Delhi District Court
Sh. Anil Narula vs Delhi Development Authority on 11 March, 2013
Suit No. 354/2009
IN THE COURT OF MS. RICHA GUSAIN SOLANKI
CIVIL JUDGE (WEST): TIS HAZARI COURTS: DELHI
SUIT NO. 354/2009
Sh. Anil Narula
S/o Late Sh. Madan Lal Narula,
R/o GH14/893
Paschim Vihar,
New Delhi.
.......PLAINTIFF
VERSUS
Delhi Development Authority
through its Vice Chairman,
Vikas Sadan, near INA market, New Delhi.
........DEFENDANT
DATE OF INSTITUTION : 17.01.2004
DATE OF RESERVATION : 28.02.2013
DATE OF DECISION : 11.03.2013
JUDGMENT: This is a suit for Permanent Injunction. The brief facts as averred in the plaint are as follows:
1. It is the case of the plaintiff that he is the owner of the property bearing khasra no. 487 measuring 175 sq. yards situated in lal dora of Village Peera Garhi (hereinafter referred to as 'suit property'). It is his case that he purchased the suit property from one Smt. Nirmala Devi by registered sale deed. The original owner Sh. Fateh Singh had sold the property to Sh. Ishwar Singh by General Power of Sh. Anil Narula vs. DDA 1/20 Suit No. 354/2009 Attorney who in turn had delegated the powers to sell the property to Smt. Nirmala Devi from whom the plaintiff purchased the suit property.
The plaintiff states that he is in occupation of the suit property since the date of its purchase. On 16.01.2004 the officials of defendant came to the suit property and illegally demolished a portion of the suit property. It is stated that no show cause notice was received by the plaintiff and no opportunity of hearing was granted to plaintiff. The suit property is stated to have been demolished without following due process of law. It is stated that defendant is threatening the plaintiff that it will take possession of the suit property and has asked the plaintiff to remove his goods and belongings, etc from the suit property.
2. Hence the plaintiff has filed the present suit seeking the relief of permanent injunction thereby seeking the relief thereby restraining the defendant/ DDA from demolishing any part of the suit property and further restraining the defendant from interfering into the peaceful use, occupation and possession of the suit property.
3. In the written statement filed by the defendant/ DDA, it is stated that the suit of plaintiff is not maintainable for want of notice under Section 53B of Delhi Development Act, 1957. It is stated that the suit Sh. Anil Narula vs. DDA 2/20 Suit No. 354/2009 has become infructuous since unauthorized encroachment of the plaintiff has already been demolished on 16.01.2004. It is further stated that the suit property forms part of khasra no. 487 of Village Peera Garhi. The revenue estate of Peera Garhi, on its urbanization has been transferred to DDA vide notification dated 05.10.1989. It is further stated that there was a pond in khasra no. 487 which was got filled up by the DDA and boundary wall constructed around it in pursuance of directions of the Hon'ble High Court in a writ petition. The plaintiff had encroached upon the government land forming part of the pond and was running a plastic factory. The unauthorized structures raised upon the land of pond were demolished on 16.01.2004 with the help of local police and at present the suit property is in the possession of the defendant not of the plaintiff.
4. The plaintiff has filed replication to the written statement of defendant wherein the plaintiff denied the averments made by the defendant in its written statement and reiterated and reaffirmed the contents of the plaint. It is further stated that the area under the pond has already been covered with a boundary wall by the defendant. Plaintiff has also given details of the demarcation process that was done in pursuance of the orders of Hon'ble Delhi High Court.
Sh. Anil Narula vs. DDA 3/20 Suit No. 354/2009
5. From the pleadings of the parties, following issues were framed by my Ld. Predecessor on 26.04.2004:
1. Whether the plaintiff is entitled to a decree of permanent injunction against the defendant as prayed for? OPP.
2. Whether the suit of the plaintiff not maintainable for want of notice U/s Section 53 of DDA Act 1957? OPD.
3. Whether the suit of plaintiff has already become infructious as the unauthorized construction of the plaintiff has already been demolished on 16.01.2004? OPD.
