendant/DDA on 12.05.1993. It has been further stated that, prior thereto the defendant/DDA had requested the Additional District Magistrate (Revenue) for demarcation of the suit land and in the demarcation done on 10.05.1993, it was found that the suit land actually forms part of Khasra no. 413, 414 and 430. The said Khasra numbers are adjoining to Khasra no. 408 and in order to usurp the suit land, the plaintiff is misleading this Court by malafidely portraying that the suit land situates in Khasra no. 408 as some parts of it were not acquired by the defendant on the relevant date. That, thereafter and as on date the defendant/DDA has already taken over the possession of the suit land and has bounded the same with barbed wire fencing.
15. It has been further stated by DDA that, the sale deeds relied upon by the plaintiff are void-ab-initio as the same do not bear the signature of the vendee/purchaser i.e., allegedly Suit No.7103/2016 Subhash Gupta Vs. DDA Page-8/63 -9- plaintiff, and therefore, the plaintiff is not the owner of the suit land. It has been further stated that, the suit property has not been properly described by the plaintiff as per law as the area, location & boundaries of the suit land have not been mentioned correctly and properly. Therefore, the suit of the plaintiff is liable to be dismissed for approaching this Court with unclean hands and also on the ground that no effective decree can be passed in the present suit for want of proper description of the suit property.
Replication: -
16. Replication was also filed on behalf of the plaintiff to the written statement of the defendant wherein the averments made in the written statement were denied and those made in the plaint were reiterated and reaffirmed.
Issues: -
17. From the pleadings of the parties, following issues were framed in the suit vide order dated 25.01.1996: -
(1) Whether the defendant has ever threatened the plaintiff for demolishing or dispossessing from the suit premises? (OPP) (2) Whether the plaintiff is entitled to the injunction as prayed for? (OPP) (3) Relief.
Suit No.7103/2016 Subhash Gupta Vs. DDA Page-9/63 -10-
18. Vide order dated 25.01.1996, the onus of the issues was not casted upon any of the parties and, therefore, the onus is deemed to be on the plaintiff to prove all the issues, since these issues are arising from the pleadings and prayer clause of the plaintiff himself.
19. Further, Sections 101 and 102 of the Indian Evidence Act, 1872 provides withal as under-:
"101. Burden of proof - Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
102. On whom burden of proof lies- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."
20. Thus, the general burden of proving all the relevant facts lies on the plaintiff and since the plaintiff has filed the captioned suit alleging that he is the owner in possession of the suit land allegedly purchased by him from the alleged erstwhile owners; therefore, the plaintiff is required to prove its case.
Plaintiff Evidence: -
21. In order to prove the case, plaintiff got examined five Suit No.7103/2016 Subhash Gupta Vs. DDA Page-10/63 -11- witnesses i.e., Sh. Ved Singh, Halka Patwari from Mehrauli as PW-1; Sh. Kailash Patwari, from Record Room as PW-2; Sh. Bhagwan Sah, LDC from office of Sub-registrar as PW- 3; Sh. Subhash Gupta i.e., plaintiff himself as PW-4 and Sh. Subodh Kumar, Halka Patwari from office of SDM, Mehrauli as PW-5.
a). PW-1 Sh. Ved Singh, Halka Patwari, Mehrauli, Delhi brought the summoned record for 1994-97 and stated that as per record Khasra no.408, Village Mehrauli is partly in possession of Subhash Chand Gupta measuring 1 Bigha 1 Biswa and Sh. Ashok Kumar Kumar measuring 1 Bigha 1 Biswa. PW-1 further stated that Sh. Subhash Gupta is holding the possession of Khasra no. 408. The land measuring 2 Bighas 2 Biswas is in possession of Mr. Devender Dagar and 2 Bighas 3 Biswas in possession of Sh. Hem Chand etc. Sh. Subhash Gupta is in possession of 2 Bighas 3 Biswas and plaintiff is also in possession of land of Devender Dagar measuring 2 Bighas 2 Biswas. It is stated that plaintiff is in possession of total land in Khasra no. 408 as 6 Bighas 7 Biswas. The witness further stated that the record is correct as per factual position as per Khasra Girdawri.
PW-1 was cross-examined on behalf of defendant/DDA.
b). PW-2 Sh. Kailash, Patwari from Record Room, Suit No.7103/2016 Subhash Gupta Vs. DDA Page-11/63 -12- Mehrauli brought the summoned record i.e., original Masabi prepared in 1981-82. This witness stated that Khasra no.408 is shown at Mark of ball pen in Ex.PW-2/1. It is admitted by the witness that as per the record Khasra no. 414, 413 and 430 has nothing to do with Khasra no.408 and that Khasra no.408 is independent as on date.
PW-2 was also cross-examined on behalf of defendant/DDA.
c). PW-3 Sh. Bhagwan Sah, LDC from office of Sub- Registrar-III, Asaf Ali Road, Delhi brought the summoned record i.e., sale deeds executed by the sellers and the certified copies issued by the Sub-Registrar Office in terms of the application submitted and exhibited the same as Ex.PW-3/1 to PW-3/6. The witness stated that no objection certificates were also submitted and the declaration to the effect is Ex.PW-3/7.
PW-3 was not cross-examined on behalf of defendant/ DDA despite opportunity.
d). PW-4/plaintiff Sh. Subhash Gupta led his evidence by way of affidavit which is Ex.PW-4/X wherein he reiterated the averments made in the plaint. PW-4 also relied upon certain documents which are as under: -
Suit No.7103/2016 Subhash Gupta Vs. DDA Page-12/63 -13- Identification Description Mark Mark-A Khatoni for 1980-81 (de-exhibited from Ex. PW-4/1).
Ex. PW-4/2 Shizra plan.
Ex. PW-4/3 Najari Naksha.
Ex. PW-4/4 Khasra Girdhawari.
Ex. PW-4/5 Khata Khatoni.
Ex. PW-4/6 Copy of demarcation report.
Ex. PW-4/7 LC's demarcation report
Ex. PW-4/8 De-exhibited being not on record.
Ex. PW-4/9 De-exhibited being not on record.
Ex. PW-4/10 De-exhibited being not on record.
PW-4 also relied upon the documents already Ex.PW-3/1 to PW-3/7 and Ex.PW-2/1.
PW-4 was also cross-examined by the counsel for defendant/DDA at length.
e). Further two witnesses Sh. Subodh Kumar, Halka Patwari from office of SDM, Mehrauli and Sh. Rattan Pal Singh from the office of Deputy Commissioner, Saket were called, however they were discharged unexamined as it was stated that Masavi and Girdhawari prior to 2011 and demarcation report not available with him and the same is Suit No.7103/2016 Subhash Gupta Vs. DDA Page-13/63 -14- with Mehrauli Tehsil. Sh. Subodh brought Khatoni Pehmaish of 1980-81 in Urdu. It was stated by PW-5 that Jamabandi for the year 2004 was not available that day.
While, Sh. Rattan Pal did not bring any relevant record of Masabi and Khasra Girdawari as the same pertained to the period prior to filing of the suit. Therefore, Ld. Counsel for plaintiff did not examine them. Henceforth, these witnesses were discharged unexamined.
Thereafter, the plaintiff evidence was closed vide order dated 27.04.2019 and the matter proceeded for defence evidence.
