Delhi District Court
Sh. Naresh Chandra S/O Sh. Jagdeshwar ... vs Rehabilitation Ministry Employees on 19 August, 2011
IN THE COURT OF AJAY GOEL: SCJ CUM RC(CENTRAL):DELHI
S1059/06/87(127/99)
Sh. Naresh Chandra s/o Sh. Jagdeshwar Dayal
r/o L1, Green Park Extn., New Delhi16
............ Plaintiff
VERSUS
Rehabilitation Ministry Employees,
Cooperative House Building Society Ltd.,
Jaisalmer House, New Delhi through its
President Sh. Anupam Dhar
............ Defendant
Suit for Declaration & Permanent Injunction
Date of filing: 9.1.87
Date of assignment to this court: 28.1.09
Date of arguments: 3.8.11
Date of decision: 19.8.11
S126/99
Sh. Naresh Chandra s/o Sh. Jagdeshwar Dayal
r/o L1, Green Park Extn., New Delhi16
............... Plaintiff
VERSUS
S-1059/06/87 & S126/99 Page:-1/42
Rehabilitation Ministry Employees,
Cooperative House Building Society Ltd.,
Jaisalmer House, New Delhi through its
President Sh. Anupam Dhar
............ Defendant
Suit for Permanent Injunction
Date of filing: 17.9.86
Date of assignment to this court: 28.1.09
Date of arguments: 3.8.11
Date of decision: 19.8.11
JUDGMENT
1. Vide this common judgment I shall dispose off the two suits bearing no. 1059/06/87(127/99) for declaration and permanent injunction and suit bearing no. 126/99 pertaining to suit for injunction filed by the plaintiff against the defendant. Common facts made out from both the pleadings are mentioned for the sake of brevity as both the suits were consolidated and facts are mainly taken from the pleadings of the suit bearing no. 1059/06. It was stated in the plaint that Sh. Subh Ram s/o Sh. Pyare r/o Village Lado Saria, New Delhi was the owner and in S-1059/06/87 & S126/99 Page:-2/42 possession of the land bearing khasra no. 27(6 bighas and 13 biswas) and 29(8 bighas and 10 biswas) measuring in all 15 bighas and 3 biswas situated in village Hauz Rani, Patti Hamid Sarai, Tehsil Mehrauli, New Delhi. Land comprised in khasra no. 27 min (5 bighas and 13 biswas) and 29(8 bighas and 10 biswas) measuring in all 14 bighas and 3 biswas situated in above said village of Hauz Rani alongwith other land was notified for acquisition vide notification no. F1(172)/48/LSG(ii) dated 13.9.1948 u/s 3 of Resettlement of Displaced Persons Land Acquisition Act, 1948 and a major portion of the land notified under the said notification was acquired vide offer no. 1027A on 9.10.1962 which comprised of land in khasra no. 27 min (5 bighas and 13 biswas) and 29(8 bighas and 10 biswas) measuring in all 14 bighas and 3 biswas. Thereafter land was mutated vide mutation no. 32 in favour of Government and in the column of cultivation the entry was recorded in the name of Ministry of S-1059/06/87 & S126/99 Page:-3/42 Rehabilitation and a 'titamma' was also prepared on the said mutation. The balance land of khasra no. 27/1 measuring 1 bigha was not acquired at all by the Government and the same remained under the ownership and actual physical possession of Sh. Subh Ram who moved an application before Tehsildar, Mehrauli for demarcation of khasra no. 27 and 29 and Tehsildar issued a notice no. 1039/TM/85 dated 30.9.1985 the Secretary of defendant and copy to Dy. Director DDA with request to depute his representative to remain present at Tehsil Mehrauli on the date and time mentioned therein. As stated on 17.2.1986 kanungo visited the spot and effected measurement and demarcation of the land and submitted his report. It was stated that the said Sh. Subh Ram sold the khasra no. 27 min(27/1) measuring 1 bigha situated at village Hauz Rani to the plaintiff vide sale deed dated 4.9.1986 and delivered the actual possession of the said land to him and plaintiff thereafter became the absolute and sole owner in S-1059/06/87 & S126/99 Page:-4/42 possession of the said land/suit land. On 11.9.1986 plaintiff stored considerable building material for the construction of boundary wall around the said land, however Sh. Anupam Dhar, President of defendant society with his associates came to the spot and asked the plaintiff to stop the work. Plaintiff told them the factum of purchase of the suit land by him from Sh. Subh Ram but the President of defendant society threatened the plaintiff that he has got no right to raise any construction and if the construction is raised, the same will be forcibly demolished and possession of the suit land will be taken from the plaintiff. On 12.9.1986 SHO in company of Sh. Anupam Dhar made inquiries from the Tehsildar who also confirmed that Sh. Subh Ram was the owner of the said land and notice of demarcation was given to the Secretary of the defendant before the demarcation proceedings which was concluded on 