Delhi District Court
M C D vs K.N.Chhibar on 30 May, 2025
IN THE COURT OF SH. ANIL KUMAR PASWAN, LD. DISTRICT
JUDGE-04 (EAST), KARKARDOOMA COURTS, DELHI.
RCA No. 74/16 (Old no. 111/2011)
The MCD
Through its Commissioner
Having its office at:
Dr. SMP Civic Centre, Minto Road,
New Delhi-110002 ...........Appellant
Versus
K.N. Chhibber
(Since deceased)
Through his LRs.
(1) Kiran Dutta (daughter)
D/o Late K.N. Chhibber
W/o major A.C. Chhibber
R/o HQ-1, Arm Division
C/o 56, APU.
(2) Priya Dutt formally Poonam (daughter)
D/o Late K.N. Chhibber
W/o Mr. Kamaljeet Dutt
R/o 11, Deer Path Trail
Burr Ridge, Illinois-60521, USA
(3) Sharmila Seth (daughter)
D/o Late K.N. Chhibber
W/o Sh. Ajay Seth
R/o 536, 9th Main, 4th Cross,
HAL-2 stage. Indira Nagar,
Banglore
RCA no. 74/16 MCD VS K.N. Chhibber Page no. 1 of 25
Digitally signed
by ANIL
ANIL KUMAR
KUMAR PASWAN
PASWAN Date:
2025.05.30
16:13:02 +0530
(4) Ravi Roopam
(Since deceased)
Has been informed died intestate ...........Respondents
Date of Institution : 22.10.2011
Date of final arguments : 18.03.2025
Date of decision : 30.05.2025
Final decision : Dismissed
JUDGMENT
CASE OF APPELLANT
1. This is the first appeal challenging the order passed by Ld. Trial Court dated 15.09.2011 in the suit for mandatory injunction against the appellant.
2. The following were the facts in the suit for mandatory injunction as mentioned in the plaint :-
PLAINT i. The suit was filed in the Ld. Trial Court for mandatory injunction by plaintiff against the defendant and it was stated that the plaintiff had purchased the plot no. 1, 2, 30, 33, 34 & 35 Block A in the residential colony known as Krishna Nagar Extension Patparganj Road situated at Village Ghondli, Shahdara, Delhi from M/s Delhi Land and Finance Ltd. Vide registered sale deed dated 27.06.1953. Out of the said plot, plaintiff sold out plot no. 1, 2, 30, 33 & 34 to different persons and delivered vacant physical RCA no. 74/16 MCD VS K.N. Chhibber Page no. 2 of 25 Digitally signed by ANIL ANIL KUMAR PASWAN KUMAR Date:
PASWAN 2025.05.30 16:13:07 +0530 possession to them who have constructed their houses on the said plots after getting the building plans sanctioned from the building concerned. Then the plaintiff remained owner and in possession of plot no. 35, measuring 272.2 sq. yards i.e. 37'x70' in area (herein after referred to as suit property). On the back of plot A-35, there is a plot no.A-17, which was lying vacant and in front of the suit property there was main Patparganj Road. The front of the plot no. A-17 opens in a gali. Both the plots are connected back to back. The defendants no. 2 to 5 are owners of plot nos. 2, 4, 6 & 34 of block A and constructed their houses on their respective plots.