Defendant Evidence: -
22. In defence evidence, the defendant got examined five witnesses i.e., Sh. Vijender, Kanoongo, DDA as DW-1; Sh. Amit Kumar Yadav, Kanoongo from office of ADM, Saket Road as DW-2; Sh. Ghanshyam, Patwari from SDM Office as DW-3; Sh. Manoj Kumar, Patwari from ADM Office, district-South, Saket as DW-5 and Sh. Ashish Patwari (LA Branch), Land & Building Department as DW-6.
a). DW-1 Sh. Vijender, Kanoongo from DDA led his evidence by way of affidavit which is Ex. DW-1/A. DW-1 also relied upon certain documents which are as under: -
Suit No.7103/2016 Subhash Gupta Vs. DDA Page-14/63 -15- Identification Description Mark Ex. DW-1/1 Aks Shizra already Ex.PW-4/2. Ex. DW-1/2 Rough location plan, same is not on record and accordingly de-exhibited. Ex. DW-1/3 Khatoni Pehmaish of Village Mehrauli. Ex. DW-1/4 Award no.80E (Supplementary) 70-71. Ex. DW-1/5 Possession proceedings dt. 23.09.1981. Ex. DW-1/6 Notification dt. 19.11.1981 U/S 20 (1) DD Act.
Ex. DW-1/7 Award no.80G/70-71 (Supplementary). Ex. DW-1/8 Copy of possession report dt. 23.12.1996. Ex. DW-1/9 Demarcation report dt. 10.05.1993. Ex. DW-1/10 Notification dt. 18.03.1993 U/s 12 (1) DD Act.
The DW-1 was cross-examined at length by the Ld. Counsel on behalf of plaintiff. DW-1 clearly denied all the wrongful suggestions put to him. He clearly stated that the Suit land forms part of Khasra no. 413, 414 and 430 and stands acquired. He further informed the lands/area situated on the East, west South & North of the suit land. DW-1 further answered the questions asked to him with respect to the Khatoni Pehmaish relied upon by him and also informed the date viz. 23.12.1996 when possession of Suit No.7103/2016 Subhash Gupta Vs. DDA Page-15/63 -16- the suit land was taken-over by the Defendant/DDA. DW-1 further stated that the demarcation dated 22.05.1992 i.e., Ex. PW-4/7 was not done as per the rules and was done without informing the Defendant/DDA. When asked about the ownership of Khasra no. 408 as per the Khatoni Pehmaish, the DW-1 replied that Khasra no. 408 belongs to the Government as reflected on the first page of the Khatoni Pehmaish and that it is prepared only once during consolidation of holdings/lands.
b). DW-2 Sh. Amit Kumar Yadav, Kanoongo, ADM, South exhibited on record the report of LAC South dated 07.01.2020 as Ex. DW-2/1. This witness also brought originals of Ex. DW-1/4 and DW-1/5.
DW-2 was also cross-examined on behalf of plaintiff.
c). DW-3 Sh. Ghanshyam, Patwari from SDM, Mehrauli produced & proved the original Shizra of Village Mehrauli and original Khatoni Pehmaish of Khewat No.416 and of Khewat No.111 new. The said two Khatoni Pehmaish have been exhibited as Ex. DW-3/1 which proves that the Khasra no. 430, 413 and 440 belongs to the Government.
DW-3 was also cross-examined on behalf of plaintiff.
d). DW-5 Sh. Manoj Kumar, Patwari from ADM Office, Suit No.7103/2016 Subhash Gupta Vs. DDA Page-16/63 -17- district-South, Saket brought the summoned record i.e.: -
(i) Original Award no. 80G/70-71 of Village Mehrauli and the copy of the same was exhibited as Ex. DW-5/1 (OSR).
DW-5 further stated that Khasra no. 2552/1156 (new 408) is mentioned therein at serial no. 51 at Point A.
(ii) Original Award no. 80E/70-71 of Village Mehrauli, certified copy of the same is already Ex DW1/4.
(iii) Original possession proceedings dated 23.09.1981 w.r.t Award no. 80E/70-71 of Village Mehrauli, the certified copy of the same is already Ex DW1/5.
Cross-examination of DW-5 was dispensed with being a summoned witness merely bringing the record in terms of Section 139, Indian Evidence Act, 1872.
e). DW-6 Sh. Ashish, Patwari (LA Branch) from Land and Building Department brought the original possession proceedings dated 23.09.1981 with respect to Khasra no.2270/1160 (2-16), 2270/1160 Min (1-0), 2542/2271/1160 Min (2-16), 2542/2271/1160 Min (1-15), 2566/1170/2 (11-6) of Village Mehrauli, pursuant to Award No.80E/70-71 (Supplementary), the certified copy thereof was already exhibited as Ex.DW-1/5, which was compared with the original record brought by DW-6 and same was found to be correct. It was further stated by the witness that the other documents summoned as mentioned in para-
Suit No.7103/2016 Subhash Gupta Vs. DDA Page-17/63 -18- 2 of summoning application dated 24.05.2023 were not available in the office of Land & Building Department, LA Branch.
Cross-examination of DW-6 was dispensed with being a summoned witness merely bringing the record in terms of Section 139, Indian Evidence Act, 1872.
Thereafter three opportunities were provided to defendant/DDA to conclude DE by summoning any another concerned witness and record. However, this Court was constrained to close DE vide order dated 27.09.2023 as no other relevant witness or record could be brought. Therefore, this Court shall now proceed to hear final arguments.
Decision with reasons: -
23.The final arguments have been extensively heard on behalf of both the parties at length and the entire record has been carefully perused.
24.It was argued on behalf of Ld. Counsel for Plaintiff that, the plaintiff purchased the suit property vide six sale deeds duly registered in the office of sub-registrar. A copy of sale deed dated 26.04.1993 is exhibited as Ex. PW-3/1. A copy of sale deed dated 18.08.1992 is exhibited as Ex. PW-3/2.
A copy of registered sale deed dated 26.04.1993 is exhibited as Ex. PW-3/3. A copy of registered sale deed Suit No.7103/2016 Subhash Gupta Vs. DDA Page-18/63 -19- dated 24.02.1992 is exhibited as Ex. PW-3/4. A copy of registered sale deed dated 10.03.1992 is exhibited as Ex. PW-3/5. A copy of sale deed dated 10.03.1992 is exhibited as Ex. PW-3/6. Along with the sale deeds, an NOC was also submitted as forming part of record with the sub- registrar office exhibited as Ex. PW-3/7. It was further argued on behalf of the Ld. Counsel for plaintiff that, the plaintiff is in possession of the suit property but, the defendant forcefully tried to demolish the suit property by misusing its power. Further, a copy of the Khatoni Pehmaish showing the title of the plaintiff in respect of the suit property is exhibited as Ex. PW-4/1. That, the copy of Sijra Plan is Ex. PW-4/2; copy of Najari Naksha is Ex. PW-4/3; copy of Khasra Girdhawari is Ex. PW-4/4, copy of Khasra Khatoni is Ex. PW-4/5. Relying upon the aforesaid documents, it was submitted on behalf of the Ld. Counsel for the plaintiff that, henceforth all the documents are in favour of the plaintiff which further supports the case of the plaintiff that the plaintiff is the rightful, lawful and absolute owner and landlord of land admeasuring 6 Bighas and 7 Biswas out of Khasra no. 408, situated in village Mehrauli, Delhi.
25. It has been further argued on behalf of the Ld. Counsel for the plaintiff that, the defendant is falsely alleging that the land on which plaintiff is in possession does not pertain to Khasra no. 408 but the same pertains to Khasra no. 413, 414, 430 and various times visited the said property and Suit No.7103/2016 Subhash Gupta Vs. DDA Page-19/63 -20- tried to demolish the same by misusing their powers, for which the plaintiff himself approached the concerned authorities and applied for demarcation of the Khasra no. 408, situated in Mehrauli, New Delhi on 08.04.1992 which is exhibited as Ex. PW-4/6 to which the office of the Tehsildar, Tehsil Mehrauli appointed a Local Commissioner with regard to the demarcation of the Khasra No. 408, situated in village Mehrauli, Delhi and thereafter proper demarcation of the Khasra no. 408 including the site plan prepared by Field Kanoongo Sh. M.H. Zaidi exhibited as Ex. PW-4/7, which was submitted by him in the presence of the officials of DDA as well as Shijra showing the Khasra no. 408 in village and Tehsil Mehrauli, including Girdawari is also in favour of plaintiff. The copy of demarcation report was exhibited as Ex-PW-4/8. The copy of Masabi was exhibited as Ex. PW- 2/1. It has been further submitted on behalf of the plaintiff that, the above-mentioned documents are sufficient to prove that the land upon which the plaintiff was in possession is suit property and having Khasra no. 408, in the village and Tehsil Mehrauli, New Delhi.
