Delhi High Court
S. Amrik Singh vs Delhi Development Authority on 12 November, 2013
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 12th November, 2013
+ RFA No.179/2009
S. AMRIK SINGH ..... Appellant
Through: Mr. Girdhar Govind & Mr. Noor Alam,
Advs.
Versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Mr. Rajiv Bansal, Advocate.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
1. The appeal impugns the judgment and decree dated 21st March, 2009 of the Court of the Addl. District Judge - 22 (Central) Delhi of dismissal of Suit No.290/04/01 filed by the appellant, for declaration that he is entitled to the benefit of the policy of the respondent/defendant of regularization of plots/flats in occupation of the persons since prior to the year 1977 , and for permanent injunction restraining the respondent/defendant from forcibly dispossessing the appellant/plaintiff from property No.R-536, New Rajinder Nagar, New Delhi.
2. Trial Court record was requisitioned and notice of the appeal issued. Though the appellant/plaintiff along with the appeal had not filed any RFA No.179/2009 Page 1 of 26 application for interim relief but after notice of the appeal had been issued, filed an application for stay of operation of the impugned judgment and decree and to restrain the respondent/defendant from dispossessing the appellant/plaintiff from property No. R-536, New Rajinder Nagar, New Delhi during the pendency of the appeal. Notice of the said application was also issued, though no ad interim relief granted. The appeal was on 20th July, 2010 admitted for hearing. The appellant/plaintiff filed another application for interim relief pleading that he had learnt that this Court in W.P.(C) No.5885/2012 had directed the respondent/defendant to hand over possession of the plot of land bearing No.R-536, New Rajinder Nagar, New Delhi to one Shri Surjit Singh and contending that unless DDA was restrained from taking possession from the appellant, the appeal will become infructuous. The said application came up before this Court first on 21st October, 2013 when the counsel for the appellant/plaintiff was asked to address on the appeal itself. However the counsel stated that he was not ready to address arguments and on his request, the matter was adjourned to today. The counsel for the appellant/plaintiff and the counsel for the respondent/defendant have been heard.
RFA No.179/2009 Page 2 of 26
3. The appellant/plaintiff instituted the suit from which this appeal arises, in or about January/May, 2001, pleading:-
(a). that he had been in continuous and lawful possession of property No. R-536, New Rajinder Nagar, New Delhi comprising of two rooms, one kitchen, one bathroom, one latrine and courtyard since the year 1962 and had been using the same for residential purposes;
(b). that the said property was provided with electricity, water and telephone connections and was assessed to Property Tax;
(c). that the properties in the neighbourhood had also been allotted in favour of their respective occupants and the said properties had been regularized in their favour;
(d). that the appellant/plaintiff was also entitled to allotment of the said property and to regularization thereof in his name in accordance with the policy of the respondent/defendant;
(e). that instead of allotting and regularizing the said property in favour of the appellant/plaintiff, the respondent/defendant had sent a notice under Section 7(3) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (PP Act) RFA No.179/2009 Page 3 of 26 calling upon the appellant/plaintiff to pay damages for occupying the same from 1st April, 1962 till 30th March, 1983;
(f). that the appellant/plaintiff without prejudice to his rights and contentions had paid a total sum of Rs.15,000/- in installments towards the said damages;
(g). that the appellant/plaintiff had been approaching the respondent/defendant for regularization of the said property in his name, as had been done with respect to the neighbouring properties;
(h). that however since the respondent/defendant was threatening to dispossess the appellant/plaintiff, the appellant/plaintiff instituted a suit for permanent injunction to restrain the respondent/defendant from doing so and in which suit the respondent/defendant was restrained from dispossessing the appellant/plaintiff;
(i). that during the trial of the aforesaid suit it transpired that the respondent/defendant had regularized the unauthorized occupations up to June, 1977 as per the letter dated 16th February, 1977 of the Government of India and under the said RFA No.179/2009 Page 4 of 26 policy, occupants of the properties no. R-538 & 537, New Rajinder Nagar, New Delhi were regularized;
(j). that the appellant/plaintiff had also filed a writ petition in this
Court pertaining to the said property but the
respondent/defendant concealed the factum of their policy of regularization and under which the neighbouring plots were regularized; and,
(k). that the appellant/plaintiff was also entitled to the benefit of the said policy.
