Delhi District Court
1 Ramesh Chand And Ors vs . Rajinder Kumar And Anr on 31 July, 2023
IN THE COURT OF SHRI NAVJEET BUDHIRAJA
ADDITIONAL DISTRICT JUDGE - 03, SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI
CS DJ No. 209316/2016
CNR No. DLSE01-000158
In the matter of :
1. Sh. Ramesh Chand
2. Sh. Hira Singh
Both sons of late Sh. Bhule Ram
3. Sh. Naval Singh (deceased)
through his legal heirs
I) Sh. Hira Singh (son)
II) Sh. Rajbir Singh (son)
III) Sh. Sachin Kumar
S/o Late Sh. Jagbir, pre-deceased
S/o Late Sh. Naval Singh
IV) Sh. Lalit
V) Smt. Kanti Devi
W/o Late Sh. Naval Singh
All R/o Village Mandapur Khadar, New Delhi
VI) Ms. Jyoti, W/o Sh. Manoj Kumar
R/o 107, Chandgi Numberdar Wali
Gali, Village Palla, new Delhi
VII) Ms. Jagroshni, W/o Sh. Jaswant
R/o H. No. 88, Village Gauripur, Bagpat, UP
VIII) Ms. Dayawati, W/o Sh Zile Singh
IX) Ms. Rajwati, W/o Sh. Mahender Singh
Both R/o E-194, Phase V, Om Vihar
New Delhi
X) Ms. Saroj W/o Brahmpal
R/o H. No. 537, Village Bhakttawarpur, Delhi
XI) Ms. Satto, W/o Sh. Lokesh
R/o Village Palla, Bagpat
4. Sh. Jai Singh (deceased)
through legal heirs:
(I) Smt. Angoori Devi (Widow)
(II) Sh. Savinder Kumar (son)
(III) Sh. Virender Singh (son)
(IV) Ms. Mukesh (daughter)
W/o Sh. Om Dutt NAVJEET
Digitally signed by
NAVJEET BUDHIRAJA
(V) Ms. Munesh (daughter) BUDHIRAJA Date: 2023.07.31
14:24:14 +0530
1 Ramesh Chand and ors Vs. Rajinder Kumar and Anr
W/o Sh. Satish
(VI) Ms. Sudesh (daughter)
W/o Sh. Lakhi
(VII) Ms. Poonam (daughter)
W/o Sh. Mahesh
All R/o 572, Chauhan Mohalla, Near Radha Krishan Mandir
Madanpur, Khadar, New Delhi-110076
5. Sh. Satya Prakash (deceased)
Through his legal heirs
(I) Sh. Dharamvir (son)
(II) Sh. Sukhbir (son)
(III) Sh. Dharampal (son)
(IV) Ms. Bala Devi (widow)
All R/o H. No. 572, Chauhan Mohalla
Near Radha Krishan Mandir, Madanpur
Khadar, New Delhi-110076
(V) Ms. Kamlesh (daughter)
W/o Sh. Naresh
R/o H. No. 573, Village Bakhttarwarpur
New Delhi
..... Plaintiffs
Vs.
1. Sh. Rajinder Kumar
S/o Late Sh. Shyam Lal
2. Sh. Sham Lal
S/o Late Sh. Ram Saran
Both R/o Flat No.A-187, Sarita Vihar
New Delhi-110044
Also at:
Village Madanpur Khadar, New Delhi
..... Defendants
Date of Institution : 18.02.2010
Date on which Judgment
reserved : 09.05.2023
Date of Judgment : 31.07.2023
Result : Dismissed
Digitally signed
by NAVJEET
BUDHIRAJA
NAVJEET
BUDHIRAJA Date:
2023.07.31
14:24:25
+0530
2 Ramesh Chand and ors Vs. Rajinder Kumar and Anr
JUDGMENT
Vide this judgment, I propose to decide the suit of the plaintiffs for permanent injunction instituted against the defendants.
2. As per the plaint, plaintiffs are the original residents of Village Madanpur Khadar, New Delhi, where they have been holding ancestral agricultural land and residential houses and most of the agricultural land owned by the plaintiffs have been acquired by the Government for Planned Development of Delhi. However, the land comprised in Khasra Nos. 760 (4-14), 761 Min (2-18) and 762 (5-9) in all measuring 13 bighas and 1 biswas situated within the revenue estate of Village Madanpur Khadar, New Delhi was left out of acquisition and are still owned by the plaintiffs jointly to the extent of their recorded shares.