26.It was further argued on behalf of the Ld. Counsel for the plaintiff that, despite all these documentary proofs in support of the claim of the plaintiff, the defendant did not care to issue any show cause notice under section 30 of the Delhi Development Act, 1957 [hereinafter "the DDA Act"]. Further the plaintiff never received any notification Suit No.7103/2016 Subhash Gupta Vs. DDA Page-20/63 -21- regarding the demolition order as alleged by the defendant. It has been further argued that, no notice under section 4 or 6 of the Land Acquisition Act, 1894 had ever been issued by the concerned department / Government and the suit land has never been acquired by the Government nor there is any plea of the DDA regarding the acquisition of the land under any notification. The defendant had not produced a single document regarding the proof of service of any notice to the plaintiff.
27. Per Contra, it has been vehemently argued on behalf of the Ld. Counsel for DDA that, the plaintiff is fraudulently and malafidely claiming that he is the owner and in possession of the land of Khasra no. 408. It has been further submitted on behalf of DDA that, the plaintiff wants to usurp the suit land by citing wrong Khasra no. as it is the modus operandi of such land grabbers to usurp the acquired Government land by citing the same to be in a different Khasra number or part thereof which is left unacquired and which is adjoining nearby.
28.It has been further submitted by Ld. Counsel for DDA that, in the instant case, the Khasra no. of the suit property/land has been mentioned as Khasra no. 408, Village Mehrauli, Delhi by the plaintiff. However, the same has duly been acquired vide Award No.80-G/70-71 (Supplementary), i.e., Ex. DW-5/1 and Ex. DW-1/7 vide possession proceedings dated 23.12.1996 i.e., Ex. DW-1/9. However, the actual Suit No.7103/2016 Subhash Gupta Vs. DDA Page-21/63 -22- location of the land at site is different and the suit land actually forms part of Kh. No. 413, 414 and 430 whereupon the plaintiff was raising illegal construction since Village Mehrauli has been declared as a 'Development Area' vide notification dated 18.03.1993 i.e., Ex. DW-1/10. Further it was submitted that, the real reason behind mentioning the Khasra No.408 is that, on the date of alleged date of purchase of the suit land by the plaintiff, the Khasra no. 408 was not acquired because of the stay order granted by the Hon'ble High Court of Delhi in W.P. (Civil) No. 789/85, the same was dismissed in default on 10.11.1994, whereafter, the application for review was also dismissed on 06.01.1995. That, after the dismissal of the aforesaid W.P. (Civil) No. 789/85, the acquisition proceedings with respect to the Khasra no.408, Village Mehrauli was completed and vide the aforesaid Award No.80-G/70-71 (Supplementary), the aforesaid Khasra no.408, Village Mehrauli was also acquired and possession thereof was also handed over to the defendant/DDA by L&B Department vide possession proceedings dated 23.12.1996 i.e., Ex. DW-1/8.
29.It has been further argued by the Ld. Counsel for DDA that, in the plaint it has been averred that the plaintiff is the owner of the Khasra no. 408, Village Mehrauli, but the area of the suit land has not been mentioned anywhere in the plaint nor any dimensions thereof have been stated. No site plan has been filed nor has been proved on record. Suit No.7103/2016 Subhash Gupta Vs. DDA Page-22/63 -23- Accordingly, the provisions of Order VII Rule 3 CPC, which makes it mandatory for the plaintiff to state & prove specifically & clearly the location, area, length & breadth, size, boundaries, number etc. along with the site plan of the suit land have not been properly complied; therefore, neither any proper decree can be sought nor can the same be passed with respect to the suit land. It has also been submitted that, the evidence cannot be lead beyond the pleadings and since the area has not been mentioned in the plaint, therefore, stating the same in the evidence affidavit is neither permissible nor acceptable in law.
30.It has been further submitted by Ld. Counsel for DDA that, the plaintiff has himself made certain admissions during his cross-examinations which was conducted at length on several dates. It has been pointed out by Ld. Counsel for DDA that, that during cross-examination held on 19.03.2018, plaintiff has stated that, 'I had taken possession of land measuring 5 Bighas 1 Biswa only in the year 1992'. Whereas, in his affidavit of evidence he has mentioned the area of the suit land to be 6 Bighas 7 Biswas. Further, during his cross-examination held on 13.07.2017, plaintiff has given the dimensions only of the land measuring 5 Bighas 1 Biswas, and has admitted that remaining land is in possession of the defendant/DDA.
31. It has been further pointed out on behalf of DDA that, during cross-examination held on 19.03.2018, the plaintiff Suit No.7103/2016 Subhash Gupta Vs. DDA Page-23/63 -24- was not able to clearly state the width of the road abutting the suit land and whether the same had been widened three times after the alleged purchase by him. It was argued that, the plaintiff denied to have knowledge that Mehrauli- Badarpur Road is passing through the Khasra No.408 and said that he had taken possession of the land measuring 5 Bighas 1 Biswas. It was further pointed out that, the plaintiff stated during his cross-examination that, "I had not visited the Suit land since the year 1995. It is correct that Defendant/DDA had carried out demolition on 13.05.1993." It was further pointed out that, the plaintiff has categorically stated that, "The entire construction was demolished by DDA." It was further pointed out that, in cross-examination held on 19.03.2018 (post lunch) plaintiff had stated that, "I cannot tell the position of other Khasras mentioned in the Ex. PW-4/7. I cannot locate the other Khasras mentioned in demarcation report Ex. PW-4/7 surrounding the Khasra No.408. Vol. I can locate the Khasras number by seeing the demarcation report. I cannot locate the Khasras numbers after seeing the demarcation report."
32.It has been further submitted by Ld. counsel for DDA that, the plaintiff has placed reliance on the alleged demarcation report dated 22.05.1992 i.e., Ex.PW-4/6. It has been argued that, the same was conducted at the instance of the plaintiff himself and that, the plaintiff himself suggested the names of three persons from whom the demarcation can be Suit No.7103/2016 Subhash Gupta Vs. DDA Page-24/63 -25- conducted. It has been further argued that, no notice was served upon DDA and that, the same was conducted at the back of DDA and in absence of DDA and therefore, the same is not binding upon DDA nor the same can be relied upon. It has been further argued that, the said demarcation report or the fact of service of notice upon DDA, has not even been proved by the plaintiff by calling the concerned persons as witnesses or placing on record the copy of notice served upon DDA. It was argued that, therefore DDA had no occasion to cross-examine the person who prepared the said demarcation report or witnesses thereto. Therefore, the same cannot be relied upon.
33.It was further submitted by Ld. counsel for DDA that, plaintiff has filed on record six different sale deeds through which he claims to have purchased the suit land. All the said alleged sale deeds were executed during April-May 1993 and do not bear the signatures of the plaintiff himself. Whereas, from reading of Award No.80-E/70-71, it stands proved that notification under Section 4 and Section 6 of the Land Acquisition Act, 1897 was issued on 23.01.1965 and 07.12.1966, respectively. Thus, all the alleged sale deeds prior to these dates are not valid and do not convey any right, title or interest in plaintiff. In this respect reliance has been placed by DDA upon the judgment of the Hon'ble Supreme Court in the matter of, Shiv Kumar Vs Union of India [2019 (10) SCC 229].