4. The respondent/defendant contested the suit, by filing a written statement, on the grounds:-
(i). that the appellant/plaintiff had not approached the Court with clean hands;
(ii). that the appellant/plaintiff had unauthorizedly occupied plot No.536, New Rajinder Nagar, New Delhi and raised some temporary structures thereon;
(iii). that when the respondent/defendant initiated action for removal of the said encroachment, the appellant/plaintiff filed Suit No.521/1985 before the Civil Judge wherein ad interim RFA No.179/2009 Page 5 of 26 injunction was granted in his favour; however subsequently the said ad interim injunction was vacated and the application of the appellant/plaintiff for interim relief dismissed vide order dated 20th January, 1989;
(iv). thereafter the unauthorized structure raised by
appellant/plaintiff was demolished and the
respondent/defendant on 21st January, 1989 dispossessed the appellant/plaintiff from the said property and resumed possession thereof;
(v). that the appellant/plaintiff filed an appeal before the District Judge against the order dated 20th January, 1989 supra but which appeal was also dismissed vide order dated 17 th February, 1989;
(vi). that the appellant/plaintiff however re-encroached upon the property and an FIR in this regard was lodged with the Rajinder Nagar Police Station;
(vii). that the appellant/plaintiff filed Criminal Misc.(Main) No.1366/92 in this Court for quashing of the said FIR; RFA No.179/2009 Page 6 of 26
(viii). that the appellant/plaintiff also preferred Civil Writ No.2754/1990 in this Court which was dismissed vide order dated 12th December, 1991 of the Division Bench of this Court;
(ix). that the appellant/plaintiff also filed a Civil Revision No.1055/1997 in this Court but which was also dismissed in default on 13th September, 1999;
(x). that on dismissal of Civil Revision No.1055/1997, the respondent/defendant again demolished the unauthorized construction raised by the appellant/plaintiff and resumed possession of the property on 14th June, 2001;
(xi). that not only had the appellant/plaintiff concealed all the aforesaid facts from the plaint but the issues raised in the suit had been raised by the appellant/plaintiff in the earlier suit and in the appeals/revisions arising therefrom as well as in the writ petition earlier filed and the suit was thus barred by Sections 10 & 11 of the CPC owing to the suit for injunction before the Civil Judge filed by the appellant/plaintiff till then still pending before the learned Civil Judge;
RFA No.179/2009 Page 7 of 26
(xii). denying that the appellant/plaintiff on the date of institution of the suit was in possession of the property; and,
(xiii). denying that the case of the appellant/plaintiff was similar to that of occupants of the neighbouring properties and pleading that the appellant/plaintiff had failed to submit any document in support of his claim of continuous possession of the suit property on or before 30th June, 1977 and to comply with the other requisite conditions under the policy of regularization.
5. The appellant/plaintiff filed a replication not denying the pleas in the written statement qua the earlier legal proceedings but pleading that the same were of no relevance because the respondent/defendant had concealed and withheld material facts from the Courts where the earlier proceedings were pending of there being a policy for regularizing the occupation of persons upto June, 1977 and of regularization effected under the said policy in favour of the occupants of neighbouring properties No.R-537 & R-538, New Rajinder Nagar, New Delhi. It was thus pleaded that the suit from which this appeal arises was on a different and distinct cause of action of respondent/defendant's own policy of regularization. It was also denied that the respondent/defendant had ever resumed possession. It was yet further RFA No.179/2009 Page 8 of 26 pleaded that in the suit pending before the Civil Judge, the appellant/plaintiff had applied for amendment of the plaint to incorporate the plea of the said policy of the respondent/defendant but the said application for amendment was dismissed on the ground that the same would change the cause of action in the suit and the revision petition preferred against the same was also dismissed in default and restoration application of the same was pending. It was reiterated that the appellant/plaintiff was in possession of the property.
6. Vide interim order dated 23rd August, 2001 in the suit from which this appeal arises, the parties were directed to maintain status quo. The said order was confirmed on 27th August, 2002 upon the failure of the counsel for the respondent/defendant to oppose the application for interim relief. Though the appellant/plaintiff as one stage filed an application for amendment of the plaint to take a plea that if the Court were to ultimately hold that the respondent/defendant had resumed possession of the property as pleaded by it, the said possession be got delivered to the appellant/plaintiff, but after keeping the said application pending for more than one year, withdrew the same.
7. On the pleadings of the parties, the following issues were framed in the suit on 8th November, 2006:-
RFA No.179/2009 Page 9 of 26
"(i). Whether the suit is barred by section 11 of the CPC?
