Delhi District Court
Sh. Indraj vs Delhi Development Authority on 26 September, 2013
Suit No. 863/2006
IN THE COURT OF MS. RICHA GUSAIN SOLANKI
CIVIL JUDGE(WEST):TIS HAZARI COURTS: DELHI
Suit No. 863/2006
1. Sh. Indraj,
2. Sh. Raj Singh,
3. Sh. Bir Singh,
4. Sh. Braham singh,
5. Sh. Niranjan Singh,
6. Sh. Gajraj Singh,
All sons of Late sh. Har Sarup,
R/o Village Madanpur Khadar,
Delhi.
..............Plaintiffs
Versus
1. Delhi Development Authority,
Through its Vice Chairman,
Vikas Sadan, I.N.A.,
New Delhi110023.
2. Jt. Water 7 Sewage Board,
to be served through
Commissioner, MCD,
Town Hall, Chandni Chowk,
Delhi.
...........Defendant
Date of institution : 28.07.2003
Arguments heard on : 02.09.2013
Date of decision : 26.09.2013
JUDGMENT: This is a suit for permanent injunction. The brief facts as averred Indraj & Ors. Vs. DDA & Ors. 1/ Suit No. 863/2006 in the plaint are as follows:
1. It is the case of the plaintiffs that the land comprised in khasra no. 113 (1016), 146 (87), 176 (710), 180 (31), 305 (25) in all measuring 31 bigha 19 biswa situated in the revenue estate of Kotla Mai Giran (hereinafter referred to as 'suit property') was recorded in the bhumidari of shamlat deh Hasb Hiseen Bismat Thokwar in the khatoni paimaish for the year 195455. The plaintiffs are members of one of the Thoks i.e Thok Maharaja, however, the present suit is stated to have been filed for the benefit of all the members of the Thok. It is stated that the plaintiffs are in actual, physical cultivatory possession of the suit property. The defendant no. 2 was recorded as Asami in suit property as a drain was proposed to be built for cultivation purposes. The drain was however not constructed by the defendant no. 2 and the defendant no. 2 never came in possession on any portion of the suit property. It is stated that defendant no. 2 abandoned the suit property and the same continued to be in actual, physical cultivatory possession of the plaintiffs and other co sharers. It is stated that on account of such abondonment the suit property liable to be vested in the plaintiffs and other members of the Thok as provided under Rule 43 of the Delhi Land Reforms Rules. Defendant no. 2 never raised any objection whatsoever nor they have taken any action to regain possession for the last more than 35 years. It Indraj & Ors. Vs. DDA & Ors. 2/ Suit No. 863/2006 is also stated that plaintiffs have been in open, hostile, continuous and uninterrupted possession and as such the plaintiffs have acquired rights in the land as doctrine of adverse possession.
It is stated that defendant no. 1 who has no right, title or interest of any nature is out to disturb the possession of the plaintiffs. The land in question has neither been acquired under any provisions of Land Acquisition Act nor the same has not been placed at the disposal of defendant no. 1. The officials of DDA came to the suit property on 25.07.2003 and were found demarcating the land. Upon inquiry by plaintiff no. 1 they told that they are demarcating the land as the land belonged to them and they have instructions to take possession of the same after demarcation and that they have further instructions to fence the land. The plaintiff no. 1 made inquiries from the officials regarding acquisition and placement of the land at their disposal but they flatly refused to give the details. The officials of DDA left the spot with an open threat that they would come back again and shall take forcible possession of the suit property.
2. Therefore, plaintiffs have filed the present suit praying that a decree of permanent injunction be passed in favour of the plaintiffs and against the defendant no. 1/DDA their employees, agents and workmen etc restraining them from interfering in the actual physical possession of the Indraj & Ors. Vs. DDA & Ors. 3/ Suit No. 863/2006 plaintiff over the suit property without following the due process of law and they be further restrained from interfering in actual, physical cultivatory possession of the plaintiff.
