Delhi District Court
Smt. Bhagwati Devi vs Delhi Development Authority on 27 May, 2015
Page No. 1 of 12
IN THE COURT OF MS. CHHAVI KAPOOR, CIVIL JUDGE,
WEST DISTRICT, TIS HAZARI COURT, DELHI.
Unique ID No. 02401C0020692000
Suit No. 474/2014
Smt. Bhagwati Devi
Widow of Sh. Lakhmi Chand
R/o Village Badarpur,
New Delhi ............. Plaintiff
Versus
Delhi Development Authority,
Through its Vice Chairman,
Vikas Sadan, INA Market,
New Delhi .............Defendant
Date of Institution of the Suit : 07.08.2000
Date of Reserving of Judgment : 16.05.2015
Date of Judgment : 27.05.2015
JUDGMENT
1. Plaintiff has filed a suit for grant of relief of Permanent Injunction against the Delhi Development Authority ( DDA in Suit No. 474/2014 Bhagwati Devi Vs. Delhi Development Authority Page No. 2 of 12 short). Facts of the suit are as under.
2. Plaintiff claims to be the owner in possession of a house constructed on a piece of land measuring 128 square yards out of khasra no. 42/24 bearing no. 326, Village Badarpur, Tehsil Kalkaji, New Delhi44. It is claimed that the plaintiff is in actual physical possession of the said house for more than 40 years after having constructed the same out of her own funds. It is claimed that the land on which the house of the plaintiff is built has not been acquired by any authority and hence, it is claimed that the same now vests in the ownership of the plaintiff on account of her continued possession of the same. A site plan showing the possession of the plaintiff over the property is filed alongwith the plaint.
3. It is claimed that the near relatives of the plaintiff are on inimical terms with her and thus, keep on filing false complaints against her . It is claimed that on 19.06.2000, at about 10:00 am, certain officials of DDA came to the spot accompanied with police officers and partly demolished the property of the plaintiff. It is claimed that DDA has no right, title or interest on the land underneath the house of the plaintiff. It is claimed that the land in question has not been demarcated till today. The DDA officials have been told time and again that land underneath the house of the Suit No. 474/2014 Bhagwati Devi Vs. Delhi Development Authority Page No. 3 of 12 plaintiff belongs to her and that they should restrain themselves from carrying out any demolition upon the same. However, the threats lingers and hence, plaintiff has filed the present suit for grant of relief of permanent injunction with the following prayer : * It is therefore, respectfully prayed that this Hon'ble Court may be pleased to pass a decree of permanent injunction in favour of the plaintiff and against the defendant, his servant, agent, assignee, attorney, etc. from illegally and forcibly dispossession the plaintiff from her house constructed on a piece of land measuring 128 square yards out of khasra no. 42/24 bearing no. 326, situated in the Revenue Estate of Village Badarpur as more clearly shown in red colour in the site plan attached with the plaint or in any way interfering in the peaceful possession and enjoyment of the plaintiff over the suit property.
* Any other and further relief which this Hon'ble Court may think fit and just in favour of the plaintiff and against the defendant may also be allowed to the plaintiff.
4. A Written Statement has been filed by DDA in which it is claimed that the suit land, upon which the house of the plaintiff is built falls in khasra no. 42/28 of Village Badar Pur and not Khasra no. 42/24 as claimed in the plaint. It is further stated that the land of Suit No. 474/2014 Bhagwati Devi Vs. Delhi Development Authority Page No. 4 of 12 Khasra no. 42/28 is a Gaon Sabha Land which has been placed at the disposal of DDA under Sec. 22 (1) of DD Act, 1957 by virtue of notification no. SO2190 dated 20.058.1974. It is claimed that plaintiff is in unauthorized occupation of the land measuring 125 square yards(approximately) out of Government Land and hence, she has no right to claim the relief of permanent injunction. Further, it has been denied that the officials of DDA had ever visited the suit property on 19.06.2000 for carrying out any demolition action. However, it was claimed that a demolition action had taken place in the nearby area of the plaintiff's property. It was stated that no cause of action had arisen in favour of the plaintiff, who was claimed to have made up a false case to abuse the process of Court. Accordingly, it was prayed that her suit be dismissed.
