Delhi District Court
M.B. Road vs Union Of India on 30 April, 2011
IN THE COURT OF CIVIL JUDGE05 (SOUTH), SAKET
COURTS, NEW DELHI
Presided by: Ms. Manika
CS No. 31/10
Unique Case ID No. 02406C0402342010
1. Shri Uttam Singh (Deceased)
Through legal heirs:
i) Smt. Sushma Bal (Widow) (Impleaded vide
ii) Sh. Deependra Bal (Son) order dated
iii) Sh. Ravindra Singh Bal (Son) 11.02.2009)
2. Shri Pritam Singh
Both sons of late Shri Mahavir Singh,
Residents of F42, Village Saidulajaib,
M.B. Road, New Delhi.
3. Shri Sant Singh Bal
S/o Shri Ajit Singh,
R/o 34, Village Saidulajaib,
Civil Suit No. 31/10 Page 1 of 39
M.B. Road, New Delhi.
4. Shri Atul Kumar
5. Shri Anuj Kumar
Both sons of late Shri Surender Singh,
S/o Late Sh. Karam Singh,
R/o Vill. K34, Village Saidulajaib,
M.B. Road, New Delhi.
...PLAINTIFFS
VERSUS
1. Union of India
through its Secretary
Govt. of India, New Delhi.
2. Deputy Commissioner (Saket)
3. B.D.O. Mehrauli,
D.C. Office, M.B. Road,
New Delhi.
4. SDM/ Revenue Asstt. (Hauz Khas)
Civil Suit No. 31/10 Page 2 of 39
Mehrauli Tehsil Bldg.
Mehrauli, New Delhi.
5. M.C.D.
through its Commissioner,
Town Hall, Chandni Chowk, Delhi.
6. Commissioner of Police,
I.T.O., Delhi.
7. S.H.O.
P.S. Mehrauli, New Delhi.
8. D.D.A.
through Vice Chairman,
Vikas Sadan, I.N.A., New Delhi.
9. N.C.T. of Delhi
through its Secretary,
Players Building ITO New Delhi.
10. Shri Jaswant Singh (Deceased)
Civil Suit No. 31/10 Page 3 of 39
through legal heirs:
i) Smt. Bimla Devi (widow) (Impleaded vide
ii) Shri Manjit Singh (son) order dated
iii) Shri Sanjay Kumar Singh (son) 13.07.2006)
all r/o Vill. Saidulajab, New Delhi.
iv) Smt. Seema Lamba (Daughter)
W/o Sh. Dinesh Lamba
R/o 52G, Pkt. K, Saket, Sheikh Sarai,
PhaseII, New Delhi.
...DEFENDANTS
Date of institution : 22.07.2002
Date of reserving : 28.04.2011
Date of pronouncement : 30.04.2011
JUDGMENT
1. This judgment disposes off the plaintiff's suit for permanent injunction filed with the following prayer:
"It is, therefore, respectfully prayed that:
a) a decree for permanent injunction be passed in favour Civil Suit No. 31/10 Page 4 of 39 of the plaintiffs and against the defendants ,their officers, agents, representatives thereby restraining the defendants no.1 to 8 from dispossessing the plaintiffs from their respective portion/ structure and demolishing any built up portion/ houses /rooms on the suit land bearing Kh.no.278 min (210' x 100') situated at Vill.
Saidulajaib, Delhi as shown in the site plan attached herewith.
ii) Costs of the proceedings be also awarded to the plaintiffs against the defendants.
iii) Any other relief which this Hon'ble court deems fit and proper in the circumstances of the case be also granted in favour of the plaintiff."
PLAINTIFFS' CASE
2. The case of the plaintiffs is that the plaintiffs and defendant No. 10 are the owners in possession of the land measuring 2 bighas 5 biswas (210' x 100') comprised in Khasra No. 278 min within the revenue estate of Village Saidulajaib (hereinafter referred to as the 'suit land') and of one each of the 6 pucca structures/houses built thereon. It is averred in the plaint that the plaintiffs and defendant No. 1, who are the recorded bhumidars in possession as per the revenue records, as well as their predecessors have been in actual, physical, continuous and uninterrupted possession of the suit land and the built Civil Suit No. 31/10 Page 5 of 39 up structures/rooms thereon as owners and bhumidars for the last 70 years.