4. Whether the defendant/ DDA is the owner of the suit premises? OPD.
5. Relief.
6. Plaintiff has examined ten witnesses in his support. PW1, Sh. Rajiv Kumar, Patwari, entered the witness box on 02.02.2005 with the summoned record and filed copy of the masavi which is Ex. PW1/A. He stated that khasra no 487 Village Peeragarhi was in lal dora. He further stated that there is a boundary wall and some malba lying in the suit property and that there is also a temporary structure.
7. PW2, Sh. Jagdish Chander, Record Keeper, SubRegistrar Office, entered the witness box on 02.02.2005 and compared the copy of the sale deed Ex PW2/1 with that brought by him.
In his crossexamination, he stated that the department confirms the status of land at the time of registration. Sh. Anil Narula vs. DDA 4/20 Suit No. 354/2009
8. PW3, plaintiff himself, entered the witness box on 03.02.2005 and tendered his affidavit Ex PW3/A in evidence which states the same facts as are stated in the plaint. He relied upon Ex. PW1/1 which is stated to be the Lal Dora Certificate However the same is not on file. This document could not be reconstructed as in recorded in order sheet dated 18.09.2012. Ex. PW1/2 is the copy of registered sale deed and Ex. PW1/3 is the copy of GPA dated 17.03.1992. He also relied on Ex. PW1/4 which is the site plan of the suit property. Ex. PW1/5 and Ex. PW1/6 are the copies of writ proceedings. Ex. PW1/7 is the copy of masavi. Ex. PW1/8 to Ex. PW1/16 are the photographs.
In his crossexamination, he admitted a positive suggestion that the suit property was partly demolished on 16.01.2004.
9. PW4, Sh. Jai Prakash, Patwari, DDA, entered the witness box on 19.02.2005 with the summoned record and filed Ex PW4/A which is the copy of report dated 14.10.2003, Ex PW4/B which is the copy of sizra, Ex PW4/C which is the copy of the demarcation plan. He also relied on Ex PW4/D which is the copy of notice dated 23.02.2004 but the same is not on file. There is one letter dated 23.02.2004 Sh. Anil Narula vs. DDA 5/20 Suit No. 354/2009 which is exhibited as Ex PW 4/D in the connected suit titled as "Jagdish Prasad Vs. DDA". This letter pertains only to Sh. Jagdish Prasad. It transpires that because the statement of PW 4 was recorded in both suits on same date, Ex PW 4/D has been referred to in this suit too. Therefore Ex. DW 4/D has been does not form part of record of this suit. He identified his signatures in the documents.
10. PW5, Sh. Shyam Sunder, Tehsildar, entered the witness box on 19.02.2005 and identified his signatures on Ex PW4/A. In his crossexamination, he admitted that khasra no 487 was in abadi area and that Village Peeragarhi was urbanized.
11. PW6, Sh. Gainda Lal, Kanungo, DDA, entered the witness box on 19.02.2005 and identified his signatures on Ex PW4/A. He filed the joint survey report which is Ex. PW6/A and identified the signatures of Sh Jagdish Prasad in the report.
In his crossexamination, he stated that the suit property is bound in north by DDA boundary, in South by cremation ground, in west by other's property and in east by a public way.
12. PW7, Sh. A. K. Bhalla, Dy. Director, DDA, entered the witness box on 19.02.2005 and identified his signatures on Ex PW4/A. He relied upon Ex. PW6/A and identified the signatures of Sh Jagdish Prasad Sh. Anil Narula vs. DDA 6/20 Suit No. 354/2009 in the report.
In his crossexamination, he stated that as on the day of his examination, the suit property is bound in north by DDA boundary wall, in South by cremation ground having a boundary wall, in west by road (gali) and in east by road.
13. PW8, Sh. Raja Babu, Ex. SDM, Punjabi Bagh, entered the witness box on 05.03.2005 and stated that Ex. PW8/A appears to have been issued by previous Tehsildar but he had not brought the file containing the same.