3. The land comprised in Khasra No. 761 Min. measuring 2 Bighas and 18 Biswas (shown in red colour in site plan) (hereinafter referred as to 'the suit property') is the ancestral property of the plaintiffs and is still recorded in the ownership of the Plaintiffs. The plaintiffs are enjoying the peaceful physical possession of the suit property since the time of their ancestors without any interruption from anybody.
4. The remaining land owned by the plaintiffs comprised in Khasra Nos. 760 and 762 is situated across the Pacca Mettled Road on the Western side of the suit property. The land underneath the Mettled Road bifurcating the land of the Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.07.31 14:24:33 +0530 3 Ramesh Chand and ors Vs. Rajinder Kumar and Anr plaintiffs as shown in the Site plan was also owned by the plaintiffs at one point of time. It is stated that it is very clear from the Site Plan, the suit property is bounded by a Mettled Road on the Western Side whereas on the Northern and Eastern side, the acquired land which is in possession of the Indian Oil Bottling Plant exist. The entire land situated on the Northern and eastern side of the suit property was acquired vide Award no.15/85-86. The possession of the acquired land was also taken over from the Bhumidars by the Land Acquisition Collector and the same was handed over to the requisitioning department i.e. IOC who have enclosed the same with a 6-7 high boundary wall.
5. As per the case of the plaintiff, defendants are neither the owner nor in possession of even an inch of land out of Khasra No. 761. However, they were holding land bearing Khasra No. 754 which was situated on the South East side of Khasra No. 761. It was in the year 1985 that an area measuring 4 Bighas and 1 Biswas out of khasra no.754 was acquired vide Award No. 15 of 1985-86 for the Indian Oil Corporation Bottling Plant and the possession of the same was taken over by the Land Acquisition Collector at the time of acquisition and thereafter handed over to the acquiring Department i.e. the Indian Oil Corporation, which enclosed the same by way of a boundary wall (clearly shown in the site plan and the photographs) and, thus, no portion of the land of khasra no.754 was left adjacent to the suit property and, thus, the defendants are not having any land anywhere near or adjacent to the suit property since almost 25 years ago. Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2023.07.31 14:24:50 +0530 4 Ramesh Chand and ors Vs. Rajinder Kumar and Anr
6. The entire unacquired area in the vicinity of the suit property has been colonized on 2nd of February, 2010 and therefore it has became almost impossible to utilize the suit property for agricultural purposes. The suit property due to colonization had also become low lying and was about 2-3 feet below the road level. Consequently, in order to level the same by filling up earth and to secure the same, the plaintiffs started filling up earth in the suit property in the first week of February, when the Defendants approached the plaintiffs along with 7 - 8 of his Supporters and started claiming that the suit property also consists of their plot comprised in khasra no. 754 measuring about 600 Sq Yards. The plaintiffs were shocked to hear about the frivolous claim of the defendants, which was being made by the defendants on the basis of an alleged Demarcation Report allegedly carried out by the Revenue Officials on 30-04-2008.
7. The claim of the Defendant is completely bogus as no such claim was made by the defendants for the last almost 25 years when the land of khasra no. 754 was acquired. The said demarcation report is nothing but a frivolous report, which has been procured by the defendants in collusion with the officials of the Revenue Department in order to lay a false claim over the suit property.
8. It is further stated that a bare perusal of the said demarcation report shows that the plaintiffs or the IOC have not been given any notice of the alleged demarcation and the same was not even carried out in accordance with the prescribed rules.
Digitally signed by NAVJEETNAVJEET BUDHIRAJA BUDHIRAJA Date:
2023.07.31 14:24:57 +0530 5 Ramesh Chand and ors Vs. Rajinder Kumar and Anr
9. It is further stated that the rules prescribed that while carrying out demarcation, three (3) Permanent Points are required to be affixed which are present on the spot as well as on the Aks Shizra from where the demarcation should be commenced. However, in the said alleged demarcation neither any permanent points were fixed by the officials concerned nor any notice to the neighboring owners was issued. The said demarcation is even contrary to the revenue records as a bare perusal of the Field Book prepared at the time of handing over possession of the acquired land shows that the entire area out of Khasra No. 754 on the Western Side adjacent to the suit property had been acquired and the remaining unacquired portion of the same is situated on the Eastern Side beyond the boundary wall erected by the IOC Bottling plant.
10. It is further submitted that the Field Book shows that the area measuring 4 Bighas and 1 Biswas situated on the Western Side of Khasra No. 754 had been taken over by the Land Acquisition Collector, over which a Boundary Wall was constructed almost 20 years ago by the Indian Oil Corporation and thus, not even an inch of land out of Khasra No. 754 has been left towards the Western Side.