ii. In the month of May, 1987 the defendant no. 1 put stone/rori in both the plots bearing no. A-35 and A-17 at the instance and in collusion with the owners of the adjacent plots i.e. defendants no. 3 to 5 for constructing road on the said plots. The plaintiff requested the employees/contractor of the defendants no. 1 not to put the rori on the suit property, but they flatly refused to concede to the request of plaintiff and thereafter plaintiff filed a suit for permanent injunction. During the pendency of the suit the defendant no. 1 had put pukka rori on the said plot. The plot of the plaintiff as well as the plot no. A-17 have neither been acquired nor any action of sanction to construct the road on the said plots has been taken in accordance with the law laid down in the act by the defendant, prior to constructing the road on the said plot. It is submitted that the defendants no. 2 to 5 are in collusion with the defendant no. 1 and have unauthorizedly and illegally opened their doors and RCA no. 74/16 MCD VS K.N. Chhibber Page no. 3 of 25 Digitally signed by ANIL ANIL KUMAR PASWAN KUMAR Date:
PASWAN 2025.05.30 16:13:11 +0530 windows in their respective houses facing the plot of the plaintiff for which they have no right, title or interest. The plaintiff had given a notice to the defendant no. 1 dated 26.04.1989 and the defendant no. 1 was called upon to remove the rori and other malva. But the defendant no. 1 had not paid any heed to the request of the plaintiff. By finding no other alternative plaintiff has filed the present suit and prayed that the decree of mandatory injunction be passed thereby directing the defendant no. 1 to remove the illegal construction/rori from the suit plot and also removed the rori and other malva. The plaintiff also prayed that defendants no. 2 to 5 be also directed to close the doors and windows of their respective houses towards the plot no. 35A, Krishna Nagar Extension, Patparganj Road situated at Village Ghondli, Shahdara, Delhi.
iii. Notice of the suit was issued to the defendants. No steps were taken by the plaintiff to get served defendants no. 2 to 5, despite giving opportunity by the Court. The suit qua defendants no. 2 to 5 was dismissed vide order dated 26.07.2000. Also, the relief sought against defendant no. 2 to 5 was not entertained. WS was not filed by defendant no. 1 and their defence were struck off vide order dated 23.02.2001. Thereafter, the only issue which was framed qua defendant no. 1 was "Whether the plaintiff is entitled for mandatory injunction as prayed in the prayer (a) of the plaint?"
RCA no. 74/16 MCD VS K.N. Chhibber Page no. 4 of 25 Digitally signed by ANIL ANIL KUMAR KUMAR PASWAN PASWAN Date:
2025.05.30 16:13:16 +0530 PLAINTIFF'S EVIDENCE
3. In order to prove his case, plaintiff examined himself as PW1 by way of affidavit in evidence Ex.PX and Ex.PW1/1A. He placed on record the document Ex.PW1/1 i.e. certified copy of the sale deed executed between the Delhi Land & Finance Ltd and late Smt. Pushpa Chhibbar.
4. After going through the record and evidence produced, the suit of plaintiff was decreed for mandatory injunction against defendant no. 1.
GROUNDS OF APPEAL
5. Following grounds were taken in appeal by the appellant:-
a) Ld. Trial Court had passed the judgment in a mechanical and arbitrarily manner without due application of mind.
b) Ld. Trial Court did not appreciate that no khasra number was mentioned in the alleged sale deed Ex.PW1/1 and how Delhi Land and Finance Ltd. (DLF) became the owner of suit land. Further, the respondents herein had not placed or proved any document showing ownership of DLF and no revenue record was summoned.
c) Ld. Trial Court wrongly inferred suggestion given by the RCA no. 74/16 MCD VS K.N. Chhibber Page no. 5 of 25 Digitally signed by ANIL ANIL KUMAR PASWAN KUMAR Date:
PASWAN 2025.05.30 16:13:23 +0530 appellant herein during the cross-examination of PW1 declaring the respondent as owner of the suit land on the basis of admission.
d) Ld. Trial Court wrongly relied upon the layout plan Ex.PW1/3 which was neither approved by government nor proved before the Ld. Trial Court and the DLF has no authority to approve such a layout plan.
e) Ld. Trial Court wrongly observed that there is slight difference between number of plots in Ex.PW1/3 and the number of plots in the back side of suit plot mentioned by PW1, if the layout plan of DLF is seen.
f) Ld. Trial Court had wrongly relied upon the Ex.PW1/2 and complete resolution was not placed on record by PW1.
g) Ld. Trial Court had not appreciated the law laid down by Hon'ble Supreme Court in DLF Housing Construction Pvt. Ltd.