Suit No.7103/2016 Subhash Gupta Vs. DDA Page-25/63 -26-
34. It has been further argued on behalf of DDA that, it is relevant to submit that the aforesaid acquisition proceedings with respect to Khasra no.408 was challenged by plaintiff's alleged predecessor-in-interest i.e., Sh. Hem Chand Gupta by filing a CWP No.789/85, titled, 'Hem Chand Gupta & Ors. Vs Union of India [1995 (32) DRJ.]' before the Hon'ble High Court, wherein, an interim order was passed by the Hon'ble High Court of Delhi to stay the said acquisition proceedings w.r.t. Khasra no. 408. In this regard, it has been submitted by Ld. Counsel for DDA that, the wrongful conduct of the plaintiff is clear from the fact that, during cross-examination held on 19.03.2018, the plaintiff denied the knowledge of the aforesaid CWP No.789/85 and dismissal thereof on 10.11.1994; whereas, the plaintiff himself had filed an application CM No. 4578/93 to get himself impleaded in the aforesaid CWP No.789/85 and after the dismissal of the said CWP No.789/85 in default for non-prosecution on 10.11.1994, the plaintiff had filed an application CM No. 8794/94 for restoration of the aforesaid CWP No.789/85. However, the said CM No. 8794/94 was also dismissed by the Hon'ble High Court vide orders dated 06.01.1995.
35.Thus, it was further submitted on behalf of defendant/DDA that, the plaintiff has not approached this Court with clean hands and has suppressed the material facts. It has been further argued on behalf of DDA that, once cloud has been raised over the title of the plaintiff the correct course for Suit No.7103/2016 Subhash Gupta Vs. DDA Page-26/63 -27- the plaintiff was to file a suit seeking declaration, possession and any other consequential relief, which the plaintiff has apparently failed to do. Therefore, plaintiff is not entitled to the equitable relief of permanent injunction and this suit is liable to be dismissed by placing reliance on the case of Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs. [AIR 2008 SC 2033].
36.Now, let us deliberate upon the factual matrix and evidences in the matter at hand and issue-wise findings thereon.
37. Issue No. (1) -
(1) Whether the defendant has ever threatened the plaintiff for demolishing or dispossessing from the suit premises? (OPP) The onus of proving this issue rests upon the plaintiff, since, the general burden of proving the case lies upon the plaintiff.
W.r.t issue no. (1), it is pertinent to mention that, the brief allegations of the plaintiff against the defendant as per the contents of plaint is that, some persons of the locality were not in good terms with the plaintiff and have been causing harassment to the plaintiff in connivance with the officials of the government department by making false complaints against the plaintiff. That, in order to harass the plaintiff, Suit No.7103/2016 Subhash Gupta Vs. DDA Page-27/63 -28- the officials of the defendant visited the suit property several times on different occasions to illegally harass the plaintiff.
It has been further averred by the plaintiff that, on 12.05.1993, the officials of defendant made an attempt to dispossess the plaintiff from the suit property forcibly, with the help of police and tried to encroach upon the plaintiff's land/property, on the plea that the suit land does not pertain to Khasra no.408, but it pertains to Khasra no. 413, 414 and 430, as they alleged. It has been further averred that on 15.10.1993, the officials of the defendant along with some labors came to the suit property, and the construction material was brought by them, they started digging foundation over the suit land for raising boundary wall and fencing over the suit land. The plaintiff resisted their illegal action and raised great hue and cry, whereupon all the neighbors and respectables gathered at the spot and it was with great difficulty that the defendant officials could be stopped from taking forcible action of digging the land for raising boundary wall and fencing etc. However, while leaving the spot, they left saying that they will come again very soon with more police force etc. However, in this regard no specific evidence has been led by the plaintiff which can associate such alleged act/conduct with the defendant/DDA. Nevertheless, it is the bounden duty of the plaintiff to categorically prove all Suit No.7103/2016 Subhash Gupta Vs. DDA Page-28/63 -29- the allegation and averments made by it in his/her pleadings as the general burden of proving the case lies upon the plaintiff. In the present case, except for pleading these allegations, no evidence has been led/placed on record by the plaintiff to bring home the charge of the same upon the defendant.
In this regard, Section 101 and 102 of the Evidence Act, 1872 provides as under:
"Section 10. Burden of Proof. - Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
"Section 102. On whom the burden of proof lies. - The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."
[Emphasis Supplied] This Court is further fortified by the ratio held in a recent case of Debbarma (Dead) Through Legal Representative v. Prabha Ranjan Debbarma and Ors., [2023 SCC OnLine SC 9], the Hon'ble Apex emphasized upon the Suit No.7103/2016 Subhash Gupta Vs. DDA Page-29/63 -30- importance of Section 101 and Section 102 of the Indian Evidence Act, 1872, that deal with burden of proof in a civil proceeding and wherein it has been held as follows by the Hon'ble Apex Court:
"31. The burden of proof to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief. This is mandated in terms of Section 101 of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions, but in the factual background of the present case, the general principle is applicable. In terms of Section 102 of the Evidence Act, if both parties fail to adduce evidence, the suit must fail. Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and Suit No.7103/2016 Subhash Gupta Vs. DDA Page-30/63 -31- can be discharged only when he is able to prove title. The weakness of the defence cannot be a justification to decree the suit. The plaintiff could have succeeded in respect of the Schedule 'A' property if she had discharged the burden to prove the title to the Schedule 'A' property which squarely falls on her. This would be the true effect of Sections 101 and 102 of the Evidence Act. Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed. (...)"
[Emphasis Supplied] It is further pertinent to mention that, as per Section 51 of the Delhi Development Act, 1957 [hereinafter 'DDA Act'] provides for protection of action against the employees of the DDA qua the acts done bonafide and in prosecution of the provisions of the DDA Act/ Rules/ Regulations/ Policy/ Bye-laws. Section 51 of the DDA Act reads as under:
"51. Protection of action taken in good faith. -- No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act or any rule or regulation made Suit No.7103/2016 Subhash Gupta Vs. DDA Page-31/63 -32- thereunder."
[Emphasis Supplied] Since, the plaintiff has failed to place on record any such material that the acts/conduct of the defendant/DDA were malafide and ultra vires the spirit of the DDA Act, therefore, the plaintiff has failed in discharging the burden cast upon it.
Hence, the issue no. (1) is decided in favour of the defendant/DDA and against the plaintiff.
38. Issue No. (2) -
(2) Whether the plaintiff is entitled to the injunction as prayed for? (OPP) The onus of proving this issue also rests upon the plaintiff, since, the general burden of proving the case lies upon the plaintiff.
W.r.t issue no. (2), it is pertinent to mention that, the plaintiff has sought the relief of permanent injunction thereby restraining the defendant, its employees, servants, officials, representatives, agents etc. from dispossessing and/or interfering in the peaceful possession of the plaintiff and further restraining them from raising boundary wall/fencing etc. over the suit land as the plaintiff is the absolute owner and landlord of land admeasuring 6 Bighas Suit No.7103/2016 Subhash Gupta Vs. DDA Page-32/63 -33- and 7 Biswas out of Khasra no. 408, situated in Village Mehrauli [hereinafter "the suit property"], surrounded by road in East, Boundary Wall of DESU in West, sever line/rain drain in North and DDA land in South.
Before adverting upon the factual analysis of the matter at hand, it will not be out of place to first discuss the law as applicable. The germane law on injunctions has been laid down under Sections 36, 37 and 38 of the Chapters VII and VIII of the Specific Relief Act, 1964 [hereinafter "the SRA"], which reads as follows:
"36. Preventive relief how granted. - Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual."