11. Defendants are neither the owners nor remained in possession of the suit property at any point of time, however on account of the colonization and rising prices of land, they have turned dishonest and have started falsely claiming that a portion measuring 600 sq.yds. out of the suit property belongs to them. The defendants are making this false claim in order to grab the Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.07.31 14:25:04 +0530 6 Ramesh Chand and ors Vs. Rajinder Kumar and Anr suit property owned by the plaintiffs by hook or by crook.
12. It is further stated that it is clear from the revenue record that the defendants have no right title and interest in the suit property and that the alleged Demarcation Report was not in accordance with the spot and that not even an inch of land of Khasra No. 754 falls within the suit property. The plaintiffs thereafter pointed out this fact to the Defendants, who remained adamant and threatened that either the plaintiffs should handover the land measuring about 600 Sq. Yards themselves otherwise, they shall illegally and forcibly dispossess them and further would not permit them to enclose the suit property by a boundary wall.
13. It is further stated that the defendants in order to materialize their illegal threats came to the suit property along with their supporters on 10.2.2010 and tried to take forcible possession of the same. However, the plaintiffs successfully resisted their illegal threats with the help and intervention of their well wishers and neighbors and the Defendants, therefore, were unable to take illegal possession of the suit property.
14. It is further stated that the defendants seeing the stiff resistance put up by the plaintiffs went back with a threat to come back with more force in order to take illegal and forcible possession of the suit property. The plaintiffs contacted the Local Police Authorities on 11.2.2010, however, the Local Police refused to interfere in the matter on the ground that the matter is of civil nature. The defendants have not yet been successful in Digitally signed by NAVJEET NAVJEET BUDHIRAJA 7 Ramesh Chand and ors Vs. Rajinder Kumar and Anr BUDHIRAJA Date: 2023.07.31 14:25:12 +0530 their illegal attempts of dispossessing the plaintiffs from the suit property, however as the defendants form a powerful group in the Village, therefore, the plaintiffs apprehend that they will be able to convert their threats in reality, if the same are left unrestrained. The plaintiffs are still in possession of the suit property. Hence, the present suit has been filed with the following prayer.
"Defendant , its staff, agents, employees, legal heirs and/or anybody claiming through him may be restrained by way of a decree of permanent injunction thereby restraining them from illegally and forcibly dispossessing the plaintiffs from the suit property comprised in Khasra No.761Min. Measuring 2 Bighas and 18 Biswas and more clearly depicted in Red Colour in the site plan attached and/or otherwise interfering in their peaceful possession of same in any manner. "
15. After service of summons upon the defendants, written statement came to be filed on their behalf stating that the plaintiffs have deliberately and with malafide intentions resorted to falsification as also suppression of material facts by not specifying the total areas belonging to them out of which land has been acquired by the Government.
16. It is further stated that the total land acquired in these Khasras is 2 bighas 13 biswas leaving behind the total area 10 - 8 and similarly as regards Khasra No. 754, the total area of the said Khasra is 10 Bighas 3 biswas, out of which 4 bighas 1 biswas was acquired leaving 6 -2 area in possession of the defendants.
Digitally signed by NAVJEET BUDHIRAJANAVJEET Date: BUDHIRAJA 2023.07.31 14:25:18 +0530 8 Ramesh Chand and ors Vs. Rajinder Kumar and Anr
17. It is further stated that demarcation carried out by the Revenue Authorities confirmed that the land unacquired in Khasra No. 754 falls on both sides of the land acquired for Indian Oil Corporation (IOC) and during the demarcation, it was found that the boundaries of the remaining Khasra No.754 on the eastern side of the boundary wall of IOC, touching Gram Sabha land and the un-acquired land measuring 600 sq.yds. of Khasra No. 754 is towards Western Side of the boundary wall of IOC & Eastern side of the Road and the Gram-Sabha land abuts the road side on the northern side.
18. It is further stated that this Gram-Sabha land has deliberately not been shown in the Site Sketch attached with the plaint and on the other hand, the plaintiffs have wrongly shown as Khasra No. 761 as covering the remaining portion of Khasra No. 754.
19. It is further stated that part of the Khasra No. 757, which is left un-acquired and near the boundary wall of IOC is located on the eastern side of Khasra No. 761, whereas with malafide intention the plaintiffs have shown the same as part of Khasra No. 756. however, Khasra No. 756 is situated on the eastern side of eastern boundary wall of IOC near Grama Sabha. Therefore, neither Khasra No. 761 nor Khasra No. 762 has anything to do with portion of land measuring 600 sq. yds. clearly demarcated in Khasra No. 754, which is in possession of the present defendants.