OPD
(ii). Whether the present suit is liable to be stayed by section 10 of CPC? OPD
(iii). Whether the present suit has not been properly valued?
OPD
(iv). Whether the suit is bad on account of non compliance of section 80 of CPC? OPD
(v). Whether the plaintiff is entitled for a decree of declaration as prayed in the plaint? OPP
(vi). Whether the plaintiff is entitled for a decree of permanent injunction as prayed in the plaint? OPP
(vii). Relief."
8. The appellant/plaintiff filed affidavit by way of his examination-in- chief. The respondent/defendant after taking adjournments for cross examination stopped appearing and was on 1st October, 2007 proceeded against ex parte. The learned Addl. District Judge after hearing ex parte arguments of the counsel for the appellant/plaintiff and perusing the written arguments filed by the appellant/plaintiff, dismissed the suit, finding/observing/holding:-
A. that the respondent/defendant having not led any evidence, issues no.1,2,3 & 4 were decided in favour of the appellant/plaintiff and against the respondent/defendant; RFA No.179/2009 Page 10 of 26 B. that the appellant/plaintiff had proved the electricity, water and telephone bills in his name at the address of the suit property as well as notices issued by the respondent/defendant at the said address and the receipt issued by the respondent/defendant towards payment of damages for unauthorized occupation; C. that the appellant/plaintiff had also proved that the Lok Adalat of the respondent/defendant vide its order dated 28 th May, 2002 had recommended to the Competent Authority of the respondent/defendant to regularize the occupation of the property on usual charges and to return back the possession of the property to the appellant/plaintiff;
D. that from a perusal of the documents placed on record by the appellant/plaintiff, it was not clear as to how the appellant/plaintiff was claiming to be the owner of the suit property;
E. the water, electricity and telephone bills do not confirm title in respect of a property;
RFA No.179/2009 Page 11 of 26 F. that the appellant/plaintiff had not placed on record any title documents regarding ownership such as Sale Deed, General Power of Attorney, Agreement to Sell etc.;
G. the question of regularization of a property is a matter of policy and no parity can be claimed by an occupant on the ground that property of other occupants in the neighbourhood had been regularized particularly when the appellant/plaintiff was admittedly an unauthorized occupant;
H. thus issues no.5 was decided against the appellant/plaintiff; and, I. that the appellant/plaintiff had failed to prove that there was any obligation on the part of the respondent/defendant in favour of the appellant/plaintiff for which directions could be given to the respondent/defendant; accordingly issue no.6 was decided in favour of the respondent/defendant against the appellant/plaintiff.
resultantly the suit was dismissed.
9. The counsel for the appellant/plaintiff has contended that the learned Addl. District Judge, in the impugned judgment, has misconstrued the relief claimed by the appellant/plaintiff. It is contended that the appellant/plaintiff RFA No.179/2009 Page 12 of 26 was not claiming declaration of his title on the basis of any Sale Deed or Agreement to Sell or other documents in his favour but was claiming a declaration of being entitled to the benefit of the policy of the respondent/defendant and which aspect has not been considered by the learned Addl. District Judge. It is yet further contended that the case of the appellant/plaintiff was for regularization of his occupation and not for declaration of his title. Attention is invited to the orders dated 28th May, 2002, 24th September, 2002 and 2nd September, 2003 of the Lok Adalat of the respondent/defendant observing:-
(i) that it was the admitted case of the Department that regularization of unauthorized occupation of such plots could be effected in case the occupant showed any proof of his unauthorized occupation prior to the June, 1977 as per Government of India orders contained in their letter No.4(19)/78-S-S-II (Vol.II) dated 16th February, 1977 in the case of residential structure, on premium being charged as per scheduled rates fixed by the L&DO;
(ii) that the short question thus to be determined was whether the appellant/plaintiff was in occupation of plot No.R-536, New RFA No.179/2009 Page 13 of 26 Rajinder Nagar, New Delhi measuring 200 sq. yds. prior to June, 1977;
(iii) admittedly the respondent/defendant had regularized the adjoining two plots bearing No.R-537 & R-538 in favour of their occupants;
(iv) that the Estate Officer of the respondent/defendant had vide letter dated 30th November, 1983 asked the appellant/plaintiff to file his objections if any for proceeding under Sections 7(3) & 4(1) of the PP Act;
