Delhi District Court
Adj-02 (Central) vs Dda & Ors on 15 July, 2021
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IN THE COURT OF SH. RAJINDER SINGH
ADJ-02 (CENTRAL), TIS HAZARI COURTS, DELHI
CS. No.- 613705/16
4. Sh. Ram Rattan Singh Namdhari
S/o Sh. Atma Singh Namdhari
R/o D-35, Rana Partap Bagh,
Delhi.
Versus
4. Delhi Development Authority
Through its Vice Chairman,
Vikas Sadan, New Delhi.
2. Sh. Raj Kumar Patwari
Delhi Development Authority,
Vikas Sadan, New Delhi.
3. Sh. Ramesh Yadav Kanoongo,
Delhi Development Authority,
Vikas Sadan, New Delhi.
4, Sh. Mahender Singh Kanoongo,
Delhi Development Authority,
Vikas Sadan, New Delhi.
wae Defendants
Date of filing of the Suit
Date of reserving order
Date of pronouncement
JUD | T
1. Plaintiff has filed the present suit seeking the following reliefs:-
Judgment
Ram Rattan Singh Namdhari Vs. DDA & Ors..
vee laintiff
15.05.2007
30.06.2021
15.07.2021
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CS. No.- 613705/16
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{a) Decree for compensation of Rs. 49,50,000/-.
(b) Future damages on account of loss of rent @ Rs. 30/- per sq. ft., per
month.
(c) Decree for mandatory injunction directing the defendants to restore the
suit property, to the position which was prior to the demolition (carried out by
the defendants)
4.4 In 1918 Rai Bahadur Boota Singh Ahluwalia purchased the land
measuring 407 Bighas, khasra no. 16, 31, 32, 33, 35-39, 37-61 situated in
presently known as Rana Partap Bagh, Delhi.
village Shadora Kalan,
en the sons of Sh. Rai Bahadur
4.2 The aforesaid land was partitioned betwe
Ahluwalia. The land falling in khasra no. 634/ (39-42, 44-53,
3, 55-58, 616/43, 614/31) came to
Boota Singh
55-58, 616/43, 614/31) & 635/ (39-42, 44-5
the share of Sardar Atma Singh Namdhari (father of the plaintiff). The land was
duly mutated in the revenue records for
the year 1951-1952.
4.3 After the death of Sardar Atma Singh Namdhari, the land was mutated in
the name of the plaintiff, in revenue records for the year 1960-61 showing as
khasra no. 876/634, 897/634, 898/634, 899/634 & 900/634.
1.4 The plaintiff is in actual physical possession of the aforementioned
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Judgment
Ram Rattan Singh Namdhari Vs, DDA & Ors..
acquired by the government vide Award No. 1774 dated 19.02.1965. After
acquisition the said land was re-allotted to Jain Co-operative Sociely vide
document dated 20.09.1965, Khasra no. 613/31/1 was already in-occupation of
Jain Co-operative Society (hereinafter referred to as the "said society") on
the date of its acquisition and on the date of its re-allotment to the said Society.
4.8 The land in khasra no. 613/31/1 was purchased by the society from one
Sh, Mohan Lal Goyala vide sale deed dated 14.11.1950. In the said sale deed
the boundary walls of the land sold were also mentioned.
1.9 In the year 1972, the plaintiff filed a suit against the said society therein
the plaintiff claimed that the said society had encroached upon the land of the
plaintiff. In the said suit the society filed a written statement and it was claimed
by the society that the land in khasra no. 613/31/1 was duly demarcated and
they are in possession of the entire land of the said khasra. The Ld. Court
concerned appointed a Local Commissioner for demarcation of the land in
question. The land was measured and the report was filed. On the basis of the
report Ld. Court observed that the society is in possession of the land in
khasra no. 613/31/1. On this ground vide judgment dated 04.10.2004, that suit
of the plaintiff was dismissed.
1.10 In suit no. 1362/06 also the Ld. Court concerned directed the Tehsiidar
Judgment 4
Ram Rattan Singh Namdhari Vs. DD A& Ors. CS, No. 6137038/76
Page..... 4/37
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concerned te measure the land in possession of the society, The said
measurement was carried out it was found that the society was in passession
af land, in excess of the land allotted to the society (vide Award No. 1774),
Defendant no, 2
to 4 had exceeded their official powers (in para no. 25 of the plaint plaintiff has
given the break-up of the damages suffered. The total is Re. 2,42,60,000/-),
Hawever, the plaintiff is claiming anly Rs. §,80,000/- towards loss of rent and
Rs, 14,00,000% towards the loss of superstructure, The tatal amount of
aimed by the plaintiff is Rs. 19,50,000/-,
f defendant no. 1. They were
damages ol
1.12 Defendant ne. 2 to 4 are the employees oO
acting under defendant ne, 1. The defendants are jointly and severally liable
tawards the plaintiff.
Defendants case:
9 Joint written statement filed by all the defendants. It is claimed that
ihe demolished portion / the land in question falls in khasra no. 613/31/1. The
plaintiff has mentioned different khasra numbers in paras no.1 to 3 of the
plaint. The plaintiff is not in possession of the said land, In the layout plan filed
by the plaintiff the place allegedly claimed to be khasra no. 900/634 is clearly
shown as lawn ie. park and the same cannot be possessed by any private and
Judgment Lp OS. Now 613705/16
Ram Rattan Singh Namdhari Vs. ODA & Ors.. " Page... 5/37
individual party. It is land falling in khasra no. 613/31/1. The property / land
adjoining it on the eastern side of the G.T. Karnal Road cannot be privately
owned land / property of the plaintiff. The same certainly falls in khasra no.
613/31/1/, In the previous suit bearing no. 4362/06, the plaintiff nowhere
mentioned that there was any construction over the said land. As such there
can be no demolition where there is no construction.
2.1 The plaintiff is claiming to be the owner of the said land whereas six other
persons namely Sh. Baldev Singh, Sh. Ajayesh Kumar Gupta, Sh. Vinod
Kumar Bansal, Sh. Harish Kumar, Smt. Sharda Bajaj and Smt. Santosh Chhai
have also filed suits number 1360/06, 1361/06, 1358/06, 1357/06, 1359/06 &
1373/06 claiming the same khasra numbers to be their own. In para no. 5 of
his plaint in the said suit the plaintiff admitted that he sold some land from the
said property to some other person(s).
