Delhi District Court
Sh. Jagdish Prasad vs Delhi Development Authority on 11 March, 2013
Suit No. 185/2009
IN THE COURT OF MS. RICHA GUSAIN SOLANKI
CIVIL JUDGE (WEST): TIS HAZARI COURTS: DELHI
SUIT NO. 185/2009
Sh. Jagdish Prasad
S/o Late Sh. Jai Gopal
R/o D250, Village Peera Garhi,
New Delhi.
.......PLAINTIFF
VERSUS
Delhi Development Authority
through its Vice Chairman,
Vikas Sadan, INA, New Delhi.
........DEFENDANT
DATE OF INSTITUTION : 14.01.2004
DATE OF RESERVATION : 28.02.2013
DATE OF DECISION : 11.03.2013
JUDGMENT: This is a suit for Permanent Injunction. The brief facts as averred in the plaint are as follows:
1. It is the case of the plaintiff that he is the owner of the built up property bearing municipal no D250 situated in lal dora of Village Peera Garhi (hereinafter referred to as 'suit property'). It is his case that the suit property was earlier used as a gher but later plaintiff raised a pacca structure over the same. It is stated that the suit property has been assessed to house tax after urbanization of the village. It is stated that Sh. Jagdish Parshad vs. DDA 1/18 Suit No. 185/2009 the plaintiff has also obtained electricity and telephone connection at the suit property. It is the case of plaintiff that he installed a dharamkanta at the suit property after taking permission from the Government of NCT and started earning his livelihood from the said dharamkanta and from storing goods in his godown.
It is his case that a large piece of vacant land was lying adjoining the suit property and at the request of the villagers the same has been surrounded by a boundary wall by DDA. It is his case that he has been using the suit property peacefully and without interruption but all of sudden on 12.01.2004 officials of defendant visited his dharamkanta and started taking measurements and making inquiries on the spot. It is his case that he was asked by the officials of defendant to remove the dharamkanta and vacate the suit property otherwise they would take possession of the suit property after demolishing the same.
2. Hence the plaintiff has filed the present suit seeking the relief of permanent injunction thereby seeking the relief thereby restraining the defendant/DDA, its employees, associates, etc from interfering in the possession of the plaintiff over the suit property and from demolishing the suit property or any part thereof.
3. In the written statement filed by the defendant/ DDA, it is stated that the suit of plaintiff is not maintainable for want of notice under Section 53B of Sh. Jagdish Parshad vs. DDA 2/18 Suit No. 185/2009 Delhi Development Act, 1957. It is stated that the suit has become infructuous since unauthorized encroachment of the plaintiff has already been demolished on 16.01.2004. It is further stated that the suit property forms part of khasra no. 487 of Village Peera Garhi. The revenue estate of Peera Garhi, on its urbanization has been transferred to DDA vide notification dated 05.10.1989. It is further stated that there was a pond in khasra no. 487 which was got filled up by the DDA and boundary wall constructed around it in pursuance of directions of the Hon'ble High Court in a writ petition. The plaintiff had encroached upon the government land forming part of the pond and was running a dharamkanta. The unauthorized structures raised upon the land of pond were demolished on 16.01.2004 with the help of local police and at present the suit property is in the possession of the defendant not of the plaintiff.
4. The plaintiff has filed replication to the written statement of defendant wherein the plaintiff denied the averments made by the defendant in its written statement and reiterated and reaffirmed the contents of the plaint. It is further stated that the suit property was demolished after filing of the suit on 16.01.2004 without serving any prior notice to the plaintiff. It is also stated that the area under the pond has already been covered with a boundary wall by the defendant. Plaintiff has also given details of the Sh. Jagdish Parshad vs. DDA 3/18 Suit No. 185/2009 demarcation process that was done in pursuance of the orders of Hon'ble Delhi High Court.
5. From the pleadings of the parties, following issues were framed by my Ld. Predecessor on 22.11.2004:
1. Whether the suit is not maintainable for want of notice U/S 53B DD Act? OPD.
2. Whether the suit has become infructuous in view of preliminary objection no. 3 in WS of DDA? OPD.
3. Whether the suit land is Government land transferred to DDA? OPD.
4. Whether the Plaintiff is entitled for relief of permanent injunction as prayed for? OPP.
5. Relief.
6. Plaintiff has examined eleven witnesses in his support. PW1, Sh. Rajiv Kumar, Patwari, entered the witness box on 02.02.2005 with the summoned record and filed copy of the masavi which is Ex. PW1/A. He stated that khasra no 487 Village Peeragarhi was in lal dora. He further stated that there is a boundary wall and some malba lying in the suit property and that there is also a temporary structure.
