Delhi District Court
Shri Gurmeet Singh vs Delhi Development Authority on 13 May, 2015
Page No. 1 of 17
IN THE COURT OF MS. CHHAVI KAPOOR, CIVIL JUDGE,
WEST DISTRICT, TIS HAZARI COURT, DELHI.
Unique ID No. 02401C0103421999
Suit No. 118/2014
1. Shri Gurmeet Singh,
S/o Shri Bishan Singh,
R/o A52, Hari Nagar,
Clock Tower, New Delhi.
2. Smt. Neelam Mehta,
W/o Shri Suresh Mehta
R/o C29, Bali Nagar,
New Delhi. ............. Plaintiffs
Versus
Delhi Development Authority,
To be served through its Vice Chairman,
Vikas Sadan, INA Colony,
New Delhi .............Defendant
Date of Institution of the Suit : 13.07.1999
Date of Reserving of Judgment : 20.04.2015
Date of Judgment : 13.05.2015
Suit No. 118/2014 Gurmeet Singh & Another Vs. DDA
Page No. 2 of 17
JUDGMENT
1. A suit for Permanent Injunction has been filed by plaintiffs against DDA.
2. The claim of the plaintiffs is that they are the owner and in possession of the property measuring 116 square yards bearing no. 114B, MS Block, Hari Nagar, New Delhi (herein after referred to as Suit Land) developed on the land of Village Tihar, Delhi. They have purchased their respective portions vide registered sale deeds dated 04.05.1990 and 14.02.1995. A site plan has been filed alongwith the plaint which shows that the Plaintiff no. 1 is the owner of the portion shown in Red and Smt. Neelam Mehta i.e. Plaintiff no. 2 is the owner of the portion shown in Blue in the said site plan. It is claimed that the suit land was previously owned by Shri Rajinder Gopal, who was the original recorded owner of the land as per the Revenue Records.
3. The plaintiffs are running their separate manufacturing business after obtaining necessary clearances and permissions from the concerned authorities. The plaintiffs also have separate power and electricity connections as well as industrial licence for running their business. The plaintiffs are also registered with the Sales Tax Department. It is claimed that the agents and employees of the defendant/DDA had visited the suit land on 8th, July, 1999 and threatened plaintiffs that they would demolish the structures built on their lands and thereafter take Suit No. 118/2014 Gurmeet Singh & Another Vs. DDA Page No. 3 of 17 possession of the same. It is claimed that no show cause notice has ever been issued to any of the plaintiffs alleging therein that the land under the building belongs to the defendant and not to them. The agents and employees of DDA have also requested the concerned S.H.O. of the area for grant of police protection and for taking possession and demolishing the structures built upon the suit land. However, the plaintiffs claim that DDA has no right, title or interest in the suit land and it is with this background, that plaintiffs have filed the present suit with the following prayers:
* It is, therefore, most respectfully prayed that the defendants, its agents, employees be permanently restrained from interfering in the peaceful possession of land and demolishing structures of property no. 114B, MS Block, Hari Nagar, New Delhi.
* Any other or further relief as this Hon'ble Court may deem fit and proper in facts and circumstances of the case be also passed in favour of the plaintiffs and against the defendant.
4. A written statement has been filed by DDA, therein alleging that the suit land lying underneath the constructions of the plaintiffs falls in Khasra no. 721 min of village Narayana and Khasra no. 2096 min of Village Tihar. It has been claimed by the defendant that the said land has been acquired and placed at the disposal of DDA after a notification u/s. 22 (1) of DD Act has been issued. In this regard, it has been averred that the land of khasra no. 721/1 min has been acquired vide an award no.