2.2 The suit of the plaintiff is not maintainable in the present form; it is hit by
the provision of Specific Relief Act. The plaintiff has sought recovery of
damages and mandatory injunction without seeking declaration of ownership or
declaration to the effect that the suit land falls in khasra nos. as claimed by the
plaintiff.
2.2 As per the field book the distance between the North East corner of
Judgment
Ram Rattan Singh Namdhari Vs, DDA & Ors.. 40 cs - ve
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khasra no. 613/34/1 and the Najafgarh drain is 114 gatthas ie 940.50 feat
(SIC). On page no. 113 of the paper book of suit number 7 362/06 filed by the
plaintiff, the present plaintiff filed the site plan according to which the properties
between North East Corner of the boundary wall of Veer Nagar Jain Colony
(the said society) and Najafgarh drain add up to 249 feet (Park & Godown),
plus 49 feet (way to DESU Colony), plus 290 feet plus 310 feet of Veer Nagar
Jain Colony which comes to 898 feet. Still 42.50 feet(SIC) of land of khasra no.
613/31/1 remains. This is the same portion where demolition was carried out.
As such, the plaintiff is false.
2.4 It is stated that while giving possession of khasra no. 613/31/1 to the said
society, mistake occurred. On account of this mistake / misconception the
possession of land of khasra no. 613/31/1 was not given to the said society up
to the last boundary on the Northern side. The ear marked area of possession
fell short by 12.50 feet(SiC) before the actual Northern boundary of khasra no.
613/31/1. For this reason the said land remained unoccupied by the said
society and the boundary wall of the said society could not be constructed
around that portion. The plaintiff and other unscrupulous persons encroached
upon the said land. The entire land of khasra no. 613/31/1 was not occupied by
the said society. The demarcation / measurement report dated 18.11.2003 is
dudgm
gment , | CS. No.- 613708/16
Ram Rattan Singh Namdhari Vs. DDA & Ors "
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not sustainable in the eyes of Jaw. If was not a demarcation but only a
measurement report. The same was not done by the Tehsiidar who alone is
competent to demarcate land. The boundary wall of the said society existed on
four diferent parts of khasra no. 613/31/1. Every part of the said khasra
number is of different area and measurement. The said parts of khasra no.
613/31/1 should have been measured independently.
295 One Sh. Shriniwas filed suit bearing no. 253/88 titled as "Sh. Shriniwas
Vs. Union of India & Ors.". The said plaintiff claimed himself to be the owner
and in possession of premises no. D-12, Rana Partap Bagh situated in khasra
no. 31/1. The said suit was dismissed on 17.01.1 994, Thereafter, demolition
order dated 18.05.1994 was passed. The file of the demolition order was
running from desk to desk in DDA. On 27.10.1998 the Director (LM) confirmed
the said demolition order. At that time none of the defendants (defendant no. 2
to 4) were in the picture. As such they are not responsible for passing of the
said demolition order. The said plaintiff Sh. Shriniwas again filed a suit bearing
no. 343/05 titled as "Sh. Shriniwas Gupta Vs. DDA & Ors." whereby he
again claimed himself to be the owner of property bearing no. D-12, Rana
Partap Bagh situated in khasra no. 613/31/1. The said suit was disrnissed on
oo (Ls No.- 613705/16
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Judgment
Ram Rattan Singh Namdhari Vs. DDA & Ors..
s es : cpteesas Al ndtee . > .
05.11.2005. The previous demolition file was again ordered to be searched.
Thereafter the demolition was carried out. As such defendants na. 2 to 4 are
not responsible for the demolition carried out which is the subject matter of the
present sult.
2.6 Further, the defendants have plainly and simply denied the case of the
plaintiff.
3. Replication filed by the plaintiff.
3.4 Itis stated that total land measuring 69 Bighas and Biswas in khasra no.
613/31/1 was allotted to the said society. Possession of the said land was also
handed over to the said society in the year 1965. In suit no. 182/73 the said
society filed written statement therein they claimed that they are in possession
of the entire land allotted to them. The said suit was disposed of on
04.10.2004 (SIC). The demarcation report is dated 18.11.2003. In another case
report dated 11.09.2006 was filed which clearly established that the said
society was in possession of land, more than what was allotted to them.
3.1 Further, the plaintiff has denied the case of the defendants and reiterated
the facts mentioned in the plaint.
4, ISSUES:
41 Vide order dated 05.10.2007, Ld. Predecessor framed the
CS. No. 613705/16
Judgment
Ram Rattan Singh Namdhari Vs. DDA & Ors.. tT Page... 9/37
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following issues :
4. Whether the suit property situated in Khasra No. 876/634, 897/634,
898/634, 899/634 and 900/634 belonging to the plaintiff has been illegally
demolished by DDA ? OPP
2. Whether the suit property as demolished by DDA fell in Khasra
No. 6173/91/47 ? OPD
2. Whether the suit is not maintainable in view of preliminary objection no, 5
of written statement ? OPD
4. Whether the plaintiff is entitled to decree of Rs. 19,50,000/- ? OPP
5 Whether the plaintiff is entitled to future damages as per prayer clause
no. (ii) of the plaint ? OPP
6. Whether the plaintiff is entitled to mandatory injunction as prayed for in
the suit ? OPP
7. Relief.
6. EVIDENCE:
6.3 Plaintiff's Evidence:
6.2 Plaintiff examined himself as PW-1. He tendered his evidence by
way of affidavit Ex. P-1. He relied upon the documents Ex. PW-1/1 Certified
copy of Sale Deed in favour Rai Bahadur S. Boota Singh Ahluwalia,
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Judgment
Ram Rattan Singh Namdhari Vs. DDA & Ors..