Vs. MCD AIR 1976 SC 386.
h) Further, Ld. Trial Court had come to wrong conclusion that their exists no street road over the suit property.
REPLY TO THE APPEAL
6. Reply was filed by the respondent on the following ground.
RCA no. 74/16 MCD VS K.N. Chhibber Page no. 6 of 25 Digitally signed by ANIL ANIL KUMAR PASWAN KUMAR Date:
PASWAN 2025.05.30 16:13:27 +0530 i. There is no ambiguity in the Judgment and Ld. Trial Court had considered each and every aspect of the case. Further, notice was given to the appellant in 1987 but no reply was given despite sufficient opportunity.
ii. Written statement was not filed and defence of appellant was struck off vide order dated 23.02.2001. Later on, application was filed for recalling the order which was also dismissed vide order dated 20.03.2004. The MCD did not contest the said order which has attend finality.
iii. Another suit filed by the appellant before Ld. Predecessor ASCJ, KKD Courts, Delhi was also dismissed and an appeal before Ld. ADJ, KKD Courts, Delhi wherein it was observed that MCD had not taken any interest either in filing WS or cross-examining the witnesses due to carelessness or with some ulterior motive.
iv. Further the present appeal has been filed to harass the respondents and raising new and unproven grounds and documents which do not have any relevance to the present suit. The said documents were never filed in the Ld. Trial Court or before the appellate court.
v. The suit property is situated in Krishna Nagar, Extension which is different from Krishna Nagar in Shahdara and has lesser area and is having only 35 plots.
RCA no. 74/16 MCD VS K.N. Chhibber Page no. 7 of 25
Digitally
signed by
ANIL ANIL KUMAR
PASWAN
KUMAR Date:
PASWAN 2025.05.30
16:13:32
+0530
7. I have heard Ld counsel for appellant and Ld counsel for the respondent and I have perused the record.
My observation is as under:-
Points for determination -
(i) Whether the sale deed Ex.PW1/1 disclose as to how DLF became the owner of suit land and if the respondent has placed on record document showing ownership.
(ii) Whether Ld. Trial Court had wrongly inferred from the suggestions given by the appellant to PW1 during his cross- examination regarding ownership of the suit property.
(iii) Whether Ld. Trial Court wrongly relied upon the layout plan Ex.PW1/3 which was not approved by the government.
(iv) Whether the suit property has been acquired by the government and effect of additional document produced on behalf of appellant.
(v) Whether the conclusions arrived at by Ld. Trial Court are legally correct.
POINT No. (i), (ii) & (iii)
8. All these points are simultaneously taken as they relate to the impugned judgment and can be discussed together.
9. The defence of defendant was struck off on 23.02.2001, therefore, they were not allowed to produce any defence evidence RCA no. 74/16 MCD VS K.N. Chhibber Page no. 8 of 25 Digitally signed ANIL by ANIL KUMAR PASWAN KUMAR Date:
PASWAN 2025.05.30 16:13:51 +0530 and their right was limited to cross-examination of the witness of plaintiff. WS was also not taken on record. Opportunity was given to lead additional evidence by Ld. Predecessor vide order dated 13.04.2015. In this regard, Ld counsel for respondent has relied upon Judgment of Hon'ble Supreme Court in case titled Modula India Vs. Kamakshya Singh Deo, AIR 1989 SC 162, and pointed towards the relevant paragraphs which are reproduced as under:-
"24. For the above reasons, we agree with the view of Ramendra Mohan Datta, Acting C.J., that, even in a case where the defence against delivery of possession of a tenant is struck off under Section 17(4) of the Act, the defendant, subject to the exercise of an appropriate discretion by the court on the facts of a particular case, would generally be entitled:
(a) to cross-examine the plaintiff's witnesses; and
(b) to address argument on the basis of the plaintiff's case.