17.2.1986. Further it was stated that on 12.9.1986 a boundary wall to the height of 6' around the land S-1059/06/87 & S126/99 Page:-5/42 was constructed by plaintiff by leaving two gates on the Northern and Southern side. Plaintiff also fixed steel angels on the said wall and made wire fencing upto the height of 2 feet on the said boundary wall, however defendant through its President and associates again came to the spot and tried to forcibly demolish the wall but did not succeed. Plaintiff applied for mutation of suit land which was mutated in his favour vide mutation no. 2172. Thereafter plaintiff filed a suit for permanent injunction bearing no. 455/86 against the defendant alongwith application u/o 39 Rule 1 and 2 CPC on which status quo was ordered to be maintained vide order dated 17.9.1986. On 15.9.1986 a complaint was sent u/s 145 Cr. PC to the SDM concerned stating that both the parties are putting claims on ownership of the disputed land and considerable amount of tension was prevailing and there was likelihood of breach of peace and SDM vide order dated 17.9.86 ordered that status quo in respect of suit land be maintained S-1059/06/87 & S126/99 Page:-6/42 and no party shall erect any further structures or in any way carry out any act which alienates the title of the party, however on 21.9.86 defendant through its workmen and labourers demolished portion of the boundary wall which was constructed by the plaintiff against which incident FIR was also lodged. Vide order dated 30.9.86 concerned SDM passed an order u/s 146(1) of Cr. PC and ordered attachment of the property till the competent court passes its judgment with regard to its title and possession since there was possibility of breach of peace and since then the land in dispute is under attachment. The SHO, Hauz Khas was also appointed as receiver of the disputed property till further orders and the land in dispute is now in custodia legis. Thereafter appeal was preferred by the plaintiff against the said order and defendant even moved an application u/o 7 Rule 11 CPC for dismissal of the suit no. 455/1986 which application was allowed and said suit was dismissed against S-1059/06/87 & S126/99 Page:-7/42 which order plaintiff preferred the appeal which was also dismissed on 17.1.87. An application was moved u/s 151 CPC for preparation of the decree which was allowed by Ld. Trial Court and it was prepared on 4.2.1987 and appeal was again filed in the court of Ld. Sr. Civil Judge which was decided on 11.1.88 and the order of Ld. Trial Court was set aside and case was restored and case continued. Meanwhile an order dated 4.11.87 was passed by Hon'ble High Court and Sr. Civil Judge was directed to decide the appeal by 15.1.1988 which was decided by Ld. Sr. Civil Judge on 11.1.88 as stated above but Hon'ble High Court also passed the order dated 4.11.87 to the following effect " the Sr. Sub Judge is directed to appoint the SHO Hauz Khas as receiver to take into his possession and to keep the possession of the land in dispute during the pendency of appeal before him. In the event of the appeal/ appellant succeeding the SHO shall continue to be the receiver of the land in question during the pendency of the S-1059/06/87 & S126/99 Page:-8/42 suit before the court of the SubJudge. It shall be opened to either party to approach the court of Sr. Civil Judge in appeal or of the Sub Judge in case of the appeal being allowed for appropriate directions in the matter of going over the land in suit for any particular purposes or some such like matter". It was further averred that Sh. B.P. Maithani, Asstt. Settlement Commissioner, Ministry of Home Affairs had sent a letter no.
9(13)/Survey/CSC/8386 dated 27.2.1986 to the Land Acquisition Collector, Tis Hazari wherein clarification was sought and it was admitted in said letter that the area acquired vide the offer no. 1027A in respect of khasra no. 27 was 5 bighas and 12 biswas only and Land Acquisition Collector, Delhi informed the said Ministry that suit land was not acquired at all. Accordingly instant suit was filed praying that plaintiff be declared absolute owner of the suit land and was in possession of the same untill the time the same was attached vide S-1059/06/87 & S126/99 Page:-9/42 order of Ld. SDM. It was also prayed that decree of declaration be also passed to the effect that after attachment of suit land by SDM same is under the possession of SDM on behalf of plaintiff. Decree of permanent injunction was also prayed in suit no. 126/99 for restraining the defendants and their agents from interfering in the suit land and forcibly dispossessing the plaintiff from the suit land.