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grandfather of the plaintiff, Ex. PW-1/2 to Ex. PW-1/5 Certified copy of Jamabandi for the year 1920, 1943-44, 1951-52 & 1960-61 in respect of land in Khasra No. 634/ (39-42, 44-53, 55-58, 616-43, 614/31) & 635/ (39-42, 44-53, 55-58, 616/43, 614/31), Ex. PW-1/6 Certified copy of the Khasra Girdwari for the year 21-10-03 to 22.02.2007, Ex. PW-1/7 Certified copy of Shajra, Ex. PW-1/8 Site plan, Ex. PW-1/9 to Ex. PW-1/14 House Tax Survey reports for the year 1959-60, 1972 & 1993, Ex. PW-1/15 to Ex. PW-1/18 Rectification. orders for Khasra Nos. 897/634, 898/634, 899/634 & 900/634, Ex. PW-1/19 Letter No. 1128/DC/CLZ/2007 dated 06.11.2007, Ex. PW-1/20 Certified copy of plaint bearing Civil Suit No. 1362/2006, Ex. PW-1/21 Certified copy of Written statement, Ex. PW-1/22 Certified copy of Award, Ex. PW-1/23 & Ex. PW-1/24 Possession letter, Ex. PW-1/25 letter bearing no. SPIO/OC(NVRTVOS5/ID No. 488/672 dated 15.11.2007, Ex. PW-1/26 letter bearing no. SPIO/DC(N)/RTVO5/ID No. 488/692 dated 22.11.2007, Ex. PW-1/27 & Ex. PW-1/28 Certified copy of Sale Deed along with plan executed by Sh. Mohan Lal Goyala, Ex. PW-1/29 Mutation in the revenue records in the name of Sh. Mohan Lal Goyala, Ex. PW-1/30 Certified copy of Layout plan of Vir Nagar Colony, Ex. PW-1/31 & Ex. PW-1/32 Certified copies of plaint and written statement, Ex. PW-1/33 Measurement report dated 09.11.2001 filed by a Judgment / CS. No. 673705/16 Ram Ratta '§ n Singh Namdharl Vs. DDA & Ors.. | (fl ye Page seeee 41/37 woo Sndawarn Ex. PWei Sid Gertified copy at Judgment dated Ga dbgaud, box.
Ex. PWCLS8 te Ex. PWei bl Postal receipis, bx. PWWed/de to be PWG UPes, Ex PATHS & Ex. PWel A? Copy ol the demalilion dary and I agreement with Jain Secety filed by DDA & Ex, PW: 1/48 Shajra of Khasre No. SST & GGA.
6.3 Plaintiff examined Sh. Vinod Kumar Pandey, Patwarl from the office of SDM, Civil Lines, Delhi as PW.2. He brought the summoned record. The certified copy of demarcation report Ex, PWe2/1(A), Shajra plan Ex, PW-2/1(B), Attendance sheet dated 23.07.2013 Ex. PWe2/1(C), Proceedings dated 23.01.2013 Ex. PW2/1(D), Attendance sheet dated 01.02.2019 Ex. PW-2/1(E), Proceedings dated 04.02.2013 Ex. PW-2/1(F) & Attendance sheet dated 11.02.2013 Ex, PW-2/1(G).
6.4 Plaintiff examined Sh. Baldev Singh as PW-3. He produced a copy of rent agreement Ex, PW-3/1, 6.5 Plaintiff examined Sh. Madan Lal, AERO, Purana Palam Road, Kakrola Housing Complex, Matiala, Delhi (previously posted as Tehsildar, Civil Lines, Sub-Division) as PW-4. The certified copy of order dated Judgment -- é L CS. No. 619705/16 Ram Rattan Singh Namdharl Vs. DDA & Ors. foe y Paye..... 12/37 G a, <| --
O8.10.2012 passed by Ms. Richa Gosain Solanki, the then Ld. Civil Judge, Delhi is EX. PW 4/4 8.65 All the PWs were duly cross examined by the Ld. Counsel for the defendants.
Vide separate statement dated 27.07.16 plaintif closed PE 8?
y. Refendants' Evidence:
4 Defendants examined Sh. Ramesh Yadav, Naib Tehsildar/t.M/ North Zone, Pitam Pura, DDA, New Delhi as OW-1, Ne tendered his evidence by way of affidavit Ex. DW-1/A, He relied upon the documents Ex DW-1/1 Reply to the legal notice on behalf of DDA dated 04.05.2007, Ex DW-1/2 Copy of Judgment in Suit No. 253/88 titled as " Sirl Niwas Vs, U.O.1 & Ors.", Ex. DW-1/8 Layout plan of Veer Nagar Colony, Ex. OW-1/4 Aksh naira of Village Sadhora Kalan of Khasra No. 31, Ex. DW-1/5 Mutation No. 696 in Urdu of Village Sadhora Kalan, Ex. DW-1/6 Translation of Mutation No. 698 in Hindi, Ex. DW-1/7 Site plan produced by the plaintiff in Suit No. 1362/2006 titled as "Ram Rattan Singh Vs. DDA", Ex. DW-1/8 Copy of orders dated 05.11.2005 in CS. No. 343/05 titled as "Siri Niwas Gupta Vs. DDA & Ors." Ex. DW-1/9 & Ex. DW-1/10 Copy of letters dated 13.02.2013 & 27.02.2013 written by DDA to Ld. SDM. /L Judgment , f CS, No.» 613705/16 Rattan Singh Namuharl Vs. ODA & Ors,. i y se i EGR. 137 DW- 1 was duly cross examined by the Ld. Counsel for the plaintiff.