In his crossexamination, he stated that the suit property is bound by road in the east side, gali on west side, DDA boundary wall on north side and cremation ground on south side.
7. PW2, Sh Raj Kishore, Telephone Exchange, entered the witness box on 02.02.2005 with the summoned record. He stated that phone no.
Sh. Jagdish Parshad vs. DDA 4/18 Suit No. 185/2009 25289314 was installed at suit property. He relied on Ex PW2/1 which is the copy of bill and Ex PW2/2 which is the copy of the summoned record, i.e. record register.
8. PW3, Head Constable Om Prakash, Police Station Paschim Vihar, entered the witness box on 03.02.2005 with the summoned record, i.e. complaint and filed copy of same as Ex PW3/A.
9. PW4, Sh. Jai Prakash, Patwari, DDA, entered the witness box on 19.02.2005 with the summoned record and filed Ex PW4/A which is the copy of report dated 14.10.2003, Ex PW4/B which is the copy of sizra, Ex PW4/C which is the copy of the demarcation plan and Ex PW4/D which is the copy of notice dated 23.02.2004. He identified his signatures in the documents.
10.PW5, Sh. Satbir Sharma, LDC, MCD, entered the witness box on 19.02.2005 with the summoned record and identified Ex PW5/A to be correct. He stated that the suit property was being assessed to house tax since 01.04.1988 In his crossexamination, he filed copy of survey report as Ex PW5/D1.
11.PW6 Sh. Shyam Sunder, Tehsildar, entered the witness box on 19.02.2005 and identified his signatures on Ex PW4/A. In his crossexamination, he admitted that khasra no 487 was Sh. Jagdish Parshad vs. DDA 5/18 Suit No. 185/2009 in abadi area and that Village Peeragarhi was urbanized upon which the government land was put at disposal of DDA.
12.PW7, Sh. A. K. Bhalla, Dy. Director, DDA, entered the witness box on 19.02.2005 and identified his signatures on Ex PW4/A. He relied upon survey report Ex. PW6/A and identified the signatures of Sh Jagdish Prasad in the report.
In his crossexamination, he stated that as on the day of his examination, the suit property is bound in north by DDA boundary wall, in South by cremation ground having a boundary wall, in west by road (gali) and in east by road.
13.PW8, plaintiff himself, entered the witness box on 19.02.2005 and tendered his affidavit Ex PW8/A in evidence which states the same facts as are stated in the plaint and replication. He relied on photographs exhibited by PW11 . He also relied on lal dora certificate Ex PW1/2. He further relied on Ex PW8/4 which is the house tax receipt, Ex PW8/6 which is the electricity bill and Ex PW8/7 which is the water bill. He relied on site plan Ex PW8/1.
In his crossexamination, he admitted that suit property falls in khasra no. 487 of Village Peeragarhi. He denied that there was a talab in khasra no 487 over the suit property which was filled up by DDA in pursuance of directions of Hon'ble Delhi High Court. He stated that the Sh. Jagdish Parshad vs. DDA 6/18 Suit No. 185/2009 suit property is bound in one side by road, one side by cremation ground, one side by DDA boundary wall and property of Sh Anil Narula on the last side. He stated that the survey of talaab was done in his presence and he has also put his signatures.
14. PW9, Sh. Raja Babu, Ex. SDM, Punjabi Bagh, entered the witness box on 05.03.2005 and stated that letter Ex. PW8/A appears to have been issued by previous Tehsildar but he had not brought the file containing the same.
15.PW10, Sh. G. K. Ahuja, Supdt. Engineer, DDA entered the witness box on 05.03.2005 and stated that copy of letter dated 03.10.2003 Ex. PW10/A, letter Ex. PW10/B, letter dated 07.10.2003 is Ex. PW10/C and letter Ex. PW10/D was issued by DDA.
16. PW11, Sh. Dinesh, entered the witness box on 05.03.2005 and deposed that he was a professional photographer and had taken photographs Ex PW11/1 to Ex PW11/8 of the suit property on instructions of plaintiff on 12.01.2004 and photographs Ex PW11/9 to Ex PW11/12 of the suit property on 16.01.2004.
17.Defendant has examined five witnesses to support its case. DW1, Sh. Jai Prakash, Patwari, DDA entered the witness box on 07.05.2005 and filed his affidavit Ex. DW1/A which states the same facts as are stated in the written statement. He relied upon Ex. DW1/1 which is the notification Sh. Jagdish Parshad vs. DDA 7/18 Suit No. 185/2009 no. F.9(4)89/L&B dated 05.10.1989. Ex. DW1/2 is the copy of demolition diary dated 16.01.2004. Ex. DW1/3 is the copy of letter dated 16.01.2004 to the SHO and Ex. DW1/4 is the copy of aks sizra of village Peera Garhi.