14. PW9, Sh. G. K. Ahuja, Supdt. Engineer, DDA entered the witness box on 05.03.2005 and stated that copy of letter dated 03.10.2003 Ex. PW9/A, letter Ex. PW9/B, letter dated 07.10.2003 is Ex. PW9/C and letter Ex. PW9/D was issued by DDA.
15. PW10, Sh. Jagdish Prashad, entered the witness box on 05.03.2005 and deposed that the suit property is situated at the back side of his property. He stated that the suit property was owned and possessed by the plaintiff and it was not gram sabha or government land.
In his crossexamination, he stated that the suit property was bound in one side by DDA wall, in another by cremation ground, in another by gali and on the east by PW10's property. He Sh. Anil Narula vs. DDA 7/20 Suit No. 354/2009 stated that he had not seen the lal dora certificate in favour of plaintiff.
16. Defendant has examined two witnesses to support its case. DW1, Sh. Jai Prakash, Patwari, DDA entered the witness box on 07.05.2005 and filed his affidavit Ex. DW1/A which states the same facts as are stated in the written statement. He relied upon Ex. DW1/1 which is the notification no. F.9(4)89/L&B dated 05.10.1989. Ex. DW1/2 is the copy of demolition diary dated 16.01.2004. Ex. DW1/3 is the copy of letter dated 16.01.2004 to the SHO and Ex. DW1/4 (already Ex PW4/B) is the copy of aks sizra of village Peera Garhi.
In his crossexamination, he admitted that the suit property was lying outside the boundary wall constructed by DDA. He admitted document Ex PW4/C and Ex PW6/A. He stated that only vacant land was placed at the disposal of DDA.
17. DW2, Sh. Bhoop Singh, Tehsildar, DDA, entered the witness box on 07.05.2005 and filed his affidavit Ex. DW2/A which states the same facts as are stated in the written statement.
In his crossexamination, he admitted that only vacant land was placed at the disposal of DDA.
Sh. Anil Narula vs. DDA 8/20 Suit No. 354/2009
18. In additional evidence by defendant, defendant/ DDA has relied upon the evidence adduced in the connected matter titled as Jagdish Prashad vs. DDA, suit no. 185/2009. Certified copies thereof have been filed. DWR1, Sh. Ram Tirath, Patwari, entered the witness box on 23.07.2009 with the summoned record and filed copies of the same as Ex. DWR1/1 to Ex. DWR1/6. Copy of aks sizra for the year 1873 is Ex. DWR1/1, copy of khasra paimaish for the year 1880 is Ex. DWR1/2, copy of wazibulurg of the year 190809 is Ex. DWR1/3, copy of jamabandi for the year 190809 in respect of khasra no. 387 is Ex. DWR1/4, copy of massavi for the year 190809 is Ex. DWR1/5 and copy of massavi for the year 195455 is Ex. DWR1/6.
In his crossexamination, he tendered complete copy of aks sizra as Ex. DWR1/P1.
19. DWR2, Sh. Neelam Sudhir, Patwari entered the witness box on 07.08.2010 with the summoned record and filed copy of khatauni for the year 198586 of village Peeragarhi which is Ex. DWR2/A. In his crossexamination, he stated that the abadi deh area in khasra no 487 is 124 bighas and 7 biswa.
20. DWR3, Sh. Dalip Kumar, UDC, Department of Publication, entered Sh. Anil Narula vs. DDA 9/20 Suit No. 354/2009 the witness box on 13.09.2010 with the summoned record and filed copy of the same as Ex DWR3/1.
21. In rebuttal evidence, two more witnesses entered the witness box in support of plaintiff's case. PW1, Sh. Yograj Tyagi, entered the witness box on 05.12.2011 and filed his affidavit Ex PW1/X in evidence which states that he has seen the factory of plaintiff for over 10 years.