3. As per the plaintiffs, on 19.06.2002 one Mr. Behl, BDO Mehrauli, defendant No.3 accompanied by Police officers of defendants No.6 and 7 along with defendant No.4 and staff of defendants No.5 & 8 came and demolished some adjoining properties and threatened to demolish the pucca structures/houses of the plaintiffs built on the suit land and to dispossess the plaintiffs from the suit land, without any legal title, interest or order from any lawful authority. It is averred that although the defendants No.3 and 4 stayed the demolition action on the said day, they left with the threat that they would come again on 05.07.2002 and 07.07.2002 to dispossess the plaintiffs from the land and demolish the pucca structure. It is contended that on 07.07.2002, the staff of the defendant No.3 came and stated that since no force has been provided by the defendants No. 5 to 9, they would come again on 25.7.2002 and demolish the houses of the plaintiffs on the suit land.
4. The plaintiffs have averred that the pucca structures/houses have been shown on the suit land in the past for the last more than 20 years. It is alleged that defendants No.3 and 4, in collusion with Halqa Civil Suit No. 31/10 Page 6 of 39 Patwari and Girdawar, have stopped showing built up structure/houses on the suit land. It is averred that as the plaintiffs have not received any show cause notice or demolition notice from any of the defendants, any action to initiate demolition of the plaintiffs' structure on the suit land is illegal. Hence, the plaintiffs have filed the present suit.
DEFENDANTS' CASE
5. The defendants No.1 to 4 and 9 have contested the suit by filing a common written statement. They have taken preliminary objections that the plaint is liable to be rejected as there is no cause of action in favour of the plaintiffs and against them; that the suit is bad for misjoinder and nonjoinder of parties; that the plaintiffs have not approached the Court with clean hands and have suppressed material facts; that the suit is barred under Section 80 of the Code of Civil Procedure (hereinafter referred to as 'C.P.C.') as mandatory notice under the said provision has not been served; that the jurisdiction of Civil Court is barred as the Revenue Assistant is alone competent to adjudicate matters related with bhumidari rights in respect of Gaon Sabha land under the provisions of Delhi Land Reforms Act; that the Civil Suit No. 31/10 Page 7 of 39 plaint is not verified; and that the suit is not properly valued.
6. On merits, the defendants No.1 to 4 and 9 have contended that land bearing Khasra No.278 min. (1017) within the revenue estate of village Saidulajaib, New Delhi exclusively belongs to the Gaon Sabha and the plaintiffs have no right, title or interest therein. They have denied that the plaintiffs and defendant No.10 are recorded as bhumidar in respect of the suit land in the revenue records. It is alleged that the plaintiffs are trespassers qua the suit land and can, therefore, not claim any relief to protect their illegal act. It is contended that, by way of the present suit, the plaintiffs are indirectly seeking a declaration of bhumidari rights and Revenue Assistant is the competent authority to adjudicate the matter as per the provisions of the Delhi Land Reforms Act.
7. Defendants No.1 to 4 and 9 have further contended that, in pursuance to a meeting held on 29.05.2002 and as per the directions of the Chairman, D.T.F., partial demolition programme was carried out in respect of Khasra No.278 min and about 2 bighas and 8 biswas of Gaon Sabha land was retrieved by demolishing about 60 kuchha rooms, illegally constructed on Gaon Sabha land. It is denied that the Civil Suit No. 31/10 Page 8 of 39 defendants No.1 to 4 and 9 ever threatened anybody for the alleged demolition. It is contended that defendant No.3 never went to the spot on 07.07.2002 as the same being a Sunday was a holiday.
8. Defendant No.5 has not filed a written statement. Instead it has filed a report dated 27.08.2002 stating that as per local enquiry made at the site it had been reported that the suit property falls on the Gaon Sabha land. It was further stated that all the allegations in the plaint had been levelled against the SDM/BDO.
9. The defendants No.6 and 7 have also contested the suit by filing a common written statement. They have taken preliminary objections that the suit is bad for want of notice under Section 140 of the Delhi Police Act; that the suit is liable to be rejected under Order VII Rule 11 of the C.P.C. being without cause of action against them; that the suit is bad for misjoinder of parties; and that the plaint is not properly verified. On merits, defendants No.6 and 7 have stated that they provided police force on the request of the Delhi Development Authority and their role was to maintain law and order and to protect the government officials while they discharged their official duties.
10. Defendant No.8 has contested the suit by filing written Civil Suit No. 31/10 Page 9 of 39 statement. It has raised preliminary objections that the suit is false, frivolous and baseless; that the plaintiff has not approached the Court with clean hands; and that Khasra Girdawari and Khatauni do not confer any title/ownership.
