Delhi District Court
Shri Raj Singh S/O Shri Pyare Lal vs ) Gaon Sabha Tikri Kalan on 8 November, 2013
IN THE COURT OF SH. NARESH KUMAR MALHOTRA,
SCJ/RC(WEST), TIS HAZARI COURTS, DELHI
MCA No.-23/2013
Shri RaJ Singh S/o Shri Pyare Lal
R/o Mohalla Ramayan, Gali Tuta Wali (Mochi Wali),
V&PO Tikri Kalan, Delhi-110041. ....Appellant
Versus
1) Gaon Sabha Tikri Kalan, through
BDO, West, Nangloi, Delhi-110041.
2) Union of India, through
Secretary, Land & Building,
Govt. of NCT of Delhi,
Vikas Bhawan, IP Estate, New Delhi. ....Respondents
Date of institution of the appeal : 07.10.2013
Date of reserving Judgment : 29.10.2013
Date of pronouncement : 08.11.2013
Appeal against the impugned order dated 03.09.2013
JUDGMENT
1. Vide this judgment, I shall decide an appeal filed by the plaintiff/appellant against the impugned order dated 03.09.2013 passed by Ld. Trial Court.
2. Essential facts for disposal of the appeal as per the suit filed by the appellant (plaintiff in the Trial Court) against the respondents (defendants in the Trial Court) are as under:-
The plaintiff/appellant filed the suit on the ground that he is the owner in possession of residential house situated in Lal Dora of Village Tikri Kalan, Delhi and he has been residing at the above address with his family members. The said house was constructed by the ancestors of the plaintiff about 80 years back and there is passage in front of this house of the plaintiff. The plaintiff MCA No. 23/2013 Page..... 1/6 received by post a notice dated 17.04.2013 purported to have been issued from the office of BDO (West), Nangloi, Delhi alleging encroachment on alleged passage no.453 and vide this notice the plaintiff is directed to remove the alleged encroachment of 3'-6" in East and 6' om West within 15 days. In the notice it is averred that there was a demarcation operation conducted by the office of BDO (West) and there is an encroachment by the plaintiff towards the passage measuring 3'-6" in East and 6' in West. The plaintiff is residing in his house since his forefathers and there is no encroachment done by the plaintiff at any point of time. As per the plaintiff, the notice of the BDO (West) is illegal, uncalled and unwarranted and same is wrong and colourful exercise power conferred by law. The alleged demarcation was also done at the back of the plaintiff without notice. The revenue staffs have also not performed their duty properly and the field kanoongo did not even mark the stone for starting point of demarcation process at site and the demarcation was conducted in casual manner without applying the due procedure prescribed by law. The demarcation was ordered to be conducted as a result of one complaint of Shri Raj Singh against one Shri Om Kanwar S/o Shri Albel but the BDO (West) intentionally did not issue notices to the actual encroacher of alleged passage no.453. The plaintiff approached the office of BDO (West) and submitted a reply to the notice. On 04.05.2013, two officials of BDO (West) came at the site of the suit property and marked arbitrary the alleged illegal encroachment on the house of plaintiff and they also threatened the plaintiff that they will demolish the house of the plaintiff. It is prayed by the plaintiff that the MCA No. 23/2013 Page..... 2/6 defendants be restrained from dispossessing the plaintiff from the suit property and from demolishing, dispossessing or interfering in the peaceful possession of the plaintiff in respect of the suit property i.e. house of the plaintiff situated in Village Tikri Kalan, Delhi-41 as shown in red colour in the site plan.
3. The defendant no.1 filed written statement taking preliminary objections that the suit of the plaintiff is without any cause of action and the plaintiff has not come to the court with clean hands. The plaintiff has encroached upon the land of Gaon Sabha which is used to the public way and the plaintiff has no authority to grab the public way used by the villagers. The land has been demarcated by the Total Station Machine and on finding encroachment by the plaintiff upon the public way, the action is likely to be taken by the government agencies as per law. The Gaon Sabha land has been encroached upon by the plaintiff by 3.6 feet in East and 6 feet in West as per the report/site plan given by the TSM and a notice to this effect was given to the plaintiff for the removal of the encroachment over the land which belonged to the Gaon Sabha and being used as a public street by the villagers. In reply on merits, it is denied that the house of the plaintiff was constructed by the ancestors of the plaintiff at about 80 years back. It is not denied that there is a public street in front of the house of the plaintiff. The notice has been issued to the plaintiff after finding encroachment over the street. It is denied that the revenue department has not performed their duties properly. As per the defendant no.1, the entire process of demarcation was done as per rules and there was no personal enmity between the government officials and the plaintiff. Other averments of the plaint were MCA No. 23/2013 Page..... 3/6 denied.