"37. Temporary and perpetual injunctions. -
(1) XXX.
(2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff."
"38. Perpetual injunction when granted. - (1) Subject to the other provisions contained in or Suit No.7103/2016 Subhash Gupta Vs. DDA Page-33/63 -34- referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely: -
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that
compensation in money would not afford
adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings."
[Emphasis Supplied] Suit No.7103/2016 Subhash Gupta Vs. DDA Page-34/63 -35- The relief of perpetual injunction is an equitable and preventive relief, which may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication, or when the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property. Therefore, for the relief of perpetual/permanent injunction, the focal point to be considered is the right and entitlement of the plaintiff; the consequent breach or threat of breach by the opposite side; extreme urgency of the relief sought on the grounds of equity and justice in so far as if the breach/threat is not perverted, same will result in irreparable loss to the party aggrieved which cannot be compensated in money and subsistence of the claim i.e., cause of action of the plaintiff till the final pronouncement of the judgment. The equitable relief of perpetual/permanent injunctions is founded on the legal maxim of 'he who seeks equity must do equity' and 'he who seeks equity must come to the Courts with clean hands.' The law on the grant of perpetual injunctions is well settled that, in order to get the equitable relief of perpetual injunction, the plaintiff must show and prove his cause of action bonafidely. The plaintiff must prove that, there was a legal right in him and the same has been abused by the defendant, without following the due process of law. In a suit for seeking perpetual injunction U/s 38 of the Specific Relief Act, 1963 (hereinafter "SRA"), the plaintiff must Suit No.7103/2016 Subhash Gupta Vs. DDA Page-35/63 -36- prove his legal right either by way of title or settled possession and consequent breach/ threat of breach of said legal right by the defendant(s), which ultimately resulted in injury to the plaintiff.
It is further pertinent to mention herein, that in a suit for permanent injunction simplicitor, an issue on the factum of ownership in the plaintiff is not a fact substantially in issue/ sine qua non, though the same may be an incidentally relevant fact depending upon the other facts and circumstances of each case. In as much as, for seeking the relief of permanent injunction, the plaintiff is required to prove his entitlement to the relief either by proving some right/title/interest coupled with the fact of possession or that he/she is in the settled possession of the suit property or a combination of any of these, which may or may not arise out of a title document or any possessory title alone. However, such an equitable relief can also not be granted de hors any right/title/interest or possession whatsoever in favour of the plaintiff as per law.
Therefore, the plaintiff in the instant matter, in order to be entitled to the relief of permanent injunction simplicitor is required to establish certain facts in his favor, as follows, though not exhaustive depending upon the facts and circumstances of each case:
i). That the plaintiff is in the possession of the suit property;
Suit No.7103/2016 Subhash Gupta Vs. DDA Page-36/63 -37-
ii). That the plaintiff has the right/title/interest to use and occupy the property in question or, is in the settled possession of the suit property;
iii). That the said right, title or interest was threatened/ breached by the defendants jointly or severally, without following the due process of law;
iv). That the balance of convenience lies in favor of the plaintiff on the scale of preponderance of probabilities;
v). That the plaintiff has come to the Court with clean hands;
vi). That irreparable loss would be caused to the plaintiff if the breach alleged is not restrained and the same cannot be compensated in terms of money.
Further, in the locus classicus of Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs [AIR 2008 SC 2033], the Hon'ble Supreme Court of India has laid down the rules governing a suit seeking permanent injunction simplicitor and held, inter alia, that:
"11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
11.1) Where a plaintiff is in lawful or peaceful Suit No.7103/2016 Subhash Gupta Vs. DDA Page-37/63 -38- 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 a right 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, 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 Suit No.7103/2016 Subhash Gupta Vs. DDA Page-38/63 -39- 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 Suit No.7103/2016 Subhash Gupta Vs. DDA Page-39/63 -40- 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, Suit No.7103/2016 Subhash Gupta Vs. DDA Page-40/63 -41- 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 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.
Suit No.7103/2016 Subhash Gupta Vs. DDA Page-41/63 -42- 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."
[Emphasis Supplied] In the instant matter, the plaintiff has instituted this suit seeking permanent injunction simplicitor. The claim of the plaintiff is based on the fact that, plaintiff is the owner in possession of property/land bearing Khasra No. 408, situated in village Mehrauli, New Delhi surrounded by East-road; West- Boundary wall of DESU; North- Sewer line/rain drainage and South- by DDA land. However, perusal of plaint and the evidence led on record transpires that, the plaintiff did not mention any quantum of area falling under Khasra no. 408 nor tendered in evidence any Suit No.7103/2016 Subhash Gupta Vs. DDA Page-42/63 -43- site plan of the suit property/land thereby describing and identifying the suit property/land. It is pertinent to mention that, nowhere in the plaint the plaintiff has mentioned the exact location, proper dimensions and area of the suit property/land due to which the suit property/land is not ascertainable/decipherable from the bare pleadings of the plaint. In this regard Order VII Rule 3 CPC makes it mandatory for the plaintiff to categorically and clearly state the location, area, dimensions, size, boundaries, number etc. of the suit property so as to clearly distinguish the suit property and effectively adjudicate upon the same. In this regard, Order VII Rule 3 CPC reads as under: -
"3. Where the subject-matter of the suit is immovable property. - Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers."
It is pertinent to mention that, though in the plaint it has been averred by the plaintiff that he is the owner of Khasra no.408, Village Mehrauli; however, the area of the suit land has not been mentioned by the plaintiff nor any dimensions thereof have been stated. Further it is not clear from the pleadings that, whether the plaintiff is claiming to be the owner of entire land falling under Khasra no. 408 or Suit No.7103/2016 Subhash Gupta Vs. DDA Page-43/63 -44- any particular part thereof since the area, dimension, location and boundaries of the suit property/land have not been mentioned in the plaint. It is further pertinent to mention that, the plaintiff has not tendered any site plan in evidence and the same was also admitted by the plaintiff during his cross-examination. Further, the exact area, dimension, location and boundaries of the suit property/land lying in possession of the plaintiff has not been proved by calling any witness, except PW-1 who stated that, as per Khasra Girdawri of the period 1994- 1997, Khasra no.408, Village Mehrauli is partly in possession of Subhash Chand Gupta measuring 1 Bigha 1 Biswa and Sh. Ashok Kumar Kumar measuring 1 Bigha 1 Biswa. PW-1 further stated that Sh. Subhash Gupta is holding the possession of Khasra no. 408. The land measuring 2 Bighas 2 Biswas is in possession of Mr. Devender Dagar and 2 Bighas 3 Biswas in possession of Sh. Hem Chand etc. Sh. Subhash Gupta is in possession of 2 Bighas 3 Biswas and plaintiff is also in possession of land of Devender Dagar measuring 2 Bighas 2 Biswas. It is stated that plaintiff is in possession of total land in Khasra no. 408 as 6 Bighas 7 Biswas. However, the testimony of the PW-1 apparently seems inconsistent and absurd to prudent understanding.
It is further pertinent to mention that, the plaintiff was examined as PW-4 in the present matter and at the stage of PE only the plaintiff has mentioned in his evidence Suit No.7103/2016 Subhash Gupta Vs. DDA Page-44/63 -45- affidavit that, plaintiff is the absolute owner and landlord of land admeasuring 6 Bighas and 7 Biswas out of Khasra no. 408. Hence, the same seems to be an after-thought improvisation upon the testimony of PW-1. However, it would not be out of place to say that, the evidence cannot be lead beyond pleadings, since the plaint is absolutely silent on the fact of area and dimension of the suit property/land. Therefore, in the present matter since the plaintiff did not properly mention the area, dimension, location and boundaries of the suit property; therefore, merely by stating the area of the suit property in evidence affidavit amounts to leading evidence beyond pleadings and the same is not permissible in law.
