Delhi District Court
Madan Lal (Since Deceased) vs Delhi Development Authority on 23 November, 2016
IN THE COURT OF SHRI GAGANDEEP SINGH: ADDITIONAL
SENIOR CIVIL JUDGE : JSCC : GUARDIAN JUDGE,
KARKARDOOMA COURTS (EAST)
Suit No. 119/07 & 345/07
New Suit No. 8991/16 & 8990/16
Shri Kasturi Lal
s/o Shri Kotu Ram
r/o 35, East Vinod Nagar,
Illaqa Shahdara Delhi (since deceased)
through LRs
1. Madan Lal (since deceased)
through LRs
(a) Mrs. Neeru Girdhar
w/o Late Shri Madan Lal
(b) Shri Sanchit
s/o Late Shri Madan Lal
both r/o 4/27, Roop Nagar,
Delhi110007.
2. Simmi
w/o late Shri Rajesh Kumar
r/o 42F, Kohlapur,
Kamla Nagar, Delhi110007.
3. Ms. Nancy
d/o late Shri Rajesh Kumar
r/o 42F, Kohlapur, Kamla Nagar,
Suit No. 8991/16 & 8990/16 Page No. 1/18
Delhi110007.
(minor being represented by her
mother and natural guardian
Mrs. Simmy). ........... Plaintiffs.
VERSUS
Delhi Development Authority
Vikas Sadan, INA Market,
New Delhi
Through its Vice Chairman.
............ Defendant.
Date of institution of the main suit : 24.05.1993
Date on which order was reserved: 20.10.2016
Date of decision : 23.11.2016
SUIT FOR PERMANENT INJUNCTION.
JUDGMENT
1. By way of the instant common judgment, I propose to dispose off two suits bearing no. 8990/16 (hereinafter referred to as main suit) and 8991/16 (hereinafter referred to as subsequent suit) for Permanent Injunction. The said suits were clubbed vide order dated 08.11.2005.
2. The facts and the evidence led by the parties in both suits is common and only the additional fact in the subsequent suit is subsequent development of demolition of the suit property by DDA.
3. Briefly stated, the facts of the main suit are that plaintiff claimed himself to be owner of property no. 35, East Vinod Nagar, Shahdara, Suit No. 8991/16 & 8990/16 Page No. 2/18 Delhi admeasuring 944 sq. yards on which 5060 shops are duly constructed and let out to different parties. The plaintiff purchased the said property from Chander Kali in November 1988. The construction as is today was in existence at the time of purchase of it. The property has already been duly mutated in the name of plaintiff by the MCD and assessed to the house tax. The area East Vinod Nagar wherein the suit property lies, falls in the revenue estate of village Khichripur. It is in the extended Lal dora of the village which has been since regularized vide resolution no. 58/1 dated 01.12.1983. After regularization of the said colony, same has been handed over to the MCD for maintenance and all other purposes. Hence DDA (defendant) has lost all the control over the suit property.
4. But the officials of DDA came at the suit property on 22.05.1993 and threatened to demolish it. They also stated that they plan to demolish the portion on 26/27 May 1993. He apprised the concerned officials of regularization of suit property but without any response. The act of the defendant officials is illegal as no notice has ever been issued upon him in this regard. Hence plaintiff preferred the present suit for permanent injunction seeking restraint against defendant from demolishing the suit property.
5. In the subsequent suit bearing no. 8991/16, apart form the abovesaid facts plaintiff further pleaded that during pendency of main suit, the officials of DDA came at the suit property on 01.06.1993 an 02.06.1993. They unlawfully and illegally demolished most part of the Suit No. 8991/16 & 8990/16 Page No. 3/18 suit property. But MALBA of the demolished portion is still lying there. The said MALBA lying in the suit property exclusively belongs to the plaintiff and defendant has no right, title or interest over the same. They also threatened to remove the said MALBA and hence plaintiff has preferred second suit for permanent injunction restraining the defendant from removing the MALBA lying in the suit property.