7.2 7.3 Vide statement dated 28.10.16 DW 1 closed D.E. ARGUMENTS:-
8. It is submitted on behalf of the plaintiff that Ex. PW-1/1 is the sale deed with regard to the land in question, in the name of grandfather of the plaintiff. On 14.11.1950 185 Bighas of land was sold to Sh. Mohan Lal vide sale deed Ex. PW-1/27. The said Sh. Mohan Lal sold 59 Bighas and 10 Biswas of land to Veer Jain Society. In the said sale deed made in favour of the society, the boundaries of the land sold are mentioned. To the North of the land sold, the land of Sh. Atma Singh, father of the plaintiff is shown. Vide Award of the LAC in 1961, Ex. PW-1/22, land in khasra no. 613/31/1 was given to the said society. Total land measuring 59 Bighas and 10 Biswas was handed over to the said society. Even upon measurement the land of the society was found to be as per the sale deed and Award. Which shows that the entire land of Khasra no. 613/31/1 is in possession of the said society. As such no land of the said society of khasra no. 613/34/1 is in possession of the plaintiff. Suit bearing no. 182/73 was filed by the plaintiff against Veer Jain Society. The same is Ex. PW-1/31 therein written statement Ex, PW-1/32 was filed by the CS, No.- 613705/16 Qe fv Page..... 14/37 Us er? a , . we ' Bighas and 10 Biswas. Therein it was also stated in preliminary objection no. 5 that plaintiff is not in possession of land of the said society. In this suit demarcation report Ex. PW-1/33 was filed wherein it was stated that Sh. Atma Singh, father of the plaintiff had nothing to do with the land of the society. The judgment of that suit is Ex. PW-1/34 therein also it was heid that Sh. Atma Singh had nothing to do with the land of the society. Ex. PW-1/2 is the Jamabandi of the land. In the layout plan of the society Ex. PW-1/30 the area between the existing building and proposed part is the area where demolition was carried out. This plan was made by MCD. Land of the plaintiff is outside the said society. Ex. PW-1/7 is the Shajra where one protruding corner of the land is shown. Ex. PW-2/1A is the demarcation report which shows that the demolished portion falls in khasra nos. 897-900/634. Ex. PW-1/35 is the report of measurement of land of the said society wherein it was found that the said society is having land, more than what was allotted to it. As such the plaintiff is not occupying any land of the said society. The land in question is the land of the plaintiff. The defendants carried out demolition in area measuring 3000 sq. yards but falsely filed report about demolition in the area measuring 2000 sq. yards. The report Ex. PW-2/1A shows that the total demolished area is measuring 3862 sq. yards. The defendants also admitted that the portion Judgment _ ? e N ae Q Ram Rattan Singh Namdhari Vs. DDA & Ors., é Lo 'page. BT V [& shown in red colour in Ex. PW-1/7 is the portion where demolition was carried out. The only point of contention is that the defendants claim it to be falling in khasra no. 613/31/1 whereas this land is not falling in the said khasra. In the layout plan Ex. PW-1/7 DDA admits that the demolished portion is outside the said society. But in the Aks shajra Ex. DW-1/P-6 DDA says that the said land is inside the society. Ex. DW-1/6 & Ex. DW-1/7 are contradicting each other. In his cross examination dated 25.10.2016 first page second last para DW-1 Stated that khasra no. 613/31/1 was acquired vide Award No. 1774, The said award is Ex. PW-1/22. It was submitted that the possession of the said land was not taken after acquisition. The land was already in possession of the said society. This fact is mentioned in the award Ex. PW-1/22. Further, in the award it is also mentioned that the society has land measuring 59600 sq. yards. It shows that they are in possession of the entire land of khasra no. 613/31/1, DW-1 on the second page of his cross examination in the last para stated that the said society was already in possession of land measuring 59 Bighas and 10 Biswas. In the top portion of the third page of his cross examination, DW-1 Stated that the possession of the land was taken only on paper whereas the land was actually in possession of the society. On the fourth page, second last Para of his cross examination, DW-1 stated that there is no record to show that Judgment Ram Rattan Singh Namdhari Vs. DDA & Ors., a L Page "ear ( p05 LO ;
the said society ever complained about shortage of land given to them. They never complained that any portion of their land was encroached upon by the plaintiff. The Local Commissioner report Ex. PW-1/35 stated that the society had land measuring 60730 sq. yards in its possession. This is1130 sq. yards exira than the land allotted to them. In this report also there is a corner shown in the South West portion of the demolished property. On page no. 5 of cross examination dated 25.10.2016 in the middle portion DW-1 stated that the measurements were done in the presence of DDA officials. DW-1 also claims that he, got measured the land of the said society but no such report was filed. There is nothing on record to show that the society got less land at the time of handing over of possession as claimed in para no. 13 of affidavit of evidence of DW-1. On page no. 3 of cross examination dated 28.10.2016 in top portion, DW-1 stated that demolition was carried out on the basis of award and possession report. in reply to question no. 2, DW-1 stated that only Tatima Masavi was seen to ascertain which portion was to be demolished. On the fourth, page middie portion of the cross examination DW-1 admitted that no demolition order was placed on record. As per report Ex. PW-1/33 North Eastern corner of the land was found to have Baraat Ghar. The entire khasra was properly measured. On page no. 5 of cross examination dated 28.10.2016 Judgment L | Ram Rattan Singh Namdhari Vs. DDA & Ors.. f L "s. gen 619705/16 i REDE Oe i oo Ln. Ah ye . aa LO & a question was put to the witness DW-1, since no actual handing over of physical possession of land, to the society was done, how the DDA found that there was mistake in handing over the jand and less land was given to the society, DW-1 stated that he found out as per his own measurement. However no specific reply was given. It is argued that there is nothing on record to show that the said society got land less than what was acquired through the award. Till date there is no complaint by the said society about any encroachment of their land by the plaintiff. Qn page no. 6 of cross examination DW-1, admitted that the red portion shown in the site plan Ex. PW-1/8 belongs to the plaintiff, Ex. DW-1/DX-1 is the demarcation report of the other case. Even there it was stated that the disputed portion falls in the land of the plaintiff. DDA has failed to show or produce any material, to show that the demolished portion is situated in land in khasra no. 613/31/1.
8.2 It was submitted on behalf of the defendants that the plaintiff is relying mainly upon the demarcation report Ex. PW-2/1 (A) and the other accompanying documents filed along with this report (which are also exhibited in the testimony of PW-2). It was further submitted that this demarcation report is not reliable. In the report Ex. PW-2/1(A) it is specifically mentioned that the demarcation was carried out on 01.02.2013 and 11.02.2013 however in the Judgment -
" CS. No.- 613705/16 Ram Rattan Singh Namdhari Vs. DDA & Ors.. f LL Page..... 18/37 / je 0 attendance sheet Ex. PW-2/ 1 (C), Sh. Rajeev Khanna, Naib Tehsildar for DDA clearly stated that on that day only attendance was marked and no measurement / demarcation proceedings were carried out. In the proceeding Ex. PW-2/1(F) dated 01.02.2013 it is clearly stated that due to ihe non-availability of the Award (Acquisition Award) the proceedings could not be conducted. Thereafter the date for proceedings i demarcation was fixed for 41.02.2013. In the attendance sheet Ex. PW-2/1(G) dated 11.02.2013, at the bottom, again it is stated that due to non-availability of the field book of Village Sadhora Kalan, the demarcation could not be carried out. In the cross examination of PW-2 on page no. 4 (third page of cross examination) it is specifically mentioned that on all three dates Le 23.01.2013, 01.02.2013 & 11.02.2013 no demarcation proceedings took place. It was further submitted that vide order dated 01.08.2014 PW-2 was directed to produce the file but he did not do the same. During the cross examination of PW-2 the Ld. Court made observations that he deliberately failed fo produce the file at the time of his cross examination on 02.07.2015. On the same page PW-2 admitted that on 23.01.2013 due to non-availability of Masavi no demarcation could be carried out. It was also argued that on the demarcation report Ex. PW-2/1(A) no specific date is mentioned. Copy of this report was put to PW-4 also (as Ex.