It is further pertinent to mention that the plaintiff himself has stated in his cross-examination dated 13.07.2017 that:
"I am permanent resident of 427, Behera Enclave, Paschim Vihar, now I am temporarily residing at H.No.1071, Sector-64, Mohali, Punjab since last 1.5 years. Since last 13-14 years, I am residing at the surrounding area of Chandigarh. I was shifted to 427, Behera Enclave on 13.01.1999. Prior to that I used to reside at Mianwali, Paschim Vihar (...) I am claiming land of khasra no.408, Village Mehrauli area measuring 6 bighas and 7 biswas (...) The front of disputed land is approximately 396 feet in north side, approximately 200 feet in Suit No.7103/2016 Subhash Gupta Vs. DDA Page-45/63 -46- the west side, approximately 110 feet in the east side and approximately 396 feet in the South side. This dimension is of land approximately 5 bigha 1 biswas and the remaining land is in illegal possession of DDA. It is wrong to suggest that remaining land is not in illegal possession of DDA. Again said, the front of the disputed land in north side is approximately 306 feet. I do not know the khasra numbers located surrounding of the disputed land. I do not know the old khasra number of khasra no.408 (...) It is wrong to suggest that I am not in possession of disputed land since 23.12.1996 on which physical possession was taken over by DDA. Vol. Present case was filed prior to acquirement and stay has been granted(...)".
It is further pertinent to mention that in cross-examination dated 19.03.2018, the plaintiff has stated as follows: -
"Disputed land is situated adjacent to the road proceed from Chattarpur to Mahipalpur i.e., on the left side of the road. I had purchased the disputed land in the year 1991 (...) I do not know the width of the above- mentioned road. Again said, the width of the road was approximately 80 feet in the year 1991. I have not seen the dispute land since the year 1995. I do not know whether the Suit No.7103/2016 Subhash Gupta Vs. DDA Page-46/63 -47- above-mentioned road is still running or not (...) I cannot tell the khasra number of above-mentioned road (...) On the backside of the disputed land there was a open land in the year 1991-92 and in the east side there was a road of D2 Flats, Vasant Kunj proceed from disputed land to Chattarpur and there was a DESU Powerhouse towards the Mahipalpur, on the north side there is main road known as Mehrauli-Mahipalpur Road. I do not know the khasra number of other surrounding areas adjacent to the disputed land (...) I had purchased the land measuring 6 bighas 7 biswas or 6 bighas 13 biswas (...) I had taken possession of land measuring 5 bighas one biswa only in the year 1992(...)"
A comprehensive reading of the excerpt of the cross- examination of plaintiff/PW-4 on 13.07.2017 as reproduced above transpires that, the plaintiff is inconsistent with respect to the exact area, dimension, location and boundary of the suit property and further admits to the fact that some portion of land falling under Khasra no.408 stands acquired by DDA and is in possession of DDA.
It is further noteworthy to mention that the plaintiff himself seems to be unaware/unsure of the exact area and location of the suit property which he is claiming to be the Suit No.7103/2016 Subhash Gupta Vs. DDA Page-47/63 -48- owner of and further goes on to admitting that, he has not even seen the disputed land since 1995 and, therefore, the same is clear from the admissions made by the plaintiff during the course of the cross-examination as reproduced above that, the plaintiff is not aware of the exact area, location and nearby surroundings of the suit property or Khasra numbers. The plaintiff is apparently indecisive of the area acquired by him. Though, the plaintiff has admitted that land measuring 1 Bigha 6 Biswas in Khasra no. 408 lies in illegal possession of defendant/DDA and that entire suit property was demolished by DDA. However, it is also correct that, the plaintiff has not filed any suit/petition challenging the possession of the DDA over a part of Khasra no. 408 of which plaintiff is claiming to be the owner or seeking declaration thereof. It is further noteworthy, that the plaintiff has also not challenged the Award 80-G/70-71 (Suppl.) and possession proceedings dated 23.12.1996 and tendered in evidence by defendant/DDA as Ex. DW-1/7 and Ex. DW-1/8, by virtue of which the Khasra no. 408 was acquired by DDA and possession was taken thereof.
It is further pertinent to mention that, in order to support his claim of being the owner in possession of the suit property, the plaintiff has tendered six sale deeds i.e., Ex.PW3/1 to Ex.PW-3/6 and Ex.PW-3/7; Ex.PW-2 i.e., Aks Shijra plan; Ex.PW-4/3 i.e., Nazari Naksha; Ex.PW- 4/4 i.e., Khasra Girdawari and Ex.PW-4/5 i.e., Khata Suit No.7103/2016 Subhash Gupta Vs. DDA Page-48/63 -49- Khatauni and has also placed reliance on Ex.PW-2/1 i.e., Masabi. However, perusal of sale deeds i.e., Ex.PW-3/1 to PW-3/6 transpires that, the said sale deeds by which the plaintiff claims to have purchased the suit property by way of six different sale deed from its erstwhile owners Sh. Hem Chand Gupta, Sh. Nem Chand etc. do not bear the signatures of the plaintiff himself as a vendee. Further, the plaintiff had summoned PW-3 Sh. Bhagwan Shah, LDC, Sub-Registrar-III in order to prove these registered sale deed. However, it is the settled principle of law that by calling the sub-registrar, only the fact of registration of the sale deeds can be proved and the same has no bearing on the actual and valid execution of the said document as per the law. Further, since the said sale deeds do not bear the signature of the vendee i.e., the plaintiff herein, then the same raises a question on the valid execution of the said sale deeds as per the Transfer of Property Act, 1872. Though the same is not a question to be determined by this Court, nevertheless a blind eye cannot be turned to the mandatory provisions of law.
It is further pertinent to mention that, this Court is conscious of the fact that, the present suit is one for permanent injunction simplicitor. However, since a cloud has been raised by the defendant over the title and possession of the suit property/land with the plaintiff. Furthermore, the plaintiff has himself admitted during the course of examination that land measuring 1 Bigha 6 Suit No.7103/2016 Subhash Gupta Vs. DDA Page-49/63 -50- Biswas in Khasra no. 408 lies in illegal possession of defendant/DDA; that entire suit property was demolished by DDA and that, he has not seen the suit property since 1995. Therefore, it was a bounden duty upon the plaintiff to discharge the said onus by sufficiently proving the fact of ownership and possession in him at the relevant point of time by calling the relevant witnesses. It is the settled proposition of law that, exhibiting a document does not automatically render the facts of said document proved, as the same needs to be proved by calling the relevant witnesses, which the plaintiff has failed to do in the present matter.
At this stage it is further pertinent to mention that during cross-examination dated 19.03.2018, plaintiff has stated that:
"I cannot show the documents regarding ownership of disputed land in the name of seller from whom I had purchased the same (...) I am unable to recollect today whether I had applied for any mutation of the disputed land in my name or mutation if done (...)".
It has been further stated by the plaintiff during his cross- examination dated 19.03.2018 at 02:00 PM that, "I do not know the position of disputed land as on today as I have not visited the same after 1995 (...) I cannot tell the position of Suit No.7103/2016 Subhash Gupta Vs. DDA Page-50/63 -51- khasras mentioned in Ex.PW-4/7. I cannot locate the other khasras mentioned in demarcation report Ex.PW-4/7 surrounding the khasra no.408. Vol. I can locate the khasra numbers by seeing the demarcation report. I cannot locate the other khasras after seeing the demarcation report. I have not brought today the original of Ex.PW-3/1 to PW-3/6. I do not recollect whether the originals of the same are with me or not. I have no other document regarding the suit land except which have been filed in the Court record (...) It is correct that no separate site plan has been filed except plan Ex.PW-4/3. It is correct that Ex.PW-3/1 to Ex.PW-3/7 do not bear my signatures (...) I do not know whether the executor or witness of the document Ex.PW-3/1 to PW-3/7 are alive or not(...)."
