Delhi District Court
Sh. Arvind Kumar Raizada vs Delhi Development Authority on 24 December, 2018
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IN THE COURT OF SH. DEEPAK VATS, CIVIL JUDGE, DELHI
(WEST)2
SUIT NO.8350/16
Sh. Arvind Kumar Raizada
S/o Sh. Asha Ram Raizada
R/o Flat No.7, TMarket,
Srinivaspuri, New Delhi
..........................PLAINTIFF
VERSUS
Delhi Development Authority
Service to be effected through its
Vice Chairman, INA, Vikas Sadan,
New Delhi
.....................DEFENDANT
Suit filed on - 25/11/2004
Judgment Reserved on - 14/12/2018
Date of decision - 24/12/2018
SUIT FOR PERMANENT INJUNCTION
JUDGMENT: By this judgment I shall dispose of a suit for permanent injunction filed by the plaintiff against the defendant. Before adjudicating upon the issues framed in the present suit, I feel it necessary to dwell upon the plethora of pleadings in the present suit.
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Pleadings of the plaintiff :
1. The brief facts of the case as per the plaint are that the premises measuring 204 sq. mtrs. which falls under the Khasra No.131 of the area called Kilokari situated in Srinivaspuri and is addressed as S3, Srinivaspuri Extension (Old NO.C3/2, Srinivaspuri Extension) New Delhi (hereinafter referred to as suit property) was purchased by Sh. Asha Ram Raizada I.e. the Late father of plaintiff from one Sh Jangir Singh S/o of Sh. Bhola Singh, after which he had raised boundary and constructed four rooms alongwith WC, etc. It is further the case of plaintiff that during the life time of Late Sh. Asha Ram Raizada, MCD and DDA disturbed the peaceful living of deceased father of plaintiff and planned to demolish the existing structure of the suit property for construction of a service road as a result of which a suit No.249/1988 for permanent injunction was filed by the deceased father of plaintiff against them.
It is averred that the said suit was withdrawn qua MCD, however, the defendant/DDA continued with the suit and filed the WS claiming that the suit property belongs to it as the same falls in Khara No.130 of Village Kilokri which stands acquired. It is further averred that a Local Commissioner (LC) was appointed in that suit to find out as to whether the land in question falls in Khara No.131/3 or it falls under Khasra No.130 of Village Kilokri and accordingly a report was filed by the LC as per which the suit property was stated to be falling under Khasra No.131 and not under 130 of Village Kilokari.
It is further the case of the plaintiff that during the life time of Sh. Asha Ram Raizada, DDA demolished the partwall, bathroom and WC of the suit property claiming it to be falling under Khasra No.130, Village Kilokari and thereafter, there was no threat from DDA or any other statutory agency to the property of the plaintiff. It is further averred that on 27/08/2004 the plaintiff made a statement and withdrew the said suit No.249/1988 on assurance of the Suit No.8350/16 Page2/14 3 officials of defendant/DDA that they have no intention to disturb the peaceful possession of the suit property of the plaintiff.
It is further the case of plaintiff that on 02/11/2004 the officials of defendant/DDA came at the site and started checking the same with a view to demolish its existing structure and to take forceful possession of the same and also gave threat to come with police force. It is averred that the said act of the defendant is illegal and liable to be restrained permanently by way of decree. Hence, the present suit has been filed seeking decree of permanent injunction thereby restraining the defendant permanently from taking any action of demolition of the suit property which falls in Khasra No.131 of the area called Kilokari situated in Srinivaspuri and is addressed as S38, Srinivaspuri Extension (Old NO.C3/2, Srinivaspuri Extension) New Delhi.
Pleadings of defendant :-
2. Subsequently, WS was filed on behalf of defendant wherein certain preliminary objections were taken, namely, that the suit is not maintainable for want of notice U/S 53B of DD Act, 1957 which is mandatory before filing a suit against the answering defendant. It is contended that the suit has not been valued properly for the purpose of court fees and jurisdiction. It is further contended that the earlier suit bearing No.249/1988 titled as Asha Ram Raizada V/s DDA pertaining to the same property was dismissed as withdrawn on 28/07/2004 and, therefore, the present suit is not maintainable and liable to be dismissed.
In reply on merits the defendant has denied all the averments made in the plaint as false and frivolous. It is contended that the suit property falls in Khasra No. 130/2 min Village Kilokri which is owned by DDA and plaintiff has encroached upon DDA's land and thus it has been prayed that the suit be dismissed with costs.