Judgment "
Ram Rattan Singh Namdhari Vs. DDA & Ors é / CS. No.- 613705/16 . LL Page..... 19/37 f 1 AY Le : oy 4 "a V a a _ rol a "
o PW-4/DX-1), PW-4 also admitted that this demarcation report does not bear any date. Further this demarcation report also does not bear the signatures of any officlalis) of DDA, The demarcation was directed to be carried out in Civil Suit No. 1362/06 titled as "Ram Rattan Singh Namdhari Vs. DDA", vide order dated 08.10.2012 by the court of Ms. Richa Gosain Solanki the then Ld. Civil Judge. The order is Ex. PW-4/1, In this order it was specifically directed that the previous demarcation report dated 08.71.2003 was not to be considered and fresh demarcation was to be got done. PW-2 In his cross examination admitted that the demarcation was to be carried afresh and not on the basis of previous demarcation done on 08.11.2003. However on page no. 5 of his examination (page no. 4 of cross examination) PW-2 admitted that the demarcation report was prepared on the basis of previous demarcation dated 08.11.2003. If the previous demarcation report dated 08.11.2003 was reliable, Ld. Civil Judge would not have directed for carrying out fresh demarcation.
pPw-4 also admitted during his cross examination that no demarcation could be carried out on 23.01.2013, On 01.03.2013 also demarcation could not be conducted due to non-availability of the award. Further on 11.02.2013 again demarcation could not be conducted. On page no. 4 of his examination (second page of cross examination) PW-4 admitted tha DDA officials signed ' CS. No.- 613705/16 Judgment Ram Rattan Singh Namdhari Vs. DDA & Ors.. Page... 20/37 gv a the attendance sheet only as a token of their appearance. No further date for demarcation was fixed after 11.02.2013. it was argued that on all the three dates fixed for demarcation, no proceedings were conducted. After 11.02.2013 no further date was fixed for demarcation. In such circumstances it is not clear on which date DDA officials conducted demarcation. All this goes to show that the demarcation report Ex. PW-2/1(A) is not reliable.
8.3 In rebuttal it was submitted on behalf of the plaintiff that the previous demarcation report dated 18.11.2003 is Ex. pw-1/33. In the previous suit between the present plaintiff and the Jain Cooperative Society, this report EX. PW-1/33 was relied upon by the Ld. Court. On the basis of this report vide order dated 04.10.2004 Ex, PW-1/34 the suit of the plaintiff was dismissed and the Ld. Court held that the Jain Cooperative Society was in possession of its own land and not any other land. In the order Ex. PW-1/4 dated 08.10.2012 it was nowhere ordered by Ld. Civil Judge Ms. Richa Gosain Solanki that the previous demarcation report is not reliable. There was no adverse observation regarding the previous demarcation report Ex. PW-1/33 dated 18.11.2003.
8.4 Written submissions filed by both the parties pursued.
INING:- Now, issue-wise findings are as under:- / wei"
Judgment Ram Rattan Singh Namdhari Vs. DDA & Ors..
'L CS, Now 813705/96 gv _Page... . 21/379. ISSUENO.3:- Whether the suit is not maintainable in view of preliminary objection no. 5 of written statement ? OPD The onus to prove this issue is upon the defendants.
9.1 In preliminary objection no. 5 of the written statement the defendants have contended that the suit of the plaintiff is barred by provisions of Specific Relief Act. The plaintiff has not sought declaration to the effect that the demolished portion lies in his khasras. The plaintiff has also not sought declaration of ownership of the said khasras. Without seeking such declaration of ownership or to the effect that the suit land / demolished portion lies in the khasras of the plaintiff, the present suit is not maintainable.
9.2 In the present suit there is no dispute regarding the ownership of the khasras for which the plaintiff is claiming ownership. The ownership of khasra no. 613/31/1 over which DDA claims ownership is also not disputed. The defendants have nowhere questioned specifically, the ownership of the plaintiff over the khasras as mentioned in his plaint. In such circumstances unless there is a denial of any legal character of the plaintiff there is no specific need to seek declaration for the same. The defendants have not specifically pointed out which provisions of the Specific Relief Act bar the present suit.
9.3 In the present case the main dispute is with regard to the location of the Judgme a se 7 at é CS. No.- 613705/16 m Rattan Singh Namdhari Vs. DOA & Ors.. \Ue Page... 22/37 Page...
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demolished portion, whether it Hes in khasra no. 613/31/1 as claimed by DDA or otherwise ? This point will be decided while dealing with issues no. 7 & 2. 84 In view of the above issue no, 3 is decided in favour of the plaintiff and against the defendants.
40. ISSUENOQ. 4+ Whether the suit property situated in Khasra No. 8 76/634 897/634, 898/634, 899/634 & 900/634 belonging to the plaintiff has been illegally demolished by DDA ? OPP & ISSUE NO. 2: Whether the suit property as demolished by DDA fell inKhasra No. 613/31/1 ? OPD The onus to prove issue no. 1 is upon the plaintiff and issue no. 2 is upon the defendants.
10.1 For proving his case the plaintiff has mainly relied upon the following evidence:-
(a) Demarcation report Ex. PW-2/1(A) and the other accompanying documents Ex. PW-2/1(B) to Ex. PW-2/1(G).
(b) Ex. PW-1/33 demarcation report dated 18.11.2003.
(c) Measurement report dated 08.09.2006 Ex. PW-1/35. Apart from these documents the plaintiff has argued that the said society never claimed that any of the part of his land is occupied or encroached Judgment -
Ram Rattan Singh Namdhari Vs. DDA & Ors.. o L ". Now 619706/16 < age...
upon by the present plaintiff.