11. On merits, it is contended by the defendant No.8 that the total area of Khasra No.278 is 15 bighas and 2 biswas out of which 13 bighas and 2 biswas was acquired by the Government vide award No.13/8788. It is contended that on 17.07.1987, the LAC and L&B handed over the possession of the 11 bighas and 2 biswas to the defendant No.8 and possession of the balance 2 bighas could not be taken by the defendant No.8. It is contended that the defendant No.8 is the absolute owner as well as in possession of 11 bighas 2 biswas since 17.07.1987. It is alleged that the plaintiffs are occupying the suit property illegally. It is contended that the suit land belongs to the defendant No.8 and it has every right to evict an unauthorized occupant. However, it is denied that any employee of the defendant No.8 visited the suit land on 19.06.2002 or that any demolition was carried out by the defendant No.8 on 19.06.2002. It is stated that no threat of demolition has been given by the defendant No.8. Civil Suit No. 31/10 Page 10 of 39
12. Defendant No.10 did not contest the suit or file written statement.
13. The plaintiffs have filed replications to the written statements of the defendants reiterating the contents of the plaint and contesting the averments made by the defendants in their written statements. COURT PROCEEDINGS
14. Vide order dated 26.09.2002 passed by the learned predecessor of this Court, the application of the plaintiffs under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as the 'C.P.C.') had been allowed and the defendants had been restrained from dispossessing the plaintiffs from the suit land without due process of law till the final disposal of the suit.
15. During the pendency of the case, the defendant No.10 and plaintiff No.1 expired on 27.12.2005 and 04.12.2007. The application of the plaintiffs under Order XXII Rule 4 of the C.P.C. for impleadment of the legal representatives of the defendant No.10 filed on 09.03.2006 was allowed vide order dated 13.07.2006 of the learned predecessor of this Court. The application under Order XXII Rule 3 of the C.P.C. for impleadment of the legal representatives of the plaintiff Civil Suit No. 31/10 Page 11 of 39 No.1 filed on 21.02.2008 was allowed vide order dated 11.02.2009 of the learned predecessor of this Court.
16. The suit was received by way of transfer by this Court on 01.10.2010.
17. An application under Section 340 of the C.P.C. had also been filed on behalf of the legal representatives of the defendant No.10 on 22.12.2006. Vide order dated 22.12.2006 of the learned predecessor of this Court, the same was registered separately as M.No. 177/06. The order dated 28.05.2009 passed by the learned predecessor of this Court in the application recorded, "This application U/S 340 CRPC be tagged with the main file. No further order is required.". Upon transfer to this Court, the application was registered vide M.No. 1A/10. The said application was dismissed as not pressed vide order dated 24.01.2011.
18. Along with the plaint, the plaintiffs had filed an application under Section 80(2) of the C.P.C. seeking exemption from serving notice under Section 80 of the C.P.C. upon the defendants. Further, a preliminary objection as to the bar of Section 80 of the C.P.C. had been specifically raised in the written statement of the defendants No.1 Civil Suit No. 31/10 Page 12 of 39 to 4 and 9. However, neither the aforesaid application was disposed off nor any issue thereof was framed by the learned predecessor(s) of this Court. The aforesaid application was allowed vide order dated 11.02.2011.
ISSUES
19. Vide order dated 18.03.2003 passed by the learned predecessor of this Court, the following issues were framed: "1. Whether the pltffs have got any right title or interest with respect to the suit property?OPP
2. Whether the plffs are entitled to the relief of permanent injunction as prayed for?OPP
3. Relief."
20. In a suit for injunction simpliciter against dispossession, the question of title is not required to be gone into. The same has been held in Anathula Sudhakar v. P. Buchi Reddy, AIR 2008 SC 2033, in paragraph 13 whereof it has been observed as under:
"In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty Civil Suit No. 31/10 Page 13 of 39 in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally." (emphasis supplied)
21. The present suit is one for injunction simpliciter. The plaintiffs have not sought a declaration to the effect that they have any title with respect to the suit land. If a finding on issue No.1 was to be given in favour of the plaintiff, it would tantamount to declaring the title of the plaintiff, a relief not claimed by way of the present suit. As observed by the Hon'ble Apex Court in the decision cited above, while the question of title may arise incidentally in cases such as the instant, the same is not directly in issue. Therefore, the aforesaid issue No.1 is not deemed necessary for determining the matter in controversy between the parties and is hereby struck off in exercise of the powers under Order XIV Rule 5(2) of the C.P.C.