A comprehensive reading of the cross-examination of the plaintiff/PW-4 brings to light that, the plaintiff has not only failed to place on record the entire chain of title documents and any other documents showing possession of the suit property/land with him; but, has also grossly failed to state that what exactly is the suit property and what is the nature of the same i.e., whether the same is a vacant land or has some construction over it or is a built-up property. Suit No.7103/2016 Subhash Gupta Vs. DDA Page-51/63 -52- It is further pertinent to mention that, once the plaintiff has himself admitted during the course of examination that, land measuring 1 Bigha 6 Biswas in Khasra no. 408 lies in illegal possession of defendant/DDA; that entire suit property was demolished by DDA and that, he has not seen the suit property since 1995, then it is abundantly clear without a grain of salt that, the plaintiff has been ousted from the possession of the suit property by the defendant/DDA. Whether, the same was done validly or not, was for the plaintiff to question by instituting a proper suit, while the suit at hand is one merely seeking permanent injunction without seeking the relief of declaration and possession. Hence, it materializes in the present matter that, even the cause of action, if any, seeking the relief of permanent injunction had ceased long back; since, the suit land has been acquired by the defendant vide Ex. DW-1/7 and possession thereof has been taken over by the defendant/DDA on 23.12.1996 vide Ex. DW-1/8, which has not been challenged by the plaintiff in this or any other suit. Therefore, the title of the plaintiff is under cloud and the plaintiff is no longer in the possession of the suit property. Therefore, the suit of the plaintiff seeking permanent injunction simplicitor seems to be a futile practice, as is also the settled law by virtue of Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs [AIR 2008 SC 2033].
With respect to relevance of possession in a suit for Suit No.7103/2016 Subhash Gupta Vs. DDA Page-52/63 -53- injunction, it has been held in the case of Maria Margadia Sequeria v. Erasmo Jack De Sequeria (D) [SLP (C) No. 15382 of 2009] as follows:
"61. In civil cases, pleadings are extremely important for ascertaining the title and possession of the property in question.
62. Possession is an incidence of ownership and can be transferred by the owner of an immovable property to another such as in a mortgage or lease. A licensee holds possession on behalf of the owner.
63. Possession is important when there are no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in vacuum.
64. There is a presumption that possession of a person, other than the owner, if at all it is to be called possession, is permissive on behalf of the title-holder. Further, possession of the past is one thing, and the right to remain or continue in future is another thing. It is the latter which is usually more in controversy than the former, and it is the latter which has seen much abuse and misuse before the Courts.
Suit No.7103/2016 Subhash Gupta Vs. DDA Page-53/63 -54-
81. Due process of law means nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity for the defendant to file pleadings including written statement and documents before the Court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated by a competent Court."
[Emphasis Supplied] It has been further held, in Balakrishna Dattaraya Galande v. Balakrishna Rambharose Gupta & Anr [SLP (C) 1509/2019], it has been held that:
"In a suit filed under Section 38 of the Specific Relief Act, possession on the date of suit is a must for grant of permanent injunction. When the first respondent-Plaintiff has failed to prove that he was in actual possession of the property on the date of the suit, he is not entitled for the decree for permanent injunction."
[Emphasis Supplied] In the present matter, while perusing the Ex. DW-1/8 i.e., possession proceedings of Khasra no. 408 dated 23.12.1996 it came to light that, on a portion of Khasra no. 408 there was a vacant plot with four walls and a built-up structure which was found to be vacant and unclaimed and Suit No.7103/2016 Subhash Gupta Vs. DDA Page-54/63 -55- the same was also taken over by defendant/DDA during the course of possession proceedings. Further, during cross-examination the plaintiff stated that, "I am permanent resident of 427, Behera Enclave, Paschim Vihar, now I am temporarily residing at H.No.1071, Sector-64, Mohali, Punjab since last 1.5 years. Since last 13-14 years, I am residing at the surrounding area of Chandigarh. I was shifted to 427, Behera Enclave on 13.01.1999. Prior to that I used to reside at Mianwali, Paschim Vihar (...)." Hence, it is clear that, even on relevant date the plaintiff cannot be said to be having the actual and physical possession of the alleged suit property/land. Further, whether the plaintiff is the owner of the alleged suit property/land; whether the same falls within Khasra no. 408 or 413 or 414 or 430; whether the defendant/DDA has validly acquired the suit property/land, is not be determined by this Court in the present suit. Further, Ex.PW-2 i.e., Shijra Plan and Ex.PW-4/3 i.e., Nazri Naksha do not clearly demarcate the portion of land falling within the possession of the plaintiff, if any, and further mentions the old Khasra number of Khasra no. 408 as 2552/1156 and shows the area falling under Khasra no. 408, which is in the possession of DDA. Further, Ex. PW- 4/4 i.e., Khasra Girdawari mentions the name of the persons i.e., Sh. Hem Chand Gupta and Sh. Nem Chand etc. from whom the plaintiff is claiming to be the erstwhile owners in column no.2 as 'khudkasht' and further shows Suit No.7103/2016 Subhash Gupta Vs. DDA Page-55/63 -56- the change of rights of possession and rent for the year 1992 in the name of plaintiff i.e., Sh. Subhash Chand Gupta R/o Janak Puri, Delhi in column no.11. However, a 'khudkasht' means a person who is in possession of the said land as a cultivator and is liable to pay the revenue to the government/concerned authority who is the true owner of the said land. The plaintiff has further admitted that, plaintiff has not got his name mutated in the revenue records even after the alleged sale deeds and it is correct that said sale deeds do not bear the signature of the plaintiff. It is further pertinent to mention that, the plaintiff even failed to bring the original sale deed of Ex. PW-3/1 to Ex. PW-3/6 for perusal and further stated during cross-examination dated 19.03.2018 that, he does not recollect whether he has the said sale deeds in his possession or not.
It is further pertinent to mention that, even if plaintiff was in possession of the suit land on relevant time but admittedly, he was ousted of the suit property by the defendant/DDA by demolishing the entire suit property and further that plaintiff has not even seen/visited the suit property/land since 1995 which clearly means the cause of action, if any, with respect to relief of permanent injunction no longer subsists. The plaintiff has further admitted during his cross-examination dated 19.03.2018 by stating that, "The entire construction was demolished by DDA."
Suit No.7103/2016 Subhash Gupta Vs. DDA Page-56/63 -57- Now coming to the case of the defendant, it has been stated that, the suit land does not form part of Khasra no. 408, Village Mehrauli; rather, the same is actually situated in Khasra no. 413 (Old No.2270/1160 min. measuring 2 Bighas 16 Biswas & Old No.2270/1160 min. measuring 1 Bigha 16 Biswas); Kh. No. 414 (Old No.2542/2271/1160 min. measuring 2 Bighas 16 Biswas & Old No.2542/2271/1160 min. measuring 1 Bigha 15 Biswas) and; Kh. No. 430 (Old No.2566/1170/2 measuring 11 Bighas 6 Biswas). That the suit land viz. Khasra no. 413, 414 and 430 have duly been acquired vide Award No.80- E/70-71 (Supplementary) dated 09.01.1981 i.e., Ex. DW1/4 and possession proceedings have been done on 23.09.1981 vide notification dated 19.11.1981 issued under Section 22 (1) of the Delhi Development Act, 1957, which were tendered in evidence as Ex. DW-1/4 (Award 80-E, Supp.), Ex. DW-1/5 (possession proceedings) and Ex. DW- 1/6 (notification). A bare perusal of these documents reveals that, vide Award 80-E/70-71 (Supp) i.e., Ex. DW- 1/4 certain more areas of Mehrauli Village specifically Khasra no. 413, 414 and 430 were acquired in pursuance of the notification under Section 22 (1) of the DDA Act i.e., Ex. DW-1/6 in possession proceedings dated 23.09.1981 i.e., Ex. DW-1/5.