2. Written statement was filed on behalf of the defendant wherein preliminary objections were taken to the effect that the suit is barred by time and is liable to be dismissed since the suit relating to the same cause of action had also been dismissed as well as plaintiff is not in possession of the suit land. Suit as stated is liable to be stayed so long as the appeal filed by the plaintiff against the order of dismissal of previous suit is pending. It was stated that the land in question was acquired by the Govt. vide notification no. F.1(172)/48/25G.II dated 13.9.1948 and compensation was offered vide offer no. 1027A dated S-1059/06/87 & S126/99 Page:-10/42 9.11.1962. The said acquisition was not challenged and it became valid in every respect. On 6.5.1970 the Department of Rehabilitation alloted 60 acres of land to the society for the same being developed into a residential colony for its members and society had paid more than 20 lakhs to the department towards the part of cost of allotted land. Possession of 60 acres of land was handed over to the society and allotment was also confirmed by Hon'ble Supreme Court and as a result of the Agreement between the society and Govt. the area was reduced to 45 acres. The agreement was accepted by Hon'ble Supreme Court on 6.5.1982 and society paid an amount of Rs. 1.15 crores to the Govt. towards cost of the land. Sale deed was not issued though possession was delivered. On 10.8.1982 the Govt. of India further allowed licence to the society vide its letter dated 10.8.82 to develop the land and also to survey the land for the purpose of initiating development. Possession of 45 acres of land was handed over which S-1059/06/87 & S126/99 Page:-11/42 included the land of khasra no. 27 to the society vide document dated 20.9.1982. Thereafter society got a lay out plan of the colony approved from the DDA and society engaged M/s C.P. Kukreja and Associates for the purpose of preparing the layout plan and for developing the land and thereafter contract for developing the land i.e. for laying underground water and sewage system were given to M/s R.R. Mallick & Co. who had already completed most of the work. Huge underground water pipes and sewage pipes were laid by the contractor after digging the land in accordance with the service plans approved by the MCD. It is further averred that a road also passes through the land in question which was also completed by the contractor. Even the revenue record of 198586 confirm that the society was in possession of the land for the last many years. It was denied that Subh Ram was the owner or in possession of the suit land and it was stated that the land was in possession of the defendant who S-1059/06/87 & S126/99 Page:-12/42 was wrongly dispossessed by the plaintiff by the use of criminal force on 11/12/13.9.1986 and was also threatened that in case they tried to dispossess him he would destroy them. Complaints dated 11.9.86, 12.9.86 and 13.9.86 were lodged with the police. Rest of the contents were denied. It was accordingly prayed that instant suit be dismissed.
3. Replication was filed in which contents of the plaint were reiterated and those of the written statement were denied. It was mentioned that plaintiff had filed a criminal revision against the order of SDM which was accepted and the order of SDM was set aside vide order dated 25.9.86 of Ld. ASJ Sh. S. C. Jain. It was also contended that an application u/o 39 Rule 1 and 2 CPC was filed in the court of Sr. Civil Judge in appeal and the following order was passed: " Application by the applicant u/s 39 CPC. Notice of the same be sent to the respondent for the date fixed. In the meanwhile the police will keep the property attached as it is with themselves but this time on S-1059/06/87 & S126/99 Page:-13/42 behalf of the court and shall not part with possession to either of the parties untill further orders are received from this court. A copy of this order be sent to SHO, Haus Khaz for necessary action."
4. The previous case bearing suit no. 455/86 (later renumbered as 98/88 and thereafter as 126/99) was continued upto 22.11.01 and it also came before the predecessor of this court. Case no. 126/99 was transferred to the court of D.S. Punia, the then Sub Judge, First Class and later on the cases bearing no. 126/99 and present case which earlier was having case no. 127/99 were consolidated vide order dated 19.2.02 and proceedings were recorded in the present case.
5. On the pleadings of the parties vide order dated 1.7.02 following issues were framed:
1) Whether this court has no jurisdiction to try and entertain the present suit in view of the provisions of Delhi Land Reforms?OPD
2) Whether the suit of the plaintiff is maintainable in the present S-1059/06/87 & S126/99 Page:-14/42 form?OPP
3) Whether the suit has not been properly valued for the purposes of court fee and jurisdiction?OPD
4) Whether the suit of the plaintiff is within limitation?OPP
5) Whether the suit land measuring 1 bigha in khasra no. 27/1 village Hauz Rani, Delhi is not an acquired land?OPP
6)Whether the plaintiff was in possession of the land till 27/10/1986?OPP
7) Whether plaintiff is entitled to the decree of declaration of owner, in respect of the suit land, as prayed for?OPP
8) Whether the plaintiff is entitled to the decree of permanent injunction as prayed for?OPP
9) Relief.