PLAINTIFFS' EVIDENCE
22. In support of their case, the plaintiffs examined as many as four Civil Suit No. 31/10 Page 14 of 39 witnesses. PW1 Sh. S.S. Bal, plaintiff No.3, deposed in terms of the plaint. He relied on Ex.PW1/A order dated 07.11.1976 passed by Sh. Nathu Singh, Revenue Assistant, Ex.PW1/B order dated 27.03.1980 passed by Sh. S.L. Arora, A.D.M., Ex.PW1/G copy of writ petition No.992/89, Ex.PW1/H copy of writ petition No.966/87, Ex.PW1/J1 to Ex.PW1/J3 (Collectively) quashing orders passed by the Hon'ble High Court of Delhi in writ petitions No.992/89 and 966/87, Ex.PW1/K copy of Khatauni, Ex.PW1/L1 to Ex.PW1/L8 (Collectively) copies of Khasra Girdawaris, Ex.PW1/M site plan and Ex.PW1/N1 to Ex.PW1/N6 (Collectively) photographs of the structures existing on the suit land.
23. PW2 Sh. Niranjan Singh, a neighbour of the plaintiffs and defendant No.10, deposed in line with the plaint. PW3 Sh. Dinesh Sharma, Halka Patwari, Village Saidulajaib, proved Khasra Girdawaris for the years 19911999 and 20012002 vide Ex.PW1/L1 to Ex.PW1/L9 and Khatauni for the year 19901991 vide Ex.PW1/K. PW4 Sh. Sanjay Solanki, Halka Patwari, Record Room Tehsil Mehrauli, proved Khasra Girdawaris vide Ex.PW1/L1 to Ex.PW1/L9 and Khatauni for the year 19761977, 198081 and 19901991 vide Ex. PW4/1 to Ex.PW4/3.
Civil Suit No. 31/10 Page 15 of 39 DEFENDANTS' EVIDENCE
24. In support of their case, defendants No.1 to 4 and 9 only examined DW1 Sh. Niranjan Singh, Panchayat Secretary, Village Saidulajaib. He deposed in line with the written statement of the defendants No.1 to 4 and 9. He relied on demarcation report MarkA.
25. The defendant No.8, in support of its case, examined only D8W1 Sh. Ananghpal Singh, Patwari, Delhi Development Authority, who deposed in terms of the written statement of the defendant No.8. He relied on the award No.13/8788 referred to as Ex.DW1/A in his affidavit Ex.DX, however, marked as MarkA, and possession proceeding referred to as Ex.DW1/B in his affidavit Ex.DX, however, marked as MarkB.
26. Defendants No. 5, 6 and 7 as also the legal representatives of the defendant No.10 did not lead any evidence. Although an affidavit in evidence of Sh. Manjeet Singh Bal, one of the legal representatives of the defendant No.10, was filed on behalf of the defendant No.10, neither was the same tendered in evidence nor the witness crossexamined.
Civil Suit No. 31/10 Page 16 of 39 FINDINGS
27. The record and written submission of the parties have been carefully perused. The respective submissions of Sh. S.S. Bal, plaintiff No.3, on behalf of the plaintiffs, Sh. D'Souza Philip K., Advocate, learned counsel for the defendants No.1 to 4 and 9, Ms. Promila Kapoor, Advocate, learned counsel for the defendants No.5 and 8, Sh. D.S. Pawariya, Advocate, learned counsel for the defendant No.8, Ms. Deepti Chauhan, proxy counsel for Sh. R.N. Vats, Advocate, learned counsel for the defendants No.6 and 7 and Sh. Jameel Ahmad, proxy counsel for Sh. M.S. Bal, Advocate, learned counsel for the legal representatives of defendant No.10 have been considered.
28. The issuewise findings are as under: Issue No.2: Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for?
29. The onus of proof qua this issue was on the plaintiffs. With respect to this issue, the case of the plaintiffs is that they along with defendant No.10 are bhumidars in possession qua the suit land having succeeded to their predecessors in interest, who had been in settled possession of the suit land since the last over seventy years. It is Civil Suit No. 31/10 Page 17 of 39 contended that without any show cause or demolition notice having been served upon the plaintiffs, the defendants No.1 to 9 are threatening the plaintiffs to demolish the pucca structures over the suit land and to dispossess the plaintiffs from the suit land illegally.