3. In the written statement filed by defendant no. 1/DDA, it is stated that the statutory notice under Section 53 B Delhi Development Act is mandatory but the same has not been served upon the DDA. It is stated that as per the record maintained by the DDA, khasra no. 113 (1016), 146 (87), 180(301) and 305 (25) is falling in revenue Village Kotla Mahigiram as per the land record maintained by the DDA. Though suit property has not been placed on the disposal of DDA after acquisition but as per the revenue record maintained by revenue department of Delhi Government in L.R form no. 4 and 5, as bhumidhar of the suit property is Makbuja Joint Water and Sewerage Board, Delhi Government. On the basis of these records obtained from the office of Kanungo, Delhi Government, Tis Hazari Tehsil Building, it is stated that plaintiff has no right, title or interest in the suit property. It is stated that plaintiff is not in possession of the suit property. It is further stated that as reported by the concerned site engineer of the DDA, the suit property has been developed for the purpose of sewer line and water supply, and a boundary wall has also been completed thereon for the purpose of protecting government land.
Indraj & Ors. Vs. DDA & Ors. 4/ Suit No. 863/2006
4. In the written statement filed by defendant no. 2, it is stated that the defendant is not involved in the matter because the location of the suit property is mentioned at Village Kotla Maigrain, Madanpur Khadar and the same is not under the jurisdiction of Estate Manager and there is no record of the suit property available with the defendant no. 2. It is stated that a drain was to be constructed over the land in question for which the necessary information from the E.E (Civil). It is stated that defendant no. 2 does not have any record of the khasra no. mentioned in the plaint.
5. The plaintiffs filed replication to the written statement of defendants wherein the plaintiffs reiterated and reaffirmed the contents of the plaint and denied the averments made by the defendants in their written statement.
6. Vide order dated 08.04.2004 following issues were framed :
1. Whether the suit is not maintainable for want of notice under Section 53 B DD Act? OPD1
2. Whether the plaintiff is entitled for relief of mandatory injunction, as prayed ? OPP
3. Relief.
7. In order to prove their case, plaintiffs examined two witnesses. PW1, plaintiff no.1 himself, entered the witness box on 28.04.2009 and tendered his affidavit Ex PW 1/A in evidence which states all the facts Indraj & Ors. Vs. DDA & Ors. 5/ Suit No. 863/2006 that were stated by the plaintiffs in their plaint. He relied on Ex PW 1/1 which is the copy of general power of attorney in favour of plaintiff no.1. Ex. PW1/2 is the copy of khatoni and the copy of jamabandi is Ex. PW1/3.
8. PW2, Sh Omkar Dutt, Patwari, entered the witness box on 10.05.2011 with the summoned record and filed the copy of khatoni as Ex. PW2/1 and copy of LR form 4 as Ex PW2/2.
In his crossexamination, he stated that as per the khatoni the land stands in the name of government and no one has any right, title or interest therein.
9. Defendant no. 1/DDA examined two witnesses in its support. DW1, Sh. Prem Chand, Kanungo, DDA, entered the witness box on 25.04.2012 and tendered his affidavit Ex DW1/X in evidence which states that the suit property is required for development by DDA and therefore DDA has written to Government of NCT of Delhi for transferring the same by way of book transfer. He relied on copies of letters to Government of NCT of Delhi as Ex DW1/1 and Ex DW1/2. Copy of khatoni is Ex. DW1/3.
In his crossexamination, he stated that the land already belonged to government and therefore there was no necessity of its acquisition. He also admitted that the same has not been placed at the disposal of DDA till now.
Indraj & Ors. Vs. DDA & Ors. 6/ Suit No. 863/2006
10. DW2, Sh SA Jamali, Executive Engineer, DDA, entered the witness box on 04.02.2013 and tendered his affidavit Ex DW2/X in evidence which reiterates the contents of the written statement of defendant no.1 and also that the suit property measuring approximately 1400 sq yards is for development of the Sarita Vihar Scheme.
In his crossexamination, he stated that the suit property falls in khasra no 176. He did not know whether the suit property belongs to Union of India or to Delhi Government.
11. Defendant no.2 did not lead any evidence in the present suit.
12. I have heard the parties and have perused the record.
13. Issue wise findings are as under :
Issue No. 1 : Whether the suit is not maintainable for want of notice under Section 53 B DD Act? OPD1 The onus of proving this issue was on the defendant. No evidence has been led to show how the present suit for injunction is not covered under the exemption provided under Section 53 B, Delhi Development Act.