6. Plaintiff in support of his case examined himself as PW1, ASI Moti Singh as PW2, Sh. T.S. Srivastav as PW3, Sh. Vinod Kumar as S-1059/06/87 & S126/99 Page:-15/42 PW4, Sh. Chhattar Pal Singh as Pw5, Sh. Onkar, Patwari as PW6, Sh. J.S. Meena as PW7, Sh. Balkishan as PW8. Defendant on the other hand examined Sh. Anupam Dhar as DW1, Sh. Virender Kumar Singh as DW2, Sh. Jagminder as DW3, Sh. Kali Charan as DW4, Sh. M.K. Soni as DW5, Sh. Shiv Hari as DW6, Sh. Rajender Pal as DW7
7. I have heard Ld. Cl. for both the parties as well as perused the record. My issuewise findings are as under:
8. Issue No. 1 : The onus of proving this issue was on the defendant but it has not been made out as to how the suit is barred under the provisions of Delhi Land Reforms Act. Moreover, the present suit is between the private parties who are litigating on the point as to who is owner in possession of the suit property hence Delhi Land Reforms Act cannot be resorted to. The Cl. for the plaintiff has rightly argued that allegations in the plaint has to be seen S-1059/06/87 & S126/99 Page:-16/42 and cause of action determines the jurisdiction of the court. This is a suit for declaration of the title of the suit on the ground that the plaintiff purchased it from its previous owner and defendant has nothing to do with it whereas revenue court cannot decide the title and only the civil court is competent to decide the subject matter of the dispute. During the course of arguments it was fairly conceded by counsel for defendant that this issue is redundant and be ignored, however otherwise also on above reasoning this issue is decided in favour of plaintiff and against the defendant.
9. Issue No. 3 : Issue No. 3 is taken up first. It has been argued that suit has not been properly valued for the purpose of court fee and jurisdiction and ad volerum court fee should have been paid as per provisions of section 7 (V) of the Court fee Act and plaintiff should have assessed the value of suit land in 1987 and should have filed ad volerum court fee on market value and suit for declaration and S-1059/06/87 & S126/99 Page:-17/42 injunction, simplicitor was not maintainable. It has come in the evidence that area which is suit property is lying vacant and is located in between the other plots of the defendant society. The possession of the suit property was with the court as explained supra. Declaration is sought to the effect that property will be deemed to be attached for and on behalf of the plaintiff as he was in actual possession till it was taken over by Ld. SDM. Registered sale deed was in his favour and the defendant had tried to encroach upon the alleged area of the plaintiff and in these circumstances it is not a suit for possession vide which possession is required to be sought from the defendant and therefore there was no question of payment of advolerum court fees. Accordingly this issue is also decided in favour of the plaintiff and against the defendant.
: These issues are taken up together being 10.Issue No. 2, 5, 6, 7 and 8 interconnected and interdependent. The points in controversy which S-1059/06/87 & S126/99 Page:-18/42 are required to be answered are "whether the suit land was acquired land or not and if it was part of the acquired land, whether it was alloted to the defendant society and if not acquired to whom did it belong and lastly whether it was purchased by the plaintiff, if so its effect." These questions are also to be adjudicated alongwith the question as to who was in possession of the suit land at the time of accrual of cause of action. If all these questions are answered in favour of the plaintiff then only he can be declared as owner of the property and decree of injunction can be passed against defendant. To find out the answers of all these questions posed above one has to see the voluminous documents as well as oral evidence produced by both the parties. During arguments Ld. Cl. for defendant has posed query if there is identification of the suit property or not. As per the Cl. for defendant property has not been described in the plaint and actual location of the property cannot be worked out, hence suit is not S-1059/06/87 & S126/99 Page:-19/42 maintainable u/o 7Rule 3 CPC. It is further argued that land cannot be identified in the entire chunk of the land alloted to the plaintiff and in these circumstances court cannot give the relief for want of identification of the suit property. It has to be kept in mind that whole pleadings coupled with evidence has to be looked into and if the location of the property can be identified then plaintiff cannot be non suited on this point. It has to be seen as to whether there is consensus adidem between the parties regarding the location of the suit property. The details of the property are mentioned in para no. 1 and 2. The prayer clause talks about the property bearing no. 27/1 measuring 1 bighas. In para no. 2 of the plaint it has been mentioned that suit property was part of the whole property detailed in para no. 1 and Shubh Ram was the owner of the same. It was also mentioned that major portion of the same was acquired and some part remained with Shubh Ram and titama was prepared regarding the land which S-1059/06/87 & S126/99 Page:-20/42 was not acquired. In para no. 7 it was mentioned that the sale deed was executed qua this land and possession was handed over. As per para no. 6 of the plaint demarcation of suit property was carried out. It is also pleaded that plaintiff started raising construction on suit property and defendant came on the spot for