Delhi District Court
Harpal Singh vs Delhi Development Authority on 29 May, 2019
IN THE COURT OF MR. SUNIL BENIWAL ,
ADDITIONAL DISTRICT JUDGE -02, ( CENTRAL), DELHI
Suit no. 469/15
Case No. 10670/16
Harpal Singh
S/o late Sh. Partap Singh,
R/o RZ-36, Village Nangloi Sayyed,
Delhi-110007.
...........Plaintiff
Versus
1. Delhi Development Authority,
through its Vice Chairman,
Vikas Sadan, INA Market,
New Delhi.
2. Govt. of National Capital Territory of Delhi,
through its Chief Secretary,
5, Sham Nath Marg, Delhi.
3. Additional District Magistrate/
Land Acquisition Collector (West)
Office of Deputy Commissioner (West)
Rampura, Delhi.
4. Tehsildar (Nangloi)
Office of S.D.M.
Cooperative Bank Building,
Nangloi, Delhi.
.........Defendants
CS No. 10670/16 Harpal Singh vs DDA 1/24
Date of Institution of Suit : 03.05.2005
Date of pronouncement of judgment : 29.05.2019
SUIT FOR DECLARATION AND
PERMANENT INJUNCTION
This is a suit for declaration and permanent injunction. Plaintiff
is Sh. Harpal Singh S/o late Sh. Pratap Singh. There were four defendants
initially in the suit. Defendant no.1 Delhi Development Authority, defendant
no.2 Government of NCT of Delhi, defendant no.3 Additional District
Magistrate/Land Acquisition Collector (West), defendant no.4 Tehsildar,
Nangloi.
Facts stated or pleaded in the plaint are as follows:-
1. That the plaintiff is one of the co-owners of property bearing khasra no. 92/1 (4-19), 292/1 (0-5) and 292/2 (0-18) situated at Village Nangloi Sayyed, Delhi. Said property is shown in the site plan annexed with the plaint and shall be referred to as "suit property hereinafter". The suit property is ancestral property of plaintiff and other co-owners. They inherited the same from their forefathers and their possession was never interfered with by anybody. Agricultural land of village Nangloi was acquired by Union of India vide award no. 2202 of 1969. As per policy framed by government built up property was left from acquisition and since the suit property was part/built up being used as gher, it was left from acquisition. It is also pertinent to point out that the land left from acquisition CS No. 10670/16 Harpal Singh vs DDA 2/24 was given new khasra number i.e. 92/1, 292/1 and 292/2, which is evident from the award. Prior to acquisition, the khasra no. 92 and 292 and area duly built up was left from acquisition, therefore, new khasra numbers were allotted.
2. Officials of defendant no.1 without verifying the actual position wanted to lay claim over the suit property. Father of the plaintiff in order to protect the suit property filed civil suit. He also filed a civil writ petition in Hon'ble High Court against defendant no.1 for seeking appropriate directions to restrain defendant no.1 from demolishing the suit property and to further restrain the defendant no.1 from interfering in the peaceful possession of the suit property. Since the relief claimed in the civil suit and writ petition was almost identical, therefore, civil suit was got dismissed in default of appearance. Late Sh. Partap Singh, father of the plaintiff, got the suit property demarcated to avoid any intricacy in future on 29.10.1992. Demarcation was carried out by officials of revenue department and in the presence of officials of defendant no.1. Suit property was properly identified by the demarcation report. Defendant no.1 did not raise any objection to the said demarcation report. Said report was placed on record of the Writ petition. Though, there was no infirmity in the demarcation report dated 29.10.1992 but defendant no.1 disputed the same before the Hon'ble High Court in the said writ petition and made a prayer for demarcation of the suit property. The petitioner of the writ CS No. 10670/16 Harpal Singh vs DDA 3/24 petition did not object to re-demarcation of the suit property and accordingly, the Tehsildar (Mehrauli) was appointed local commissioner and was directed to carry out the demarcation of the suit property vide order dated 09.09.1994. It is strange to point out that the local commissioner did not carry out the demarcation for nearly four years and ultimately, he carried out demarcation on 31.03.1997 and filed the same before the Hon'ble High Court. The petitioner preferred objections to the report of local commissioner the same being illegal and against the rules. Hon'ble High Court did not adjudicate upon the objection raised by the petitioner and petitioner was directed to get the same adjudicated from appropriate forum. Therefore, it was felt expedient to get the objection made against the demarcation report dated 31.03.1997 adjudicated upon through the civil court.