In his crossexamination, he could not admit or deny if plaintiff has trespassed on pond land and encroached on government land. He stated that the property of Sh Jagdish Prasad was north of cremation ground.
22. PW2, Sh. Parkash, entered the witness box on 05.12.2011 and filed his affidavit Ex PW1/Y in evidence which states that the suit property is on west side/back side of dharamkanta of Sh. Jagdish Prasad and it falls in lal dora of village Peeragarhi. He stated that it was private land.
In his crossexamination, he stated that he had seen the pond in village and a boundary wall was constructed around it. He said that plots of Sh Jagdish and plaintiff are between the cremation ground and pond. He stated that the pond was in lal dora.
23. I have heard both the parties and have perused the record. Sh. Anil Narula vs. DDA 10/20 Suit No. 354/2009
24. Issuewise findings are as under:
Issue no. 4: Whether the defendant/ DDA is the owner of the suit premises? OPD.
This issue is preliminary in nature to issue no.1 and is therefore, being decided first. The onus of proving this issue was on the defendant. Ex DWR3/1 shows that the entire revenue estate of village Peeragarhi was urbanized on 23.04.1982. By Ex DW1/1 it is shown that the gaon sabha land in Village Peeragarhi which vested in Central Government by virtue of Section 150(3)(a) Delhi Land Reforms Act was transferred to DDA for its development. It is admitted that the entire khasra no 487 is abadi deh but this khasra comprises of private properties and common land/gaon sabha land. Ex DW1/1 does not mention what parts of khasra no 487 were transferred to government. The moot point is whether the suit property was goan sabha land before the village was urbanized.
Ex DWR1/1 is the aks sizra of Village Peeragarhi for the year 1873 but the same shows that pond is in khasra no 781. Moreover none has identified the suit property in this aks sizra. The remaining documents are also silent on the point of location of suit property visavis the pond and are of no help to the defendant.
It is not in dispute that the suit property is situated in Sh. Anil Narula vs. DDA 11/20 Suit No. 354/2009 khasra no 487. It is the case of defendant that the pond and the cremation ground were adjacent and the suit property is situated over the pond land which was covered completely after the directions of Hon'ble Delhi High Court in a civil writ petition. Ex PW8/A shows that the concerned SDM had written to DDA that the exact dimensions of the pond were not known as it was within abadi deh. Ex PW9/B and Ex PW9/C shows that DDA had directed that the pond land be demarcated. Finding no alternative, the report Ex PW4/A was prepared relying upon statements of some villagers which statement is Ex PW6/A. The survey report Ex PW4/A relied upon by the plaintiff also states that earlier there was a 'seeswala pond' in khasra no 487 of which a portion was filled up and fenced by DDA. Ex PW6/A states that the khasra no 487 is abadi deh and the pond is bound as: North Built up, South Cremation ground, East Ring Road and firni road, West built up. Ld. counsel for plaintiff submits that the government officials have deliberately cut out the word makaan in the report against south direction of pond. I find substance in this contention. Ex PW4/C which is stated to be the demarcation plan prepared in the same process of demarcation also shows that on the south side of pond there are structures and cremation ground is on the southeast side. The cutting is also not Sh. Anil Narula vs. DDA 12/20 Suit No. 354/2009 initialed by any official. I therefore agree with the ld. counsel for plaintiff that the words "va makaan" have been later on cut from the report Ex PW6/A and portray a wrong picture of the factual position. Such tampering of official records is a matter of great concern and must be looked into by the DDA for initiating appropriate action both against the delinquent official(s) and for correction of the tampered records.