stopping him. Thus both the parties knew where the land is situated. The subsequent evidence proves that actual piece of land was lying in between property consisting of plot no. B143 and B147. Thereafter Written statement was filed in which plea was taken that society was alloted 60 acres of land and residential colony was developed. Land falling in khasra no. 27 was also part of the same and thereafter the construction work was carried out by defendant. It was mentioned in para no. 4 of the written statement that entire chunk of land was acquired and its measurement if wrongly given due to some omission does not make the portion as unacquired which plea could not be substantiated by the defendant S-1059/06/87 & S126/99 Page:-21/42 because the record produced by the plaintiff clearly shows that authorities have given in writing vide Ex. PW1/8 that this piece of land remained with Subh Ram which was never part of the acquired land as well as no compensation was ever given to anyone including Subh Ram regarding this piece of land. There is no rebuttal to this assertion. The plaintiff in his cross examination has clearly stated that plot no. B 142 existed on the North of the disputed land while B148 existed in South. On West there is stated to be 40 ft. road and main road exists on the Eastern side which is connected to Malviya Nagar road. The plea of defendant is therefore not tenable with respect to identification of the property. It is worthwhile to mention here that an application u/o 7 Rule 11 CPC was filed by the defendant wherein it was mentioned that society has developed the suit land as well as other lands with further averment that the sewer lines and metal roads have been laid by the society beneath the land including the suit S-1059/06/87 & S126/99 Page:-22/42 land. Again it was mentioned that one Hem Chander also claimed the possession of the suit land which only suggest that the defendant knew from the very beginning with respect to the location of disputed land and thus could not have taken the plea that the suit property is not identifiable, hence this plea of defendant is rejected. Defendant has placed reliance upon AIR 1999 Karnatka 421 Ambanna vs Ghanteappa wherein it was observed that " If in suit for partition particulars of the property were not mentioned in the plaint, such suit is liable to rejected." However the said authority is not applicable to the facts of the instant case since as already held the suit property in the present case is identifiable. It is also to be kept in mind that plaintiff has relied upon Ex. PW1/5 i.e. the sale deed executed in his favour whereas the defendant has failed to show any document of ownership or allotment except for the bald assertion that they were given the land as alloted to them after it was acquired but S-1059/06/87 & S126/99 Page:-23/42 whether piece of land talked about by the plaintiff was part and parcel of this acquired land is not at all brought on record. The plaintiff has discharged his initial onus. It is not disputed that whole of the land belonged to Subh Ram. The authorities have mentioned that this land was not acquired, if so, the defendant cannot claim the ownership of the same. Another point raised is that how the boundary walls could not have been raised in a day. In the pleadings the plaintiff has mentioned that he stored building material on 11.9.1986 and started construction and meanwhile defendant came and the dispute arose though the plaintiff has constructed the boundary wall on 12.9.1986 till the time SHO came. Height of boundary wall is stated to be 6 ft. having two gates one on the Northern side and other on Southern side. Steel angles as stated were also fixed which are ordered from outside and are taken on the spot in a prepared state. Other goods and material can be collected in a day by ordering for the same in S-1059/06/87 & S126/99 Page:-24/42 advance and it is not such an unimaginable task to be completed in a day. Moreover even for the sake of arguments if it is presumed that boundary wall was not fully constructed or at the most there was no boundary wall on spot but the fact remains that the prayer sought is for injunction seeking restraint order against the defendant against forcible dispossession and not of possession or of demolishing the construction thereon. Thus it can be presumed that some part of the boundary wall was there and plaintiff wanted to protect it by filing the present suit. The Cl. has further relied upon the report of Local Commissioner and argued that report of Local Commissioner shows that plaintiff wanted to create evidence in his favour when he was not in possession of the suit property and there was no construction over the suit property but it can be gathered from the report of Local Commissioner dated 17.9.86 that wall was in existence. Thus report of Local Commissioner rather supports the case of plaintiff. The S-1059/06/87 & S126/99 Page:-25/42 observation of the Local Commissioner that wall was new also does not go against plaintiff since it was also his own averment. The report of Local Commissioner is within five days of the alleged construction and that can also be termed as new wall. Even otherwise when by other evidence the initial onus has been discharged by the plaintiff the defendant had to show that they were legally entitled to have the suit in dispute in their possession. The other point raised by defendant was regarding the effect of Section 145/146 Cr.PC and it was argued that plaintiff should show his possession within two months preceding the police