Suit No. 118/2014 Gurmeet Singh & Another Vs. DDA Page No. 4 of 17 1414 whereafter possession has been taken and handed over to DDA on 24.11.1962. It has further been claimed that land of Khasra no. 721/2 min, Village Narayana has been acquired vide an award no. 1750 where after possession has been handed over to DDA in the year 1966. It is also stated that land of Khasra no. 2096 of Village Tihar has been acquired vide an award No. 1867 and possession of same has been handed over to DDA on 03.01.1966. Hence, it is claimed that any sale purchase of property after issue of notification u/s. 6 of the Land Acquisition Act is illegal and does not confer any title or ownership upon the subsequent transferee. Further, it is averred that the plaintiff no. 1 had filed a suit no. 63/93 in respect of his portion of land measuring 58 square yards, but this suit was dismissed by the Civil Court on 08.12.1998. It has been claimed that another suit in respect of the same property was filed by one Desh Raj, which was also dismissed on 28.03.1981. It is averred that no fresh cause of action has arisen in favour of the plaintiffs but they are making up a false case to misuse the process of law. It is claimed that the present case is barred by Principles of Res judicata. It has been claimed that after dismissal of the earlier suit of the plaintiff no. 1, the unauthorized construction raised by him on the suit land was demolished on 21.07.1999, but the Plaintiffs have again tresspassed and encroached upon the Government Land. It is therefore claimed that officials of DDA are well within their rights to approach the concerned SHO of the area for providing police aid, so that unauthorized construction may be removed from the Government Land.
Suit No. 118/2014 Gurmeet Singh & Another Vs. DDA Page No. 5 of 17 Accordingly, it is prayed that suit of the plaintiff be dismissed as the same is filed without any cause of action.
5. A Replication to the Written Statement of DDA was filed by the plaintiffs in which facts stated in the Written Statement were denied and controverted with. It was claimed that the suit land fell in Khasra no. 2111 of Village Tihar, which was apparent from the sale deed of the properties filed alongwith the plaint. It was claimed that since land of Khasra no. 2111, Village Tihar had not been acquired or placed at the disposal of the DDA, their officials were not entitled to take any action in regard of the same. With regard to the earlier suit filed by the plaintiff no. 1, it was averred that a demarcation was attempted by the field staff of DDA, who were satisfied after the measurements that the suit property fell in Khasra no. 2111 of Village Tihar and not in Khasra no. 721 of Village Narayana and accordingly, they had promised not to take action against the plaintiffs. It is claimed that relying upon the said assurance of the officials of DDA, the plaintiff no. 1 had allowed the earlier suit to be dismissed in default. It was denied that this suit was barred by Principles of ResJudicata and accordingly, it was prayed that the relief prayed for in the plaint be granted.
6. On the basis of pleadings of the parties, following issues were framed for adjudication in the suit on 25.04.2005.
1. Whether the plaintiff is owner in possession of property measuring 116 square yards bearing no. 114B, MS Block, Hari Nagar, developed on the Suit No. 118/2014 Gurmeet Singh & Another Vs. DDA Page No. 6 of 17 land of Village Tihar? OPP
2. Whether the suit is bad for want of notice u/s. 53B of DD Act? OPD
3. Whether the suit land falls in khasra no. 721 min of Village Naraina and khasra no. 2096 of village Tihar which is placed at the disposal of the DDA? OPD