6. The summons of settlement of issues were issued to the defendant and defendant filed the written statement. It was pleaded that suit is not maintainable due to want of issuance of notice u/s 53B of DDA Act. The maintainability of the suit was also questioned by claiming that it is under valued and without jurisdiction. It was further pleaded that suit property falls in Khasra no. 646/555/35 (909) and 647/555/35 (708) village Khichripur. The same has already been acquired vide award no. 30A/7071. The physical possession of the same has already been taken over form Land and Building department on 05.04.1997 and the same has been placed at the disposal of DDA under Section 22 of DDA Act vide notification dated 01.02.1979. Thus, the plaintiff is nothing but trespasser on the government land. Hence DDA being the owner of suit property has all the rights to protect its possession. Therefore the unauthorized construction / structure was demolished by defendant in June 1993.
7. The plaintiff filed the replication to the written statement reiterating the contents of the plaint and denying the averments of the written statement.
Suit No. 8991/16 & 8990/16 Page No. 4/188. From the pleadings of the parties, the following issues were framed by Ld. Predecessor vide order dated 05.11.2001.
1. Whether the plaintiff is in possession of land measuring 944 sq. yards in revenue estate village Khichripur, now known as East Vinod Nagar ? OPP
2. Whether the suit is bad for want of notice under Section 53 B of DDA Act ? OPD
3. Whether suit land falls in khasra no. 646/555/35 and 647/555/35 which stands acquired and placed at the disposal of DDA ? OPD
4. Whether the plaintiff is entitled for Permanent injunction as prayed ? OPP
5. Relief.
9. The plaintiff in order to prove his case has examined himself as PW1. He reiterated the assertions of the plaint through his affidavit. He relied upon the documents i.e. Agreement to Sell, Receipt and GPA all dated 04.11.1988 Ex. PW1/1 to Ex. PW1/3 respectively, Agreement to Sell, Receipt, GPA dated 05.08.1978 Ex. PW1/4 to Ex. PW1/6, copy of assessment notice for the period 199192 Ex. PW1/7, copy of Delhi Gazette dated 03.07.1987 Ex. PW1/8, copy of judgment passed in injunction suit preferred by deceased plaintiff Kasturi Lal against SHO P.S. Kalyanpuri Ex. PW1/9.
He was extensively cross examined by Senior Law Officer of defendant.
Suit No. 8991/16 & 8990/16 Page No. 5/18PW2, Shri Ramesh Chandra is the official from Land and Building department who proved the notification dated 03.07.1987 Ex. PW2/1.
PW3, Shri Nahar Singh is official from DDA who proved Resolution no. 58 Ex. PW3/1 with three annexures. He also proved notification dated 14.07.1987 Ex. PW3/2, layout plan of East Vinod Nagar Ex. PW3/3.
PW4 Shri Naresh Kumar, official from MCD has proved the record with respect to the house tax.
PW5 Shri Dinesh Kumar has supported the case of the plaintiff through his affidavit Ex. P5 by claiming to be tenant.
PW6 Shri S.P. Pathak, Director Planning TYA, DDA 3 rd floor Vikas Minar I.P. Estate, New Delhi who again proved the resolution no. 58 dated 01.02.1983 was got proved as Ex. PW6/1. He further stated that after the regularization, colony has been denotified and it stands transferred to the MCD. The MCD is only competent to take any action with respect to the illegal construction. Though, he stated that any portion of the land in the said colony owned by DDA, the DDA only can take action qua the said land.
10. Thereafter defence evidence was led on behalf of defendant who examined Shri Ranbir Singh, Patwari as DW1. He reiterated their defence in his affidavit Ex. DW1. He also proved the record of acquisition proceedings of Award no. 30A/7071 Ex. DW1/1, possession proceedings Ex. DW1/2. He also proved the notification placing the land at the disposal of DDA vide notification dated 01.02.1979.