(v) that the appellant/plaintiff had thereafter been assessed for damages for land ad measuring 350 sq. yd. of plot No.R-536 from 1st April, 1962 to 31st March, 1983;
(vi) that the appellant/plaintiff protested thereagainst on the ground that he was in possession of only 200 sq. yds. and not 350 sq. yds.; that the respondent/defendant however took possession of the property in the garb of the application for stay filed by the appellant/plaintiff in the Civil Suit having been dismissed;
(vii) that the appellant/plaintiff had filed documents regarding assessment of the property for House Tax w.e.f. 1968 and letter RFA No.179/2009 Page 14 of 26 dated 29th April, 1976 of the MCD for demolition of one room in the property and which proved that the appellant/plaintiff was in possession of plot No.R-536 from 1962 or at least much before the cut-off date of June, 1977 and was thus entitled to the same treatment which was given to adjoining plots No. R-
537 & R-538;
(viii) that the fact that the appellant/plaintiff had been dispossessed was of no consequence in as much as, as per the then policy his unauthorized occupation should have been regularized;
(ix) that the respondent/defendant had in the writ petition before the Division Bench of this Court taken a false stand that regularization of plots No.R-537 & R-538 was not under any policy of DDA but owing to the occupants thereof being displaced persons; and,
(x) that had the respondent/defendant not suppressed the factum of policy of Government of India and DDA dated 16 th February,1977 in the writ petition aforesaid earlier filed by the appellant/plaintiff, the judgment dated 12th December, 1991 therein might not have denied the appellant/plaintiff equal RFA No.179/2009 Page 15 of 26 treatment as was meted out to his immediate neighbours and might not have labeled the appellant/plaintiff as a land grabber. and thus recommending regularization of plot no.R-536 ad measuring 200 sq. yds. in favour of the appellant/plaintiff.
10. The counsel for the appellant/plaintiff has argued that the recommendations of the statutory Lok Adalat of the respondent/defendant are binding on the respondent/defendant.
11. Per contra, the counsel for the respondent/defendant has argued that the Lok Adalat whose recommendations are relied upon is not statutory and the recommendations are not binding on the respondent/defendant; that the Lok Adalat could not have commented on the judgment dated 12th December, 1991 of the Division Bench of this Court in Civil Writ No.2754/1990 and has invited attention to the said judgment. He has further contended that notwithstanding the respondent/defendant in the written statement in the suit from which this appeal arises having disputed/controverted the possession of the appellant/plaintiff of the property, the appellant/plaintiff did not claim the relief of possession and the suit is thus misconceived.
RFA No.179/2009 Page 16 of 26
12. Neither counsel inspite of enquiry is able to inform of the fate/outcome of the suit before the Civil Judge earlier filed by the appellant/plaintiff or of the Criminal Miscellaneous (M) petition supra preferred by the appellant/plaintiff for quashing of the FIR lodged against him. Though undoubtedly the learned Addl. District Judge in the impugned judgment has not adjudicated whether the appellant/plaintiff is entitled to the benefit of the policy of the respondent/defendant of regularization in favour of occupants of prior to the year 1977 or whether there was any such policy and which was the relief claimed in the suit and though the learned Addl. District Judge merely for the reason of the respondent/defendant having been proceeded against ex parte and having not led any evidence decided issues no.1 to 4 supra against the respondent/defendant but I am of the view that in the light of admitted position in the pleadings of earlier litigation between the same parties, the learned Addl. District Judge ought to have considered whether the claim of the appellant/plaintiff in the suit was barred by Sections 10 & 11 of the CPC. Sections 10 & 11 of the CPC are based on a principle of public policy which bars re-litigation and which bar if not enforced would reduce litigation to a wager and interfere with the principle of finality of judgments of the Court. I have thus proceeded to peruse the RFA No.179/2009 Page 17 of 26 order dated 17th February, 1989 of the Addl. District Judge in MCA No.20/1989 preferred by the appellant/plaintiff against the order dated 20 th January, 1989 of the Civil Judge of dismissal of the application in the earlier suit filed by the appellant/plaintiff as well as the order dated 12th December, 1991 of the Division Bench of this Court in Civil Writ No.2754/1990 preferred by the appellant/plaintiff and inspite of copies of which order being on the Trial Court record, the learned Addl. District Judge failed to notice the same.
