Delhi District Court
Delhi Development Authority vs ) Sh. Ved Prakash on 16 October, 2021
IN THE COURT OF MS. MEENU KAUSHIK,
SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER,
NORTH-WEST, ROHINI COURTS COMPLEX, DELHI.
RCA NO. 02/18
CNR No: DLNW030009892018
Delhi Development Authority
Through its Vice Chairman,
Vikas Sadan, I.N.A Market,
New Delhi.
...Appellant
VERSUS
1.) Sh. Ved Prakash
S/o Sh. Pyare Lal
R/o A-18/6, Mange Ram Park,
Budh Vihar-II, Delhi.
2.) S.H.O. , P.S. Sultan Puri,
New Delhi.
...Respondents
Appeal presented on : 09.05.2018
Arguments concluded on : 28.09.2021
Appeal decided on : 16.10.2021
FINAL JUDGMENT IN 1st APPEAL.
1. By this judgment, the present appeal U/s. 96 CPC which is filed by original defendant No.1/DDA against the final judgment and decree dated 26.03.2018 passed by Sh. Deepak Vats, Ld. Civil Judge (West)-2, Tis Hazari Courts, Delhi, in original suit titled as "Smt. Indrawati Vs. Delhi Development Authority & Anr." in original civil suit No.608473/16.
RCA No.02/2018 DDA Vs. Ved Prakash & Ors.
Page No..1 of 112. Suit property in question is the built up property bearing No. A- 18/6, measuring 50 sq yds., forming part of Khasra No.48/4, situated at Mange Ram Park, Budh Vihar, Phase-II, in the area of Village Pooth Kalan, Delhi.
3. By judgment and decree dated 26.03.2018, Ld. Civil Court was pleased to allow the suit of the plaintiff/respondent No.1. By the impugned judgment, the appellant/defendant/DDA was restrained from causing any further damage to the suit property and also from dispossessing the plaintiff/ respondent No.1 from suit property without due process of law.
4. In nutshell, it is stated in the appeal by the appellant/DDA that Ld. Trial Court has wrongly observed that the appellant took a 'U' Turn in its amended WS and claimed that suit property lies in Khasra No.47/2 and the same was encroached upon by the respondent no.1 and has not explained as to on which date the alleged re-encroachment was done by the respondent no.1. That Ld. Trial Court has wrongly observed that it is inconceivable that within the said two months the respondent no.1 again encroached upon the suit property and raised construction over it and appellant did not take any prompt action to prevent the respondent no.1 from re-encroaching the suit property. Ld. Trial Court has wrongly observed that initial onus lied upon the plaintiff to prove that suit property lies in Khasra No.48/4 has been discharged and the onus lies upon the appellant to disprove that the suit property lies in Khasra No.48/4 and to prove that same lies in Khasra No.47/2 and no demarcation report has been filed on behalf of the DDA to show that suit property lies in Khasra No.47/2. Ld. Trial Court has wrongly observed that demolition report Ex. DW1/5 does RCA No.02/2018 DDA Vs. Ved Prakash & Ors.
Page No..2 of 11not anywhere show as to in which Khasra number the said demolition was carried out and appellant has failed to prove demolition report dated 18.09.2006 pertains to the suit property and the respondent no.1 has been successful in proving on the scale of preponderance of probabilities that the suit property lies in Khasra No.48/4 and not in 47/2. Ld. Trial Court has wrongly decided the issue no.1 & 2 by way of common findings against the appellant and in favour of the respondent no.1. Ld. Trial Court has wrongly decided the issue no.4 in favour of the respondent no.1 and against the appellant with the observation that the respondent no.1 has been able to show that he has been in settled possession of the suit property. Ld. Trial Court has failed to appreciate that the respondent no.1 has not filed any documentary evidence to show that disputed land falls in Khasra No.48/4. Ld. Trial Court has committed error by relying upon unregistered and unproved title documents filed by the respondent regarding possession and Khasra number which are hit by Section 49 of Registration Act. Ld. Trial Court has failed to appreciate that the respondent has not placed on record the relevant documents to show his possession over the suit property. Ld. Trial Court has failed to appreciate that the documents filed by the respondent no.1 are contrary to Section 3 & 4 of Delhi Land (Restrictions on Transfer) Act, 1972. Ld. Trial Court has failed to appreciate that even the title documents do not bear signature of the respondent no.1 and he has not summoned any witness to prove the same. Ld. Trial Court has shifted onus upon the appellant regarding demarcation report that disputed land lies in Khasra No.47/2 which is against the principle of law. Ld. Trial Court grossly erred in observing that the acquisition proceedings in respect of land of Khasra No.48/4 are not complete as Award RCA No.02/2018 DDA Vs. Ved Prakash & Ors.