3. That the demarcation carried out by the local commissioner on 31.03.1997 is full of serious infirmities and carries no legal sanctity. Demarcation was carried out clandestinely and without serving notice upon the petitioner. It is settled law that any demarcation carried out without serving notice to the opposite party is illegal and cannot be relied upon. It is pertinent to point out that Hon'ble High Court had directed the local commissioner to carry out demarcation after serving notice of the time and date to the opposite party. The local commissioner was further directed to consult the relevant records which are required to carry out a fair and proper CS No. 10670/16 Harpal Singh vs DDA 4/24 demarcation but the local commissioner flouted the orders of Hon'ble High Court and did not serve any notice upon the opposite party regarding the date and time of his inspection and no revenue record was consulted while carrying out the demarcation. Demarcation dated 31.03.1997 cannot be relied upon under the circumstances as it was prepared only to assist the defendant no.1. It is neither a fair nor a proper demarcation. The Writ petition bearing no. 1508/1992 was disposed off on 01.09.2003. Thereafter, an application for review of order was filed by the petitioner and vide order dated 16.01.2004, the Hon'ble High Court had given liberty to the petitioner to challenge the demarcation report as Hon'ble High Court did not finally adjudicate upon the objection. Hence, the present suit for challenging the demarcation report dated 31.03.1997. Copy of the objections raised by the petitioner before Hon'ble High Court is annexed and the contents of the same have not been repeated for the sake of brevity. The local commissioner carried out demarcation on the strength of Tatima prepared by SDM/RA in March 1997 vide order no. F.SDM/LAC/MISC/97 by ignoring the Tatima which was prepared at the time of acquisition of the land and passing of award no. 2202 of 1969.
4. That the Tatima /supplementary field plan prepared by SDM/RA is illegal as it was prepared after 30 years of the acquisition of the land whereas according to the rules it ought to have been prepared by collector of acquisition of land. The SDM did not observe the rules while CS No. 10670/16 Harpal Singh vs DDA 5/24 framing tatima and therefore, the same cannot be acted upon and any report of demarcation given on the basis of said tatima is devoid of any force and substance. That the plaintiff served notice under Section 53-A of Delhi Development Act upon defendant no.1 on 08.02.2005 and notice under Section 80 of CPC on 09.02.2005 upon the remaining defendants. Notice was served by registered AD post. Despite service of notice, defendant did not reply which amounts to admission of allegations of the notice. Plaintiff is bound to suffer irreparable loss and injury in case the demarcation report dated 31.03.1997 is allowed to remain in existence. Due to exigency of their work, other co-owners have not joined the plaintiff in the present suit. The defendant no.1 tried to take forcible possession of suit property, therefore, the plaintiff brought the civil suit for injunction against defendant no.1, NCT of Delhi and land acquisition collector etc. The said suit was assigned to the court of Ld. Civil Judge Sh. Ajay Pandey. In between the plaintiff served notice upon DDA as well as on the government and since the period enumerated in the notice expired in the second week of April 2005, therefore, necessity to bring the suit for declaration and injunction arose after filing of the civil suit.
5 Cause of action arose in favour of the plaintiff against the defendant on 16.01.2004 when the review petition was disposed off by the Hon'ble High Court in the civil writ petition. Cause of action further arose when plaintiff gave notice under Section 53A of Delhi Development Act and CS No. 10670/16 Harpal Singh vs DDA 6/24 under Section 80 of CPC. That for the relief of declaration, the plaintiff is valuing the suit at a jurisdiction of Rs.15 lacs being the market value of the suit property. It is therefore, prayed that a decree of declaration be passed in favour of the plaintiff and against the defendant declaring the demarcation report dated 31.03.1997 and order no. F.SDM/LAC/MISC./97 framing new tatima by SDM as illegal, null and void and non-operative having no legal sanctity. It is therefore, prayed that as a consequential relief the defendant be restrained from interfering in the peaceful possession of suit property as depicted in the site plan which has been prepared in accordance with demarcation report dated 29.10.1992.