Digitally signed by NAVJEET NAVJEET BUDHIRAJA
BUDHIRAJA Date:
2023.07.31
14:25:26 +0530
9 Ramesh Chand and ors Vs. Rajinder Kumar and Anr
20. It is further stated that a deliberate effort to create confusion was also made by the plaintiffs, when a reference was made to Khasra No. 762, which is adjacent to Khasra No. 760 on the Southern side and practically abuts the 26 WD road on the southern side and therefore, it is submitted that the remaining portion of Khasra No. 754 towards the Western side admeasuring about 600 sq.yds. is in possession of the present defendants, and has nothing to do with the lands claimed by the plaintiffs.
21. It is further stated that a Site Plan of Khasra No. 754 min at Madanpur Khadar, New Delhi, showing Khasra No. 754 on both sides of the acquired land has been filed. It is further stated that the story put forth that the defendants are encroaching upon any alleged land of the plaintiffs in respect of the three Khasra Nos. 760, 761 &762 as mentioned in the suit is totally baseless and the demarcation of the Khasra No. claimed by the plaintiffs would show that not a single inch of any plaintiffs' land is in possession of the defendants. Rather demarcation report clearly shows that the land allegedly claimed by the plaintiffs belongs to Khasra No. 754 and is in possession of the present defendants.
22. It is further stated that the suit is bad for non-joinder of necessary parties and Khasra Nos. 760, 761 & 762 are also owned by persons other than the plaintiffs and similarly Khasra No. 754 min is in occupation and possession not only of the defendants but also of five other members, who have proprietary rights to the said land. The suit in the absence of all co-owners of Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.07.31 10 Ramesh Chand and ors Vs. Rajinder Kumar and Anr 14:25:32 +0530 Khasra Nos. 760, 761, 762 and Khasra No., 754. is not maintainable and is liable to dismissed on this ground alone.
23. Plaintiffs then filed a replication to the written statement wherein they disclaimed the averments made therein and reprised the contents of the plaint.
24. Post completion of the pleadings, following issues were framed:-
Issue no. 1:- Whether the suit is barred by Section 185 of the Delhi Land Reforms Act? OPD Issue no.2:- Whether the vacant flat marked in red color in the site plan filed by the plaintiff forms part of Khasra No.761 as alleged by the plaintiffs or forms part of Khasra No.754 as alleged by the defendants? Onus on parties. Issue no.3:- Whether the suit is bad for non-joinder of all the owners of Khasra Nos. 760, 761 and 762? OPD Issue no.4: Whether the plaintiff is entitled to the permanent injunction? OPP.
Issue no.5:- Relief.
25. For recording of evidence, case was assigned to Sh. Vipin Kalra, Ld. Advocate, who was appointed as Local commissioner as per Order 18 Rule 4 (2) CPC and later on, he stood discharged from the present case after examining plaintiff's witnesses i.e. PW1 to PW5. Thereafter, Sh. Shubham Nagar, Ld. Advocate was also appointed as Local Commissioner and he recorded the remaining plaintiff's evidence. Both the Ld. Local Commissioners after recording the plaintiffs evidence submitted Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2023.07.31 14:25:39 +0530 11 Ramesh Chand and ors Vs. Rajinder Kumar and Anr their final report.
26. Sh. Hira Singh was examined as PW1 vide his affidavit Ex.PW1/A, who relied upon the site plan Ex.PW1/1, certified copy of the field book Mark A. He was cross examined on behalf of defendants. Sh. Subhash was examined as PW2 vide his affidavit Ex.PW2/A who also was cross examined on behalf of defendants. Sh. Dharmender Singh was also summoned as a witness who was examined as PW3 who deposed as to the preparation of the site plan Ex.PW1/1. He was also cross examined on behalf of the defendants. Sh. Anurag Jain, Ld. Advocate, who was appointed as Local Commissioner to visit the suit property was examined as PW4 who got marked his report as Ex.PW4/1 and photographs Ex.PW4/2 (colly). He was also cross examined on behalf of the defendants. Sh. Ashwani Kumar, Patwari (L/A), Lajpat Nagar, New Delhi was examined as PW5, who got marked copy of the award Ex.PW5/1 and certified copy of possession proceeding Ex.PW5/2. He was also cross examined on behalf of defendants. Sh. Ram Avtar from the office of SDM Ssarita Vihar, Lajpat Nagar 4, Delhi was examined as PW6 who produced the certified copy of Khatauni Ex.PW6/1 and sizra Mark PW6/A. Despite opportunity, he was not cross examined on behalf of defendants. Plaintiffs evidence then stood closed.