On the other hand the defendants claim that the demolished portion is tying in khasra no. 613/31/1, In para no. 18 of reply on merits in the written statement it is claimed by the defendants that while the land measuring 59 Bighas and 10 biswas of khasra no. 613/31/1 was handed over to the said society, there was a mistake in marking the Northern side boundary of the said land. Due to this mistake 12.50 feet (SIC) of land on the Northern side of the said society could not be given to the society. The mistake resulted in the said fand being left out and encroached upon by the plaintiff.
Ail the aforementioned points shall be considered in sequence:-
slats the weOUive! 10.1(a) Ex, PW-2/1(B) | PW-2 10.1(a)(i) The plaintiff has placed reliance on this demarcation report. This demarcation was carried out in compliance of order dated 08.10.2012 in Civil Suit No. 1362/2006 titled as "Ram Rattan Singh Namdhari Vs. DDA" Ex.
PW-4/1. in this regard Ld. Counsel for the defendants submitted that PW-2 and Pw-4 specifically admitted that no demarcation could be carried out on ail three dates which were fixed for demarcation, for different reasons. PW-4 also admitted that there was no date mentioned on the demarcation report (which Judgment "\ CS, No.« 613705/16 Ram Rattan Singh Namdhari Vs. DDA & Ors.. yo Page... 24/37 f j WO LA < < ;
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was put to the witness as Ex. PW-4/DX-1). The detailed arguments of Ld. Counsel for the defendants are already noted above. | have perused the examination and cross examination of PW-2, On the bottom side of page no. 3 (page no. 2 of cross examination) dated 02.07.2015 PW-2 stated that on 23.01.2013 no demarcation was made due to the absence of revenue record. Further on the next page (top portion) PW-2 again admitted that on 01.02.2013 no demarcation could be carried out due to non-availability of award. The proceedings were adjourned for 11.02.2013. In the lower middle portion on the same page PW-2 admitted that no demarcation could take place on all the three dates i.e 23.01.2013, 01.02.2013 & 11.02.2013. Further PW-4 in his examination dated 21.01.2016 (page no. 3, second page of cross examination, in the last para) admitted that no date after 11.02.2013 was fixed for demarcation. On the last page of his examination PW-4 admitted that the demarcation report Ex. PW-4/DX-1 did not bear any date. | have seen the attendance sheet dated 23.01.2013 Ex, PW-2/1(C) therein Sh. Rajeev Khanna, Naib Tehsildar DDA, while putting his signature for attendance clearly stated that on that day demarcation work did not start. The attendance sheet dated 01.02.2013 is Ex. PW-2/1(C) therein also at serial no. 3 Sh. Rajeev Khanna, Naib Tehsildar DDA again stated that on the said date no demarcation Judgment "4 : o? CS. Now G73785/16 Ram Rattan Singh Namdhari Vs. DDA & Ors.. o 4 - Pa . 25/37 oe ' g Pn é 'z oe proceedings were carried out. The attendance sheet dated 11.02.2013 is Ex. PW-2/1(G) therein again at the footnote it is stated that the signatures are only r the purpose of attendance. Due to non-availability of the field As already observed above PW-4 fo book no proceedings could be carried out.
specifically admitted that after 11.02.2013 no further dates were fixed for in such circumstances if is not clear on which date the demarcation report Ex. PW-2/1(A) was prepared. In view of this the demarcation.
demarcation report Ex. PW-2/1(A) is not reliable.
-1/33 10.1(b) 10.1(b)i}) Upon perusal of the demarcation report Ex. PW-1/33 it is not specifically clear in which case this demarcation report was prepared. However, certified copy of one memo of parties is also annexed with this report therein the title of the case is "Ram Rattan Namdhari & Ors. Vs. Western Punjab Jain Rehabilitation Association & Ors.". In para no. 21 of Ex. P-1, affidavit of evidence of PW-1, it is stated that in the year 1972 present plaintiff filed suit against Jain Cooperative Society (which is defendant no. 2 therein) the plaint and written statement of that case are Ex. PW-1/31 & Ex. PW-1/32 respectively. in the next para no. 22 it is stated that Ld. Court was pleased to appoint Local Commissioner to measure and demarcate the land.
Judgment CSN Ram Rattan Singh Namdhari V a « No.~ 613708/16 ari Vs. DDA & Ors. S A Page..... 26/37 "a 'ad Me o ow The report is Ex. PW-1/33. It is clear that Ex. PW-1/33 is the demarcation report which was conducted in the suit titled as "Ram Rattan Singh Namdhari & Ors. Vs. Western Punjab Jain Rehabilitation Association & Ors.". On the basis of the said demarcation, vide order dated 04.10.2004 Ex. PW-1/34 the Ld. Court concerned disposed of the suit of the plaintiff holding that there was no basis to conclude that the defendants have encroached upon any land of the plaintiff. This report was not challenged by either of the parties. | have seen the plaint Ex. PW-1/31 therein the present plaintiff claimed that the defendant i.e the society / association encroached upon the land of the plaintiff. This claim of the plaintiff was found to be false. It was argued on behalf of the defendants that this report Ex. PW-1/33 cannot be relied upon since Ld. Court concerned while passing demarcation order Ex. PW-4/1 stated that fresh demarcation is to be conducted. On the other hand Ld. Counsel for the plaintiff submitted that there was no adverse observation regarding the report Ex. PW-1/33 in the order Ex. PW-4/1. | have seen the order dated 08.10.2012 Ex. PW-4/1 there is no mention of the demarcation report dated 09.11.2007 filed on 18.11.2003 Ex. PW-1/33. In fact in para no. 2 of the order there is reference io the fact that the application for fresh demarcation was opposed by the plaintiff on the ground that earlier report dated 18.11.2003 is available. There is dudgment eo CS, Now 81397086 Ram Rattan Singh Namdharl Vs. DDA & Ors... Se Page... 27/87 Ped 2S oe ee ~ --_ yw | no observation of the Ld. Court on the merits / demerits of the report of the demarcation dated 18.11.2003 Ex. PW-1/33. it is clear that Ld. Court did not have any occasion to make any observation about this report, 6.1{b\(ii) Coming to the merits of this report it is to be seen in what context this report was prepared and what actually is mentioned in the report. In the plaint Ex. PW-1/31 the plaintiff claimed that the said society had encroached upon this land. In the written statement Ex. PW-1/32 the defendants including the society clarified that they have not encroached upon any land of the plaintiff. The effect of the demarcation report was construed by the Ld. Court to mean that the defendant therein had not encroached upon the land of the plaintiff, In the present case the report Ex. PW-1/33 can be interpreted to the effect that the land of the present plaintiff and the said society do not overlap. The said society is not encroaching upon any portion of the land of the plaintiff and vice-versa.