report which he has failed to do. This plea may be relevant for the purpose of only proceedings u/s 145 and 146 Cr.PC but as per Ex. Pw1/5 the date of purchase was 4.9.1986 prior to which the possession was with Sh. Subh Ram alleged vendor. Possession for two months does not mean that it should be only with the plaintiff but the possession of the predecessor of the plaintiff is S-1059/06/87 & S126/99 Page:-26/42 also to be considered. Moreover, it was also applicable to the defendant on the same reasoning to show that he was in possession of the suit property and was dispossessed. Thus this plea is also not tenable. Another plea raised by defendant is that the suit land should have been 1 bigga and one biswas and not 1 bigha only, since there is variance in the left out area. It was argued that if the area of suit property is calculated it would have been (613) (512) which comes to 1 bigha 1 biswas whereas plaintiff has claimed only 1 bigha without explaining for rest of 1 biswas. It is correct that plaintiff has not claimed 1 biswas but the fact remains that plaintiff has purchased only 1 bigha as per the sale document accordingly this plea of the defendant also does not hold water. Another argument of the defendant is that he had got the lay out plan sanctioned, laid down sewer pipes and drainage etc. which are going beneath the suit land and thus it shows that they are in possession of the suit land. The said S-1059/06/87 & S126/99 Page:-27/42 arguments of defendant is misconceived because first of all the defendant should establish that it had legal right over the suit land. Moreover the defendant is claiming possession over it merely by laying down of the drainage and sewer pipes etc. beneath the land which does not confer posessory rights or ownership upon the defendant. There are various ways of acquiring the land as made out from the statute and the argument of the defendant does not found favour in any of the statute. The civic authorities also lay down the pipelines, wires etc. which can go above the ground or beneath the same but that does not bestow upon them the ownership of those properties. Another argument of the defendant that Shubh Ram should have taken the objection when the land was allotted and notified in the name of the defendant, is also not tenable because the suit land as per record had never been acquired therefore there was no question of filing any objection by Shubh Ram. The defendant has S-1059/06/87 & S126/99 Page:-28/42 also raised objections with respect to mode of proof of these documents which are public documents, however the defendant itself could have called the witnesses for cross examination purposes if the authenticity of documents were to be challenged. The Cl. for defendant has challenged the authenticity of demarcation report but the same also being a public document is admissible in evidence and it was open for defendant to call for the witness concerned for creating dent in the same, if so advised. The defendant could have also moved for demarcation for their area which was allotted to them if this piece of land was part of the acquired land/ alloted land. The legal possession implies the real constructive possession and possession cannot be inferred by way of laying down pipelines etc. and as the land in dispute is lying vacant the possession of open plot will follow the title. Ld. Cl. for the plaintiff has relied upon Sunil Kumar Basu Vs. Dr. Dwinjindra Nath Mitra 1997(supplementary) S-1059/06/87 & S126/99 Page:-29/42 Civil Court Cases 379 wherein it was held that " Suit for permanent injunction is maintainable as the suit land belongs to the plaintiff. Mere fact that the defendant connected pipe lines, sewage pipes, water pipes etc through that land does not mean that the defendant became the owner in possession and also does not give any right to the defendant to claim right over that land and in that case the suit was decreed." It has been further held in Shanti Kumar Panda Vs. Shakuntala Devi, 2004(1) SCC 438 : 2004 AIR SC 115 that "
Where there is dispute over possession of property and Magistrate has attached the property u/s 146(1) Cr.PC, then it is not necessary for the unsuccessful party to seek the relief of possession from the court and a mere adjudication of rights would suffice in as much as the attachment property is held custodia legis by the Magistrate for an on behalf of the party who would be successful from the S-1059/06/87 & S126/99 Page:-30/42 competent court by establishing his right to possession over the property." Further reliance is placed upon AIR 1986 Allahabad High Court page 39 wherein suit for injunction without prayer for possession was not held bad where property was under attachment u/s 145 Cr.PC on the date of the suit. The document Ex. PW1/1, offer no. 1027A, mutation Ex. PW1/2, demarcation report dated 17.2.1986 Ex. Pw1/4, notice of demarcation dated 30.9.1985 Ex. PW1/3 are documents prior to the sale deed and cannot be said to be manipulated because plaintiff was not at all in picture at that time. The other relevant document i.e letter dated 13.11.1986 Ex. Pw1/8, letter dated 27.2.1986 of Assistant Settlement Commissioner Ex. Pw1/9 and khasragirdawari, jamabandi, mutation, akshajra Ex. PW5/1, Ex. PW5/2 and Ex. PW5/3, PW1/10 are proving the case of the plaintiff to which there is no rebuttal by the defendant. No dent could be created in the testimony of plaintiff's witnesses. Hence, in these S-1059/06/87 & S126/99 Page:-31/42 circumstances the suit of the plaintiff is held to be maintainable in the present form.