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3. Replication has also been filed on behalf of plaintiff to the WS of defendant wherein the averments made in the WS were denied and those made in the plaint were reiterated and reaffirmed.
4. From the pleadings of the parties the following issues were framed on 24/08/2009 :
1. Whether the plaintiff has no locus standi to file the present suit?
OPD
2. Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP
3. Relief.
5. In order to prove his case plaintiff got examined three witnesses. The plaintiff examined himself as PW1 and led his evidence by way of affidavit which is Ext. PW1/X. Some documents were also exhibited by PW1 which are as under : Two agreements to sell, GPA, Affidavit, two electricity bill receipts and one property tax receipt are exhibited as Ext. PW1/1 to PW1/7 respectively. The Fard of the property is Ext. PW1/8. The site plan is marked as MarkA. The notices and correspondence exchanged between the deceased Sh. Asha Ram Raizada and the defendant are Ext. PW1/10 to PW1/18. The report of Local Commissioner is marked as MarkB. PW1 was also crossexamined by the counsel for defendant.
Sh. Rajesh Sharma, Patwari from Office of SDM, Defence Colony, District South East was got examined as PW2 and he deposed that he has brought the Khasra Girdwari of Khasra No.131 of Village Kilokari, Tehsil Defence Colony, District SouthEast of year Khareef 2012 to Rabi2016 and Suit No.8350/16 Page4/14 5 placed on record the copy of Khasra Girdwari of Khasra No.131/3 which is exhibited as Ext. PW2/1 (OSR).
In his crossexamination, PW2 deposed that as per record, "Sh. Prahlad etc." are the owner of all the parts of Khasra No.131 which has been divided into nine parts. He further deposed that the Khasra No.130/2 measuring 15 Bigha and 17 Biswa stands in the name of Government.
Sh. Devi Ram, Office Kanoongo, SDM Office, Mehrauli, Delhi was got examined as PW3 and he deposed that he has brought the Khasra Girdwari of Khasra No.131 of Village Kilokari for the year 198892 and 19921996. He deposed that Khasra No.131 has been divided in 12 parts and as per record, the Khasra No.131 measuring 5 Biswa stands in the ownership of Sh. Prahlad Singh, etc. and possession is shown in the name of Sh. Asha Ram, S/o Sh. Munshi Ram, T7, Sriniwal Puri since Rabi 1989. The copy of Khasra Girdawari for the year 198892 is placed on record and exhibited Ext. PW3/1(Colly) and the copy of Khasra Girdwari for the year 19921996 is Ext. PW3/2 (Colly).
In his crossexamination, PW3 deposed that it is correct that in the column of ownership in respect of Khasra No.131/3 and its parts, name of Sh. Jangir Singh and Sh. Bhola Singh is not reflected in Ext. PW3/1 and Ext. PW 3/2 and only the name of Prahlad and others is mentioned. It is further deposed that as per record and Ext. PW3/1 and Ext. PW3/2, Khasra No.130/2 stands in the ownership of Government.
On the other hand defendant got examined two witnesses I.e. Sh. Jagpal Singh, Kanoongo, LM, SouthEast Zone, DDA, Vikas Sadan, Delhi as DW1 who led his evidence by way of affidavit Ext. DW1/A wherein he reiterated the averments made in the WS. DW1 relied upon the documents which were already exhibited as Ext. DW2/1 to Ext. DW2/3 and has also exhibited the notification dt.13/06/1963 as Ext. DW1/3 (OSR). DW1 was also crossexamined by the counsel for plaintiff.
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Sh. Ashwani Kumar, Patwari LA Branch, DM Office, Old Gargi College, Lajpat Nagar, New Delhi was got examined as DW2 and he deposed that he has brought the original award bearing No.1152, Village Kilokari, the copy of which is exhibited as Ext. DW2/1 (OSR). This witness also placed on record the copy of possession proceedings of Village Kilokari and the English translation of the same exhibited as Ext. DW2/2 and DW2/2A (OSR) respectively. DW2 also placed on record the copy of Sijra which is exhibited as Ext. DW2/3 (OSR).
6. The arguments have been heard and the record has been carefully perused. Now, I shall give my issuewise findings which are as under : First I shall take up issue no.2 and decide the same
7. ISSUE NO.2 Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP The onus to prove this issue was upon the plaintiff.