10.1ic) About Measurem , Apart from these documents the plaintiff has arqued that the said society never claimed that any of the part of his land is occupied or encroached upon by the present plaintiff.
10.1{c\i) This measurement report Ex. PW-1/35 was filed in the Civil Suit Judgment ol CS. No. 613708/16 Ram Rattan Singh Namdhari Vs. DDA & Ors.. f Ce Page..... 28/37 é 3 4 of % "
"ya fe ¥X at a > 438208 Utled as "Ram Rattan Singh Namdhari & Ors. Vs. DDA". As per this report the total area of occupation under the possession of the sociely was 80703 sq. yds. In para no. 23 of affidavit of evidence Ex, P-4 (PW-1} is slated that the land in khasra no. 613/34/1 was directed to be measured in Civil Sut No. 1362/06. The society was found to be in possession of land more than what was allotted to f as per Award No. 1774 Ex, PW-1/22. It is not clear how this report was interpreted in the said case.
1Q.1{eKH]} in the present case itis fo be seen how this report Ex. PW-1/35 Is relevant. in the present case the demolition action of DDA is based upon ihe sole ground that the demolished portion is situated in khasra no. S134 which is owned by DDA and allotted to the said society. In para no. 18 of the reply on merits in the written statement of the defendants it is stated that when the acquired land of khasra no. 613/311 was handed over to the said society, the last boundary of the said khasra on the Northern side was not properly earmarked and the allotted area was earmarked 12.50 feet (SIC) less than the actual area of the Northern boundary side of khasra no. 613/91/1. As per the award Ex. PW-1/22 the land measuring 59 bighas and 10 biswas was acquired. The entire land was handed over fo the said society. DW-4 on the first page of his cross examination dated 25.10.2016 admitted that khasra no.
Judgment = OS. No. 61970816 Ram Rattan Singh Namdhari Vs. ODA & Ors... od Page... 29/37 613/31/1 was acquired vide Award no. 1774 (Ex. Pw-1/22), On the next page PW-4 admitted that the acquired land was 59 bighas and 10 biswas. The said land was given to the said society. DW-4 further admitted that the actual physical possession of the acquired land was already with the said society. As such there was no physical handing over of the said land to the said society. The possession was only taken on papers. On page no. 5 of the cross examination dated 25.10.2016 DW-1 admitted that this measurement was carried out in the presence of DDA officials. It is the contention of the defendants that this measurement was not demarcation. This contention of the defendants, even if admitted, will not make much of a difference about the report Ex. PW-1/35. it is a matter of common knowledge that demarcation is done for the purpose of identifying the land i.e. in which khasra the land is falling. On the other hand measurement of a given plot of land is done to find out the exact area of the said plot. There is no specific challenge to the authenticity of the measurement carried out vide report Ex. PW-1/35. In the award Ex. PW-1/22 it is nowhere mentioned that only a part of acquired land was handed over to the society. This implies that the entire acquired land was handed over to the said society. There is nothing on record to show that the said society ever complained about the shortage of land being handed over to Judgment ed CS. No. 613705/16 Ram Rattan Singh Namdharf Vs. DBA & Ors. o Le Page... 30°87 fs a WE Lf nat Ue wa yu °C o it with reference to award Ex. PW-1/22. This report Ex. PW-1/35 at the least goes to show that the said society is in occupation of the entire land which was allotted to it, This dents the claim of the defendants that the plaintiff is occupying any portion of khasra no. 613/31/1 which was acquired and allotted to the said society.
10,1(c)(if} The sole basis / premises for the demoiition action of the defendants is that the plaintiff was occupying the land in khasra no. 613/31/1 which is under the ownership of the DDA and after acquisition it was allotted to the said society, No specific evidence has been led in this regard by the defendants to show the location of the demolished portion. Further in para no. 18 of the written statement the defendants claimed that the Northern boundary of acquired khasra no. 613/314 was wrongly marked 12.50 feet (SIC) less than the actual land of khasra no, 613/31/1. This is the portion encroached upon by the plaintiff.
10.1(c)(iv) As already observed above DW-4 specifically admitted that the said land of khasra no. 613/31/1 was already in possession of the said society, before acquisition. After acquisition the handing over of the physical passession of the land was not done, since the land was already under the occupation of the said society. The handing over possession was done only on Judgment é Lo CS. No.- 613708/96 Ram Rattan Singh Namdhari Vs. DDA & Ors.. f , Page... 34/37 fe 4 fie papers. In my considered opinion in such circumstances there was no veeasion for any official(s) either of DDA or otherwise to commit such a mistake, in physically earmarking the land. Further as already observed above there is no shortage of land in the said society. The written statement Ex. PW-1/32 was verified on 14.01.1976 therein the said society has nowhere raised any question or contention about its land being encroached upon by the plaintiff or any other party or persons. In the Award Ex. PW-1/22 on the third page under the heading "other compensation" it is stated that "there are three boundary walls existing on the land under acquisition". In para no. 18 of reply on merits in the written statement the defendants have stated that the Northern side boundary of the acquired land was wrongly ear marked. Upon a conjoint reading of Award Ex. PW-14/22 and the written statement of the defendants, it appears that the acquired land was having boundary wall on three sides and only on the Northern side there was no boundary wall. However, the boundary walls of Eastern and Western sides would stretch only up to the limits where the acquired land would end. In such circumstances also there was almost no possibility for any officer(s) of DDA or otherwise to wrongly earmark the Northern boundary of the acquired land.
10.1{cv) The defendants have not clarified when they found out the said ag Judgment CS. No.« 613708/16 Ram Rattan Singh Namdhari Vs, DDA & Ors. | i _ Page... 32/37 : ld i i 44 wo Laat | ie "
mistake. It is also not clarified what steps DDA or any other government department(s) took to rectify this error. In view of the above observations any possibilities of any mistake in the earmarking of the Northern boundary of the acquired land are ruled out.