25. Apart from the fact that Ex PW4/A and Ex PW4/C repudiate the stand of DDA that the pond land and cremation ground was abutting, DDA's own affidavit does not support its case. Ex PW1/5 is the copy of affidavit of Sh N.N. Puri, Director (LM), DDA which was filed in the Hon'ble Delhi High Court in the civil writ petition. This document has not been denied by the defendant. This affidavit states that DDA was given directions to clean "the pond in dispute"
and that it was found by DDA that "the area under reference is a marshy land covered with bushes and swamps" so it has been considered appropriate to fill it up. It is pertinent to note here that this affidavit is of the year 2000 and does not talk about any structures on such pond land. On the other hand, general power of attorney dated 17.03.1992 Ex PW1/3 in favour of Smt. Nirmal Devi, who executed the sale deed Ex PW1/2 in favour of plaintiff, Sh. Anil Narula vs. DDA 13/20 Suit No. 354/2009 mentions that the suit property is built up. This power of attorney has not been disputed by DDA as not a single question has been put regarding the authenticity of this document. Further DW1 and DW2 have both deposed that only the vacant land was transferred to DDA. Therefore the suit property cannot be mistaken for the pond land.
26. Further it is the admitted case of parties that DDA has filled up the pond and has constructed a wall around it. It is also the admitted case of parties that the suit property is situated outside the wall constructed by DDA. This fact has been admitted in testimonies of plaintiff, PW6, PW7, PW10 and DW1. Therefore there is no question of the suit property being the land of DDA.
27. Furthermore the sale deed Ex PW1/2 (also Ex PW2/1) duly proved through Ex PW2 also mentions that the suit property is south of pond. In his cross examination, PW2 stated that the SubRegistrar Office confirms the status of land before registration. He was not put any further questions to dispute this statement not even in regard to the registration of sale deed in respect of suit property.
The irresistible conclusion thus emerges that the pond land has already been bound by a boundary wall by DDA and therefore defendant is not the owner of suit property which lies Sh. Anil Narula vs. DDA 14/20 Suit No. 354/2009 outside such boundary wall. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
28. Issue No. 1: Whether the plaintiff is entitled to a decree of permanent injunction against the defendant as prayed for? OPP.
The onus of proving this issue was on the plaintiff. It is established by findings on issue no. 4 that the suit property is in khasra no 487 and it is not DDA land. In other words it did not constitute gaon sabha land before the village Peeragarhi was urbanized. This would imply that the suit land was private property. Since admittedly the entire khasra no 487 is lal dora therefore the ownership is determined only by possession. There are no revenue records being maintained for properties in lal dora area. To establish his possession, plaintiff has relied upon photographs Ex PW1/ 8 to Ex PW1/16 to show that even after the demolition, he is still in possession of the suit property. Apart from the plaintiff, PW10 stated that plaintiff in possession of suit property. PW 1(in rebuttal) Sh. Yograj Tyagi stated that he has seen the factory of plaintiff for over a decade. PW2 (in rebuttal) Sh. Parkash also stated that plaintiff is in possession of the suit property. Furthermore even defendant had admitted plaintiff's possession over the suit property at least till the Sh. Anil Narula vs. DDA 15/20 Suit No. 354/2009 date of demolition on 16.01.2004 but this demolition is the very cause of action for filing the present suit.
Ex PW2/1 is the copy of registered sale deed in favour of plaintiff which states that plaintiff was handed over possession of the suit land along with the superstructures. Ld counsel for DDA has argued that there is nothing to show that the seller Smt. Nirmala Devi or Sh. Ishwar Singh, on whose behalf the deed is said to have been executed, were owners of the suit property as their name has not been mentioned in the revenue records. I am unable to agree with ld. counsel for the simple reason that khasra no 487 is within the lal dora and there are no records of ownership for such area. General power of attorney Ex PW1/3 in favour of Smt. Nirmal Devi has not been disputed by DDA as not a single question has been put regarding the authenticity of this document.
It is therefore established beyond doubt that the suit property being within lal dora and under the possession of the plaintiff is his private property.
29. One point of controversy in the present suit is the presence of two site plans. At the stage of arguments, ld counsel for plaintiff has pointed out that an affidavit to place on record another site plan is on the file and on the basis of the same the injunction application Sh. Anil Narula vs. DDA 16/20 Suit No. 354/2009 was also decided. It is submitted that the site plan Ex PW1/4 was prepared in haste and later a new site plan was filed with affidavit but inadvertently at the stage of evidence, the old site plan was exhibited. Since the present matter has been remanded back with specific directions, this Court cannot travel beyond the same. Reliance cannot be placed on such other site plan as it was not tendered in evidence so as to enable defendant to challenge this document in crossexamination.