27. Defendants have not led any evidence despite opportunity.
28. Final arguments were then advanced on behalf of plaintiffs and none had appeared on behalf ofDigitally defendants by NAVJEET signed to BUDHIRAJA NAVJEET BUDHIRAJA Date:
2023.07.31 14:25:45 12 Ramesh Chand and ors Vs. Rajinder Kumar and Anr +0530 advance arguments.
My issue wise finding is herein below:
29. Issue no. 1:- Whether the suit is barred by Section 185 of the Delhi Land Reforms Act? OPD 29.1. The burden to prove this issue was upon the defendants. The present suit pertains to the relief of permanent injunction against the defendants seeking to restrain them from illegally and forcibly dispossessing the plaintiff from the suit property. Defendants, in the written statement, have simply stated that no civil suit in this behalf or for claiming of possession is maintainable and is barred under Section 185 of Delhi Land Reforms Act. Though, this is the legal objection, but in final stages, Ld. Counsel for defendants played truant and did not offer any argument in this context. Nevertheless, being a legal objection, I proceed to deal with it.
29.2. In Tara Chand and Anr Vs. Kumari Rajni and Ors, High Court of Delhi, 28.04.2008, similar issue arose, but it was concluded by the High Court that pertaining to agricultural land, no remedy is available with the party before revenue authority to seek a relief of injunction. The germane paragraphs are presented herein under:
"15. Pertaining to agricultural land no remedy is available to a party before a revenue authority to seek a relief of injunction. NAVJEET BUDHIRAJA
16. Pertaining to Section 41(h) of the Specific Relief Act it has to be Digitally signed by NAVJEET BUDHIRAJA Date: 2023.07.31 14:25:52 +0530 13 Ramesh Chand and ors Vs. Rajinder Kumar and Anr noted that an injunction may be refused when a party has an equal efficacious remedy except in case of breach of trust. I fail to understand as to what efficacious other remedy would be available to the plaintiffs on the cause pleaded other than a suit for injunction. .....
20. I hold that the suit filed by the plaintiffs was maintainable. I hold that the suit is neither barred under the provisions of the Specific Relief Act or the Delhi Land Reforms Act.
21. I may note a short order passed by their Lordships of the Hon'ble Supreme Court reported as 2008 AIR SCW 1965 Rajender Singh v.
Vijay Paul and Ors. In somewhat similar circumstances their Lordships of the Supreme Court held that suits for injunctions pertaining to agricultural land have to be decided after trial by the Civil Courts and not before the revenue authorities"
29.3. Also, in Rajinder Singh Vs. Vijay Paul and ors, Supreme Court, 2008 AIR SC W 965, in some what similar circumstances, it was held that suit for injunction pertaining to agricultural land has to be decided after trial by the civil court and not before the revenue authorities.
29.4. It is, thus, lucid that under Section 185 of Delhi Land Reforms Act, only such suits are not maintainable before civil court remedies whereof are available before a revenue court. Pertaining to agricultural land, no remedy was available to the party before the revenue authority to seek injunction and, Digitally therefore, the present suit would not be hit by Section 185 of signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2023.07.31 14 Ramesh Chand and ors Vs. Rajinder Kumar and Anr 14:26:00 +0530 Delhi Land Reforms Act. Thus, issue no.1 is decided in favor of the plaintiffs and against the defendants.
30. Issue no.3:- Whether the suit is bad for non- joinder of all the owners of Khasra Nos. 760, 761 and 762? OPD.
30.1. The onus to prove this issue was also upon the defendants. Though, in the cross examination of PW1 recorded on 19.01.2018, he has affirmed that there are other co-owners in respect of Khasra no.760, 761 and 762 besides the plaintiffs, however, non-joining of other co-owners would not be fatal to the suit of the plaintiffs as the suit relates to the relief of seeking permanent injunction against the defendants and it does not matter if out of all the owners of those Khasras, some of the owners have come forward and instituted the suit. Defendants admittedly have no relation with either of these Khasras as they are claiming their rights over Khasra no.754 only. Thus, their plea of non-joinder of all the owners of the Khasra No.760, 761 and 762 is not sustainable. Issue no.3 is also decided against the defendants and in favor of the plaintiffs.