Suit No. 8991/16 & 8990/16 Page No. 6/18He was extensively cross examined by the respective parties.
11. On the basis of said pleadings as well as evidence, Ld. Predecessor vide his judgment dated 19.03.2011 dismissed the suit of plaintiff. The said judgment was challenged before Ld. Appellate court which vide its judgment dated17.10.2014 remanded back the matter by setting aside the judgment. The Ld. Appellate court that apart from the issues already framed additional issue i.e. Whether the land over which suit property is situated was regularized vide resolution no. 58 dated 01.12.1983 ? OPP
12. It was further held that the issue with respect to the acquisition of the land and same being placed at the disposal of DDA also requires to be examined in light of abovesaid resolution. Thus again opportunity was given to both the parties for leading evidence with respect to the additional issue.
13. The plaintiff thereafter examined PW7 Shri S. Dass, Director Planning DDA who once again proved the regularization resolution no. 58/1 dated 01.12.1983 as Ex. PW7/A and layout plan Ex. PW7/B. He also proved notice dated 14.07.1987 regarding denotification Ex. PW7/C. All the said documents were already on record and duly proved but despite that witness was again examined by the plaintiff. No further evidence was led on behalf of defendant. Thus no fresh evidnece has come on record after the remand back of the case.
14. I have carefully gone through the entire material on record and heard the submissions of Ld. Counsel for the DDA. No arguments were Suit No. 8991/16 & 8990/16 Page No. 7/18 advanced on behalf of plaintiff despite numerous opportunities.
15. My issuewise findings on the abovesaid issues are as under:
Issues No.1,3 and 4.
1. Whether the plaintiff is in possession of land measuring 944 sq. yards in revenue estate village Khichripur, now known as East Vinod Nagar ? OPP
3. Whether suit land falls in khasra no. 646/555/35 and 647/555/35 which stands acquired and placed at the disposal of DDA ? OPD
4. Whether the plaintiff is entitled for Permanent injunction as prayed ? OPP
16. All these issues are taken up together being interconnected to each other. The burden of proving issues no.1 and 4 was placed upon the plaintiff and burden of proving issues no.3 was placed upon the defendant.
17. It was argued on behalf of DDA that plaintiff is nothing but a trespasser on government land. He has already lost possession of suit property after the construction on it was demolished by them. Hence the suit for injunction simplicitor is not maintainable.
18. The case of the plaintiff (since deceased) is based upon the premise that he is the owner and in possession of suit property bearing no. 35 East Vinod Nagar, measuring 944 sq. yards. It is further the case of the plaintiff that around 5060 shops were also constructed when he purchased it form one Chander Kali in November 1988. No further Suit No. 8991/16 & 8990/16 Page No. 8/18 construction has been raised by him in the suit property. Thus it is quite apparent from the pleadings of plaintiff that he claims to be the owner of suit property and hence issue of ownership has to be decided in the present suit for injunction once pleadings are there of both the parties.
19. The plaintiff claims ownership on the basis of documents Ex. PW1/1 which is GPA dated 04.11.1988, Agreement to Sell Ex. PW1/2, Receipt of Rs.90,000/ Ex. PW1/3. The plaintiff also placed reliance upon previous chain of documents i.e. GPA, Agreement to Sell dated 05.08.1978 executed by Anant Ram in favour of Chander Kali Ex. PW1/4 and Ex. PW1/6. Admittedly, all the said title documents are not even notarized what to talk about registration as required under Section 17 of Registration Act. In the light of law laid down by Hon'ble Supreme Court in Suraj Lamp Industries Vs. State of Haryana, AIR 183 DLT (2011) SC the said transfer documents for purchase of the immovable property worth more than Rs.100/ does not create any right, title or interest in favour of transferee. Even otherwise, the said documents are incomplete set of documents wherein it is not clear as to how the predecessor in interest of Chander Kali, namely Anant Ram acquired title of suit property when he disposed it off in the year 1978. No revenue record in the name of said Anant Ram was filed nor got proved by the plaintiff for the reasons best known to him.