The suit land measuring 1 bigha in khasra no. 27/1 village Hauz Rani is not an acquired land and plaintiff was in possession of the said land till it was made custodian legis i.e on 30.9.1986 vide Ex. PW1/7. Thus findings on issues no. 2,5 and 6 are in favour of the plaintiff and against the defendant. It is not disputed now from the pleadings as well as from the evidence that the land comprising in khasra no. 27 and 29 Hauz Rani was notified for acquisition vide notification no. F1(172)/48/LSC(ii) dated 13.9.1948 for the public purpose for resettlement of displaced persons from West Pakistan and the same was acquired vide offer no. 1027A Ex. PW1/1 and Ex. PW7/A and thereafter revenue record was created in the name of Ministry of Rehabilitation leaving the suit land consisting of 1 bighas as per Ex. PW1/2 and subsequent events upto sale deed dated 4.9.1986 clearly S-1059/06/87 & S126/99 Page:-32/42 show the ownership/title vesting in the predecessor in interest of plaintiff and then with plaintiff with possession. As observed above the defendant failed to substantiate its claim as well as to create any dent in the claim of the plaintiff. No suit for declaration has been filed by the defendant challenging the records which has come against them on the ground that documents were forged and fabricated. Oral testimony without any basis cannot be allowed to be read against the documentary evidence as per Section 91/92 of Indian Evidence Act . The defendant cannot take any benefit from certain statements of the plaintiff whereby he has shown ignorance regarding the other number of plots and the plot holders because he is concerned with his own land and rightly so. DW1 Anupam Dhar could not tell as to how much land was left unacquired at village Hauz Rani. He admitted that plan was also sanctioned by DDA in the year 198889 and if it was so then the suit was already pending and rule of lis pendis will S-1059/06/87 & S126/99 Page:-33/42 apply. DW1 also stated that construction of the building started in the year 1991, if so again the rule of lis pendis will apply. He also stated that he does not exactly remember the year in which actually the pipes were laid which pertains to sewer, sewerage, back water, rain water and basic amenities. He also stated that he has not verified the revenue record with respect to khasra no. and area of acquisition of land. The demarcation report is public document, ignorance of which cannot be cited as an excuse. As per DW1 there was no sanction plan at the time of laying of the alleged services. Moreover, as per deposition of DW1 layout plan was passed in the year 198889 and construction of the building started in the year 1991 which demolishes the claim of defendant that the sewer line, pipelines were laid down by them earlier and prior to 1986 though at that time they were not authorised to do so as site plans were sanctioned later on. He also admitted that demarcation was done by the department and some S-1059/06/87 & S126/99 Page:-34/42 dispute was also raised but he had no knowledge as to which documents were shown and who was present on behalf of society. Thus, if the defendant wants to ignore the demarcation report produced by the plaintiff on the same ground, the demarcation report Ex. D7 of the defendant is also required to be ignored. Moreover, this demarcation report does not talk about khasra no. 27/1 in whole of the proceedings. The report Ex. Pw1/3 relied upon by the plaintiff was specifically for the demarcation of khasra no. 27 and 29 whereas Ex. D7 was for general demarcation therefore carries no weight in comparison to Ex. PW1/3. It has been held in Jasbir Kaur Vs. Basant Kaur, 1988 CCC 495(Punjab and Haryana) that " if possession of the plaintiff over the suit property is proved by jamabandi, khasragirdawari, sale deed, mutation and there is no record to rebut it, then plaintiff is entitled to the injunction."