31. Issue no.2:- Whether the vacant flat marked in red color in the site plan filed by the plaintiff forms part of Khasra No.761 as alleged by the plaintiffs or forms part of Khasra No.754 as alleged by the defendants? Onus on parties.
31.1. This is the primal issue on which both the parties Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.07.31 14:26:06 +0530 15 Ramesh Chand and ors Vs. Rajinder Kumar and Anr have locked horns as the plaintiffs are claiming their possession over the suit property being the owner of Khasra No.761 whereas defendants are alleging to be in possession being the owner of Khasra No.754. The onus was cast upon both the parties.
31.2. Before returning my finding on this issue, I deem it apposite to amend this issue, as the issue relates to the suit property being either the part of Khasra No. 761 as alleged by the plaintiffs or the part of Khasra No.754 as alleged by the defendants, however, in my opinion since the defendants have not filed any counter claim seeking any declaration in regard to the suit property being part of Khasra No.754, any conclusive finding thereon would be an impediment for the plaintiffs in future, if they wish to challenge the demarcation report of the revenue authority dated 13.04.2018. The issue, thus, is amended as under:
"Whether the vacant land marked in red colour in the site plan filed by the plaintiffs forms part of Khasra No.761, as alleged?"
31.3. From the careful analysis of the pleadings, it is made out that both the parties are not at logger heads in so far as ownership issue is concerned. Defendants have nowhere disputed the claim of the ownership of the plaintiffs over the Khasra No.761 and plaintiffs have also acknowledged the ownership of the defendants of Khasra No.754, though they have also claimed that most of the land pertaining to Khasra No.754 has already been acquired by the government.
Digitally signed by NAVJEET NAVJEET BUDHIRAJA
BUDHIRAJA Date:
2023.07.31
14:26:11 +0530
16 Ramesh Chand and ors Vs. Rajinder Kumar and Anr 31.4. The legal position in regard to the relief of permanent injunction is settled that the party in settled possession can restrain the other party who may be seeking to forcibly dispossess the former and this relief can even be claimed by trespasser of any property, who is also clothed with the right to be not dispossessed of the property except by due process of law. The moot question, on the anvil of this principle is who is in possession of the suit property and whether the suit property forms part of Khasra No.761 or not. Plaintiffs, in order to establish their possession over the suit property, have mainly relied upon the report of local commissioner Sh. Anurag Jain, appointed by the High Court of Delhi who has been examined as PW4. Before adverting to his testimony, it is pertinent to note that the need of his engagement arose as Hon'ble Judge had observed that although the plaintiff is claiming himself to be in possession of the suit property, however, photographs do not show that the land is capable of being exclusively possessed by a particular person because it is on the main road and is not fully enclosed.
31.5. Testimony of PW4 is to the effect that he visited the site on the same date in the evening and prepared a report and also took the photographs. In his cross examination, he stated that he reached the spot with some persons and the site was shown to him by the counsel for plaintiff. From the report, it is made out that only criteria on the basis of which PW4 had claimed the plaintiffs to be in possession of the suit property is that the filling of sand was carried out on the suit property by the Digitally signed by NAVJEET 17 Ramesh Chand and ors Vs. Rajinder Kumar and Anr NAVJEET BUDHIRAJA BUDHIRAJA Date:
2023.07.31 14:26:17 +0530 plaintiff adjacent to the boundary of IOC Bottling Plant. In my opinion, the report delivered by PW4 is based on the pleadings of the plaintiffs only that they were in the process of laying down sand over the suit property when the obstruction was caused by the defendants. The report, thus, falls short of substantiating the pleading of the plaintiffs that they are in occupation of the suit property by some independent evidence. The defendants, on the other hand, have relied upon the demarcation report by the concerned revenue authority which was carried out on 13.04.2008 and which report was exhibited during the cross examination of PW2 as Ex.PW2/X1. PW2, during his cross examination, had affirmed that demarcation report dated 30.04.2008 was prepared after the land was acquired for bottling plant. Plaintiffs have claimed this demarcation report to be a bogus and false record which defendants have procured in connivance with the revenue officials, but, admittedly, plaintiffs have nowhere challenged this demarcation report before any forum at any point in time.
31.6. The legal position in regard to the dispute relating to boundaries is enunciated in Section 28(1) of Delhi Land Revenue Act which states that "all the disputes regarding boundaries shall be decided by Deputy Commissioner as far as possible on the basis of existing survey maps. In Indraprasth Medical Corporation Vs. NHAI, 2005(AD) Delhi 586, the division bench had held that in such cases, efficacious remedy available with the petitioner is to challenge the demarcation report.