We would like to make it clear that the defendant would not be entitled to lead any evidence of his own nor can his cross- examination be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of the plaintiff's case. In no circumstances should the cross-examination be permitted to travel beyond the legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses."
10. Therefore when the defence has been struck off, the defendant can only cross examine the witness and argue. Further, RCA no. 74/16 MCD VS K.N. Chhibber Page no. 9 of 25 Digitally signed by ANIL ANIL KUMAR PASWAN KUMAR Date:
PASWAN 2025.05.30 16:13:56 +0530 the cross examination will be on the limited aspect only. He has further relied upon other judgments titled Kulbhushan Seth Vs. Seema Seth & Ors., decided on 14.02.2008 by Hon'ble Delhi High Court and another judgment of Hon'ble Delhi High Court titled Rajesh Kumar Singh VS Amar Sinha, decided on 19.09.2019 and in both these judgments similar stand was taken regarding the status of a defendant whose defence has been struck off. In the present case though the defence was struck off, however, Ld. Predecessor had allowed additional evidence on behalf of appellant and the respondent has not challenged that order and therefore the said order has attained finality. In view of the same and being an appellate Court, this Court thinks that in the interest of justice, the same evidence may be read and taken into consideration.
11. Perusal of cross-examination of PW1 dated 23.07.2009 shows that there is no talk/observation/fact regarding acquisition of the suit property. The defence of appellant regarding acquisition was not introduced in the cross examination of PW1. A new fact regarding acquisition was taken for the first time in appeal. If the testimony of PW1 is perused carefully, the following are the observations of this court:-
(a). Plaintiff is the LR of deceased Smt. Pushpa Chibber who died on 18.03.1994. She purchased plot no. 1, 2, 30/33/34/35 Block A, Krishna Nagar Extension from DLF vide sale deed Ex.PW1/1 registered on 27.06.1953. Original was produced. Nothing has RCA no. 74/16 MCD VS K.N. Chhibber Page no. 10 of 25 Digitally signed by ANIL ANIL KUMAR PASWAN KUMAR Date:
PASWAN 2025.05.30 16:14:01 +0530 come on record which could say that the said sale deed is forged and fabricated. Nothing has been placed on record by the appellant herein to prove that the suit property belongs to someone else apart from DLF. In this context, Section 90 of the Indian Evidence Act is relevant. Section 90 of the Indian Evidence Act which is reproduced as under:-
"90. Presumption as to documents thirty years old. -- Where any document, purporting or proved to be thirty years old, is produce from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested."
Explanation.-- Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.
This explanation applies also to section 81."
(b). Therefore, there is presumption that a document which is 30 years old and is produced from the natural custody/possession then it was duly executed and attested by the persons by whom it purports to be executed and attested. Here plaintiff has produced their own sale deed. Further, I find that Ld. Trial Court has rightly observed that certified copies of registered document can be RCA no. 74/16 MCD VS K.N. Chhibber Page no. 11 of 25 Digitally signed by ANIL ANIL KUMAR PASWAN KUMAR Date:
PASWAN 2025.05.30
16:14:05
+0530
admitted without examination of the parties to the document. In this regard, it will be important to take note of Section 68 of the Indian Evidence Act which is reproduced as under:-
"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
3[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]"
(c). Therefore, when the document has been registered as per Indian Registration Act, there is no need to call an attesting witness to prove that document. Hence, document Ex.PW1/1 stands proved. Therefore, there is no cloud over title of Smt. Pushpa Chhibbar and also the title of DLF. Apart from that, no evidence has been produced to rebut that presumption from the side of appellant.