20. The plaintiff has also pleaded in the plaint that the said area falls in extended lal dora of village. But no such lal dora certificate in name of plaintiff has been filed. Thus the said title documents even though Suit No. 8991/16 & 8990/16 Page No. 9/18 having no value in the eyes of law are incomplete chain and no benefit can be given to the plaintiff in this regard. Hence the claim of ownership of plaintiff has remained unproved.
21. The plaintiff in order to raise his claim of ownership as well as possession over the suit property also placed reliance upon the property tax record Ex. PW1/7 showing mutation of the property in his name. The plaintiff in this regard got examined PW4 the official from MCD who categorically stated that till date no final assessment order has been passed in pursuance to the assessment notice Ex. PW1/7. He further in the cross examination stated that house tax is not necessary to be deposited by the owner of the house and any person can deposit the same. It is thus quite apparent that mere deposit of house tax does not show or give any right, title or interest of the suit property in favour of plaintiff herein. It also does not reflect the title in favour of plaintiff herein. The house tax is taken by the MCD only as charge for the maintenance services provided in the area. For the said limited object any person who is occupying any property in whatever capacity is supposed to deposit the same. Therefore, in the light of said object the deposit of house tax by plaintiff in his own name does not in any way create right, title or interest in his favour. The said issue has been dealt by Hon'ble Supreme Court in case titled as R.V.E. Venkatachala Gounder Vs. Arulnigu Viswesaranswami and V.P. Tample and ors. AIR 2003 SC 4548 by observing that the entry in municipal record is no evidence of title.
Suit No. 8991/16 & 8990/16 Page No. 10/1822. Even otherwise it is quite apparent that for the first time tax has been deposited in the year 1988 by the plaintiff herein only in his own name despite the denotification of the colony in the year 1987. The tax has been deposited by plaintiff herein in order to create documentary evidence to support his title.
23. The case of the plaintiff is also rebutted by his own documents. As per the plaintiff, he purchased the suit property from Chander Kali in November 1988 wherein 5060 shops were already constructed. He further categorically claimed on oath that construction as is in existence has not been added / altered by him after purchased. But on the contrary, transfer documents Ex. PW1/1 and Ex. PW1/2 clearly rebuts the said plea of the plaintiff. At the time of said transfer of suit property through unregistered documents, it was a built up property having only one room with boundary walls. Therefore, it rebuts the plea of plaintiff that he has not raised any further construction. The plaintiff has failed to explain as to how on the said piece of land wherein only one room was there in the year 1988 suddenly there are more than 60 shops at the time of filing of suit.
24. The defence of the defendant right from the beginning when they filed written statement, is that the suit property falls in khasra no. 646/555/35 (909) and 647/555/35 (708) village Khichripur. The same has been stated to be acquired vide Award no. 30A/7071. Despite the said specific plea being taken with respect to the revenue identification of the suit property, the plaintiff conspicuously remained completely silent Suit No. 8991/16 & 8990/16 Page No. 11/18 in this regard in his rejoinder. The plaint of the plaintiff is also completely silent in this regard wherein he only gave the number of the property to be 35 without disclosing the revenue khasra number. Though PW1 in his cross examination claimed that suit property falls in khasra no. 35 village Khichripur. But admittedly the said plea of plaintiff is beyond pleadings and is thus liable to be rejected.
25. The defendant on the other hand examined Shri Ranbir Singh, Patwari of the area as DW1 who categorically stated so in para no.2 of the affidavit. In the entire cross examination the said plea of suit property falling in khasra no. 646/555/35 and 647/555/35 is not rebutted. Thus the implied as well as constructive admission is there on the part of plaintiff with respect to the defence of defendant regarding the suit property falling in khasra no. 646/555/35 and 647/555/35.