WS on behalf of defendant no.1 DDA.
Preliminary objections:-
6 That the suit is not maintainable as plaintiff has not come to the court with clean hands and has suppressed material facts. As per land record of DDA belonging to village Nangli Sayeed, total land measuring 15 bighas and 11 biswas falls in khasra no. 92. Out of khasra no.92, khasra no. 92/2, measuring 10 bigha and 12 biswas was acquired vide award no. 2202. The possession of the same was taken over by LAC and L & B on 12.03.1969 and put at the disposal of DDA. Notification u/s 22(i) dated 29.04.1972 was issued thereby putting the said land at the disposal of DDA. Khasra No. 91/1 (4-19) was not acquired on account of being built up. Total area of khasra no. 292 was 22 bighas and 1 biswa. Out of total khasra no. 292 measuring 22 bighas and 1 biswa, khasra no. 292/4 (20-14) was acquired vide award no.
CS No. 10670/16 Harpal Singh vs DDA 7/24 2202. Out of 20 bighas 14 biswas, which is an acquired land, possession of 1 biswa of land was not taken on account of being built up and the possession of remaining land measuring 20 bighas and 13 biswas was taken on 12.03.1969 by the LAC and Land and Building and put at the disposal of DDA. Under Section 22(i) of the notification dated 21.07.1981 land measuring 8 bighas and 17 biswas and notification dated 29.07.1972 measuring 11 bighas and 16 biswas was issued and land was put at the disposal of DDA.
7 Possession of land measuring 8 bighas and 17 biswas was allotted and handed over to Janta co-operative House Building Society under DDA residential scheme. Khasra no. 292/1 measuring 5 biswas, 292/2 measuring 18 biswas and 292/3 measuring 4 biswas was not acquired on account of being built up. The predecessor in interest of the plaintiff had filed various suits before various courts and also filed civil writ petition bearing no. 1508/1992 titled as Pratap Singh vs DDA and CWP no. 1509/02 titled as Goyal Industrial Corporation vs. DDA. Both these writ petitions were dismissed vide order dated 31.07.2003. Thereafter, LPA was filed which was dismissed as withdrawn with permission to move review application. Plaintiff moved review application against order dated 01.09.2003 and same was disposed off vide order dated 16.01.2004 holding that the plaintiff can have recourse to remedy available under the law. Plaintiff also filed a suit titled Harpal Singh vs DDA & Ors. Bearing suit no.
CS No. 10670/16 Harpal Singh vs DDA 8/24 20/05 seeking relief that defendant be restrained from constructing any boundary wall or fencing in the suit property till final disposal of the application. The said application under Order 39 Rule 1 & 2 CPC was dismissed by Ld. Civil Judge Sh. Ajay Pandey vide order dated 04.04.2005. Thereafter, plaintiff filed present suit on 03.05.2005 titled as Harpal Singh vs DDA for declaration and permanent injunction. The said relief could have been sought in the earlier suit which was pending in the court of Civil Judge Sh. Ajay Pandey and therefore, is now barred by provisions of Order 2 Rule 2 CPC. That plaintiff filed an appeal against order dated 04.04.2005 passed by Ld. Civil Judge Sh. Ajay Pandey, on the application under Order 39 Rule 1 & 2 CPC and the said appeal bearing MCA No. 47/05 is pending adjudication before the court of Smt. Sunita Gupta, ADJ, Delhi. It is submitted that the land has already been acquired and Hon'ble High Court while pronouncing the judgment in the writ petition on 31.07.2003 was pleased to observe that "reading of the counter affidavit shows that various proceedings have been filed by the petitioners or their relatives or other persons thereby trying to somehow prevent their dispossession from the land in question. The petitioner has failed to make out or establish title of the land and the rights to continue in possession therefore, dismissed."