30. Re: Possession of the plaintiffs qua the suit land 30.1 To substantiate their claim of settled possession of the suit land, the plaintiffs have filed copies of the Khasra Girdawaris for the years 199192 to 199899 and 200102. The same have been duly proved by PW3 vide Ex.PW1/L1 to Ex.PW1/L9. As per the documents Ex.PW1/L1 to Ex.PW1/L9, the plaintiffs along with the defendant No.10 were in possession of the suit land from the year 199192 to 199899 and in the year 200102.
30.2 Further, the document Ex.PW1/DA1, which has been wrongly typed as Ex.PW1/A1 in the cross examination dated 01.04.2004 of PW1, having been put to PW1 during his crossexamination, stands admitted by him and, hence, proved. The same is the Khasra Girdawari for the year 20002001. Even as per the said document, while the Gram Sabha is shown to be Civil Suit No. 31/10 Page 18 of 39 in possession of 10 bighas 17 biswas of land in Khasra No.278, village Saidulajaib, the plaintiffs are shown in possession of land measuring 2 bighas 5 biswas in the aforesaid Khasra, corresponding with the measurement of the suit land. 30.3 Khasra Girdawari is the record of cultivation and an important document showing possession of a person over the land. Thus, the plaintiffs have been able to show their continuous possession qua the suit land for about ten years immediately before the filing of the suit by way of an uninterrupted chain of Khasra Girdawaris. They can, therefore, be said to be in settled possession of the suit land. 30.4 Moreover, it is not the case of the defendants No.1 to 9 that the plaintiffs are not in possession of the suit land. The only defence of the defendants No.1 to 4, 8 and 9 is that the plaintiffs are trespassers qua the suit land and that they are in illegal and unauthorized possession thereof.
31. Re: Plaintiffs' possession qua the suit land: Whether lawful 31.1 For the purposes of the present suit, this Court is not to determine the question of title of the plaintiffs but only the Civil Suit No. 31/10 Page 19 of 39 question as to whether the plaintiffs are in lawful possession of the suit land, as a precursor to grant of the relief of injunction, if any.
31.2 The case of the plaintiffs is that they, along with defendant No.10, succeeded their predecessors in interest as bhumidars. To substantiate their claim, the plaintiffs have filed two orders of the revenue authorities. Plaintiffs have placed on record the order dated 07.12.1979 passed by Sh. Nathu Singh, Revenue Assistant, Delhi which is Ex.PW1/A. By way of the said order, Sh. Ajit Singh, Sh. Karam Singh and Sh. Mahavir Singh, predecessors in interest of the plaintiffs and defendant No.10, had been declared joint bhumidars of the suit land. They have also placed on record the order dated 27.03.1980 passed by Sh. S.L. Arora, Additional Collector, Delhi vide Ex.PW1/B, whereby in appeal preferred by the Gaon Sabha, the order Ex.PW1/A had been upheld. The defendants No.1 to 4 and 9, on the other hand, have failed to even aver, let alone prove, that any further appeal had been preferred therefrom. Thus, the order Ex.PW1/A can be said to have attained finality. Thus, the plaintiffs have been able to show that their predecessors in Civil Suit No. 31/10 Page 20 of 39 interest, namely Sh. Ajit Singh, Sh. Karam Singh and Sh. Mahavir Singh, were joint bhumidars of the suit land at least since 07.12.1979, having been declared as such vide order Ex.PW1/A. 31.3 In further support of their claim regarding bhumidari qua the suit land, the plaintiffs have filed copy of the Khatauni for the year 199091, which has been duly proved by PW3 vide Ex.PW1/K. In Ex.PW1/K, plaintiffs No.1 and 2 as well as Sh. Ajit Singh and Sh. Karam Singh are recorded as bhumidars in respect of the suit land. As per the said document, the bhumidari right of the persons named therein began in 197980. The said fact is corroborated by the order Ex.PW1/A. 31.4 From the document Ex.PW1/K, it is clear that the plaintiffs No.1 and 2 had succeeded to Sh. Mahavir Singh, who had been declared joint bhumidar with Sh. Ajit Singh and Sh. Karam Singh vide order Ex.PW1/A. Plaintiff No.3 and defendant No.10 are the sons of the said Sh. Ajit Singh and plaintiffs No.4 and 5 are the grandsons of the aforesaid Sh. Karam Singh. Succession of the plaintiffs and defendant Civil Suit No. 31/10 Page 21 of 39 No.10 to their respective predecessors as bhumidars is not disputed by defendants No.1 to 9. Thus, upon preponderance of probabilities, it is found that the plaintiffs have been able to prove that they along with defendant No.10 had succeeded as bhumidars to the suit land.