Accordingly, this issue is decided in the favour of plaintiffs and against the defendants.
14. Issue No. 2 : Whether the plaintiff is entitled for relief of mandatory injunction, as prayed ? OPP Indraj & Ors. Vs. DDA & Ors. 7/ Suit No. 863/2006 Inadvertently instead of the word "permanent" the word "mandatory" has been recorded in the issue. This is typographical error. All the parties are fully aware of the prayer clause of the plaint. The onus of proving this issue was on the plaintiff. Plaintiff no.1 claims to be representing the members of Thok Kalu, Thok Maharaj, Thok Chaman, Thok Jaimal and Thok Sukh Chain which are the bhoomidhar of the suit property by virtue of power of attorney Ex PW1/1. Khatoni pamaish of the year 195354 Ex PW1/2 and jamabandi of the year 195051 Ex. PW1/3 show that while defendant no.2 has been recorded as the asami of the suit property, the recorded owner are different Thoks. It is the case of plaintiffs that a drain was proposed to be built over the suit property by defendant no.2 but the same was never constructed and defendant no.2 abandoned the suit property. Defendant no.1 admits that a sewer line had to be developed at the suit property but defendant no.1 claims that defendant no.2 is the bhoomidhar of the suit property. However, to the contrary defendant no.2 admits the case of the plaintiffs and states that it has no record of the suit property and the same is not under its jurisdiction. It is further admitted by defendant no.2 that one drain was to be constructed but the same has not been constructed. As against this stand of defendant no.2, the copy of LR form 4 Ex PW2/2 and khatoni Ex. DW1/3 record that the bhoomidhar of the suit property is defendant Indraj & Ors. Vs. DDA & Ors. 8/ Suit No. 863/2006 no.2 since 195455. However it is to be noted that defendant no.2 has not forward any claim on the suit property and the present suit has been filed claiming relief only against defendant no.1.
15. Admittedly DDA has no jurisdiction over the suit property and the same has not been placed at its disposal. The case of DDA is that land belongs to government but DW2 could not tell whether the suit property belongs to Union of India or to Delhi Government. Defendant no.2 has already denied having any right over the suit property. The letters from DDA to Government of NCT of Delhi Ex DW1/1 and Ex. DW1/2 are beyond pleadings and even otherwise do not establish any right of DDA over the suit property. DW1 also admitted that the suit property has not been placed at the disposal of DDA till now.
16. In a simple suit for injunction, the dispute of title may not be gone into and it is the factum of settled possession that is to be seen. A person in possession is entitled to protection against everyone except the true owner. DW2 has admitted the possession of the plaintiff. Even PW1 was put a suggestion that he was an encroacher over the suit property. He was also suggested that his possession has been disturbed many a times but this is not the case of DDA in the written statement, nor any evidence has been led to show that the possession of the plaintiff was indeed disturbed.
Indraj & Ors. Vs. DDA & Ors. 9/ Suit No. 863/2006
17. Consequently DDA has no right to interfere in the admitted possession of the plaintiff. Defendant no.1, its employees, agents, etc are restrained from interfering in the actual physical possession of the plaintiff over the suit property without following the due process of law and they be further restrained from interfering in actual, physical cultivatory possession of the plaintiff.
Accordingly this issue is decided against the plaintiff and in the favour of the defendant no.1.
18. Issue no. 3 : Relief In view of the aforesaid discussion, suit of the plaintiff is decreed. Defendant no.1, its employees, agents, etc are restrained from interfering in the actual physical possession of the plaintiff over the suit property i.e land comprised in khasra no. 113 (1016), 146 (87), 176 (710), 180 (31), 305 (25) in all measuring 31 bigha 19 biswa situated in the revenue estate of Kotla Mai Giran without following the due process of law and they be further restrained from interfering in actual, physical cultivatory possession of the plaintiff. In view of the facts of the case, parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open
Court on 26.09.2013 at 04:00 PM
(Richa Gusain Solanki)
Indraj & Ors. Vs. DDA & Ors. 10/
Suit No. 863/2006
Civil Judge (West)
THC, Delhi/ 26.09.2013.
Indraj & Ors. Vs. DDA & Ors. 11/