8 It is submitted that suit land is already acquired, and possession of the same was taken by DDA on 18.12.2003 after disposal of writ petition bearing no. 1508/1992 and 1509/1992 after demolishing the existing CS No. 10670/16 Harpal Singh vs DDA 9/24 structure and removal of encroachment. Possession of the land is with DDA and is free from any encroachment. A boundary wall has been constructed by DDA in the suit land. The present suit has been filed only with an intention to grab government land falling in khasra no. 92/2 and 292/2 by misrepresenting and twisting the facts that the suit land falls in khasra no. 92/1, 291/1, 292/2 whereas the true fact is that suit land falls in khasra no. 92/2 and 292/2. Furthermore, the suit is barred by time as the impugned demarcation report was submitted by concerned authorities in the Writ petition way back on 31.03.1997. The plaintiffs could have challenged the impugned demarcation report then and there or within the statutory period upon accrual of the cause of action which was the date of submission of the said report before the Hon'ble High Court of Delhi. The plaintiff has slept over the matter for years altogether and reaped the benefits of the writ petition. It cannot be said that the plaintiff was pursuing the remedy before Hon'ble High court genuinely and under a bonafide relief. The right to challenge the demarcation report is altogether a different one and the pendency of writ petition cannot come in the way and cannot be made an excuse not to file a suit for the appropriate remedy under the appropriate law and before a proper forum which is the civil court in the present case. As per provisions of Section 53 B of DD Act, no suit shall lie against the DDA after the expiry of six months from the date of accrual of cause of action unless it is a suit pertaining to immovable property or for declaration of title. Suit land is an acquired land. The present suit is only for a declaration that the CS No. 10670/16 Harpal Singh vs DDA 10/24 impugned demarcation report dated 31.03.1997 is null and void. Therefore, it cannot be said that it is a suit for declaration of title to the land. Therefore, no suit shall lie against the answering defendant after expiry of six months. The order of Hon'ble High Court dated 16.01.2004 itself shows that if the plaintiff wanted to take recourse to the remedy available under the law against the impugned report, it was always open to the plaintiff to do so. Order dated 16.01.2004 cannot be stated to have granted liberty to the plaintiff petitioner to avail the remedy available to him beyond the statutory period. Even under the general law of limitation, suit is barred by time as the cause of action had arisen on 31.03.1997 but the present suit has been filed after eight years which is way beyond the statutory period. The intervening period from 31.03.1997 till 2005 cannot excluded under Section 14 of the Indian Limitation Act as it cannot be said that the plaintiff was pursuing a remedy before the court. Moreover, the suit is also barred by resjudicata as the Hon'ble High Court has already tried and adjudicated upon the rights, title and interest of the parties while deciding the civil writ petition no. 1508 and 1509 both of 1992. In the writ petitions mentioned above, Hon'ble High court had held that the petitioners have failed to establish the title of the land and the right to continue in possession and the suit land has already been acquired and possession taken by the government as far back as 1969; that the petitioners are trying to encroach upon the land and the petitioners have instituted various suits in the name of one person or other which got dismissed when no interim relief was granted after considering the record.
CS No. 10670/16 Harpal Singh vs DDA 11/24 Now the same cannot be re-agitated by way of present suit. The suit is thus barred by resjudicata.
Reply on merits:-
9 It is denied that plaintiff is one of the co-owners of the suit land. It is denied that suit property is ancestral property of plaintiff. It is denied that they inherited the same from their forefathers and that their possession was never interfered with by anybody. Anything contrary to the contents of award no. 2202 of 1969 is wrong and denied. The answering defendant refers to orders passed by Hon'ble High Court in writ petition no. 1508/02 and anything contrary to the same is wrong and denied. The answering defendant refers to the contents of plaint, WS and orders passed by Hon'ble court on 04.04.2005 and anything contrary to the same is wrong and denied. The plaintiff could have claimed the present relief in the earlier suit but deliberately did not do so and therefore the present suit is barred under provisions of Order 22 Rule 2 CPC. Suit of the plaintiff is without any cause of action. The suit of the plaintiff is liable to be dismissed with cost.
10 Suit was instituted on 03.05.2005. Order dated 12.08.2005 shows that defendant no. 2 and 3 were already ex-parte. Matter was listed for admission/denial of documents and settlement of issues on 24.11.2005. On 24.11.2005 following preliminary issues were framed:-
1 Whether suit of the plaintiff is barred under Order 2 Rule 2 CPC? 2 Whether suit of the plaintiff is within limitation?