31.5 The Khataunis Ex.PW4/1 to Ex.PW4/4, pertaining to the years 198081, 197677 etc., contain entries in Urdu. Despite ample opportunity having been granted to the plaintiffs, they have failed to file copies thereof translated by a government approved translator. However, the same does not affect the case of the plaintiffs as the document Ex.PW1/K, which pertains to the year 199091, records that the predecessors of the plaintiffs are bhumidars since the year 197980.
31.6 The defendants No.1 to 4 and 9 have denied that the plaintiffs and defendant No.10 are recorded as bhumidars in respect of the suit land in the revenue records and have rather alleged that they are trespassers qua the suit land. It is their case that the land bearing Khasra No.278 min. (1017) within the revenue estate of village Saidulajaib, New Delhi exclusively Civil Suit No. 31/10 Page 22 of 39 belongs to the Gaon Sabha and the plaintiffs have no right, title or interest therein.
31.7 Although PW4, Halqa Patwari, Record Room, Tehsil Mehrauli, in his crossexamination dated 25.01.2005, admitted that about 10 bighas 17 biswas of land in Khasra No.278 was in the ownership and possession of the Gaon Sabha as per the record brought by him, however, PW3, Halqa Patwari, Village Saidulajaib, in his crossexamination dated 05.07.2005, denied the suggestion that the suit land belonged to the Gaon Sabha as per the record.
31.8 In support of their contention, the defendants No.1 to 4 and 9 examined DW1, who relied on Khatauni issued on 03.08.2002, referred to in his affidavit Ex.D1 as Ex.DW1/1 (already exhibited as Ex.PW4/R1 having been put to PW4 in his crossexamination). The document Ex.PW4/R1 is the Khatauni for the year 199899 showing that land measuring 10 bighas 17 biswas in Khasra No. 278 is recorded in the name of Gram Sabha as Gair Mumkin Pal. However, the said Khatauni pertains to the village Neb Sarai. Thus, the document Civil Suit No. 31/10 Page 23 of 39 Ex.PW4/R1 (referred to as Ex.DW1/1 in the affidavit Ex.D1) has no relevance in the present suit. DW1 also relied on the demarcation report referred to as Ex.DW1/2 in his affidavit Ex.D1 and as Mark A (for want of original) in his examinationinchief but in fact marked as Mark X1. While the demarcation report Mark X1 records that as per record land measuring 10 bighas 17 biswas is under the ownership of the Gram Sabha, it further records that 4 bighas 5 biswas of the land is under private ownership. The same does not show that the suit land is situated in the 10 bighas 17 biswas claimed to be Gram Sabha land.
31.9 Even the aks sijra Ex.PW1/DA2 relied upon by the defendants No.1 to 4 and 9 is of no help to them. It only depicts the outline of the Khasra No.278 of Village Saidulajaib but does not indicate the different parts of the said Khasra. As to which portion of the said Khasra No.278 is covered under the 10 bighas 17 biswas alleged to be Gaon Sabha land and which is not has not been shown in the aks sijra.
31.10 Even at the stage of final arguments, upon being asked to Civil Suit No. 31/10 Page 24 of 39 clarify as to whether the suit land falls within the 10 bighas 17 biswas of Gaon Sabha land, the defendants No.1 to 4 and 9 filed an affidavit dated 13.04.2011 of Sh. A.K. Yadav, BDO (South), M.B. Road on 15.04.2011 stating as under in paragraph 2 thereof:
"That as per the revenue records, the Khasra No.278 admeasuring 15 Bighas and 02 Biswas, i.e. (152). The Gram sabha saidulajab is in possession of 10 Bighas 17 Biswas out of the Khasra No.278, and rest of the land admeasuring 4Bighas 5Biswas, out of the 15Bighas 2Biswas, is shown in possession of the Bhoomidhars. As per revenue records the joint Bhoomidhar right is given to the plaintiffs in a piece of land admeasuring 2 Bighas 05 Biswas , i.e. (2 - 5) out of the abovementioned 4 Bighas 5 Biswas. Since Titama of the area is not made, I am unable to state whether the suit property of 2Bighas 5biswas falls within gram sabha possessed land measuring 10Bighas 17 Biswas out of the Khasra No.278, at Village Saidulajab or not perse."