Sanctity is attached to the sale deed Ex. Pw1/5 and title is to be S-1059/06/87 & S126/99 Page:-35/42 protected as held in State of U.P. Vs. Amar Singh 1997(2) Apex Court General 717. When title is derived from the sale deed properly stamped and registered then it should be protected. Presumption of correctness is to be attached to the mutation which is relevant piece of evidence supported with sale deed as held in Narain Prasad Aggarwal(D) by LRs Vs. State of M.P. 2007(3) CCC 727 SC. This presumption is rebuttable but the defendant has failed to rebutt the same and the record of rights are the documents of possession which should be given credence. The relief of declaration is continuing one in these circumstances and onus to prove that the sale deed was not validly executed was on the defendant specially in the circumstances when the vendor of the plaintiff as well as the person whose land was acquired and alloted to the defendant was same whereas the dispute is not of genuineness of the sale deed but it is a dispute whether such land existed or not and then whether the vendor was entitled to S-1059/06/87 & S126/99 Page:-36/42 execute the same. Thus, all these observations irresistibly reach to the conclusion that issue no. 7 is to be decided in favour of the plaintiff and against the defendant. Issue no. 8 deals with permanent injunction. Plaintiff has been able to prove his ownership, possession, relief of declaration and construction of boundary wall was also proved to some extent, even otherwise the land in question was lying vacant and possession is to follow the title as observed above. Government had no title in the land in dispute at any point of time having not been acquired and plaintiff's possession has been threatened and he was left with no alternative except to approach the court and accordingly he is entitled to the injunction. For this reliance is placed upon Rajni B ai Vs. Kamla Devi AIR 1996 SC pg. 1946 wherein it was held that " when a person in possession of the property fears threat to his possession and even if there is a dispute about corporeal right to property, he is entitled to injunction and the S-1059/06/87 & S126/99 Page:-37/42 court has power to protect the right of the parties." Defendant has relied upon AIR 1976 SC 888 Vaish Degree College Vs Lakshmi Narain which again is not helpful to the defendant because in this case itself it is mentioned that court has to administer justice between the parties and discretion should be exercised to meet the ends of justice and reliefs of declaration and injunction are discretionary reliefs. The defendant wants to say that plaintiff cannot claim it as a right but in view of the observations made above this is a fit case where discretion has to be exercised in favour of the plaintiff. Though the plaintiff has tried to raise the question of authority of DW1 to appear and to depose and argued that there is no admissible evidence on behalf of the defendant or its representative but I am not going into this question as otherwise on other grounds plaintiff has proved his case and technical view should not be taken in these circumstances. Thus issue no. 8 is also decided in favour of the S-1059/06/87 & S126/99 Page:-38/42 plaintiff and against the defendant. Accordingly all the above mentioned issues are decided in favour of the plaintiff and against the defendant.
11. Issue no. 4: In the instant case plaintiff had purchased the suit property on 4.9.1986 from Shubh Ram and thereafter raised construction over the same and cause of action firstly arose on 11.9.1986 when defendant tried to dispossess the plaintiff and thereafter on 12.9.1986, 13.9.1986 and 21.9.1986. On 30.9.1986 order was passed for attachment of the land in question by the concerned SDM and the cause of action also arose when the suit of plaintiff bearing no. 455/86 was dismissed on an application u/o 7 Rule 11 CPC moved by the defendant and finally when on 5.1.1987 defendant refused to admit the ownership of plaintiff, the present suit was filed in January,1987. Hence since the cause of action is continuous in view of the above, the suit is well within limitation.
S-1059/06/87 & S126/99 Page:-39/42 : In view of the above observations both the suits are decreed
12.Relief in favour of the plaintiff and against the defendant with cost and decree of declaration is passed to the effect that plaintiff is absolute owner and was in lawful possession of the suit land comprising of 1 bigha in khasra no. 27/1 village Hauz Rani, Patti Hamid Sarai, Tehsil Mehrauli, New Delhi uptill the time the same was attached by the court of the then Ld. SDM u/s 145 and 146 Cr.PC. The decree of declaration is also passed to the effect that the suit land after the order of attachment of Ld. SDM was in possession of Ld. SDM for and on behalf of the plaintiff and is in custodia legis as after the order of Hon'ble High Court dated 4.11.1987 the SHO, Hauz Khas and his successor was appointed receiver who had taken the possession on behalf of the court. Decree of injunction is also passed hereby restraining the defendant, its president, vicepresident, secretary, members, associates, staff, workmen and labourers from interfering S-1059/06/87 & S126/99 Page:-40/42 and forcibly dispossessing the plaintiff from the suit land as well as from forcibly and illegally demolishing the construction existing thereon. The prayer/relief of suit bearing no. 126/99 is also made out and decree of injunction is also hereby passed against the defendant from demolishing the boundary wall as existing today and from interfering in the possession of the plaintiff over the suit land . The suit land is now clearly defined as forming part of plot no. B143 to B147 now known as Shivalik, Malviya Nagar, Delhi. The order of SDM dated 30.9.86 was set aside earlier as observed above and SHO, P.S. Hauz Khas was appointed as receiver and possession was given to him with direction that he will keep the possession during the pendency of appeal. Further as the appeal was allowed he was directed to act as receiver during the pendency of the suit and now since the suit has been decreed in favour of the plaintiff, SHO, Hauz Khas to act as receiver comes to an end. Plaintiff is considered to be in S-1059/06/87 & S126/99 Page:-41/42 possession of the suit property henceforth. Decree sheet be prepared. File be consigned to record room.
Announced in open court (Ajay Goel) on 19.8.11 SCJ cum RC(Central)/Delhi S-1059/06/87 & S126/99 Page:-42/42