As per the plaintiff his father Sh. Asha Ram Raizada was the owner of suit property. The court deems it necessary to look into the title of the father of plaintiff in the suit property. The plaintiff has claimed that his father bought the suit property from one Sh. Jangir Singh, S/o Late Bhola Singh vide agreement to sell Ext. PW1/1 dt.14/04/1979, second agreement to sell Ext. PW1/2 dt.26/02/1980, GPA Ext. PW1/3 and Affidavit Ext. PW1/4 both also dt.26/02/1980. Admittedly all these four documents are not registered. As per Section17(1) of the Registration Act, 1908, any right, title or interest in any immovable property above Rs.100/ can be created only by a registered document. Any unregistered document which purports to create any right, title or interest in any immovable property above Rs.100/ cannot affect the immovable property and cannot be looked into in evidence by virtue of Section49 of the Suit No.8350/16 Page6/14 7 Registration Act. Perusal of document Ext. PW1/2, the second agreement to sell pertaining to the suit property shows that through the same the possession of the suit property was handed over to the father of the plaintiff on making of full and final payment of remaining amount of Rs.5000/ and the father of the plaintiff was made absolute owner of the suit property. Irrespective of the nomenclature of Ext. PW1/2, the same results in creation of right/title in favour of father of plaintiff in the suit property and thus as per the mandate of Section17(1) Registration Act the same should have been registered. Being not registered, the same cannot affect the suit property and the court cannot also look into the same by virtue of Section49 of the Registration Act.
Alternatively, even if it is believed that document Ext. PW1/2 is a document of part performance within the meaning of Section 53A, Transfer of Property Act, 1882 and does not require registration, being a document executed prior to coming into force of Section 17 (1A) of the Registration Act i.e. 2001, it is settled law that a document of part performance under Section 53A of the Transfer of Property Act, is not a document of title and only gives limited right of protection of possession to the transferee.
In the case of "Raheja Universal Limited vs NRC Limited, (Civil Appeal 1920 of 2012, decided on 07/02/12)," Hon'ble Apex Court observed as follows: "47. The provisions of Section 53A of 1882 Act recognize a right of a transferee, where a transferor has given and the transferee has taken possession of the property or any part thereof. Even this provision does not create title of the transferee in the property in question but gives him a very limited right, that too, subject to the satisfaction of the conditions as stated in Section 53A of the Act of 1882 itself. In the case of State of U.P. v. District Judge (supra), this Court, while deliberating upon the rights emerging from Section 53A of the Act of 1882, held as under:
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"... That protection is available as a shield only against the transferor, the proposed vendor, and would disentitle him from disturbing the possession of the proposed transferees who are put in possession pursuant to such an agreement. But that has nothing to do with the ownership of the proposed transferor who remains full owner of the said land till they are legally conveyed by Sale Deed to the proposed transferees."....."
Thus, either ways, the documents placed on record by the plaintiff are insufficient to prove his father's title in the suit property. Moreover, the plaintiff has also not placed on record complete chain of title documents of the suit property to show that the said Sh. Jangir Singh was authorised to sell the suit property to the father of the plaintiff. Plaintiff has examined PW2 and PW3, both revenue officials who placed on record certain Khasra Girdawaries pertaining to the suit property for different periods of time. In these Khasra Girdawaries namely Ext. PW2/1 (OSR) and Ext. PW3/1, in column No.2 which signifies the name of owner, the name mentioned is Prahlad Singh and others. Thus, as per the revenue records owner of suit property was Prahlad Singh and others. Plaintiff has not placed on record any document or any evidence showing the connection of the said Sh. Prahlad with the said Sh. Jangir Singh or his father Sh. Bhola Singh. Thus the link between Prahlad Singh or any of the other recorded owners of the suit property as per the revenue records and the Sh. Jangir Singh or his father has not been established. Plaintiff has admitted this in his crossexamination also that he has no document showing the ownership of seller of suit property to his father. Further, plaintiff has not placed on record any document showing mutation of the suit property in favour of his father or himself. The above discussion makes it amply clear that the plaintiff has failed to prove his father's ownership much less his own in the suit property.
So far as possession of the suit property is concerned, it is not disputed that demolition was carried out in the suit property by DDA. Though, DDA has Suit No.8350/16 Page8/14 9 stated in its WS that the plaintiff has reencroached upon the suit property but the plaintiff has not placed on record any document except Khasra Girdawaries as mentioned above to show his current possession over the suit property. Even the Khasra Girdawaries have the name of father of plaintiff and not the plaintiff himself as possessor of the suit property. The plaintiff has admitted in his cross examination that he is currently not residing in the suit property. In the considered opinion of this court the plaintiff should have filed sufficient evidence to show his current possession over the suit property, more so when suggestions contrary to the same were put to him in his cross examination. The plaintiff should have filed electricity bill, water connection bill, photograph of the suit property or any other document to clearly prove his possession over the same. In his crossexamination, plaintiff has stated that he has employed a Chowkidar/guard for the protection of the suit property. The said Chowkidar has also not been examined by the plaintiff. Thus, the plaintiff has not even sufficiently proved his possession over the suit property.