13. A perusal of the order dated 17th February, 1989 of the Addl. District Judge does show:-
(A). the claim of the appellant/plaintiff in the earlier suit filed by him before the Civil Judge being, of being in possession of the property since the year 1962 as was claimed in the suit from which this appeal arises;
(B). that the appellant/plaintiff vide his letter dated 22nd May, 1984 to the respondent/defendant having admitted that he was in occupation of the plot without any right, title or interest; and, RFA No.179/2009 Page 18 of 26 (C). the only claim of the appellant/plaintiff in the plaint in the earlier suit before the Civil Judge being of being not liable to be dispossessed save by due process of law.
14. A perusal of the order dated 12th December, 1991 of the Division Bench of this Court in CW No.2754/1990 filed by the appellant/plaintiff shows:-
(I). the Division Bench to have found the case, as of land grabbing; (II). the appellant/plaintiff "admittedly" having "no legal right, title or interest in the property";
(III). the appellant/plaintiff whenever threatened with dispossession having successfully obtained interim orders; (IV). the land belonging to the Government and the appellant/plaintiff having managed to occupy and construct thereon with the help of not too honest Government officers; (V). there being no reason for the appellant/plaintiff to remain in possession of the land to which he had no valid claim; (VI). the appellant/plaintiff, by paying damages, getting no right in the land;
RFA No.179/2009 Page 19 of 26 (VII). the Government being entitled to part with the land only by a fair and equitable manner without any favour to any person and without discrimination;
(VIII). that the Government property being not liable to be parted with save by public auction or by tender or in some other fair equitable manner;
(IX). allowing unauthorized occupation of valuable Government property by paying nominal damages being not permissible;
and, (X). the argument of the appellant/plaintiff of there being other similarly situated persons and of the respondent/defendant having not taken any action thereagainst, being of no avail.
15. I also find on the Trial Court record a report dated 14 th June, 2000 of the DDA of having demolished the plot area 200 sq. yds. of R-536, New Rajinder Nagar, New Delhi and of having taken possession thereof. I also find on the Trial Court record, a copy of the letter dated 25th July, 2000 of the DDA of, after 14th June, 2000 having constructed a boundary wall around the plot and installed a board thereon of the same being the property of the DDA. I also find on the Trial Court record a copy of Civil Writ RFA No.179/2009 Page 20 of 26 Petition No.2754/1990 filed by the appellant/plaintiff as well as counter affidavit of the respondent/defendant thereto and the same discloses the appellant/plaintiff to have claimed the same reliefs therein as claimed in the suit from which this appeal arises i.e. of directing the respondent/defendant to allot property No. R-536, New Rajinder Nagar, New Delhi in his favour on the same terms & conditions on which occupation of occupants of properties No. R-537 and R-538 had been regularized and the respondent/defendant to have pleaded, (i) that the said colony is a rehabilitation colony; that the colony along with other unutilized lands which once formed part of the Compensation Pool Properties constituted under the Displaced Persons (Compensation And Rehabilitation) Act, 1954 having been transferred to the respondent/defendant vide letter dated 2nd September, 1982 and possession of the property taken over on 24th April, 1984; (ii) that the policy of regularization of unauthorized occupation of certain acquired evacuee properties being applicable only to those who came into occupation before 31st December, 1960 and fulfilled certain conditions; the plot No. R-536 being in occupation of one Shri Ram Sarup Kathuria a displaced person who had been allotted plot No.R-708, New Rajinder Nagar, New Delhi; (iii) the said Shri Ram Sarup Kathuria having instituted a suit in RFA No.179/2009 Page 21 of 26 which L&DO was injuncted vide judgment dated 10th April, 1969 from evicting him except by due process of law; (iv) that the said Shri Ram Sarup Kathuria also being in occupation of adjoining properties No.R-535 and R- 537; (v) the appellant/plaintiff having come into occupation of property No.R-536 after 1985; (vi) the transfer of plots no. R-537 and R-538 being in favour of displaced persons who had rival claims with Shri Ram Sarup Kathuria but had entered into a compromise during the pendency of FAO No.87/1985 decided on 17th September, 1985 by this Court; (vii) of the appellant/plaintiff being the land grabber of late 1984 or 1985.
16. It would thus be clear that the Division Bench of this Court, while dismissing Civil Writ Petition No. 2754/1990 filed by the appellant/plaintiff vide judgment dated 12th December, 1991, had the entire controversy before it.