5. A replication, thereby denying the facts stated in the written statement has been filed by the Plaintiff.
6. On the basis of pleadings of the parties, following issues were framed for adjudication in the suit on 20.11.2002.
1. Whether the suit is bad for want of notice u/s 53B of DD Act? OPD
2. Whether plaintiff is owner in possession of the land measuring 120 sq. yds. Out of kh. no. 42/24 village Badarpur Teh. Kalkaji, Suit No. 474/2014 Bhagwati Devi Vs. Delhi Development Authority Page No. 5 of 12 Delhi? OPP
3. Whether the suit land falls in kh. no. 42/28 which stands acquired and has been placed at the disposal of DDA? OPD
4. Whether plaintiff is entitled for the relief of injunction as prayed for? OPD
5. Relief.
7. In her evidence, plaintiff has examined five witnesses. One Sh. Rakesh Kumar was examined as PW1. He has proved the site plan of the suit property as Ex. PW1/2. One Sh. Satish Kumar was examined as PW2. He has also proved the site plan Ex. PW1/2 in his evidence. One Sh. Bijender Singh was examined as PW3. He has relied upon the following documents; copy of special power of attorney executed in his favour, Ex. PW3/1 and site plan already exhibited as Ex. PW1/2 as document Ex. PW3/2. PW4 was the draftsman of the site plan Ex. PW1/2 and he has proved the same. PW5 ws the Halka Patwari of Village Badarpur namely Sh. M. L. Sharma and he has produced the Khatoni records of Village Badarpur for the year 199899. The witness has also proved the Girdwari of Khasra no. 42/25 and 42/24 in his evidence. The documents have been exhibited as Ex. PW5/2 and Ex. PW5/1 respectively.
Suit No. 474/2014 Bhagwati Devi Vs. Delhi Development Authority Page No. 6 of 12
8. In defence evidence, DDA has examined one Sh. Dharam Pal, Naib Tehsildar, West as their witness. This witness has relied upon a document which is notification issued u/s. 22 of the DD Act dated 20.08.1974 vide S. O. No. 2190. This document is marked as Ex. DW1/1.
Issue No. 1.
9. A preliminary objection to the suit of the plaintiff was raised by DDA on the ground that the mandatory notice u/s 53 B of DD Act had not been served upon them before filing of the present suit. In their pleadings, DDA had denied that their officials had ever visited the property of the plaintiff on 19.06.2000 as alleged in the plaint. However, during crossexamination, DW1 admitted that the officials of DDA had visited the site on 19.06.2000 to demolish the suit property. He further stated that officials of DDA had again visited the property of the plaintiff on 07.09.2000 for carrying out demolition. It was stated that no notice was sent to plaintiff before carrying out any demolition as the plaintiff was an encroacher upon the Government Land. It was never the case of the plaintiff that she had served the defendants with any legal notice before filing of the present case. It was claimed that the purpose of the suit would have been defeated, if the plaintiff would have waited to serve the Suit No. 474/2014 Bhagwati Devi Vs. Delhi Development Authority Page No. 7 of 12 defendant with mandatory notice u/s. 80 of CPC read with Sec. 53B of DD Act. In view of the admission made in the crossexamination of DW1, it appeared that the apprehension of the plaintiff was just. Hence, plaintiff is given the benefit of Sec. 53B of DD Act. Service of notice u/s. 53 B of DD Act was not mandatory in the facts and circumstances of this case. Issue is accordingly decided against the defendant.
Issue No. 2 and 4.
10. The present suit for Permanent Injunction had been filed by the plaintiff by claiming that she was the owner in possession of 128 square yards of land of khasra no. 42/24 of Village Badarpur, Tehsil Kalkaji, New Delhi44. It was claimed that plaintiff was in possession of the said piece of land for the last more than 40 years. It was claimed that neither the defendants nor any other Government Authority had a right in the said land. It was therefore claimed that the plaintiff had become owner of the said land on account of her continued possession of the same. In order to prove her case, plaintiff had examined five witnesses in support of her case. PW1 and PW2 were the neighbours of the plaintiff. Both these witnesses had stated in their affidavit that the plaintiff was in actual physical possession of her house for last more than 40 years.
Suit No. 474/2014 Bhagwati Devi Vs. Delhi Development Authority Page No. 8 of 12 They had also stated in their examinationinchief that the property in possession of the plaintiff fell in Khasra no. 42/24 of Village Badar Pur, Delhi. However, during crossexamination both the witnesses admitted that they did not know the khasra number in which the property of the plaintiff existed. PW2 could not affirm or deny that the property of the plaintiff fell in khasra no. 42/28, when the same was suggested to him in his crossexamination. It is pertinent to mention that the plaintiff Bhagwati Devi did not appear before the Court in plaintiff evidence, but instead authorized her son Bijender Singh to depose as PW3 in plaintiff evidence. PW3 was authorized to depose on behalf of the plaintiff in the present case by way of a special power of attorney dated 03.07.2003. The original of the special power of attorney dated 03.07.2003 was filed in the case. The same bore the stamp of notary one Ms. Savita Dhaiya. However, in crossexamination, the witness stated that the SPA was executed in presence of a Magistrate in Tis Hazari Courts. The witness could not state the name of the Magistrate before whom, the SPA was executed. However, the original SPA did not bear the stamp or attestation of any Magistrate. Hence, from the testimony of PW3, it appeared that the SPA by which the witness was authorized was not properly executed as per the terms of law.