26. The next issue which requires to be decided is as to whether or not the suit property falling in khasra no.646/555/35 and 647/555/35 has been acquired vide Award no. 30A/7071. The defendant further pleaded that they have taken over the possession of the same from Land and Building Department on 05.04.1977. It has been further claimed that it was placed at their disposal vide notification dated 01.02.1979 u/s 22 (1) of DDA Act. PW1 was cross examined on the said aspect wherein he denied the said suggestion of acquisition of land and physical possession being taken over by the DDA.
27. The defendant in order to discharge onus placed upon them examined DW1 who in para no. 2 of affidavit categorically deposed Suit No. 8991/16 & 8990/16 Page No. 12/18 about the same. DW1 was extensively cross examined on behalf of plaintiff wherein not a single question was put as to the acquisition of the land vide award no. 30A/7071. No suggestion was given denying the factum of acquisition of land. He was only cross examined on the aspect of regularization of the colony in question and its effect. Thus as far as the acquisition of the land in question is concerned and subsequently possession being taken over on 05.04.1977, the testimony of DW1 has gone unrebutted and unchallenged. The para 2 of affidavit Ex. DW1/A is not at all challenged in cross examination. The documents in this regard produced by defendant as Ex. DW1/1, Ex. DW1/2 and lastly Ex. DW1/13 were though objected to by the plaintiff without disclosing as to the reasons for the same. It appears that reasons for the same could be it being photocopy. The said documents are admittedly public record as defined under Section 74 of Indian Evidence Act and the attested certified copy of the same is admissible in evidence. DW1/1, DW1/2 and Ex. DW1/3 are duly certified by the concerned official of department and hence objection regarding admissibility of the said documents is liable to be rejected.
28. The Punchnama Ex. DW1/2 clearly reflects possession of the suit property falling in khasra no. 646/555/35 and 647/555/35 being taken over by the DDA on 05.04.1977. Subsequently said suit property has been placed at the disposal of DDA vide notification Ex. DW1/3 dated 01.02.1979 in terms of Section 22 of DDA Act. There is no reason to disbelieve the said public record. The said document conclusively proves the title of ownership in favour of DDA. It also thus proves the fact of plaintiff being nothing but trespasser on the DDA land and no injunction can be granted in favour of trespasser on public land. To support this view I am guided by the judgment of Hon'ble Suit No. 8991/16 & 8990/16 Page No. 13/18 Supreme Court titled as Bakshi Ram Vs. DDA 1995 (32) RJ.
29. Even otherwise the case of the plaintiff is liable to be dismissed under Section 41 (h) of Specific Relief Act. It is admitted case of the plaintiff herein that he claims himself to be the owner of suit property having purchased it from Chande Kali in November 1988 through GPA etc. On the basis of said pleadings, he instituted the suit for permanent injunction. Thus the issue of title of the plaintiff was in dispute and cloud was raised by the defendant right from the beginning at the time of filing of the written statement. The defendant set up their own title by virtue of Award no. 30A/7071. They further raised cloud over the title of the plaintiff subsequently in the written statement by pleading that plaintiff has no right, title or interest over it. In these circumstances, when the said cloud was raised over the title of the plaintiff, the plaintiff was under the obligation to amend the suit by claiming necessary relief of declaration of his title. The issues framed by Ld. Predecessor also makes it quite apparent that issue of title and cloud being raised over the title of plaintiff. But the plaintiff preferred not to amend the suit and continued with the two suits for permanent injunction. In the subsequent suit also the cloud was raised over his title and in that suit also simplicitor injunction has been sought. In these circumstances simplicitor suit for injunction without relief of declaration is liable to be dismissed in the light of law laid down by Hon'ble Supreme Court in Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors on 25 March, 2008 Appeal (civil) 6191 of 2001 comes into effect. The relevant para is reproduced as under for the sake of convenience: Suit No. 8991/16 & 8990/16 Page No. 14/18 "........12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title."