17. The present is thus clearly a case of re-litigation and which the Supreme Court in K.K. Modi Vs. K.N. Modi (1998) 3 SCC 573 and the Division Bench of this Court in Ram Chander Aggarwal Vs. UOI 187 (2012) DLT 370 has held not permissible. Even if it were to be presumed that the appellant/plaintiff on discovery of new facts which were not available to him when the earlier proceedings filed by him for the same RFA No.179/2009 Page 22 of 26 relief were disposed of, considered himself now entitled to the relief, the remedy thereagainst is not by re-litigation. It was the categorical stand of the respondent/defendant in the counter affidavit in Civil Writ No. 2754/1990 that the appellant/plaintiff was not in possession of the property since 1962 as was being claimed by him but had trespassed into the property only in late 1984 or early 1985 and which was accepted by the Division Bench. Even if it were to be presumed that the appellant is correct in his case in the plaint from which this appeal arises of there being any policy of regularization in favour of unauthorized occupants of prior to June,1977, the acceptance by the Division Bench of this Court in the judgment dated 12 th December, 1991 in Civil Writ No.2754/1990 of the case of the respondent/defendant of the appellant/plaintiff having trespassed in 1984/85, would still come in the way of the appellant/plaintiff in claiming the relief on his own case.
18. I have even otherwise perused the Trial Court file and have not found any document therein on the basis whereof it can be said that the appellant/plaintiff was in possession of the property since 1962 or for that matter since prior 1977 as claimed by him. Merely because the Estate Officer of the respondent/defendant may have while assessing damages for unauthorized use and occupation having assessed the same from the year RFA No.179/2009 Page 23 of 26 1962 would not prove the appellant/plaintiff to have been in possession since the year 1962 since the said assessment was done on the appellant/plaintiff showing willingness to pay the said damages. Similarly, the Property Tax for the period from 1967-68 to 1984-85 is found to have been paid by the appellant/plaintiff on his own only on 5th March, 1985.
19. There is thus clearly no error in the observations in the judgment dated 12th December, 1991 of the Division Bench of this Court in Civil Writ Petition No.2754/1990, of the appellant/plaintiff being a rank trespasser. The assessment and demand of damages from the appellant/plaintiff from 1962 was also on his own claim of the appellant/plaintiff of being in possession since 1962.
20. That brings to the recommendations of the Lok Adalat. At the outset I may state that it has been held in Meenakshi Choudhrie Vs. DDA MANU/DE/2588/2012 relying upon State of Punjab Vs. Jalour Singh (2008) 2 SCC 660 that the Lok Adalat of the DDA was not a statutory Lok Adalat and its recommendations are not binding. It may next be highlighted that though the Lok Adalat has relied on notice dated 29th April, 1976 of the MCD of demolition issued in the name of the appellant/plaintiff at the address of R-536 but the said notice was not proved before the learned Addl. RFA No.179/2009 Page 24 of 26 District Judge and appears to have been filed before the Lok Adalat only. The said notice is addressed to Shri Amrik Singh Kharbanda. The appellant/plaintiff is not found referred to in any of the documents on record as Kharbanda and the said notice is found to be highly suspect. Even otherwise I may state that the order of the Lok Adalat is on the basis of the allotment in favour of occupants of R-537 and R-538 being not on account of their being a displaced person and thus being under a new policy under which the appellant/plaintiff claimed but which observations/findings were given without hearing the occupants of R-537 and 538 whose occupation was regularized and the said observations are of no avail for this reason also. Even otherwise, the policy on which the appellant/plaintiff relies and as set out in the plaint, does not support the case of the appellant/plaintiff. As aforesaid the appellant/plaintiff has not proved being in occupation since prior to 1977.
21. There is yet another aspect of the matter. It was the unequivocal case of the respondent/defendant in the written statement that the land had been re-possessed and the appellant/plaintiff was not in possession thereof. Though the appellant/plaintiff in response thereto sought an amendment of the plaint to also claim the relief of delivery of possession but withdrew the RFA No.179/2009 Page 25 of 26 said amendment application. The appellant/plaintiff by applying for such amendment inter alia admitted being not in possession of the property. The documents on record aforesaid filed by the appellant/plaintiff himself also support that the respondent/defendant had repossessed the land. The claim of the appellant/plaintiff for declaration and injunction without claiming the relief of possession was in any case not maintainable in law.
22. Thus whichever way one looks at, there is no merit in the appeal which is dismissed with costs. The counsel's fee assessed at Rs.20,000/-. If the appellant/plaintiff fails to pay the costs within four weeks, the respondent/defendant shall be entitled to take steps for recovery thereof.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J NOVEMBER 12, 2013 pp RFA No.179/2009 Page 26 of 26