31.11 Moreover, from Ex.PW1/DA1, which is the Khasra Girdawari for the year 20002001, it is clear that while the Gram Sabha is shown to be in possession in respect of 10 bighas 17 biswas of land in Khasra No.278, village Saidulajaib, Civil Suit No. 31/10 Page 25 of 39 it is the plaintiffs who are shown to be in possession in respect of the suit land. Thus, the suit land cannot be said to be covered in the land over which ownership/possession is claimed to be that of the Gaon Sabha.
31.12 The rival case of the defendant No.8 as contended in its written statement is that 13 bighas and 2 biswas out of the total area of 15 bighas and 2 biswas in Khasra No.278 was acquired by the Government vide award No.13/8788. It is contended that defendant No.8 is in possession of 11 bighas 2 biswas since 17.07.1987, when possession thereof had been handed over by the LAC and L&B to the defendant No.8. It is, therefore, alleged that the plaintiffs are occupying the suit property illegally. 31.13 In counter to the aforesaid claim of the defendant No.8, the plaintiffs placed on record certified copy of an order dated 10.08.1990 of the Hon'ble High Court of Delhi in Civil Writ Petition No. 966/1987 titled 'Karam Singh & Anr. v. Lt. Governor of Delhi & Ors.'. The same is Ex.PW1/J3. A certified copy of the aforesaid writ petition No. 966/1987 is Ex.PW1/G. A perusal of paragraph 2 of the said petition Civil Suit No. 31/10 Page 26 of 39 Ex.PW1/G reveals that the same was filed in respect of acquisition of lands of the petitioners therein situated in various Khasras within the revenue estate of Village Saidulajaib. It had included the land of the petitioners therein in Khasra No.278 i.e. the Khasra number in which the suit land is situated. As per the memo of parties in the writ petition Ex.PW1/G, the same was filed by Sh. Karam Singh and Sh. Ajit Singh i.e. predecessors in interest of the plaintiffs and defendant No.10, against the Lt. Governor of Delhi, Land Acquisition Collector and Delhi Development Authority i.e. the defendant No.8 herein. The defendant No.8 has not pleaded that any appeal was preferred or allowed against the aforesaid order Ex.PW1/J3. Thus, it can safely be concluded that the said order Ex.PW1/J3 having become final, the acquisition of the land of the plaintiffs in Khasra No.278, Village Saidulajaib stands quashed. 31.14 Further, D8W1 Ananghpal Singh, who tendered into evidence the aforesaid acquisition award vide Mark A and the aforesaid possession proceedings vide Mark B, in his cross examination, admitted that the notification under Section 4 of the Land Acquisition Act, declaration under Civil Suit No. 31/10 Page 27 of 39 Section 6 of the said Act as well as the aforesaid award qua the land in Village Saidulajaib had been quashed by the Hon'ble High Court of Delhi.
31.15 Thus, in view of the aforesaid, it is clear that the acquisition proceedings as well as the award No. 13/8788 relied upon by the defendant No.8 to claim title over the suit land stand quashed vide order Ex.PW1/J3.
31.16 The plaintiffs have further placed on record certified copies of Civil Writ Petition No. 992/89 Ex.PW1/H and order dated 15.05.1989 Ex.PW1/J1 passed therein. The said writ petition was filed by Sh. Karam Singh, Sh. Ajit Singh and the plaintiffs No.1 and 2 herein against the Union of India and the Land Acquisition Collector. Vide the said order Ex.PW1/J1, a Division Bench of the Hon'ble High Court of Delhi had ruled as under:
"Consequently, we direct that the possession of the petitioners will not be disturbed except in cases where the compensation has been received by the land owners or alternate plots have been allotted, until the compensation amount and the alternate plot is surrendered. Counsel for the petitioners Civil Suit No. 31/10 Page 28 of 39 agree that the land owners who have received compensation or have been allotted alternate plots would surrender the same as indicated above within two months from today. All other land owners who have neither received compensation nor any alternate plot are free to deal with their lands the way they like and their possession will not be disturbed by the respondents. Delhi Administration will see to it that the Revenue records are amended accordingly. The proper authority i.e. the Land Acquisition Collector will receive the refund of compensation with 12 per cent interest per annum as well as the surrender of the alternate plots when and if ordered. The writ petitions are disposed of in these terms."(emphasis supplied) 31.17 It is not the case of defendants No.1 to 4, 8 and 9 that the plaintiffs and defendant No.10 or their predecessors in interest had either received compensation or alternate plots. Thus, the possession of the plaintiffs and defendant No.10 stood protected vide the order Ex.PW1/J1.