In his crossexamination, he admitted that the suit property was lying outside the boundary wall constructed by DDA. He admitted document Ex PW4/C and Ex PW6/A. He stated that only vacant land was placed at the disposal of DDA. He stated that at the time of preparation of report Ex PW6/A, the dharamkanta and factory of the plaintiff was in existence in the south side. He further stated that the factory of Sh Anil Narula was also in existence at that time.
18.DW2, Sh. Bhoop Singh, Tehsildar, DDA, entered the witness box on 07.05.2005 and filed his affidavit Ex. DW2/A which states the same facts as are stated in the written statement.
In his crossexamination, he admitted that only vacant land was placed at the disposal of DDA.
19.DWR1, Sh. Ram Tirath, Patwari, entered the witness box on 23.07.2009 with the summoned record and filed copies of the same as Ex. DWR1/1 to Ex. DWR1/6. Copy of aks sizra for the year 1873 is Ex. DWR1/1, copy of khasra paimaish for the year 1880 is Ex. DWR1/2, copy of wazibulurg of the year 190809 is Ex. DWR1/3, copy of jamabandi for Sh. Jagdish Parshad vs. DDA 8/18 Suit No. 185/2009 the year 190809 in respect of khasra no. 387 is Ex. DWR1/4, copy of massavi for the year 190809 is Ex. DWR1/5 and copy of massavi for the year 195455 is Ex. DWR1/6.
In his crossexamination, he tendered complete copy of aks sizra as Ex. DWR1/P1.
20.DWR2, Sh. Neelam Sudhir, Patwari entered the witness box on 07.08.2010 with the summoned record and filed copy of khatauni for the year 198586 of village Peeragarhi which is Ex. DWR2/A. In his crossexamination, he stated that the abadi deh area in khasra no 487 is 124 bighas and 7 biswa.
21.DWR3, Sh. Dalip Kumar, UDC, Department of Publication, entered the witness box on 13.09.2010 with the summoned record and filed copy of the same as Ex DWR3/1.
22.In rebuttal evidence, two more witnesses entered the witness box in support of plaintiff's case. PW1, Sh. Yograj Tyagi, entered the witness box on 05.12.2011 and filed his affidavit Ex PW1/X in evidence which states that there was a gher of the plaintiff over the suit property about 35 to 40 years back. It further states that the suit property is bound in the east side by road, in west by property of Sh. Anil Narula, in north by DDA boundary wall and in south by cremation ground.
In his crossexamination, he could not admit or deny if plaintiff Sh. Jagdish Parshad vs. DDA 9/18 Suit No. 185/2009 has trespassed on pond land and encroached on government land. He stated that the property of plaintiff was north of cremation ground.
23. PW2, Sh. Parkash, entered the witness box on 05.12.2011 and filed his affidavit Ex PW1/Y in evidence which states that he has been in Village Peeragarhi since his birth and has seen the plaintiff in use and occupation of the suit property since his childhood. It also states that the dharamkanta of the plaintiff was earlier used as gher. He states that the suit property is the private property of the plaintiff. It further states that the suit property is bound in the east side by road, in west by property of Sh. Anil Narula, in north by DDA boundary wall and in south by cremation ground.
In his crossexamination, he stated that he had seen the pond in village and a boundary wall was constructed around it. He said that plots of Sh Anil Narula and plaintiff are situated between the cremation ground and pond.
24. I have heard both the parties and have perused the record.
25. Issue no. 1 : Whether the suit is not maintainable for want of notice U/S 53B DD Act? OPD.
The onus of proving this issue was on the defendant. No evidence has been led to show that the present suit for injunction is bad for want of notice under Section 53B Delhi Development Act and does Sh. Jagdish Parshad vs. DDA 10/18 Suit No. 185/2009 not fall within the exception provided in Section 53B Delhi Development Act.
Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
26. Issue no. 2 : Whether the suit has become infructuous in view of preliminary objection no.3 in WS of DDA? OPD.
The onus of proving this issue was on the defendant. It is the admitted case of parties that demolition has been carried out on 16.01.2004. It is the case of plaintiff that he is still in possession of the suit property even though the structures thereon have been demolished. PW1 also stated that there is a boundary wall and some malba lying in the suit property and that there is also a temporary structure. The cross examination of the plaintiff's witnesses did not yield any fruitful result on this issue in the favour of defendant. Moreover, photographs Ex PW11/9 to Ex PW11/12 of the suit property taken after the demolition have not been objected to or denied by the defendant. These photographs show that the malba of demolished portion is still lying on the suit property and plaintiff is shown with a temporary shed, table and chair over the same. On the contrary a suggestion was put by defendant to the plaintiff as PW8 that he is in unauthorized possession of the suit property.
In the present suit, plaintiff is seeking the relief of permanent Sh. Jagdish Parshad vs. DDA 11/18 Suit No. 185/2009 injunction thereby restraining the defendant/DDA, its employees, associates, etc from interfering in the possession of the plaintiff over the suit property and from demolishing the suit property or any part thereof. Though the suit property has been demolished but since plaintiff continues to be in possession, it cannot be said that his suit has become infructuous.
Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
27. Issue no. 3: Whether the suit land is Government land transferred to DDA? OPD.
The onus of proving this issue was on the defendant. Ex DWR3/1 shows that the entire revenue estate of village Peeragarhi was urbanized on 23.04.1982. By Ex DW1/1 it is shown that the gaon sabha land in Village Peeragarhi which vested in Central Government by virtue of Section 150(3)(a) Delhi Land Reforms Act was transferred to DDA for its development. It is admitted that the entire khasra no 487 is abadi deh but this khasra comprises of private properties and common land/gaon sabha land. Ex DW1/1 does not mention what parts of khasra no 487 were transferred to government. The moot point is whether the suit property was goan sabha land before the village was urbanized.
Ex DWR1/1 is the aks sizra of Village Peeragarhi for the year Sh. Jagdish Parshad vs. DDA 12/18 Suit No. 185/2009 1873 but the same shows that pond is in khasra no 781. Moreover none has identified the suit property in this aks sizra. The remaining documents are also silent on the point of location of suit property visa vis the pond and are of no help to the defendant.
It is not in dispute that the suit property is situated in khasra no
487. It is the case of defendant that the pond and the cremation ground were adjacent and the suit property is situated over the pond land which was covered completely after the directions of Hon'ble Delhi High Court in a civil writ petition. Ex PW8/A shows that the concerned SDM had written to DDA that the exact dimensions of the pond were not known as it was within abadi deh. Ex PW10/B and Ex PW10/C shows that DDA had directed that the pond land be demarcated. Finding no alternative, the report Ex PW4/A was prepared relying upon statements of some villagers which statement is Ex PW6/A. The survey report Ex PW4/A relied upon by the plaintiff also states that earlier there was a 'seeswala pond' in khasra no 487 of which a portion was filled up and fenced by DDA. Ex PW6/A states that the khasra no 487 is abadi deh and the pond is bound as: North Built up, South Cremation ground, East Ring Road and firni road, West built up. Ld. counsel for plaintiff submits that the government officials have deliberately cut out the word makaan in the report against south direction of pond. I find substance in this contention.
Sh. Jagdish Parshad vs. DDA 13/18 Suit No. 185/2009 Ex PW4/C which is stated to be the demarcation plan prepared by in the same process of demarcation also shows that on the south side of pond there are structures and cremation ground is on the southeast side. The cutting is also not initialed by any official. I therefore agree with the ld. counsel for plaintiff that the words "va makaan" have been later on cut from the report Ex PW6/A and portray a wrong picture of the factual position. Such tampering of official records is a matter of great concern and must be looked into by DDA for initiating appropriate action both against the delinquent official(s) and for correction of the tampered records.
28. Apart from the fact that Ex PW4/A and Ex PW4/C repudiate the stand of DDA that the pond land and cremation ground was abutting, DDA's own affidavit does not support its case. Annexure A to Ex PW4/A is the copy of affidavit of Sh N.N. Puri, Director (LM), DDA which was filed in the Hon'ble Delhi High Court in the civil writ petition. This document has not been denied by the defendant. This affidavit states that DDA was given directions to clean "the pond in dispute" and that it was found by DDA that "the area under reference is a marshy land covered with bushes and swamps" so it has been considered appropriate to fill it up. It is pertinent to note here that this affidavit is of the year 2000 and does not talk about any structures on such pond land. Further DW1 and DW2 Sh. Jagdish Parshad vs. DDA 14/18 Suit No. 185/2009 have both deposed that only the vacant land was transferred to DDA. On the other hand, plaintiff has shown by water bill Ex PW8/7 that he had also obtained water connection which was operative in the suit property in the year 1996. Apart from plaintiff, PW1(in rebuttal) and PW2(in rebuttal) have deposed that the property of the plaintiff is built up for many decades. Their testimony could not challenged on this point. Ex PW5/A also shows that in the year 1988 there was building over the suit property. Even DW1 admitted that at the time of preparation of demarcation of pond, the dharamkanta and factory of the plaintiff was in existence in the south side. Therefore the suit property cannot be mistaken for the pond land.