Page No..3 of 11No.20/85-86 is still in existence. Ld. Trial Court has failed to appreciate that the site plan filed by the respondent no.1 is vague and not proved by him. Ld. Trial Court has not whispered even a single word regarding admissions and cross examination of PW-1/respondent no.1. Ld. Trial Court has committed error by relying upon the original written statement and ignoring the amended written statement of the appellant.
5. Reply filed only by respondent no.1/original plaintiff to the present appeal. In nutshell the respondent No.1 denied the allegations made in the appeal and stated that Trial Court has rightly decreed the suit in favour of plaintiff/respondent no.1.
6. It may be noted that respondent No.2/SHO, PS Sulatan Puri did not file any reply to the present appeal nor contested the same.
7. I have heard both the sides and gone through the material available on record. Further, I have also gone through the trail court record, including the evidence and impugned judgment and decree in question dated 26.03.2018.
8. It is held by Ld. Trial court that in this suit for injunction, evidence adduced on behalf of plaintiff clearly reveals that he is in settled and lawful possession of the suit property. The claim of the appellant herein/ defendant is that plaintiff in the suit property is merely an encroacher as the suit property lies in khasra no. 47/2 which has already been acquired by DDA pursuant to award no. 20/85-86 and Notification no. 10(15)/78-L&B dated 10.04.1986. Contrary to this, stand of the plaintiff is that her property lies in khasra no. 48//4 RCA No.02/2018 DDA Vs. Ved Prakash & Ors.
Page No..4 of 11and the same has not been acquired by the defendant and hence, injunction against the defendant should be passed with respect to the suit property. In this regard it is also observed by Ld. Trial Court that PW-1 proved that he has purchased the suit property from one Premwati vide GPA Ex. PW1/2(OSR), Deed of Will Ex. PW1/3 and Receipt Ex. PW1/4 on 06.09.2001. On perusal of these documents it appears that such GPA was registered with the Sub-Registrar on 06.09.2001. The claim of the plaintiff is that his property lies in khasra no. 48/4 and the same is not in possession of the DDA. As per the DDA, the said khasra no. 48/4 was also acquired by the Government vide the same award in the year 1985, however, the possession of the same was not handed over to DDA by LAC/ L & B.
9. But at this stage it may be noted, as also submitted by appellant, that in order to prove his ownership the plaintiff has relied upon certain 'customary documents' of sale and purchase Ex. PW 1 /1 (OSR). On bare perusal of the GPA , Will and Receipt, all dated 06.09.2001, it is clear that so called ownership documents filed by the plaintiff cannot be read into evidence, as on bare reading of the same it is clear that the same does not satisfy the requirement Section 35 of Stamp Duty Act, as proper stamp fees is not paid on the same. A stamp Duty of Rs. 50/- is paid on agreement to sell, although the sale consideration amount mentioned therein is Rs. 30,000/-.
10. It may also be noted that in case a Power of Attorney holder is given right to sell etc., as in present case, the stamp duty payable is same as on a conveyance deed.
RCA No.02/2018 DDA Vs. Ved Prakash & Ors.