Digitally 31.7. Further, High Court of Madhya Pradesh also in signed by NAVJEET BUDHIRAJA NAVJEET BUDHIRAJA Date:
2023.07.31 14:26:23 +0530 18 Ramesh Chand and ors Vs. Rajinder Kumar and Anr fairly recent judgment in Bhawarlal, S/o Girdhari Vs. Shyam Lal and Ors, dated 14.03.2023, while disposing of a petition against order of the lower court dismissing an application under Order 26 Rule 9 CPC had observed that once the demarcation has been done by the revenue authority, there would be no need for fresh demarcation by appointing commissioner. Also, case was referred therein of Jaswant Vs. Deen Dayal, 2011 MPLJ 576 wherein it was held that it is the duty of the court to issue a commission by appointing an employee of the revenue department to get the land in dispute demarcated.
31.8. The relevant paragraphs of the aforesaid judgment in Bhawarlal (supra) as under:
"[7] Again this Court has taken a similar view in the case of Jaswant S/o Kashi Ram Yadav Vs. Deen Dayal, reported in (2011) 2 MPLJ 576 had held that the duties of the Court to issue a commission by appointing an employee of the revenue department to get the land in dispute demarcated and for which no application is required. Para 10 of the said judgment is reproduced as under:
"10.The moot question
to be decided in this
appeal is whether the
property in question is
of plaintiff or
defendant. Both the
parties are claiming
ownership right on it.
According to the
plaintiff he purchased
the land vide registered
sale deed Ext-P-2 from
Deen Dayal and the
Digitally signed
suit property is a piece NAVJEET
by NAVJEET
BUDHIRAJA
BUDHIRAJA Date:
2023.07.31
14:26:30 +0530
19 Ramesh Chand and ors Vs. Rajinder Kumar and Anr of that land but according to the defendant it is part of the property which he purchased from Sudhir Shrivastava vide registered sale deed Ext-D-3. According to me, when there is dispute about demarcation of the property in question and its identity and both the parties are claiming it to be of their own on the basis of their document of title it was incumbent upon the Court itself to issue a commission by appointing an employee of revenue department not below the rank of Revenue Inspector to get it demarcated so that it can be identified. In the instant case my attention has been drawn by learned counsel for defendants to the application filed under Order XXVI, Rule 9, Civil Procedure Code but the same has been rejected at the time of the consideration of temporary injunction application. To me learned trial Court erred in substantial error of law in rejecting the said application. The learned First Appellate Court has also committed the same error by not allowing Digitally the said application. signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2023.07.31 14:26:35 20 Ramesh Chand and ors Vs. Rajinder Kumar and Anr +0530 Indeed, it was the duty of the Court itself to issue commission by appointing an employee of Revenue Department not below the rank of Revenue Inspector to get the land in dispute demarcated and for its identification no application is required for that purpose."
[8] This court in the case of Ansuiya Bai & others. Vs. Rajendra Parsai & others. (W.P. No. 1915/2014) decided on 03.04.2018 has already held as under:-
19. The scope of Order 26 Rule 9 of C.P.C. is very limited. The trial court in any suit in which a local investigation is required or proper for purpose of elucidating any matter of dispute may appoint a Commissioner. It is settled law that the parties are required to prove their case by way of evidence, therefore, it is the duty of the plaintiff/defendant to first give evidence in support of their case.
After the evidence of parties, if Court deems it proper that any issue is required to be elucidated or explained or clarified then the Court may appoint a Commissioner. The report of the Commissioner is merely a piece of evidence and not Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2023.07.31 14:26:41 21 Ramesh Chand and ors Vs. Rajinder Kumar and Anr +0530 binding on the trial Court. It can be used for the purpose of appreciating the evidence on record, if the petitioners/ defendants No.1 and 2 are not satisfied with the report, they can give a better evidence in support of their case.
The Court has already given an opportunity to them to adduce the evidence therefore, the defendants cannot use the Commissioner report to collect the evidence. Learned trial Court rightly rejected the application, hence, no interference is called for.
[9] Being aggrieved by the above order the SLP(C) 15712 was filed before the Supreme Court of India and the same has been dismissed on 20.7.2018. In view of the above case law, the power conferred under Order 26 Rule 9 of the C.P.C. can be exercised at any stage but for a limited purpose, as decided by the learned trial court.