30. In view of abovesaid reasons, I am of the considered opinion that plaintiff has failed to discharge the burden of proof placed upon him for proving factum of ownership of suit property in his favour.
31. On the contrary the defendant has been able to discharge onus Suit No. 8991/16 & 8990/16 Page No. 15/18 placed upon them showing the acquisition of the land and specifically possession being taken over by them. Issue NO. 1 and 4. are accordingly decided against the plaintiff and issue no.3 is decided in favour of defendant.
Additional Issue no.6.
Whether the land over which suit property is situated was regularized vide resolution no. 58 dated 01.12.1983 ? OPP
32. The Ld. Appellate court framed the abovesaid additional issue vide its order dated 17.10.2014. The plaintiff in order to discharge the burden of proving the said issue has placed reliance upon the documents exhibited as Ex. PW3/1 (colly) with annexure 1, 2 and 3. The reliance was placed upon the subsequent notification dated 14.07.1987 showing denotification of the colony in question and handing over to the MCD. It was again got proved by plaintiff after remand back of the case as Ex. PW7/A (colly).
33. The entire case of the plaintiff is based upon the premise that once colony has been regularized by the DDA, it has lost entire administrative control over it. Further, the case of the plaintiff is that the process of denotification of the area in question takes away all the rights from the DDA and now jurisdiction with respect to the demolition of construction lies with MCD.
34. The document Ex. PW3/1 is regularization resolution approval of East Vinod Nagar which was unauthorized colony. The said resolution Suit No. 8991/16 & 8990/16 Page No. 16/18 has to be read in its entirety and not in piecemeal. The annexure 3 of the said resolution lays down the conditions for approval of the layout plan which is quite relevant and clinches the case of defendant herein.
35. The said resolution clearly provides that any construction included in the regularization plan on the land which is owned by DDA would not be part of approved land. Admittedly in the case in hand it has been proved on record that suit property falls on the land already acquired by DDA vide award no. 30A/7071 and hence plaintiff cannot take advantage of the said regularization proceedings.
36. The other plea of the plaintiff that once colony was regularized, DDA lost entire administrative control over it, is misplaced and is mischievous argument. The object of the regularization proceedings is quite apparent from the said resolution as well as annexures. The object of the government is to provide maintenance facilities i.e. water or electricity facility as well as other necessary infrastructure to the residents who have raised houses in the area which was not previously approved under the DDA Act. It does not in any way regularized the trespass or unauthorized encroachment over the government land which is the case herein. Further the notification Ex. PW3/2 quite clearly provides that only maintenance part has been transferred to the MCD after denotification and said denotification cannot be read as transfer all the ownership rights of the land owned by DDA. The witnesses of the plaintiff i.e. PW6 as well as PW2 categorically stated that said scope of the denotification which is not rebutted by the plaintiff. Thus the Suit No. 8991/16 & 8990/16 Page No. 17/18 argument of the plaintiff is liable to be rejected.
37. In light of abovesaid reasons, the additional issue is also decided against the plaintiff and in favour of DDA.
Issue no.2.
Whether the suit is bad for want of notice under Section 53 B of DDA Act ? OPD
38. The burden of proving issue no.2 was placed upon the defendant. No argument was advanced by the defendant in this regard. The plaintiff herein has preferred the suit for permanent injunction citing urgency in approaching the court due to impending threat of demolition of suit property. Thus any insistence upon issuance of prior notice as required u/s 53 B of the DDA Act would have defeated the object of instituting the main as well as the subsequent suit. The pleadings of both suits makes it quite apparent that the case of the plaintiff squarely falls within the purview of Section 53 B Sub Clause 3 of the Act. Accordingly issue no.2 is decided against the defendant.
39. In view of my findings upon ongoing issues the suit of the plaintiff stands dismissed. No order as to cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court ( Gagandeep Singh) on this 23rd day of November 2016. ASCJ/JSCC/G. Judge (East) Karkardooma Courts, Delhi.
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