Page No..5 of 1111. In fact, it is a basic law that any immovable property above the value of Rs. 100/-is to be compulsory registered as per the provision of Registration Act. Further, as the value of property, as per the documents of plaintiff herself is Rs. 30,000/-, therefore, it is clear that the stamp duty paid thereof is insufficient. Thus, the same cannot be read in evidence at all even for collateral purpose. It is a question of law and in fact it was the duty of Trial Court to ensure that such evidence / customary document claimed to be titled documents are legally admissible in evidence at all or not. Reliance is placed upon Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana, decided by Hon'ble Supreme Court of India on 11.10.2011.
12. Further, it is not proved on record whether Ms. Premwati, the executor of the GPA in favour of plaintiff is still alive or not. Further, the plaintiff has failed to prove the complete chain of documents including how come such seller Sh. Ranbir Singh (who alleged to have sold the suit property to one Sh. Narender Dev Bharadwaj and the said Sh. Narender Dev Bharadwaj sold it to Ms. Premwati) is the owner and, therefore, had right to sale the same. No cogent evidence is adduced by the plaintiff to prove that he is the owner of the suit property and the same lies in khasra no. 48/4.
13. On the other hand, it is proved that Khasra No.47/4 where the suit property is claimed to be situated by the plaintiff is already acquired by the Government vide award no 20/85-86 in the year 1985. Further, as per appellant/ defendant the suit property is situated in khasra no. 47/2 and the same has already been acquired by DDA. Therefore, if it believed that the suit property is situated in khasra no.
RCA No.02/2018 DDA Vs. Ved Prakash & Ors.
Page No..6 of 1147/2 then there cannot be any injunction against the true owner, which is alleged to be DDA. Even if it is considered that the suit property is situated in khasra no. 48/4, even then also the said land is acquired by the government and defendant has placed on record Mark A, the copy of Award passed with respect to properties including khasra no. 47/2 as well as 48/4. It is clearly mentioned in the award that "from the date of taking over possession of the land, the land will absolutely vest in the government free from all encumbrances." Appellant/DDA has also relied upon Hoshiar Singh & Ors. v. DDA, decided by Hon'ble High Court of Delhi, on 22.01.2014 wherein it was held that in a situation where the land is already acquired, the suit itself is not maintainable because land acquisition proceedings are completed with respect to the acquisition and after communication of award the government is entitled to take possession of the land covered under the award. No evidence is led by the plaintiff to prove that khasra no. 48//4 is not acquired by the Government. As per appellant the khasra no. 47/2 as well as 48/4 were acquired in the year 1985. As per the documents of the plaintiff, he purchased the suit property in the year 1989. As per the award no. 20/85-86 the khasra numbers which are acquired by the government, the government has become the owner of the said lands. Thus, the same could not be transferred by way of execution of customary documents between private persons. No explanation is given by the plaintiff as to why the complete chain of documents is not placed on record by her to prove her ownership qua the suit property. In absence of complete chain of documents, the ownership of the plaintiff over the suit property cannot be established. It is also not established from the documents of the plaintiff that the suit property lies in khasra no. 48/4 only and it does not lie in khasra RCA No.02/2018 DDA Vs. Ved Prakash & Ors.
Page No..7 of 11no. 47/2. Plaintiff has not placed on record any document besides the incomplete chain of customary documents towards purchase of suit property to show that the suit property lies in khasra no. 48/4. Plaintiff has not been able to prove its ownership in the suit property as well as the fact that the suit property lies in khasra no. 48/4 only. Plaintiff has also not lead any cogent evidence to show that she is in possession of the suit property which allegedly lies in khasra no. 48/4.
14. On the other hand, appellant/ defendant has challenged the ownership of the plaintiff qua the suit property as well as the fact that the suit property lies in khasra no. 48/4. As per the defendant, the suit property lies in khasra no. 47/2 and both the khasra nos. 47/2 as well as 48//4 have been acquired in the year 1985.