29. Further it is the admitted case of parties that DDA has filled up the pond and has constructed a wall around it. It is also the admitted case of parties that the suit property is situated outside the wall constructed by DDA. This fact has been admitted in testimonies of plaintiff, PW1, PW7, PW8, PW1(in rebuttal), PW2 (in rebuttal) and even DW1. Therefore there is no question of the suit property being the land of DDA.
The irresistible conclusion thus emerges that the pond land has already been bound by a boundary wall by DDA and therefore suit land is not government land which was transferred to DDA but lies outside such boundary wall.
Sh. Jagdish Parshad vs. DDA 15/18 Suit No. 185/2009 Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
30. Issue No. 4: Whether the Plaintiff is entitled for relief of permanent injunction as prayed for? OPP.
The onus of proving this issue was on the plaintiff. It is established by findings on issue no. 3 that the suit property is in khasra no 487 and it is not DDA land. In other words it did not constitute gaon sabha land before the village Peeragarhi was urbanized. This would imply that the suit land was private property. Since admittedly the entire khasra no 487 is lal dora therefore the ownership is determined only by possession. There are no revenue records being maintained for properties in lal dora area. To establish his possession, plaintiff has relied upon photographs Ex PW 11/9 to Ex PW 11/12 to show that even after the demolition, he is still in possession of the suit property. Even a suggestion was put by defendant to the plaintiff as PW8 that he is in unauthorized possession of the suit property. Apart from the plaintiff, PW10 stated that plaintiff in possession of suit property. PW1(in rebuttal) Sh. Yograj Tyagi stated that he has seen the suit property under the possession of plaintiff for 3540 years. PW2 (in rebuttal) Sh. Parkash also stated that he has seen plaintiff is in possession of the suit property since his childhood. Furthermore even defendant had admitted plaintiff's Sh. Jagdish Parshad vs. DDA 16/18 Suit No. 185/2009 possession over the suit property at least till the date of demolition on 16.01.2004 and when pond land was being demarcated.
It is therefore, established beyond doubt that the suit property being within lal dora and under the possession of the plaintiff is his private property.
31. One point of controversy in the present suit is that the lal dora certificate Ex PW1/2 mentions different directions. This document mentions that the suit property is bound in north by cremation ground, in south by Sh. Diwan's property, in west by vacant land and in east by road. Ld Counsel for plaintiff has conceded that the directions mentioned in the certificate Ex PW1/2 are opposite.
However the exact position can be easily ascertained from the testimonies of witnesses. Plaintiff himself deposed that the suit property is bound in north by DDA wall, cremation ground on south, road in east and galli in west. His site plan Ex PW8/1 also shows the same location. PW7 who is Deputy Director, DDA and who was present when the pond was being demarcated has stated that the suit property is bound by DDA wall on the north, cremation ground on south, road in east and galli in west. Similarly, PW1 also stated the same that is, DDA wall on the north, cremation ground on south, road in east and galli in west. PW 1(in rebuttal) and PW2 (in rebuttal) who have seen the suit property have Sh. Jagdish Parshad vs. DDA 17/18 Suit No. 185/2009 also deposed that the suit property is surrounded by DDA wall on the north side, cremation ground on the south, road in east and Sh. Anil Narula's property in west. Even DW1 has stated that the suit property is south of DDA wall. Thus it emerges that the suit property is surrounded as: North DDA wall, South cremation ground, East road and West Plot of Sh Anil Narula.
Accordingly, this issue is decided in favour of the plaintiff and against the defendant. Plaintiff is entitled to relief of permanent injunction and defendant is restrained from interfering into the peaceful use, occupation and possession of the suit property.
32. Relief :
In view of the aforesaid discussions, the suit of the plaintiff is decreed. Plaintiff is entitled to relief of permanent injunction and defendant is restrained from interfering in the peaceful use, occupation and possession of the suit property. Costs of the suit awarded in favour of the plaintiff and against the defendants. Decree sheet be prepared accordingly. File be consigned to record room.
Pronounced in the open court
today on 11.03.2013 (Richa Gusain Solanki)
Civil Judge (West)
THC, Delhi/ 11.03.2013
Sh. Jagdish Parshad vs. DDA 18/18