10.2 In view of the evidence led by the parties it is clear that none of the parties have led any specific evidence to show the exact location of the demolished portion as to in which khasra it falls. However in view of the above discussion, by preponderance of probabilities it can be safely concluded that the demolished portion does not fall within the khasra no. 613/31/1. As already noted above, the sole premises for demolition action by DDA was that the plaintiff was occupying acquired government land in khasra no. 613/31/1. It may be argued that the plaintiff has not been able to show that he is occupying land in his own khasras. However, even if he is occupying the land of somebody else, the action of DDA cannot be justified, since the DDA proposed the demolition action on the basis that the plaintiff was occupying the government land.
10.3 On page no. 4 of cross examination dated 28.10.2006 DW-1 admitted that the demolition order was not placed on record. No specific reason for non-placing of this order on record is mentioned. On the same page DW-1 v i Judgment ef} CS. No. 613705/16 Ram Rattan Singh Namdharil Vs. DDA & Ors,. 2 -- a» Page... 3397 i, Poi Me a ry [ d oe Af XX :
iat? ae asp et ¥N admitted that as per Ex.PW-1/33 the starting point of the said society is Baraat Ghar. DW-1 was asked, on what basis he could say that some portion of the land of the society was yet to be given to the society. DW-1 replied that he did it according to his own measurement. However no such measurement has been placed on record.
40.4 in view of the above issue no. 1 is decided in favour of the plaintiff and against the defendants. Issue no. 2 is decided in favour of the plaintiff and against the defendanis.
11. ISSUE NO. 4:- Whether the plaintiff is entitled to decree of Rs. 19,50,000/- 7 OPP & ISSUE NO. 5:~ Whether the plaintiff is entitled to future damages as per prayer clause (ii) of the plaint ? OPP The onus fo prove these issues is upon the plaintiff. Vi4 The plaintiff has claimed compensation in the amount of Rs. 19,.50,000/-. However, the plaintiff has not produced any specific evidence regarding the nature and extent of construction which was demolished. The plaintiff produced PW-3 Sh. Baldev Singh who claimed that he was a businessman working in Rana Partap Bagh. He also claimed that the rent for commercial property in the said area was Rs. 75 to Rs. 100 per sq. feet. The < j Judgment © | GS. No. 613705/16 Ram Rattan Singh Namdhari Vs. DDA & Ors.. é L- Page... 34/497 f § P-
Ve Roe A We rent for residential property in the said area was Rs. 35 to Rs. 50 per sq. feel. He produced one rent agreement Ex. PW-3/1, The same was objected to regarding the mode of proof. There Is nothing on record to show that the original of Ex. PW-3/4 was produced in court. There is no explanation why the original was not produced. In such circumstances without seeking any permission for leading secondary evidence on behalf of the plaintiff, this document Ex. PW-3/1 cannot be read in evidence. There is also dispute between the parties regarding the size / area of the demolished portion. The plaintiff claims that the demolition was carried out in an area measuring 3000 sq. yards but the report was filed regarding demolition of 2000 sq. yards. On page no. 3 in cross examination dated 28.10.2016 DW-1 stated that 19 residential houses, 10 wooden shops (SIC), 5 shops, 7 factories and godown tin shed was demolished on 15.05.2006. However it is not clear out of this portion which was the portion exclusively belonging to the plaintiff. in the written statement the defendants have plainly and simply denied the clair of the plaintiff regarding the construction at the site. However since the demolition action was carried out by the defendants, it should be exclusively in their knowledge as to how much portion and what construction exactly was demolished on the said date. As such the burden of proving the nature and $ we Judgment | GS. No.- 613705/16 Ram Rattan Singh Namdhari Vs. DDA & Ors.. é Le ' Page... S837 f ee extent of the demolition was upon the defendants. The defendants have not produced any evidence in this regard, | have seen the affidavit Ex. DW-1/A of DW-1, in para no. 17 the documents relied upon by the defendants are mentioned. in this para there is no mention of the demolition proceedings.
41.2 The plaintiff has failed to produce any specific evidence regarding the size of the construction and the nature of the construction which was demolished on the said date. As such the actual damages cannot be awarded to the plaintiff. However in view of the findings of the court in issue no. 2, the plaintiff is entitled to compensation. In the absence of any specific evidence in this regard only a nominal compensation can be awarded to the plaintiff. Accordingly, Rs. 5 lakh along with simple interest @ 6% per annum from the date of demolition til realization of the amount is awarded to the plaintiff, 11,3 issues no. 4 & 5 are decided in favour of the plaintiff and against the defendants in the above terms.
42. ISSUENO. 6:- Whether the plaintiff is entitled to mandatory injunction as prayed for in the suit ? OPD The onus to prove this issue is upon the defendants. 12.1 The plaintiff has sought mandatory injunction directing the defendants to restore the demolished portion. As already observed above ot, Judgment cf Lo CS. No,- 613708/16 Ram Rattan Singh Namdharl Vs. ODA & Ors.. : YY Page... 36/37 U/ [2 ve yest ° 4 there jg no evidence to show what was the nature and extent of the construction at the site before demolition. As such this injunction cannot be issued. Further, since the plaintiff has claimed compensation as well, no order for restoration of the demolished portion can be passed.
42.2 in view of the above, issue no. 6 is decided in favour of the defendants and against the plaintiff,
13. ISSUENO.7:- Relief.
13.1 The suit of the plaintiff is decreed in terms of decision of this court on issues no. 1 & 2. Nominal compensation Rs. 5 fakh along with simple interest @ 6% per annum from the date of demolition till realization of the amount is also awarded to the plaintiff. The relief of mandatory injunction sought by the plaintiff is declined,
14. Decree sheet be prepared accordingly upon filing of deficient court fee, if required in terms of Section 11 of Court Fee Act.
15. No order as to cost.
16. Fie be consigned to record room after due compliance.
co [RtmoS PRONOUNCED IN THE OPEN {RAJ INDER SINGH) COURT ON 15.07.2021 ADJ-02/CENTRAL/THC/DELHI Judgment CS. No. 613705/16 Ram Rattan Singh Namdhari Vs. DOA & Ors.. Page... AV3T