Another big hurdle which the plaintiff was required to pass was to prove that suit property lies in Khasra No.131, of Village Kilokari, as claimed by him and not in Khasra No.130/2min Village Kilokari, as claimed by defendant/DDA. Defendant/DDA has categorically stated in its WS and maintained its stand that suit property lies in Khasra No.130/2min and not in Khasra No.131. In this eventuality, it was incumbent upon the plaintiff to prove that suit property lies in Khara No.131 as the onus to prove the present issue was upon him. Plaintiff has not got any Local Commissioner appointed in the present case for demarcation of the suit property. He has relied upon demarcation report MarkB which is the copy of demarcation report conducted in suit No.249/1988 filed by the father of plaintiff against DDA seeking similar relief regarding the suit property. In the opinion of this court, the said demarcation report has not been proved in accordance with law. The original of demarcation report has not Suit No.8350/16 Page9/14 10 been placed on record and document MarkB is only a copy of the original. Plaintiff has not even examined the Local Commissioner (LC) who conducted the said demarcation. Thus, DDA did not even get an opportunity to cross examine the author of the demarcation report MarkB and thus this court is of the view that nothing in the said document can be read against DDA. Had the demarcation report been filed pursuant to orders of this court in the present suit and then the LC was not examined by the plaintiff the situation would have been different. However, the demarcation report relied upon by the plaintiff was not ordered by this court in the present case and thus to prove the same the plaintiff should have examined the author of the said report and DDA should have also been afforded one opportunity to crossexamine him. Thus, the demarcation report has not been proved in accordance with law and nothing in the same can be read against DDA.
Moreover, even if it is believed that the demarcation report MarkB has been properly proved by the plaintiff, it records that a part of the suit property falls in Khasra No.130 which belongs to DDA. Thus, it can be said that at least some part of the suit property has been encroached upon by the plaintiff, this is suggestive of the fact that the plaintiff's conduct is not free from blame. Further, in the plaint or the site plan MarkA filed by the plaintiff, it is nowhere disclosed as to which part of the suit property falls in Khasra No.130 which belongs to DDA and not to the plaintiff. Thus, the plaintiff has also not given sufficient details in his case. Both these requirements viz. good conduct and providing all necessary details are necessary for grant of discretionary relief of injunction.
Further, as from the above discussion it is clear that plaintiff has not been able to prove his or his father's ownership over the suit property and also that at the very inception of the suit the plaintiff had the knowledge that the khasra number in which the suit property falls is disputed (Plaintiff withdrew Suit No.8350/16 Page10/14 11 similar suit No.249/1988 filed by his father wherein also DDA claimed that suit property falls in Khasra No.130 and not in 131), the court is of the firm opinion that, the plaintiff should have filed a suit for declaration that he is the owner of the suit property and that suit property falls in Khasra No.131 and not in Khara No.130. Section41(h) of Specific Relief Act reads as under : Injunction when refused - An injunction cannot be granted Section - 41 (h) of Specific Relief Act - when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust.
In the considered opinion of this court the appropriate remedy for the plaintiff was to file a suit for declaration as aforesaid and a simplicitor suit for injunction is not maintainable in view of Section41(h) of Specific Releif Act.
Another fact which casts a shadow of doubt on the case of the plaintiff is that he has stated that suit property measures 204 sq. mts. It is not disputed that in the previous suit as aforesaid the father of plaintiff also claimed relief for 204 sq. Mts. The said suit was dismissed as withdrawn vide order dt.28/07/2004. (The file of suit No.249/1988 was summoned by the Ld. Predecessor of this court vide order dt.22/12/2004, the same is attached with the present suit file and the proceedings in the said suit have not been disputed by the parties). Perusal of order dt.28/07/04, as aforesaid, shows that the plaintiff herein made a statement before the said court that DDA has taken some portion of the suit property for widening of the road and there was no further threat of dispossession and thus the said suit was withdrawn. When it is clearly admitted by the plaintiff that earlier the area of suit property was 204sq. Mts and some portion of it was taken by DDA for widening of service road, this court fails to understand as to how the plaintiff has again filed a suit for 204sq. Mts without again encroaching upon the area which was taken by DDA for widening of road. It clearly shows that either the plaintiff has again encroached upon the said Suit No.8350/16 Page11/14 12 portion or he has not mentioned the correct area of the suit property in the present case, both of which are fatal to the case of the plaintiff.