4. Whether the suit is barred u/s. 11 CPC ? OPD
5. Whether the plaintiff is entitled for decree of relief of Permanent Injunction as prayed for ? OPP
6. Relief.
7. In their evidence, plaintiffs examined one Shri Surinder Kumar, Patwari as PW1. This witness relied upon the following documents; Copy of the demarcation report; Ex. PW1/1, Copy of site plan; Ex. PW1/2 and a copy of possession report of award No. 1867; Ex. PW1/3. Plaintiff examined one Shri Laxmi Chand as PW2. This witness relied upon the following documents; Demarcation report, Ex. PW1/1, Part of Award File, Ex. PW1/2, Kabza Karwahi, Ex. PW1/3. Plaintiff Shri Gurmeet Singh has tendered his affidavit as Ex. PW3/A. He also relied upon the following documents; Certified copy of Sale Deed dated 04.05.1990, Ex. PW3/1, Copy of sale deed of plaintiff no. 2 dated 14.02.1995, Ex. PW3/2, Site Plan as Ex. PW3/3, copy of power connection, MCD license to run factory, Sales Tax Number etc. as Ex. PW3/4 to Ex. PW3/7. One Sh. Gulshan Sharma, Inspector MCD was examined as PW4 and another Inspector from MCD namely Shri Ashok Suit No. 118/2014 Gurmeet Singh & Another Vs. DDA Page No. 7 of 17 Kumar was examined as PW5. This witness relied upon the following documents; copy of license granted to M/s. Allied Engineering Co, Ex. PW5/1. Plaintiffs examined one Shri Ravinder Kumar, Zonal Inspector, MCD Property Tax Department as PW6. This witness relied upon the following documents; original receipt dated 14.11.2008, Ex. PW6/1 and another receipt bearing no. 181014, Ex. PW6/2. Plaintiffs examined Shri Sanjeev Nijhawan as PW7. This witness relied upon the following documents; Factory Registration Application, Ex. PW7/1 and Order of approval , Ex. PW7/2. Plaintiff has examined Sh. Suresh Mehta as PW8 who vide his affidavit Ex. PW8/A reiterated the contents of the plaint. He relied upon the following documents; Copy of Sale deed, Ex. PW8/1, Copy of General Power of Attorney as Ex. PW8/1A and Copy of license to run a factory by the MCD is Ex. PW8/2 and on the documents marked as Mark A i.e. copy of Central Sales Tax Registration and copy of Sales Tax Registration Certificates Mark B.
8. DDA examined one Sh. Jaipal Singh, Kanoongo, West Zone, Land Management, DDA as defence witness. This witness has tendered his affidavit Ex.DW1/X and relied upon the following documents: Copy of Award no. 1414 and possession proceedings dated 24.11.1962, Ex. DW1/1 and Ex. DW1/2 respectively, copy of notification dated 13.06.1993 as Ex. DW1/3, Copy of Award no. 1750 and possession proceedings dated 03.01.1996 as Ex. DW1/4 and Ex. DW1/5 respectively, copy of notification dated 30.11.1965 as Ex. DW1/6, Copy of award no.
Suit No. 118/2014 Gurmeet Singh & Another Vs. DDA Page No. 8 of 17 1867 as Ex. DW1/7, copy of notification dated 16.02.1972 as Ex. PW1/8, Copy of aks sijra as Ex. DW1/9, Copy of demolition diary dated 21.07.1999 as Ex. DW1/10 and Copy of complaints dated 09.08.99 and 02.09.99 as Ex. DW1/11 and Ex. DW1/12.
9. Final arguments were heard by this court.
10. I have considered the rival contentions raised by both the sides and have perused the judicial records. My issue wise findings are as follows:
ISSUE NOS. 1, 3 AND 511. Issue nos. 1, 3, and 5 can be disposed off by way of a common finding. Hence, the issues are being taken up together for disposal. 11 (1) The present suit for grant of relief of permanent injunction had been filed in respect of property bearing no. 114B, MS Block, Hari Nagar, New Delhi, which was claimed to be built on a piece of land measuring 116 square yards on the land of Village Tihar, Delhi. It was claimed that the land was originally owned by one Sh. Rajinder Gopal, who was shown as the owner of the land in the Revenue Records. It was claimed that the plaintiffs had purchased their respective portions (as shown in the site plan), but the plaint was salient as to from whom the plaintiffs had purchased their respective pieces of land. Even though, paragraph no. 2 of the plaint stated that the land, as per the Revenue Records was owned by one Sh. Rajinder Gopal, it was no where stated that the plaintiffs had purchased the property from this person namely Suit No. 118/2014 Gurmeet Singh & Another Vs. DDA Page No. 9 of 17 Shri Rajinder Gopal. Howsoever, reference was made to two registered Sale Deeds dated 04.05.1990 and 14.02.1995 and it was claimed that it was by way of these registered instruments that the plaintiff no. 1 and plaintiff no. 2 had purchased their respective portions. 11 (2) Plaintiff no. 1 entered into the witness box and examined himself as PW3. Plaintiff no. 2 did not examine herself in plaintiff's evidence, but instead, her husband namely Shri Suresh Mehta, was examined as PW8 in plaintiff's evidence. The husband of the plaintiff no. 2 was authorized by plaintiff no. 2 by a General Power of Attorney (Ex. PW8/1A) to depose on her behalf in this case. No reason as to why the plaintiff no. 2 did not enter the witness box was given to the satisfaction of the Court. In fact, the GPA Ex. PW8/1A executed in favour of PW8 did not enlist any reason as to why the plaintiff no. 2 could not appear before the court for deposing in evidence. Further, PW8 admitted during his crossexamination that his wife (Plaintiff no. 2) was hail and hearty. In circumstances of the case, plaintiff no. 2 could not justify her absence from the Court proceedings.