15. Further, it is settled law that the relief of permanent injunction is an equitable relief and the person claiming it must come with clean hands. The documents of ownership placed on record by the plaintiff with respect to the suit property cannot be considered in evidence for the above mentioned reasons. No other cogent evidence is adduced by the plaintiff to prove its ownership of the suit property and to show that the suit property lies in khasra no. 48/4 instead of khasra no. 47/2. Here reliance is placed upon Union of India & Ors. v. Vasavi Cooperative Housing Society, decided by Hon'ble Supreme Court of India on 07.01.2014, which is also relied upon by appellant, wherein it was held that court should examine the soundness of plaintiff's case and the plaintiff has to succeed only on the strength of his case and not on the weakness of the case set up by the defendants in a suit for declaration of tile and possession. In fact in the landmark judgment of RCA No.02/2018 DDA Vs. Ved Prakash & Ors.
Page No..8 of 11Anathula Sudhakar v. P. Buchi Reddy (Dead) By LRs & Ors [(2008) 4 SCC 594], which is also relied by the appellant/ DDA, it was held the general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. It was held that where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. But it was further held that where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, as in present case, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. It was further held by Hon'ble Supreme Court that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property.
16. Appellant/DDA in present case is seriously challenging the title of the plaintiff and instead claiming that it is the DDA, who is the owner of the land where suit property is situated, on the basis of Land RCA No.02/2018 DDA Vs. Ved Prakash & Ors.
Page No..9 of 11Acquisition Proceedings proved by its witness DW-1. Under these circumstances the basis of evidence on record including the acquisition proceeding is held that the title of plaintiff is under a cloud. As such, necessarily the plaintiff will have to file a suit for declaration and injunction. On the other hand, where the plaintiff has clear title supported by documents, which is not the case of the respondent as held above, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. But it is not the case at present.
17. In fact, in present suit, the appellant/ defendant/ DDA, in their WS already disclosed the details of the right or title claimed by it, which raises a serious dispute or cloud over plaintiff's title, therefore, then there was the need for the plaintiff/ respondent, to amend the plaint and convert the suit into one for declaration. Alternatively, they might have withdrawn the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. But original plaintiff/ respondent failed to take any such action. As such, it is held that when DDA is asserting its title/ ownership over the suit property or at least claiming the government to be its owner (even if it is considered that property lies khasra no. 48/4), therefore, it was required on the part of plaintiff/ respondent no.1 to seek relief of declaration also as there is cloud over their alleged title/ownership over the suit property in question. But despite that he failed to claim so and, thus, simplicitor suit for injunction is not maintainable.
18. For these reasons, this court is of the considered view that there RCA No.02/2018 DDA Vs. Ved Prakash & Ors.
Page No..10 of 11is ground to interfere with the impugned final judgment and decree . This appeal is found not to be devoid of merits. The impugned final judgment and decree dated 26.03.2018 passed by Sh. Deepak Vats, Ld. Civil Judge (West)-2, Tis Hazari Courts, Delhi, in original suit titled as "Ved Prakash Vs. Delhi Development Authority & Anr." in original civil suit No.608473/16 is hereby set aside and present appeal by Appellant/DDA/original Defendant No-1 is allowed.
19. In the given facts & circumstances of this case, parties are left to bear their own costs qua this appeal. Decree sheet be prepared accordingly. A certified copy of this judgment, along with certified copy of decree of this court, be attached with the Ld. Trial Court Record (in short TCR) to be returned back to the Ld. Trial Court forthwith as per rules against due receipt.
20. The appeal file be consigned to Record Room as per rules, after Digitally signed necessary compliance. MEENU by MEENU KAUSHIK KAUSHIK Date: 2021.10.16 17:16:04 +0530 Announced in the open court (Meenu Kaushik) on 16.10.2021 SCJ/RC, North West District Rohini Courts, Delhi RCA No.02/2018 DDA Vs. Ved Prakash & Ors.
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