(d). Further, Smt. Pushpa Chhibbar sold all the above mentioned property except property no. 35 and according to her it falls within RCA no. 74/16 MCD VS K.N. Chhibber Page no. 12 of 25 Digitally signed by ANIL ANIL KUMAR PASWAN KUMAR Date:
PASWAN 2025.05.30
16:14:10
+0530
the Krishan Nagar Extension locality which was approved by MCD through resolution Ex.PW1/2. If the document is perused, it is also a government document and signed by Zonal Engineer, MCD Shahdara Zone, Delhi. It is the contention of appellant that complete document has not been placed on record by the respondent. The document Ex.PW1/2 pertains to MCD and is in their possession and it was the duty of appellant to produce complete documents at the relevant time. However, nothing has been brought on record by MCD/appellant. There is no defence at all regarding the various depositions of PW1 in examination-in- chief. The various suggestions by appellant during recording the testimony of PW1 have remained unsubstantiated. Suggestions alone cannot decide a suit/case. Suggestions should be supported with corroborative evidence.
(e). Regarding the layout plan Ex.PW1/3, PW1 in his testimony had admitted that the same site plan was not approved by any government authority. Though, it is not a government map or a map approved by the government, however, nothing has been brought on record by the appellant regarding the actual government plan/map to ascertain the location of suit property.
(f). The suggestion given to the PW1 and consequent observation of Ld. Trial Court that the defendant had admitted that the plaintiff was the owner of the suit land is under challenge in this appeal. Though, by implication, Ld. Trial Court came to the conclusion RCA no. 74/16 MCD VS K.N. Chhibber Page no. 13 of 25 Digitally signed by ANIL ANIL KUMAR PASWAN KUMAR Date:
PASWAN 2025.05.30 16:14:14 +0530 that the plaintiff was the owner of the suit land, however, that conclusion came only after considering the whole record and not in isolation. The respondent herein had deposed and exhibited the original documents regarding ownership of the suit property in their possession. By proving through evidences, they have discharged the onus upon them in favor of their claim. If the appellant states that the plaintiff is not the owner of suit property or that the map was incorrect, the onus had shifted upon them as being a Government department they were in possession of all those documents. Here it will be important to take note of Section 102 & 103 of the Indian Evidence Act.
"Section 102. On whom burden of proof lies. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
Illustration
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father.
If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A.
(b) A sues B for money due on a bond.
The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.
If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved.
Therefore the burden of proof is on B."
"Section 103. Burden of proof as to particular fact.
RCA no. 74/16 MCD VS K.N. Chhibber Page no. 14 of 25 Digitally signed by ANIL ANIL KUMAR PASWAN KUMAR Date:
PASWAN 2025.05.30 16:14:18 +0530 The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
Illustration 1[(a)] A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission.
(b) B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it."
(g) Therefore, when a fact is known to a party and they wish the Court to believe regarding a particular fact, the burden of proof shifts upon that party to prove that fact and the onus also herein is upon the appellant being a Government department as they are custodian of the land records. The respondent had placed on record their best evidence. No document regarding ownership of the suit property/land has been produced by the appellant or whether there was already a constructed road on the suit property as suggested by appellant is unsubstantiated/unproved. Only after taking into consideration, the totality of circumstances/evidences, Ld. Trial Court came to the conclusion regarding ownership of plaintiff/respondent herein. Therefore, the document Ex.PW1/3 remains unrebutted and the contentions that Ld. Trial Court had wrongly inferred about the suggestions or the layout plan Ex.PW1/3 cannot be accepted.
RCA no. 74/16 MCD VS K.N. Chhibber Page no. 15 of 25 Digitally signed by ANIL ANIL KUMAR PASWAN KUMAR Date:
PASWAN 2025.05.30 16:14:22 +0530
(h). It is the contention of appellant that Ld. Trial Court had not appreciated the law laid down by Hon'ble Supreme court in DLF Housing Constructions Pvt ltd Vs. MCD, AIR 1976 SC 386 and also the fact that as per BMC Act, 1957, all the states in Delhi except NDMC and Cantonment Board area vest with the MCD and that the plaintiff should have summoned record from the town planning department to ascertain the actual lay out plan. In this context I find that the document Ex.PW1/2 is a Government document mentioning revised layout plan of Krishna Nagar Colony and nothing has been brought on record by the appellant contrary thereto keeping in view that the impugned judgment relates to the suit for mandatory injunction only and has no concern with the ownership.