Defendant no.2 also filed written statement on the lines of the written statement filed by the defendant no.1.
Plaintiff filed replication to the written statements and controverted the facts as mentioned in the written statements and re-affirmed the facts as mentioned in the plaint.
4. Ld. Trial Court vide order dated 03.09.2013 dismissed the application of the plaintiff u/o XXXIX Rule 1 & 2 CPC. The plaintiff/appellant in the present case assailed the order of the Ld. Trial Court on the grounds that the impugned order is based on conjectures and surmises. Ld. Trial Court has failed to appreciate that there is specific admission of ownership of the plaintiff by the defendants in their respective written statements. Ld. Trial Court has failed to appreciate the undisputed fact that Village Tikri Kalan is still a rural area and not urbanized and the suit property falls in Lal Dora of Village abadi of Tikri Kalan. Section 8 r.w. rule 5 of Delhi Lands Reforms Act, 1954 deals with private wells and buildings in abadi alongwith area appurtenting thereto, which shall be deemed to have been settled with owner and he shall have a heritable and transferable interest in the site. Ld. Trial Court failed to appreciate that the demarcation was not according to the law. No opportunity of personal hearing was given to the plaintiff. Ld. Trial Court has failed to appreciate that demarcation/measurement by TSM is not at all an authorized procedure for the demarcation. It is prayed that the said impugned order of Ld. Trial Court be set aside.
MCA No. 23/2013 Page..... 4/6
5. I have heard the ld. counsels for all the parties and perused the record.
6. Perusal of the file reveals that the appellant has placed on record the notice dated 17.04.2013 issued by BDO (West) and in this notice it is mentioned that demarcation has been conducted by TSM and there is an encroachment 3'-6" in the East and 6' in the West. The defendant no.1 has placed on record the copy of the proceedings initiated by the officials of the defendant no.1 and in this report it is mentioned that property was demarcated. The appellant has not explained as to what procedure should be adopted by the officials of the defendant no.1 in carrying out the demarcation and encroachment of the Gaon Sabha land. The plaintiff has not placed on record any document to show that demarcation conducted by the officials of the defendant no.1 is not correct. The appellant has not placed on record any document to show that no land of Gaon Sabha has been encroached by the appellant. Photographs placed on record by the defendants show that the suit property is not 80 years old as claimed by the plaintiff. Perusal of the file reveals that similar types of notices have also been issued to the other persons. Ld. counsel for the defendants has also placed on record the copy of order/judgment passed by Hon'ble Mr. Justice V. K. Jain vide which no injunction was granted on the similar notices. Ld. counsel for the appellant has paid reliance upon the judgment cited as 25 (1984) DLT 395 but this judgment is not helpful to the appellant as in the present appeal there is only dispute about the encroachment of the Gaon Sabha Land by the appellant. Ld. counsel for the appellant has also paid reliance upon the judgment cited as DLT 1973 Volume 9 MCA No. 23/2013 Page..... 5/6 Page 390 and 2005 (82) DRJ 416 and judgment of Hon'ble Apex Court cited as 2003 (4) SC 583. I have perused these judgments but these judgments are not helpful to the appellant particularly when the demarcation report submitted by the officials of the defendant no.1 cannot be faulted with. Admittedly, the appellant has not filed on record the documents to show as to how much area he is in possession. Admittedly, there is a passage in front of the property of the appellant and the appellant is not able to show that he had not encroached any area of the land. Ld. Trial Court has already placed reliance upon the judgment titled as Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105 to the effect that the court had to consider "whether the grant of refusal of injunction will adversely affect the interest of general public, which can or cannot be compensated otherwise." Ld. Trial Court has rightly held that no prima facie case is shown by the plaintiff/appellant. I am of the view that there is no illegality or infirmity in the order dated 03.09.2013 passed by Ld. Trial Court. Thus, the appeal filed by the appellant is without any merits and same is hereby dismissed. Copy of this judgment be sent to the Ld. Trial Court along with the trial court record.
Appeal file be consigned to Record Room after necessary compliance.
Announced in the open court (NARESH KR. MALHOTRA) on 08.11.2013 SCJ/RC(WEST)/ DELHI MCA No. 23/2013 Page..... 6/6