Delhi High Court
National Building Construction ... vs Suraj Lal Tiwari & Ors on 19 February, 2018
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision 19th February, 2018.
+ CS(OS) 148/2016 & IA No.6376/2016 (u/O XII R-6 CPC)
NATIONAL BUILDING CONSTRUCTION
CORPORATION ..... Plaintiff
Through: Mr. Sanjeev Mahajan, Adv.
Versus
SURAJ LAL TIWARI & ORS ..... Defendants
Through: Mr. Umesh Kumar Choubey, Advs.
for D-1&2.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff has instituted this suit (i) for recovery of possession of
portion of property No.69, Golf Links, New Delhi; (ii) for recovery of
Rs.16,45,000/- towards mesne profits for unauthorised use and occupation
from 1st April, 2013 till the institution of the suit; (iii) for recovery of
pendente lite and future mesne profits @ Rs.47,000/- per month from 1st
March, 2016 till possession; (iv) for mandatory injunction directing the
defendant No.3 New Delhi Municipal Council (NDMC) to remove the
unauthorised construction raised by the defendants No.1&2 on the
property; and, (v) for mandatory injunction directing the defendants
No.1&2 to themselves remove the unauthorised construction as per
demolition order dated 17th March, 2015.
2. It is the case of the plaintiff (a) that the plaintiff is a Government of
India Enterprise under the aegis of Ministry of Urban Development and a
company incorporated under the Companies Act, 1956; (b) that the
plaintiff was allotted plot No.69, Golf Links, New Delhi vide allotment
letter no.L-II-1 (872)/91/296 dated 7th May, 1991 issued by the Land &
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Development Office (L&DO) of Ministry of Urban Development; (c) that
possession of the said plot was handed over to the plaintiff by the L&DO
at the time of allotment; (d) that the plaintiff is in possession of the said
plot of land till now and has constructed a boundary wall thereon; (e) that
the plaintiff had deputed one of its employee i.e. defendant No.1 for
security of the aforesaid plot; (f) that the defendant No.1 superannuated on
31st March, 2013 and was required to remove himself from the property;
(g) that instead, the defendant No.1 along with his wife defendant No.2
Smt. Saroj Bala trespassed into a portion of the said plot, without the
knowledge and permission of the plaintiff and constructed a temporary
jhuggi/hutment/porta cabin thereon; (h) that total area of 490 sq. ft. has
been illegally occupied by the defendants No.1&2; (i) that the plaintiff, on
coming to know of the activities of the defendants No.1&2, engaged a
security agency to secure possession of the plot and to prevent further
unauthorised construction; (j) that the plaintiff also lodged a complaint
with the defendant No.3 NDMC of the unauthorised construction carried
out by the defendants No.1&2; (k) that the defendant No.3 NDMC, after
issuing a show cause notice to the defendants No.1&2, passed a
demolition order dated 17th March, 2015 with respect to unauthorised
construction carried out by the defendants No.1&2; (l) that the defendant
No.2 filed a suit for injunction to restrain the defendant No.3 NDMC from
demolishing the unauthorised construction; in the said suit, the defendant
No.2 admitted that the plaintiff was the owner of property No.69, Golf
Links, New Delhi but claimed that the plaintiff had permitted defendant
No.1 to reside in the property and the defendants No.1&2 should be
provided alternative residence before they are compelled to vacate the
CS(OS) 148/2016 Page 2 of 7
property; (m) that the learned Civil Judge before whom the aforesaid suit
was pending impleaded the plaintiff as defendant in the suit; (n) that the
plaint in the said suit was rejected under Order VII Rule 11 of the Code of
Civil Procedure, 1908 (CPC); (o) that the defendant No.1 served advance
copy of an appeal under Section 247(2) of the NDMC Act, 1994
purportedly preferred before the Appellate Tribunal, Municipal
Corporation of Delhi (ATMCD) against the demolition order; however no
notice from the ATMCD was received; and, (p) that the market rent of the
area of 490 sq. ft. Occupied by the defendants No.1&2 is Rs.47,000/- per
month and the plaintiff is entitled to mesne profits/damages for use and
occupation at the said rate of Rs.16,45,000/- from the date of
superannuation of the defendant No.1 i.e. 1st April, 2013 till the institution
of the suit.
3. The suit came up before this Court first on 28 th March, 2016 when,
while issuing summons of suit and notice of application for interim relief
the defendants No.1&2 were restrained from trespassing into remaining
part of the plot and also directed to appear in person on 22 nd April, 2016.
On 22nd April, 2016, statement of defendants No.1&2 under Order X of
CPC was recorded. The order dated 22nd April, 2016 records that
defendants No.1&2, in their statement deposed (i) that neither of them
have any title to the property; (ii) that their stand was that the property
was an open park / Government land; (iii) that they were denying the
ownership of the plaintiff; (iv) that the defendant No.2, when confronted
with the admission in plaint filed in the injunction suit before the Civil
Judge, of ownership of the plaintiff, stated that the property belonged to
the plaintiff. Since the defendants No.1&2 denied the title of the plaintiff
CS(OS) 148/2016 Page 3 of 7
to the property and the plaintiff along with the plaint had produced a
photocopy of the allotment letter dated 7th May, 1991 issued by L&DO in
respect of the property, vide order dated 22nd April, 2016, the plaintiff was
directed to produce the original title documents and the defendants were
directed to produce a copy of the appeal filed before the ATMCD.
4. The defendants No.1&2 have also filed a joint written statement.
5. The plaintiff has filed an application under Order XII Rule 6 of
CPC.