POINT No. (iv)
12. The appellant herein was granted opportunity vide order dated 13.04.2015 to produce additional evidence. As additional evidence AW1 Sh. R P Verma, Patwari and DW1 Sh. S K Kaushik, Junior Secretariat Assistant, EDMC were examined. They have produced records in support of appellant. Their testimony has to be perused carefully to decide this issue/point. AW1 during his testimony has deposed the following-
"Today, I have not brought the original record of Ex.AW1/A and Ex.AW1/B. The original record is lying in our office."
RCA no. 74/16 MCD VS K.N. Chhibber Page no. 16 of 25 Digitally signed by ANIL ANIL KUMAR PASWAN KUMAR Date:
PASWAN 2025.05.30 16:14:26 +0530 "The original file of the concerned award i.e 3/1983-84, village Ghondali is not traceable in our office and the circular bearing no. F/ADM/LAC(SHAS)/2018/557-66, dated 16.08.2018 in this regard has already been issued ."
"Ques. Can you tell that during acquisition proceedings whether any notice under Section 9, 10 or 12(2) of L.A. Act was issued to Ms. Pushpa Chibber?
Ans. I cannot tell as I have joined this office in 1999.
I cannot tell if the compensation granted in the acquisition proceedings was ever offered or given to Ms. Pushpa Chibber. It is incorrect to suggest that LAC had not followed the due process in the acquisition proceedings. It is further incorrect to suggest that LAC has concealed the file and are not producing the same before this Court. I do not know whether any compensation which was granted in the present award was deposited under Section 30- 31 of the L.A. Act. It is incorrect to suggest that I am deposing falsely."
13. Therefore, the said witness has in reality not brought any record pertaining to the acquisition of suit property/land. If the letter Ex.AW1/C is perused, it is nothing but an office order to trace the record. There is no final observation/finding that the record is not traceable/lost. Further, the testimony of DW1 is relevant in this regard which is reproduced as under-
RCA no. 74/16 MCD VS K.N. Chhibber Page no. 17 of 25
Digitally
signed by
ANIL
ANIL KUMAR
KUMAR PASWAN
PASWAN Date:
2025.05.30
16:14:30
+0530
" I am a summoned witness and I have brought the summoned record i.e true copy attested copy of decision no. 3594/GW/CORP, dated 14.02.1983, the same is exhibited as Ex.DW1/3(OSR) containing two pages."
"It is correct that the MCD makes a request to the LAC for acquisition of a certain property when the said property is not in its possession. The documents which are being exhibited by me vis a viz the land acquisition proceedings are easily accessible by any official of the MCD. The MCD has no record whether Pushpa Chibbar, who was the owner of the land for which the acquisition proceedings was conducted, was ever issued notice during the acquisition proceedings. The land and Estate Department of the MCD does not have the record of the cheque which has been mentioned in Ex.DW1/1 (OSR). (Vol. It would be with the Engineering Department of MCD)."
14. The said witness has also produced true copy attested copy of the relevant record. The original record has never been produced. In this regard, Section 61 to Section 65 of the Indian Evidence Act are required to be discussed which are reproduced as under-
"61. Proof of contents of documents. -- The contents of documents may be proved either by primary or by secondary evidence.
62. Primary evidence. -- Primary evidence means the document itself produced for the inspection of the Court.
63. Secondary evidence. -- Secondary evidence RCA no. 74/16 MCD VS K.N. Chhibber Page no. 18 of 25 Digitally signed by ANIL ANIL KUMAR PASWAN KUMAR Date:
PASWAN 2025.05.30 16:14:33 +0530 means and includes --
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it."(emphasis supplied).
64. Proof of documents by primary evidence.-- Documents must be proved by primary evidence except in the cases hereinafter mentioned.