CS No. 10670/16 Harpal Singh vs DDA 12/24
11 Order dated 17.02.2011 shows that the court dispensed with
arguments on abovementioned two preliminary issues and decided that the preliminary issues shall be taken up alongwith the main suit itself. On the basis of pleadings, following issues were framed:-
1 Whether suit of the plaintiff is barred under Order 2 Rule 2 CPC?
OPD 2 Whether suit of the plaintiff is within limitation? OPP 3 Whether the plaintiff is entitled for decree of declaration as prayed for in the plaint? OPP 4 Whether plaintiff is entitled for decree of injunction as prayed for in the plaint? OPP 5 Relief.
12 Order dated 25.09.2013 shows that an application under Order 12 Rule 6 CPC filed by the plaintiff was pending and another application under Order 1 Rule 10 CPC was moved by one Jagpal and others. Vide a separate order, application under Order 1 Rule 10 CPC was dismissed on 30.04.2014. Order dated 15.07.2014 shows that application under Order 12 Rule 6 CPC was dismissed as withdrawn. Order dated 30.09.2015 shows that application under Order 1 Rule 10 CPC was allowed by Hon'ble Delhi High Court and plaintiff was allowed to place on record the amended memo of parties. Vide order dated 26.05.2016, it was observed that the court has the power to take judicial notice of notifications dated 20.1981 and CS No. 10670/16 Harpal Singh vs DDA 13/24 22.06.1987 and the judgment in writ petition civil no. 1962/1986. Court allowed the application under Order 7 Rule 14 (3) CPC read with Section 151 CPC of the plaintiff to place on record the abovementioned documents alongwith the evidence affidavit without prejudice to the rights and contentions of the defendants to agitate about the relevancy, admissibility and proof of said documents. On 26.05.2016, PW1 Harpal Singh was examined, cross examined and discharged and plaintiff closed his evidence in affirmative. On 21.03.2017, DW1 Inder Dutt was examined, cross examined and discharged and defendant closed its evidence. Thereafter, plaintiff moved another application under Order 7 Rule 14 CPC and the same was allowed and PW1 was further examined in chief. PW1 was cross examined and discharged on 05.03.2018.
13 Plaintiff examined himself as PW1. In his evidence affidavit, he reiterated the contents of his plaint to be true but failed to put exhibit marks on the documents relied upon by the plaintiff. He filed an additional affidavit which is Ex.PW1/B and relied upon following documents:-
i copy of khasra girdawari and khatoni/jamabandi of the suit land for the year 1964-65, 1968-69, 1976-77, 1980-81 and 1985-86 which are Ex.PW1/1 (colly running into 8 pages).
ii certified copy of award which is Ex.PW1/2 (colly running into 95 pages) iii copy of demarcation report dated 29.10.1992 which is Ex.PW1/3 (3 CS No. 10670/16 Harpal Singh vs DDA 14/24 pages) iv copy of reply to the application under Right to Information dated 02.08.2006 and 12.10.2007 Ex.PW1/4 (colly) (objected to on the ground of mode of proof being beyond pleadings) v Copy of legal notice dated 08.02.2005 Ex.PW1/5 (objected to as to mode of proof) vi legal notice dated 09.02.2005 Ex.PW1/6 (objected to as to mode of proof) vii certified copy of award no. 1982-83 Ex.PW1/7 (4 pages) (objected to being beyond pleadings) viii gazette notification dated 20.02.1981 Ex.PW1/8 (running into 4 pages) ix gazette notification dated 22.06.1987 Ex.PW1/9 (running into 4 pages) x certified copy of judgment dated 06.04.1987 passed by Hon'ble High Court in case 1962/1986 Ex.PW1/10 (running into 9 pages) xi Copy of Aks sizra Ex.PW1/11 (objected to on the ground as copy of the same was not on record) xii copy of objections filed to the demarcation report dated 31.03.1997 by the deponent which is Ex.PW1/12 14 Counsel for defendant DDA cross examined the plaintiff in detail. His cross examination is as follows:-
CS No. 10670/16 Harpal Singh vs DDA 15/24
15 Plaintiff/PW1 deposed that he could speak, read and write
English. He deposed that contents of both his evidence affidavits are within his personal knowledge and he had signed the same after understanding the same. He deposed that the relief which he sought in the present suit is to quash the order of SDM/LAC Punjabi Bagh dated 31.03.1997 and to quash the demarcation report dated 31.03.1997 done by the Local commissioner appointed by the Hon'ble High Court of Delhi. He deposed that it is wrong to suggest that the suit land is acquired vide award no. 2202/1969. He deposed that he had not filed any pedigree table with regard to his ancestors on the record. He deposed that the suit land was used for residential as well as commercial purposes during the time of his father. Now the property is demolished by DDA. At the time of acquisition khasra no. 92 and 292 were separated and given new numbers i.e. 92/1 and 92/1 and 292/1, 292/2, 292/3 and 292/4. He has seen the award Ex.PW1/2 where there are clerical mistakes with regard to mentioning of khasra numbers. He deposed that it is wrong to suggest that he was falsely stating with regard to clerical mistakes.