Further, it is the case of the defendant that, the Khasra no.408 (Old No.2552/1156) measuring 6 Bighas 7 Biswas which is alleged to be the suit land by the plaintiff was also Suit No.7103/2016 Subhash Gupta Vs. DDA Page-57/63 -58- notified for acquisition under Section 4 and 6 of the Land Acquisition Act, 1897, which was issued on 23.01.1965 and 07.12.1966, respectively as is evident from Ex. DW- 1/4 i.e., Award 80-E/70-71 (Suppl.). However, one Sh. Hem Chand Gupta, from whom plaintiff is claiming to have purchased the suit property/land, filed a W.P. (Civil) No.789/85 seeking setting aside of order dated 10.11.1994 in CW 789/85 which was dismissed in default and challenging the aforesaid acquisition notification, which was initiated in the year 1965. The Hon'ble High Court was pleased to stay the acquisition proceedings with respect to the Khasra. No.408.
The defendant has placed reliance on the reportable judgment of the Hon'ble High Court of Delhi in Hem Chand Gupta & Ors. v. Union of India [CM No. 8794 of 1994 in CW 789 of 1985] [1995 (32) DRJ]. It is pertinent to mention that, in this matter the plaintiff herein had also filed an application seeking impleadment. However, the said CM No. 8794/94 was also dismissed by the Hon'ble High Court vide order dated 06.01.1995 which has duly been reported. The Hon'ble High Court of Delhi disposed of the application filed by Sh. Hem Chand Gupta and also the application of Sh. Subhash Chand Gupta in following terms;
"4. It is also to be noted that the applicant in CM.8794/1994 claims to be a person who purchased a portion of the land covered by the Suit No.7103/2016 Subhash Gupta Vs. DDA Page-58/63 -59- land acquisition proceedings challenged in the writ petition. Neither in his CM 4578/1994 nor in his CM 8794/1994, the applicant has stated the date of purchase of the land. The land acquisition proceedings in question were initiated in 1965 and the writ petition was challenged in 1985. By the interim orders passed in the writ petition only the dispossession of the petitioners in the writ petition was stayed. CM 4578/1993 was filed by the present applicant Sh. Subhash Chand Gupta eight years after the filing of the writ petition. Obviously, at the time of acquisition of land, the applicant was not the owner of the land and if at all he got any interest in the land it was by the sale of land by the owner after it was acquired. Therefore, the applicant has no right to seek restoration of writ petition or to get himself impleaded as a petitioner in the writ petition filed by the person who owned the land at the time of the acquisition.
5. In these circumstances, I find that CM.8794/1994 is liable to be dismissed. It is, accordingly, dismissed."
[Emphasis Supplied] Suit No.7103/2016 Subhash Gupta Vs. DDA Page-59/63 -60- It is further pertinent to mention that the Khasra No.408, Village Mehrauli, Delhi has already been declared as 'Development Area' vide notification dated 18.03.1993 issued under Section 12 (1) of the DDA Act, 1957, which has been tendered in evidence as Ex.DW-1/10 and the same was also acquired in pursuance of the Award no. 80- G/70-71(Suppl.) dated 20.08.1985 as Ex.DW-5/1, wherein it has been stated at serial no.51 at point 'A' that, the said land which then stood in the name of Sh. Hem Chand having old Khasra no.2552/1156 has been claimed by Sh. Hem Chand. Thereafter the writ petition no.789/85 was filed by Sh. Hem Chand, which was dismissed by Hon'ble High Court of Delhi in Hemchand Gupta & Ors. (supra).
It is further noteworthy to mention that after the dismissal of the said petition in Hem Chand Gupta & Ors. (supra), Award no.80G/70-71 was issued for the purpose of determining compensation U/s 4 of Land Acquisition Act with respect to land measuring 6 Bighas 7 Biswas of Khasra no. 2552/1156 (New Khasra no. 408) and also in respect of 8 Biswas of land under Khasra no. 241, which has been tendered in evidence as Ex. DW-1/7. Further, the possession proceedings of Khasra no.408 have also been placed on record as Ex. DW-1/8 dated 23.12.1996 which further specifically states that, in one portion of Khasra no.408, there was a piece of land containing boundary walls on all the four sides along with one room which was lying vacant and the same was also acquired by Suit No.7103/2016 Subhash Gupta Vs. DDA Page-60/63 -61- defendant/DDA.
It is further pertinent to mention that, all the witnesses of defendant have supported the case of defendant and their stand could not be dismantled in cross-examination. Further, the witnesses of DDA have also placed reliance on the documents tendered by the defendant/DDA in evidence and further bolstered the case of DDA by stating that actually the disputed land falls within Khasra no.413, 414 and 430 and the same stands acquired by the DDA. The fact that Khasra no.413, 414 & 430 are Government lands have also been admitted by the plaintiff and also that the defendant/DDA demolished entire suit property and that DDA is in possession. Further, even if the contents of the plaint are to be taken as a gospel truth in the present matter and that the suit land is situated in Khasra no. 408; the said Khasra no. 408 also stands acquired by DDA by virtue of Ex. DW-5/1 i.e., Award no.80-G/70-71 (Suppl.) and Ex. DW-1/8 i.e., possession proceedings dated 23.12.1996 read with Ex. DW-1/4, DW-1/5 and DW-1/7. However, whether the plaintiff is the owner of the alleged suit property/land; whether the same falls within Khasra no. 408 or 413 or 414 or 430; whether the defendant/DDA has validly acquired the suit property/land, is not be determined by this Court in the present suit.
Therefore, the relief of the plaintiff seeking permanent injunction thereby restraining the defendants, its Suit No.7103/2016 Subhash Gupta Vs. DDA Page-61/63 -62- employees, servants, officials, representatives, agents etc. from dispossessing and/or interfering in the peaceful possession of the plaintiff and further restraining them from raising boundary wall/fencing etc. over the suit land bearing Khasra no.408 has ceased to exist long back. Further, it is the settled law of injunction that the cause of action inhering the right of seeking permanent injunction in plaintiff along with possession must subsists till the pronouncement of judgement and in the present matter the same ceased on 23.12.1996 when the defendant demolished the suit property and took over the possession thereof by ousting the plaintiff from possession.
Accordingly, the issue no. (2) is decided against the plaintiff and in favour of the defendant.
39. Issue no.(3) -
(3) Relief - In view of the findings given on issues no. (1) to (2), documents placed on record, pleadings of the parties and evidence led by the parties, the plaintiff has failed proved his burden on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiff is hereby dismissed.
Let Court fees be deposited by the plaintiff, if found deficient as per rules.
Thereafter, let decree sheet be prepared accordingly.
Suit No.7103/2016 Subhash Gupta Vs. DDA Page-62/63 -63- File be consigned to record room after completing the necessary formalities.
Digitally signedDISHA bySINGH DISHA SINGH Date: 2023.11.06 17:21:56 +0530 (This judgment contains 63 pages and each (DISHA SINGH) page has been signed by the undersigned) Civil Judge-02, West, Tis Hazari Courts, Delhi Announced in the open Court on 06.11.2023 Suit No.7103/2016 Subhash Gupta Vs. DDA Page-63/63