Further, the plaintiff has himself admitted in his crossexamination that the site plan MarkA filed by him is the same site plan which was filed by his father in suit No,249/1988. Thus, the site plan filed by the plaintiff in the present case does not take into account the alleged encroachment by the plaintiff as per demarcation report MarkB and also the area, possession of which was taken by DDA for widening of the road. Further, plaintiff has also stated in his plaint that DDA demolished part wall bathroom and WC, however, no such details have also been given by the plaintiff in the site plan. Thus the site plan filed by the plaintiff is completely unreliable and it can be said that plaintiff has not identified the suit property properly as mandated by Order7 R.3 CPC. This again gives an inkling that the plaintiff has not disclosed facts clearly in his plaint which is necessary for seeking discretionary relief of injunction.
The court also deems it appropriate to note the conduct of the plaintiff which does not appear to be aboveboard. Perusal of file of suit No.249/1988 and order dt.28/07/2004 where by the said suit was dismissed as withdrawn shows that the father of the plaintiff had total seven LRs including the plaintiff. In the said case an application U/O 22 R.4 CPC detailing the names of all the LRs was also filed by the plaintiff herein. The plaintiff withdrew the said case by his own statement and thereafter filed the present case in his personal capacity. There is no whisper of other LRs of the deceased father of the plaintiff in the present case. Plaintiff has also not shown or proved as to why he alone is entitled to the suit property to the exclusion of other LRs of his deceased father. The plaintiff should have mentioned the details of other LRs of his deceased father and should also have made them a party to the present case. As the plaintiff has not disclosed these details in the present case he cannot be said to have approached the court with clean hands.
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Secondly, in the plaint it is stated by the plaintiff that he withdrew suit No.249/1988 because an assurance was made by the officials of DDA that they have no intention to disturb the peaceful possession of the plaintiff. Same is denied by DDA in its WS. There is no mention of such assurance in the statement of plaintiff dt.28/07/04 or order of court dt.28/07/04 in suit No.249/1988. It also does not seem probable that the officials would give such an assurance on behalf of DDA. Thus the plaintiff withdrew the previous case for reasons best known to himself and filed the present suit seeking same relief. Plaintiff has not sufficiently disclosed the reasons for withdrawal of the previous suit and this also shows concealment of true facts by the plaintiff. Hence, as the conduct of the plaintiff has remained questionable, the court wants to place reliance upon Section 41(i) of Specific Relief Act which reads as under : "Injunction when refused - An injunction cannot be granted Section - 41 (i) of Specific Relief Act - when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court."
Plaintiff has not fulfilled the requirement of Section41(i) of Specific Relief Act and thus he is not entitled for discretionary relief of injunction.
Here, it may be noted that DDA has also not placed on record any demarcation report or any other document to prove that suit property lies in Khasra No. 130/2min Village Kilokari, and not in Khasra no 131, as claimed by DDA. But, it is settled law that that the plaintiff must stand on his own legs and prove his case and cannot take advantage of weak defence.
In the light of the above discussion it is concluded that, the case of the plaintiff is barred by Section 41(h) and 41 (i) of the Specific Relief Act and that the plaintiff has not discharged the onus lay upon him. Accordingly issue no.2 is decided against the plaintiff and in favour of the defendant.
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8. ISSUE NO.1 Whether the plaintiff has no locus standi to file the present suit? OPD The onus to prove these issues was upon the defendant. No evidence has been led by the defendant/DDA to prove the present issue. DDA has also not proved that suit property lies in Khasra No. 130/2 min. Thus, the onus to prove the present issue has not been discharged by DDA.
Accordingly, issue no.1is decided in favour of plaintiff and against the defendant.
9. ISSUE NO.3 RELIEF - In view of the findings given on issues no.1 and 2, documents placed on record, pleadings of the parties and evidence led by the parties, the plaintiff has failed to prove his suit on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiff is dismissed.
Decree sheet be prepared accordingly. File be consigned to record Digitally signed room after completing the necessary formalities. DEEPAK by DEEPAK VATS VATS Date: 2018.12.24 15:21:29 +0530 (DEEPAK VATS) Civil Judge, Delhi (West)02 Announced in the open court on 24/12/2018.
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