It is correct that in document award no. 37 Ex.PW1/7 at point A, there is a mention of khasra no. 92/1 etc., 292/1, 292/2 and 292/3 but there is no mention of 92/2 and 292/4 specifically. He was put a specific question and asked to tell whether Ex.PW1/11 tells us that suit land is in abadi or it is left out being built up to which the plaintiff gave an evasive reply and replied that document Ex.PW1/11 says that prior to acquisition, khasra no. 92 and 292 were having the single number. More importantly, he deposed that the CS No. 10670/16 Harpal Singh vs DDA 16/24 impugned demarcation report dated 29.10.1992 Ex.PW1/3 was never challenged before the Hon'ble High Court by him or by DDA. No objections were ever filed by DDA against said document Ex.PW1/3. He deposed that it is correct that in writ petition civil no. 1508 and 1509/1992 Hon'ble High Court had directed for another demarcation. He deposed that it is correct that contents of para no. 7 and 8 of his evidence affidavit Ex.PW1/A were not mentioned by him in his pleadings in the present suit. He deposed that he had not filed RTI applications towards Ex.PW1/4 and it is wrong to suggest that the said documents cannot be read into evidence as he is neither the author nor recipient of the same. It is correct that PW1 has not filed any complaint against demarcation report being not based on original tatima as the same was not produced. He deposed that he had filed objections before Hon'ble High Court against the demarcation but does not remember the date on which the objections were filed. The writ petitions filed as mentioned above were dismissed by Hon'ble High Court on 31.07.2003. LPA was withdrawn by the petitioner PW1 as the same was withdrawn with liberty to approach the single bench. PW1 failed to produce the said order of the single order dated 31.07.2003 or of division bench in the LPA. He deposed that vide order dated 16.01.2004, single judge granted liberty to the petitioner to approach the appropriate forum. It is correct that PW1 had filed a civil suit after the demarcation report dated 31.03.1997. It was filed before Ld. Civil Judge Sh. Ajay Pandey. He deposed that it is correct that he did not file any suit challenging the demarcation report dated 31.03.1997 as no liberty was CS No. 10670/16 Harpal Singh vs DDA 17/24 given to him. He deposed that liberty was granted to him vide order dated 16.01.2004. He deposed that it is wrong to suggest that notices Ex.PW1/5 and Ex.PW1/6 cannot be read in evidence as the same do not contain the signatures of the advocate. It is correct that PW1 is not in possession of postal receipts of notices Ex.PW1/5 and Ex.PW1/6 as the same were lost. This fact was not mentioned in the pleadings. He could also not show the applications for RTI mentioned by him in para 11 and 15 of evidence affidavit Ex.PW1/A. He deposed that it is correct that he has not mentioned about award no. 37 of 1982-83 Ex.PW1/7 in his pleadings and the same has been mentioned for the first time in evidence affidavit Ex.PW1/A. He deposed that he was not aware that he was required to file copies of judgment dated 30.01.1987 Ex.PW1/11 since his father had expired despite the fact that the same were available with PW1 at the time of filing of the suit.