6. The defendants No.1&2 in their written statement have pleaded (A)
that the plaintiff has claimed possession on the basis of title but has not
placed any title documents in its favour before this Court; (B) that the
defendants No.1&2 are residing within the property for last 26-27 years
continuously, uninterrupted and without any hindrance; (C) "that the
defendant was looking after the plot in question and has been living
therefore last 26/27 years"; (D) admitting that the defendant No.1 retired
on 31st March, 2013; (E) that the defendants No.1&2 had made admission
that the property belonged to the plaintiff, not based on any legal
knowledge; and, (F) "that as the defendants were taking care of the suit
property hence they assumed that the suit property belonged to the
plaintiff however the plaintiff should be put to strict proof regarding the
ownership".
7. Vide order dated 14th September, 2017, the suit was posted before
the Joint Registrar on 2nd November, 2017 to enable the plaintiff to tender
the documents of its ownership and for cross-examination by the
defendants No.1&2. The plaintiff, on 20th November, 2017 before the
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Joint Registrar, has examined its Deputy General Manager (Legal) and
who has proved copy certified by L&DO of the allotment letter of the
property in favour of the plaintiff. The said witness of the plaintiff was
cross-examined by the counsel for the defendants and during the cross-
examination has admitted that till date, there is no lease deed or sale deed
with respect to the plot in favour of the plaintiff and till date the plaintiff
has not constructed any guest house or residence, for which purpose the
plot was allotted to the plaintiff.
8. In the aforesaid state of affairs, I have enquired from the counsel for
the defendants No.1&2, as to what is the defence of the defendants
No.1&2 to the suit insofar as for the relief of recovery of possession. As
far as the aspect of mesne profits is concerned, the Court, even without
ordering any enquiry, can on the basis of judicial notice and the locality to
which the suit pertains, fix a rate thereof.
9. Arguments of the counsel for the defendants No.1&2 are only on
compassionate grounds.
10. Such compassionate ground do not entitle the defendants No.1&2 to
continue in unauthorised occupation of the plaintiff's property.
11. As far as the plea of the defendants No.1&2 and as urged by the
defendant No.2 also appearing in person along with defendant No.1 is
concerned, of there being no registered document of title and merely a
letter of allotment in favour of the plaintiff, I may mention that the Delhi
Development Authority (Disposal of Developed Nazul Land) Rules, 1981
as the subject land is, provide for a title to be created in the allottee of the
land, from the date of allotment on the terms prescribed in the Rules and
CS(OS) 148/2016 Page 5 of 7
contained in the lease to be executed. Valuable right in land thus comes
into existence on date of allotment and which is a title on basis of which
the allottee can institute a suit for recovery of possession. This question is
no longer res integra and reference in this context may be made to K.K.
Birla Academy Vs. DDA MANU/DE/1156/2004, Delhi Development
Authority Vs. Pushpendra Kumar Jain (1994) Supp. (3) SCC 494 and
Delhi Tamil Education Society Vs. Directorate of Education 2012 SCC
Online Del 1767.
12. Moreover, the defendants have admitted ownership of plaintiff and
having come into possession through the plaintiff. It is thus clear that the
plaintiff is the owner of the property.
13. Though the defendant No.2, arguing personally before the Court has
contended that her father was in possession of the property since much
prior to the date of allotment in favour of the plaintiff but the defendants
No.1&2 have not filed a single document of occupation since prior to the
allotment letter in favour of the plaintiff and the said plea is also contrary
to written statement and statement under Order X of CPC.
14. As far as the other reliefs claimed in the plaint are concerned, the
counsel for the plaintiff, on enquiry, states that all dues of the defendant
No.1 have been released by the plaintiff and no pension is payable by the
plaintiff to the defendant No.1. On enquiry, it is further informed that
there is an order of interim stay by the ATMCD qua the demolition order
passed by the defendant No.3 NDMC.
15. Thus, the relief of mandatory injunction, as sought, cannot be
granted.
CS(OS) 148/2016 Page 6 of 7
16. As far as the claim of the plaintiff for mesne profits is concerned,
assessing the same on the lower side, mesne profits are assessed at
Rs.5,000/- per month.
17. A decree is accordingly passed, in favour of the plaintiff and jointly
and severally against the defendants No.1&2,
(a) of recovery of possession of the entire portion of plot No.69,
Golf Links, New Delhi in occupation of the defendants No.1&2 and
as also shown in the site plan filed by the plaintiff along with the
plaint and on which today, for the sake of identification, Ex.C-1 is
put; and, (b) of recovery of mesne profits of Rs.5,000/- per month
with effect from 1st April, 2013 till the date of removal of the
defendants No.1&2 from the property. The plaintiff shall also be
entitled to costs of the suit from the defendants No.1&2.
18. Decree sheet be drawn up.
19. On oral request of the counsel for the plaintiff in terms of Order
XXI Rule 11 of CPC, warrants, (a) of recovery of possession of the entire
portion of plot No.69, Golf Links, New Delhi in occupation of the
defendants No.1&2 and as shown in red colour in the site plan Ex.C-1;
and, (b) of attachment by seizure of all the goods of the defendants
No.1&2 lying at the said site, are also issued.
20. On the plaintiff taking requisite steps, warrants of possession and
attachment be issued returnable on 6th March, 2018.
RAJIV SAHAI ENDLAW, J.
FEBRUARY 19, 2018/bs CS(OS) 148/2016 Page 7 of 7