11 (3) PW3 Shri Gurmeet Singh (Plaintiff no. 1) had tendered his evidence by way of affidavit Ex. PW3/A and had relied upon few documents in favour of his case. It is germane to mention that the original of the Registered Sale Deed dated 04.05.1990, by which the Plaintiff no. 1 claimed to have purchased his portion of property was not produced before the Court in the examination of this witness or during the Course of Suit No. 118/2014 Gurmeet Singh & Another Vs. DDA Page No. 10 of 17 the whole of plaintiff evidence. Only a certified copy of the sale deed was filed and relied upon by PW3, but the same was not proved by calling a witness from the Registrar's Office, where the same was purportedly registered. During the course of his crossexamination, PW3 admitted that he had not filed the original of the Sale Deed dated 04.05.1990, as he claimed that he had lost the same. It was observed that this sale deed dated 04.05.1990 (Ex. PW3/1) mentioned the description of property as 114B, 58 square yards of khasra no. 2111, MS Block, Hari Nagar. The Ld. Predecessor of this Court, vide disposing off the interim injunction application of the plaintiff had observed that plaintiff had no where stated in the plaint that his property fell within khasra no. 2111 of Village Tihar and that he ought to have mentioned the same in plaint also, and not in the replication only. However, during crossexamination, the plaintiff no. 1 (PW3) stated the property bearing no. 114B, Hari Nagar, fell in khasra no. 2096 of Village Tihar. Witness further stated that a demarcation was carried out which revealed that the property fell within khasra no. 2096. However, the witness admitted that he had no documents which could show that he was owner of any piece of land falling in khasra no. 2096. It was admitted by the witness that the site plan (Ex. PW3/2), relied upon by him did not mention the khasra number of the property on the same. It was observed that the testimony of plaintiff no. 1 (PW3) was in contradiction to the documents relied upon by him in his evidence. Further, it was also observed that it was the case of the defendants since Suit No. 118/2014 Gurmeet Singh & Another Vs. DDA Page No. 11 of 17 the very beginning that the property occupied by the plaintiffs fell within khasra no. 721 min of Village Narayana and 2096 of Village Tihar, which had already been acquired by LAC and thereafter, placed at the disposal of DDA vide relevant notification issued u/s. 22 (1) of DD Act, 1957. Hence, it was the testimony of the plaintiff no. 1 himself which lend credence to the case of the defendants. Even otherwise, the original of the Sale Deed dated 04.05.1990 was never produced before the Court and steps were not taken by the plaintiff to call for the records from the Office of the Registrar in order to prove the copy filed before this Court. The sale deed dated 04.05.1990 was executed in favour of plaintiff no. 1 by one Shri Desh Raj, S/o Shri P. L. Katyal. A copy of a Sale Deed dated 27.04.1972 purportedly executed by Shri Rajinder Gopal in the name of Shri Desh Raj in respect of a property no. 114B, 116 square yards, MS Block, Hari Nagar, Village Tihar was filed but the copy was an unsigned copy. Even otherwise, the same was not relied upon in the evidence of plaintiff, neither was the original of the sale deed ever filed on record. Hence, the entire chain of title documents existing in favour of Shri Desh Raj, from whom, the plaintiff no. 1 purportedly derived his title were not filed and therefore, it could not be said that plaintiff no. 1 had led any reliable piece of evidence to prove that he was owner of the property bearing no. 114B, khasra no. 211, 58 square yards, MS Block, Hari Nagar, Village Tihar. Various other witnesses were examined by the plaintiff no. 1 such as witnesses from the Property Tax Department of Suit No. 118/2014 Gurmeet Singh & Another Vs. DDA Page No. 12 of 17 MCD to show that he was in possession of the property since long and was running commercial activities thereat. However, all the official witnesses from the office of MCD admitted that the licenses or the application forms or the records in respect of the licenses granted to the plaintiff no. 1 did not bear the khasra number of the property. PW5 admitted in his crossexamination that his department was not concerned with the title of the property and were not carrying out any inquires to determine as to who was the owner of the property, before any license was granted to them. Even otherwise, it is a known fact that such licenses, property tax receipts, house tax bills, water and electricity bills etc are not reliable pieces of evidence in order to prove the valid title of any person to a property. Same is the case herein.