16 On 11.01.2018 PW1 plaintiff was further examined in chief. He was further cross examined on 05.03.2018. During this cross examination, he deposed as follows:-
17 That he applied for Ex.PW1/X in the last week of November 2017. He came to know about this document through a fellow villager in the first week of November 2017. He does not remember the name of that villager. He deposed that the suit land is part of abadi khudbola. He deposed that there is a reference of khasra no. 92 and 292 in the document CS No. 10670/16 Harpal Singh vs DDA 18/24 Ex.PW1/X. He deposed that document Ex.PW1/Y was attested by a translator.
Plaintiff examined only PW1 in support of his case. Thereafter, defendant examined one witness namely Sh. Inder Dutt working as kanungo by way of evidence affidavit. This witness deposed on exactly the same lines as that of written statement of defendant no.1. He was cross examined by the plaintiff. DW1 relied upon the following documents:-
a. copy of award no. 2202 which is already Ex.PW1/2 b. possession proceedings which is already Ex.PW1/3 c. notification which is Ex.DW1/3 d. copy of notification dated 21.07.1981 Ex.DW1/4 e copy of order of Hon'ble High Court dated 31.07.2007 Ex.DW1/5 f copy of order dated 16.01.2004 Ex.DW1/6. 18 He was cross examined as follows:-
He deposed that he joined DDA in 1979 and was promoted to Kanungo in 2010. He joined as a Patwari and has been looking after the work of kanungo and land related matters since 1979. Total area of khasra no. 292 is 22 bighas and 1 biswa. He deposed that he was not involved in the entire litigation that took place between the plaintiff and the defendant. Possession of the land was taken on 12.03.1969. This answer was given by him on hearsay basis. He deposed that SDM/RA has vested the land of khasra no. 292/1 and 292/2 in gaon sabha. He is not aware if a demarcation CS No. 10670/16 Harpal Singh vs DDA 19/24 was carried out with respect to khasra no. 92/1, 292/1, 292/2 and 292/3 on 29.10.1992. He is not aware if DDA participated in the said demarcation. He is also not aware if any demarcation was taken out on 31.03.1997. He is also not aware if any Tatima/supplementary map was carved out on the same day by the SDM, Punjabi Bagh. He deposed that the land belongs to DDA because a boundary wall of DDA has been existing at the spot. He deposed that plaintiff has not demolished any portion of the boundary wall constructed by DDA. He deposed that it is wrong to suggest that plaintiff is in possession of un-acquired portion of khasra no. 92 and 292 and whatever land was acquired by DDA, they are in possession of the same. Thereafter, defendant closed its evidence.
Now I shall proceed to decide the issues :-
Issue no.1: Whether suit of the plaintiff is barred under Order 2 Rule 2 CPC? OPD 19 Onus to prove this issue was upon the defendant. Defendant has alleged that plaintiff had filed a civil suit before the Court of Ld. Civil Judge Sh. Ajay Pandey. That suit was a suit for injunction simplicitor. It is the contention of the defendant that since plaintiff was aggrieved with demarcation report dated 31.03.1997, which was filed by the DDA in Writ proceedings before the Hon'ble High Court, the cause of action for filing the present suit started from 31.03.1997. Now the limitation period for getting a document declared as null and void is three years as per Article 59 of CS No. 10670/16 Harpal Singh vs DDA 20/24 schedule annexed with Limitation Act. The present suit was instituted on 03.05.2005. Even as per the own averments of the plaintiff, DDA had started dispossession proceedings way back in 1992. Therefore, the cause of action to institute proceedings against DDA had arisen way back. The suit filed by father of the plaintiff got dismissed in default and no application for restoration of the same was filed. This suit was not withdrawn with any permission to file fresh suit. Rather it got dismissed on account of default in appearance. No leave of the court was taken to abandon one part of the plaint and to file another suit later on, on the same cause of action.