However from the testimonies of PW6 who is Kanungo, DDA and PW7 who is Deputy Director, DDA and who were present when the pond was being demarcated, it is clear that the suit property is surrounded by DDA wall on the north side and cremation ground on the south side. PW 10 and PW2 (in rebuttal) who have seen the suit property have also deposed that the suit property is surrounded by wall on the north side and cremation ground on the south. Further all these witnesses have categorically deposed that there is a road on the west side of suit property. It is also not in dispute that there are other properties on the east of suit property. PW10, Sh Jagdish stated that to the east of suit property his property is situated. This has not been controverted by DDA as no question was put on this point in the crossexamination. Thus it Sh. Anil Narula vs. DDA 17/20 Suit No. 354/2009 emerges that the suit property is surrounded as: North DDA wall, South cremation ground, East Plot of Sh Jagdish and West road.
Accordingly, this issue is decided in favour of the plaintiff and against the defendant. Plaintiff is entitled to relief of permanent injunction and defendant is restrained from demolishing any part of the suit property and from interfering into the peaceful use, occupation and possession of the suit property.
30. Issue no. 2: Whether the suit of the plaintiff not maintainable for want of notice U/s 53 DDA Act? OPD.
Inadvertently the issue records Section 53 instead of Section 53B Delhi Development Act. However the same is typographical error and it is amply clear that objection was taken in respect of notice under Section 53B of Delhi Development Act. The onus of proving this issue was on the defendant. No evidence has been led to show that the present suit for injunction is bad for want of notice under Section 53B Delhi Development Act and does not fall within the exception provided in Section 53B Delhi Development Act.
Accordingly, this issue is decided in favour of the Sh. Anil Narula vs. DDA 18/20 Suit No. 354/2009 plaintiff and against the defendant.
31. Issue no. 3: Whether the suit has already become infructuous as the unauthorized construction of the plaintiff has already been demolished on 16.01.2004? OPD.
The onus of proving this issue was on the defendant. It is the admitted case of parties that demolition has been carried out on 16.01.2004. The question in controversy is whether the entire suit property was demolished or not and who is in possession of suit property. Ex. DW1/2 which is the copy of demolition diary dated 16.01.2004 states that some 500 sq yards of property was demolished on 16.01.2004 but it is not possible to decipher from this document that the entire suit property was demolished that day. According to plaintiff only a part of his property was demolished. DDA itself repudiated its stand as the plaintiff was put a positive suggestion that the suit property was partly demolished on 16.01.2004. To this the plaintiff as PW3 had replied in affirmative. PW1 also stated that there is a boundary wall and some malba lying in the suit property and that there is also a temporary structure. The crossexamination of the plaintiff's witnesses did not yield any fruitful result on this issue in the favour of defendant. Moreover, photographs Ex. PW1/8 to Ex. PW1/16 have not been objected to or Sh. Anil Narula vs. DDA 19/20 Suit No. 354/2009 denied by the defendant. These photographs show that the construction over suit property has not been completely demolished and the malba of demolished portion is still lying on the suit property. Therefore plaintiff continues to be in possession of the suit property.
Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
32. Relief :
In view of the aforesaid discussions, the suit of the plaintiff is decreed. Plaintiff is entitled to relief of permanent injunction and defendant is restrained from demolishing any part of the suit property and from interfering into the peaceful use, occupation and possession of the suit property. Costs of the suit awarded in favour of the plaintiff and against the defendants. Decree sheet be prepared accordingly. File be consigned to record room.
Pronounced in the open court
today on 11.03.2013 (Richa Gusain Solanki)
Civil Judge (West)
THC, Delhi/ 11.03.2013
Sh. Anil Narula vs. DDA 20/20