11 (4) It has already been observed that Plaintiff no. 2 chose to deprive the Court of her testimony, which would have proved fruitful to her case. Nonetheless, her husband Sh. Suresh Mehta had examined himself as PW8 in plaintiff's evidence. During his crossexamination, this witness stated that he did not know the khasra in which his property fell. He stated that he knew that the property in dispute fell in Village Tihar , but he could not say if the property fell in Khasra no. 721 min of Village Narayana and Khasra no. 2096 of Village Tihar. This witness also admitted that he did not possess any document which could show the khasra number of his property in dispute. The original Sale Deed of portion of the property of plaintiff no. 2 Smt. Neelam Mehta was also not Suit No. 118/2014 Gurmeet Singh & Another Vs. DDA Page No. 13 of 17 filed. This Sale Deed was executed by one Shri Mohinder Pal, S/o Shri Baldev in favour of the plaintiff no. 2 on 14.02.1995 for property falling in Khasra no. 2111 of Village Tihar. No documents showing title of the property in the name of the above said Mohinder Pal were filed by the Plaintiffs. Even though, PW8 had claimed that he was in possession of the entire chain of documents showing that Mahender Pal was entitled to sell away the property to the Plaintiff no. 2, the said documents could not see the light of the day. Even this witness had relied upon a factory license issued by the MCD, authorizing the plaintiff no. 2 to run a factory at the said premises. The witness admitted that this license did not mention the khasra number of the property. Accordingly, even the plaintiff no. 2 could not prove that she was the legal lawful owner of 58 square yards of property bearing no. 114B, MS Block, Hari Nagar, Delhi. 11 (5) The plaintiffs had relied upon a demarcation report, given by PW2 Shri Laxmi Chand, Kanoongo, which was proved as document Ex. PW1/1. PW2 had stated in his examination that the property demarcated by him bearing no. 114B, MS Block, Hari Nagar fell in khasra no. 2096 of Village Tihar. However, he had gone on to add in his examination that the property in dispute fell on the awarded land of khasra no. 2096, whose possession had not been taken by the LAC till date. In his cross examination, this witness admitted that by looking at the Aks Sizra of khasra no. 2096, he could not tell as to which portion of land was acquired and which was not acquired. Further in his crossexamination the witness Suit No. 118/2014 Gurmeet Singh & Another Vs. DDA Page No. 14 of 17 had admitted that he could not tell whether the disputed land fell in the acquired land or in the unacquired land. Above all this, plaintiffs could not be allowed to rely on this demarcation report as the same did not substantiate their case that the property fell in khasra no. 2111 of village Tihar.