Therefore, since father of the plaintiff failed to file any proper suit and the plaintiff when he filed a civil suit before the court of Ld. Civil Judge also failed to pray for the relief of declaring the demarcation report dated 31.03.1997 as illegal, null, void and inoperative, therefore, the court is of the opinion that the plaintiff is precluded from filing the present suit under provisions of Order 2 Rule 2 and the present suit is barred by provisions of Order 2 Rule 2 CPC. Therefore, defendant has successfully proved this issue in its favour.
Issue no.2: Whether suit of the plaintiff is within limitation? OPP 20 As already discussed above, cause of action if any arose in favour of the plaintiff on 31.03.1997 when this report was filed before the Hon'ble High Court of Delhi in the Writ Petition filed by the plaintiff. Therefore, if the plaintiff was aggrieved by this report, as per Article 59 of CS No. 10670/16 Harpal Singh vs DDA 21/24 the Limitation Act, the plaintiff had three years to institute a suit for getting this demarcation report dated 31.03.1997 declared as null and void. The present suit was instituted on 03.05.2005 i.e. much beyond the period of three years. It cannot be said that the plaintiff was bonafidely pursuing the civil writ petition in lieu of the present civil suit before the Hon'ble High Court when the appropriate remedy in order to obtain the present relief was to file a civil suit before the appropriate civil court. Of course, the Hon'ble High Court has enough and wide discretionary powers to grant relief in writ petitions, but the Hon'ble High Court in its wisdom did not think it fit to grant this relief to the petitioner under the writ proceedings. Therefore it cannot be said that the plaintiff is entitled to benefit of extension of time for filing the present suit. Section 14 of the Limitation Act says as follows:-
"14. Exclusion of time of proceeding bonafide in court without jurisdiction- (1) In computing the period of limitation for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceedings relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of alike nature, is unable to entertain it."
21 Even the copy of objections Ex.PW1/12 filed by the plaintiff shows that plaintiff was aware of demarcation report dated 31.03.1997 well CS No. 10670/16 Harpal Singh vs DDA 22/24 before the expiry of statutory period. These objections are dated 01.12.1997. Order of Hon'ble High Court Ex.DW1/5 shows that interim injunction was also not granted to the petitioner despite filing of the civil suit and the appeal was also dismissed by the Ld. Additional District Judge on 10.02.1992. Thereafter, the suit was dismissed in default on 24.04.1992. It was categorically held that the petitioner has failed to make out or establish title to the land and the right to continue in possession thereof. Accordingly, writ petition was dismissed with these observations. Application for review of this order of Hon'ble High Court was also dismissed on 16.01.2004.
22 Therefore, it is clear that suit of the plaintiff for the relief claimed is hopelessly time barred. Therefore, this issue is decided against the plaintiff and in favour of the defendant.
Issue no.3: Whether the plaintiff is entitled for decree of declaration as prayed for in the plaint? OPP 23 As this court has already given its opinion with respect to issues no. 1 & 2, in the opinion of this court it is not necessary to go into the merits of this issue as the suit of the plaintiff is time barred in view of the relief claimed and sought. Therefore, this issue is decided against the plaintiff.
Issue no.4: Whether plaintiff is entitled for decree of injunction as prayed for in the plaint? OPP 24 Both the parties have led their evidence. The plaintiff could not CS No. 10670/16 Harpal Singh vs DDA 23/24 prove his possession over the suit land. No documents of being in possession of the suit land have been filed. Even from the evidence, it is clear that the defendant DDA has built a wall around the suit land and is in possession of the suit land and there is no encroachment in the suit land as on the date of filing of the suit. Therefore, plaintiff having failed to prove his title as well as possession over the suit land is not entitled to injunction qua the suit land against any of the defendants. Therefore, this issue is also decided against the plaintiff.
Relief.
25 In view of my decisions in the abovementioned issues, plaintiff is held not entitled to any of the reliefs claimed for. Suit of the plaintiff is dismissed. Parties are left to bear their own costs.
Decree sheet be prepared accordingly. File be consigned to record room after due compliance. Digitally signed by SUNIL SUNIL BENIWAL Announced in the open Court on BENIWAL Date: 2019.05.30 15:34:29 +0530 29th day of May, 2019 (SUNIL BENIWAL) ADJ-02, Central,THC/Delhi CS No. 10670/16 Harpal Singh vs DDA 24/24