"65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases: --
(a) when the original is shown or appears to be in the possession or power -- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
RCA no. 74/16 MCD VS K.N. Chhibber Page no. 19 of 25 Digitally signed by ANIL ANIL KUMAR PASWAN KUMAR Date:
PASWAN 2025.05.30 16:14:38 +0530
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."
15. A document has to be proved by primary evidence and in the absence of primary evidence, secondary evidence can be led under special circumstances. Section 65 of the Act provides the situations wherein secondary evidence can be given.
16. The original record i.e the primary evidence was not placed on record by the appellant. The appellant had tried to place on record true copy, attested copy, photocopy etc. Nothing has been brought on record by the appellant regarding the parameters to be followed i.e if the document was lost, it was bulky, it was in the RCA no. 74/16 MCD VS K.N. Chhibber Page no. 20 of 25 Digitally signed by ANIL ANIL KUMAR PASWAN KUMAR Date:
PASWAN 2025.05.30 16:14:42 +0530 possession of the opposite party etc. Foundation was not laid for admitting secondary evidence in this case. Therefore, at this stage, the secondary evidence cannot be taken into consideration. Even the documents produced are not legible and were not proved in accordance with the Indian Evidence Act. The author/executants of those documents was not called to prove those documents.
17. Moreover, if testimony of DW1 is perused, he had stated that no notice was issued to Smt. Pushpa Chibbar for the acquisition proceedings and there was no record regarding the cheque issued to her for acquisition. Mandatory requirements of land acquisition were not followed. The present suit is not concerned with acquisition proceedings and is confined to the relief of mandatory injunction only.
18. As the appellate Court, the duty of this Court is to see if the Ld. Trial Court had rightly appreciated the facts and to see the grounds of appeal. Opportunity was granted to the appellant to lead evidence. If the record is perused, on several occasions the witnesses of appellant were not available and on most of the occasions, appellant was more interested in bringing the legal heirs of Sh. Ravi Rupam (respondent) on record despite direction to file amended memo of parties. The record reflects that vide order dated 16.09.2022, 02.09.2023 and 05.09.2024, it was settled that there was no legal heir of Sh. Ravi Rupam and direction was given to the appellant to file amended memo of parties. However, no steps were RCA no. 74/16 MCD VS K.N. Chhibber Page no. 21 of 25 Digitally signed by ANIL ANIL KUMAR PASWAN KUMAR Date:
PASWAN 2025.05.30 16:14:47 +0530 taken and the present matter was dragged for two years unnecessarily. For the past many years, Ld counsel for appellant was not available due to personal problems/issues.
19. The appellant being the Government Department has a full functioning hierarchy of law officers who could have appointed some other ld counsel to pursue the matter and examine the witnesses. Even official of MCD was appearing on almost each and every date. This Court cannot wait till infinity and wait for the appellant to produce witnesses as per their own whims and fancies.
The negligent attitude of appellant is apparent since the suit was filed in Ld. Trial Court as WS was not taken on record, defence was struck off etc.
20. Ld counsel for respondent has submitted that the appellant is just gaining time and has nothing to say in order to save the irresponsible officials. This Court is in agreement with Ld counsel for respondent. Here also this appeal has been dragged since the year 2011. Even this Court had observed vide order dated 17.12.2024 regarding the unnecessary adjournments sought on behalf appellant.