11 (6) On the other hand, defendants had emerged successful in showing to the Court that the property of the plaintiffs fell in a part of khasra no. 2096 of Village Tihar. The acquisition proceedings of khasra no. 2096 of Village Tihar were proved by way of documents Ex. DW1/5 to Ex. DW1/9. During the crossexamination of DW1, a suggestion was put to the witness stating that the disputed land fell in the unacquired portion of land of khasra no. 2096. This suggestion was denied by DW1. It was observed that a new case was being set up in the evidence of DW 1 by suggesting that the property of the plaintiffs fell within unacquired piece of land out of the khasra no. 2096, village Tihar, when infact, since the very beginning, this was never the case of the plaintiff. In fact, in the replication and as per the documents relied upon by the plaintiff, it was tried to prove that the property fell within khasra no. 2111 of Village Tihar. It appeared that the plaintiffs were trying to mislead the Court in order to make out a false cause of action in their favour. Nonetheless, the defendants emerged successful in proving their defence. 11 (7) Hence, in view of the foregoing discussion, it is held that the plaintiffs have failed to prove that they are entitled to the relief of Suit No. 118/2014 Gurmeet Singh & Another Vs. DDA Page No. 15 of 17 permanent injunction as prayed for in the plaint. All the three issues are accordingly decided in favour of the defendants and against the plaintiffs.
ISSUE NO. 212. A preliminary objection to the suit of the plaintiff was raised by DDA on the ground that the mandatory notice u/s 53 B of DD Act was not served upon them before filing of the present suit. During cross examination, plaintiff no. 1 (PW3) had admitted that they had not served DDA with any notice before filing of the present suit. It was the case of the plaintiffs that the officials of DDA had visited the property on 08.07.1999 and had given threats that they would carry out demolition on the structures built there upon. It was claimed that the purpose of the suit would have been defeated, if the plaintiff would have waited to serve the defendant with mandatory notice u/s. 80 of CPC read with Sec. 53B of DD Act. The above said allegations of the plaintiffs as contained in para 4 of their plaint were not denied in the corresponding paragraphs of the written statement. In fact, DDA had maintained that the plaintiffs had carried out unauthorized construction upon the suit property, for which local aid from the police was sought by them. Accordingly, in view of the admission made in the written statement filed by DDA, it appeared that the apprehension of the plaintiff was just. Hence, plaintiffs are given the benefit of Sec. 53B of DD Act. Service of notice u/s. 53 B of DD Act was not mandatory in the facts and circumstances of this case. Issue is accordingly decided against the defendant.
Suit No. 118/2014 Gurmeet Singh & Another Vs. DDA Page No. 16 of 17 ISSUE NO. 4
13. Onus to prove the issue that suit of the plaintiff was barred u/s. 11 of the CPC was placed upon the defendant as a preliminary objection in this regard was taken in their written statement. It was claimed that plaintiff had filed an earlier suit in respect of the same piece of land against DDA in the Court of Civil Judge, Delhi, but the said suit was dismissed. It was claimed by defendants that the issue in controversey in the present suit was agitated in the said earlier Civil suit and hence, by operation of the priniciple of the resjudicata, the plaintiff was prohibited from reagitating the issue here again. The plaintiff No. 1 had not denied that he had filed an earlier suit with regard to the same piece of land, but it was claimed by him that the said suit was dismissed in default after an assurance that the rights of the plaintiff would not be violated, were given to him by the officials of DDA, outside the Court. It was never the case of DDA that the earlier suit filed by the plaintiff was dismissed on merits after a judgment was pronounced in the said case. Even otherwise, defendant had not taken any steps to summon the record of the said Civil Case to show to the Court that issues involved in both the matters were identical. The onus which was placed on the shoulders of the defendant were not discharged by them by leading sufficient evidence and hence, the issue is decided against the defendant.
RELIEF
14. In view of my findings on the issues stated above, it is held that Suit No. 118/2014 Gurmeet Singh & Another Vs. DDA Page No. 17 of 17 the plaintiff is not entitled for the relief of permanent injunction as prayed for in the Plaint. Suit of the plaintiffs is accordingly dismissed with costs of Rs. 10,000/ ( to be deposited with DLSA (Funds), West). Decree Sheet be prepared in accordance with the relief granted.
Announced in the Open Court (CHHAVI KAPOOR)
today on 13th of May, 2015 Civil Judge06/West
Tis Hazari Courts, Delhi
This judgment contains 17 pages and all are signed by me.
(CHHAVI KAPOOR)
Civil Judge06/West
Tis Hazari Courts, Delhi
Suit No. 118/2014 Gurmeet Singh & Another Vs. DDA