Suit No. 474/2014 Bhagwati Devi Vs. Delhi Development Authority Page No. 9 of 12
11. By way of site plan Ex. PW1/2 the position of the property was sought to be proved. The draftsman of this site plan was examined as PW4. In his crossexamination, the said witness had stated that he had not attached the rough papers, which were prepared by him at the time of visit of the suit property with his final sketch . He stated that he had prepared the site plan at the instructions of the plaintiff Bhagwati Devi, but admitted that he had not seen any documents regarding the khasra no. 42/24. The plaintiff did not examine any independent witness who could testify the khasra number of the property, in which the plaintiff was residing. PW5 was the Halka Patwari of the Village Badarpur. This witness had brought the khatoni as well as girdawari of the area. The Khatoni records showed that the property was recorded in the name of one Shanti Devi. It was admitted by PW5 in his cross examination that the record did not bear the name of the plaintiff as the owner or occupier of the property. The record brought by the witness pertained to the year 1998 - 99 and it was stated that the records were not changed after the said year. PW5 had brought the record of khasra no. 42/28 and it was stated that as per the Revenue Record, the land was vested in the Gram Sabha and had been transferred to DDA vide Roznamcha No. 465 dated 12.03.1994. On Suit No. 474/2014 Bhagwati Devi Vs. Delhi Development Authority Page No. 10 of 12 the other hand , plaintiff had not filed or proved any title documents showing that she was in settled possession of the property as the owner of the same. As per the record brought by PW5, the property was owned by one Shanti Devi. Plaintiff was not able to explain as to how she came in possession of the property when as per the government records ,she was not the owner of the same . It was not stated or no evidence was led to show that plaintiff had been placed in possession of the property by the erstwhile owner Shanti Devi. During the course of final arguments, it was argued by the plaintiff that the defendant, being a statutory body was mandated to observe the principles of Natural Justice and was thus, required to observe the due process of law while removing the plaintiff from possession of her property. It was otherwise claimed that the defendant had no concern with the property as the same had not been acquired by the Government at any point of time. However, it is a fundamental principle that the case of the plaintiff has to stand on its own legs. He cannot be allowed to take refuge in the lacuna of the case of the defendant. The Supreme Court has time and again observed that the judicial proceedings cannot be used to protect or to perpetuate a wrong committed by any person. The term "due course of law"
presupposes that the possession must be settled, undisturbed and to Suit No. 474/2014 Bhagwati Devi Vs. Delhi Development Authority Page No. 11 of 12 the knowledge of the owner without any concealment or attempt of concealment by the trespasser.In my view , plaintiff has failed to prove the nature of her possession in the suit property. There appears to be an attempt of concealment of material facts from the Court as nothing has been said about the original owner of the suit land of khasra no. 42/24. It is not clear as to how the plaintiff came in possession of the suit property. Suffice to say that plaintiff has failed to prove that she is residing in the property as the owner thereof.
12. Even though in their written statement , defendants had claimed that the plaintiff was in occupation of land of khasra no. 42/28 ,nevertheless not even an iota of evidence was led by DDA to show the plaintiffs were in possession of khasra no. 42/28 and not 42/24 as alleged in the plaint. No report of demarcation of the land had been filed by DDA. In circumstances, DDA failed to prove that plaintiff was in possession of land of khasra no. 42/28.
However ,this fact by itself does not entitle the plaintiff for grant of the equitable relief of injunction in her favour. In circumstances of the case, the relief of Permanent injunction cannot be granted in favour of the Plaintiff. Issues are accordingly decided against the plaintiff.
Suit No. 474/2014 Bhagwati Devi Vs. Delhi Development Authority Page No. 12 of 12 Issue No. 3.
13. It has already been observed in the finding of issues no. 2 and 4 that defendants have not led any evidence to show that the property of the plaintiff is falling in khasra no. 42/28, which has been acquired and placed at the disposal of DDA. Hence, issue is decided against the defendant.
RELIEF
14. In view of my findings on the issue nos 2 and 4 stated above ,it is held that the suit of the plaintiff is dismissed .Parties to bear their own costs. Decree sheet be prepared accordingly.
Announced in the Open Court (CHHAVI KAPOOR)
today on 27th of May, 2015 Civil Judge06/West
Tis Hazari Courts, Delhi
This judgment contains 12 pages and all are signed by me.
(CHHAVI KAPOOR) Civil Judge06/West Tis Hazari Courts, Delhi Suit No. 474/2014 Bhagwati Devi Vs. Delhi Development Authority