21. Further, Ld counsel for appellant had relied upon the judgment titled 'Sharmila Seth VS Union of India', decided by Hon'ble Delhi High Court on 06.09.2019, and submits that legal heir of Late Sh. K N Chhibar, namely, Sharmila Seth had filed a RCA no. 74/16 MCD VS K.N. Chhibber Page no. 22 of 25 Digitally signed by ANIL ANIL KUMAR PASWAN KUMAR Date:
PASWAN 2025.05.30 16:14:55 +0530 writ petition U/sec 24 (2) of the Right to Fair Compensation and Transparency in Land Acquisition/Rehabilitation and the Resettlement Act, 2013, regarding the suit property which was dismissed by Hon'ble Delhi High Court clearly shows that the respondent had concealed the factum of the writ petition and as such the suit is liable to be set aside. The relevant portion of the said judgment is reproduced as under-
"Whether petitioner's predecessor-in-interest falls in the category of "interested person" or not; and whether she was made a party to the acquisition proceedings or a notice was issued to her; and such other alike questions are not subject matter of the present proceedings, which is premised on the plea of deemed lapsing under the 2013 Act. Likewise, disputes and questions relating to deposit of compensation in the account of the land owner for the subject property are factual and cannot be decided in writ jurisdiction of this Court. Here, we are concerned with petitioner's right to seek the reliefs enumerated above. On this aspect, significantly, there is no explanation whatsoever offered in the petition for the inordinate delay in coming forward to seek relief under Section 24 (2) of the 2013 Act. The Award for the said property was passed in 1983, whereas the present petition has been filed after more than three decades. The petition is obviously barred by laches. Petitioner's bald averment of gaining knowledge of the proceedings pursuant to disclosure by Respondent No.4 in the year 2012, can't be countenanced. The delay in approaching the court can be condoned or accepted only if sufficient reasons are assigned.
It cannot be done on the vague, frivolous and flimsy grounds. The inaction on the part of the RCA no. 74/16 MCD VS K.N. Chhibber Page no. 23 of 25 Digitally signed by ANIL ANIL KUMAR PASWAN KUMAR Date:
PASWAN 2025.05.30 16:14:59 +0530 Petitioner cannot ignored on a plea of no knowledge of the acquisition proceedings which are carried out by publication of notifications in the gazette. At this stage, after more than 30 years, respondents cannot be expected to fish out from the record, the relevant documents to establish payment of compensation or taking over of possession with regard to the said property. The immense delay places the respondents to immense handicap and prejudice in the matter of defending these proceedings. There is thus no explanation whatsoever in the petition for the inordinate delay in the Petitioner coming forward to seek relief under Section 24 (2) of the 2013 Act."
22. Hon'ble Delhi High Court has categorically held that the matters pertaining to 'interested person' or whether the petitioner was made a party to the acquisition proceedings or not or that notice was issued to her and similar other matters were not subject matter of the proceedings pending in the Hon'ble Delhi High Court. The petition was only confined to the petitioner's right to seek relief and there was inordinate delay in seeking that relief. Per contra, the present appeal is confined to the suit of mandatory injunction and has no concern with the acquisition proceedings as those are separate proceedings under special law and conducted in a specially designated Court.
23. Therefore, there is no observation of Hon'ble Delhi High Court regarding the suit for mandatory injunction which is the subject matter of this appeal. No evidence of this case was discussed by Hon'ble Delhi High Court. Therefore, the contentions RCA no. 74/16 MCD VS K.N. Chhibber Page no. 24 of 25 Digitally signed by ANIL ANIL KUMAR PASWAN KUMAR Date:
PASWAN 2025.05.30 16:15:04 +0530 of appellant cannot be accepted. In view of the same, nothing has come on record regarding acquisition of the suit property/land. The appellant has failed to prove the acquisition as per law and there is no due compliance of the provision of land acquisition act regarding public notice and also the payment of compensation.
POINT No. (v)
24. In view of the observations given above, I find that Ld. Trial Court has rightly appreciated the facts.
25. I find that there is no merit in this appeal and, therefore, the present appeal is dismissed.
File of this Court be consigned to the record room and the Trial Court record be sent back with an attested copy of this order.
Digitally signed by ANIL ANIL KUMAR PASWAN KUMAR Date:
PASWAN 2025.05.30 16:15:09 +0530 Pronounced in the open court (Anil Kumar Paswan) on 30.05.2025 DJ-04 (EAST),KKD, Delhi 30.05.2025 RCA no. 74/16 MCD VS K.N. Chhibber Page no. 25 of 25