[10] In the present case, the demarcation has already been done by the revenue authorities and the petitioner/ plaintiff has filed its report. If the respondents/defendants are disputing the said, then the burden is on the petitioner/plaintiff to prove that demarcation by adducing evidence. Once the demarcation has already been done by the revenue authority, there would be no need for fresh demarcation by appointing a NAVJEET BUDHIRAJA Commissioner, which would be done by the same authority. As Digitally signed by NAVJEET discussed above as per the scope of BUDHIRAJA Date: 2023.07.31 14:26:50 +0530 22 Ramesh Chand and ors Vs. Rajinder Kumar and Anr Order 26 Rule 9 of CPC if any elucidation or clarification will be required in future at any stage of the suit then the trial Court shall be competent to pass the order at the appropriate stage.
In view of the above, the present petition is dismissed."
31.9. The exposition of the aforesaid case law is that in case of dispute relating to identification of the property/boundaries thereof, the demarcation is to be carried out by revenue authority, and in case, any such demarcation has not been done, an order can be obtained from the court of law by appointing a commissioner under Order 26 Rule 9 CPC. But in case where demarcation has already been carried out by the revenue authority, and if any of the party is aggrieved by the same, the appropriate remedy is to challenge the said demarcation report. In the instant case, there is nothing on record to indicate that plaintiffs have challenged the demarcation report Ex.PW2/X which was carried out in respect of Khasra no.754. It is also an admitted position in the cross examination of PW1 that demarcation of Khasra no.760, 761 and 762 have not been carried out by revenue authority.
31.10. In such a scenario, without there being any demarcation report in respect of Khasra no.761, the claim of the plaintiff that the suit property falls under the said Khasra number cannot be substantiated, against the claim of the defendants who are armed with an official demarcation report which was carried out by the revenue authority Ex.PW2/X and which has not been called into question by or on behalf of plaintiffs NAVJEET bybefore Digitally signed NAVJEET BUDHIRAJA any BUDHIRAJA Date:
2023.07.31 23 Ramesh Chand and ors Vs. Rajinder Kumar and Anr 14:26:56 +0530 forum.
31.11. Further, even if we advert to identification of the suit property from the site plan Ex.PW1/1, defendants have challenged the same and PW1 and PW2 were extensively cross examined in this regard. Though PW1 stood embedded in his original stand that the gram sabha land was not shown in the site plan, PW2 affirmed in his cross examination that the land of gram sabha is situated near the Khasra No. 760, 761 and 762. In view of this, it was enjoined upon the plaintiffs to have clearly depicted the location of the gram sabha land as well in order to provide credence to the site plan.
31.12. Furthermore, it is discernible from the testimony of PW3 also, who is the author of the site plan that Khasra numbers were mentioned in the site plan on the basis of Shizra provided by him and there is no material on record to establish that he has independently verified the location of the Khasars from the revenue record. Apart from this, from the plaint as well as affidavit of PW1, it is noted that the plaintiffs have claimed that almost entire surrounding area has been colonized and plaintiffs have also enclosed their own land by raising construction of the shops and other commercial activity but when it was confronted in his cross examination as to whether this extract of his statement co-relates with the site plan, PW1 could not give any satisfactory reply. In the wake of these circumstances, it is difficult to rely on the site plan Ex.PW1/1 to conclusively identify the suit property to be part of Khasra No.761. Thus, in the absence of any material demonstrating that the suit property Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2023.07.31 24 Ramesh Chand and ors Vs. Rajinder Kumar and Anr 14:27:03 +0530 forms the part of Khasra No.761, this issue is decided against the plaintiffs and in favor of the defendants.
32. Issue no.4: Whether the plaintiff is entitled to the permanent injunction? OPP.
32.1. In view of the finding in issue no.2, since plaintiffs have failed to establish that the suit property forms part of Khasra No.761 and also that they are in possession of the suit property, plaintiff is not found to entitled to the relief of permanent injunction. Issue no.4 is also decided against the plaintiffs and in favor of the defendants.
33. In view of the foregoing discussion, the suit of the plaintiff stands dismissed. There is no order as to cost. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance. NAVJEET Digitally signed by NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.07.31 14:27:10 +0530 Announced & dictated in the open court on 31.07.2023 (Navjeet Budhiraja) Additional District Judge-03 South East District, Saket Courts, New Delhi 31.07.2023 Certified that this judgment contains 25 pages and each page bears my signatures.
Digitally signed byNAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.07.31 14:27:15 +0530 (Navjeet Budhiraja) Additional District Judge-03 South East District, Saket Courts, New Delhi 31.07.2023 25 Ramesh Chand and ors Vs. Rajinder Kumar and Anr