31.18 Thus, it is clear that the plaintiffs and defendant No.10 are lawfully in possession of the suit land.Civil Suit No. 31/10 Page 29 of 39
32. Re: Existence of pucca structure/houses on the suit land
32.1 PW1 testified that the predecessors in interest of the plaintiffs and defendant No.10 had constructed on the suit land and that there exist six houses in all, one each being in possession of the plaintiffs and defendant No.10. He has proved the photographs Ex.PW1/N1 to Ex.PW1/N6 showing the houses/pucca structures built over the suit land. Further, PW3 deposed that, as per the revenue record brought and exhibited by him, there are houses existing on the suit land. Neither PW1 nor PW3 has been crossexamined on this aspect. Thus, their testimonies in this regard have gone unrebutted and unchallenged.
32.2 Even otherwise, the defendants have not disputed the existence of the houses/pucca structures over the suit land. 32.3 Thus, it is proved that there exist six houses/pucca structures over the suit land.
Civil Suit No. 31/10 Page 30 of 39
33. Re: Threat of dispossession/demolition 33.1 The next essential ingredient for establishing their claim in the present suit for permanent injunction is that there is a threat of breach of a legal right of the plaintiffs. 33.2 PW1 has categorically testified that on 19.06.2002 the defendant No.3, BDO Sh. Behl along with officers of the other defendants and police force came and demolished the adjoining properties of Sh. Madan Singh and sons of Ram Phool. He has further testified that they also threatened to demolish the house/pucca structures of the plaintiffs and defendant No.10 built on the suit land and to dispossess them from the suit land in the presence of Sh. Niranjan Singh and other villagers. Thus, PW1 has categorically mentioned the name of one of the officials as BDO Sh. Behl, who had participated in the demolition of the properties adjoining those of the plaintiffs and the defendant No.10. The testimony of PW1 remains uncontroverted on this point. Further, PW2 has also testified to the aforesaid effect.
Civil Suit No. 31/10 Page 31 of 39 33.3 Defendants No.6 and 7 have also stated in their written statement that they provided police force on the request of the Delhi Development Authority.
33.4 In fact, it is an admitted case in paragraph 13 of the reply on merits in the written statement of the defendants No.1 to 4 and 9 that demolition programme was carried out on 19.06.2002 on Gaon Sabha land bearing Khasra No.278 (min)(1017) Village Saidulajaib. In paragraph 5 of the reply on merits in the written statement of the defendants No.1 to 4 and 9, it is stated, "The demolition programme was carried out partially in respect of Kh.No.278 min and about 2 bighas and 8 biswas of Gaon Sabha land retrieved by way of demolishing 60 kachha rooms, illegally constructed on Gaon Sabha land. ... It is submitted that the Gaon Sabha will conduct demolition of any construction if illegally constructed on the Gaon Sabha land in accordance with law."
33.5 As the stand of the defendants has throughout been that the plaintiffs are trespassers on the Gaon Sabha land and demolition programme had been carried out only partially as aforeasaid, it is apparent that but for the present suit, the Civil Suit No. 31/10 Page 32 of 39 defendants may well have demolished the structures over the suit land and dispossessed the plaintiffs and defendant No.10 of the same. Thus, the threat of demolition of the houses/pucca structures as well as of dispossession of the plaintiffs from the suit land stands duly proved.
34. Re: Plaintiffs' entitlement to the relief against dispossession 34.1 As discussed above, the plaintiffs have successfully established that (i) they are in settled possession of the suit land;
(ii) their possession of the suit land is lawful; and (iii) there is a threat of their dispossession from the suit land. 34.2 In Rame Gowda v. M. Varadappa Naidu, AIR 2004 SC 4609: 2004 (1) SCC 769, it has been observed in paragraph 8:
"It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful Civil Suit No. 31/10 Page 33 of 39 owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. ..."
(emphasis supplied) 34.3 In the instant case, besides proving that they are in settled possession of the suit land, the plaintiffs have also been able to show that their aforesaid possession is lawful. Thus, the plaintiffs are entitled to the relief sought against dispossession from the suit property.
35. Re: Plaintiffs' entitlement to the relief against demolition 35.1 PW1 testified that the predecessors in interest of the plaintiffs and defendant No.10 had constructed on the suit land. Further, PW3 deposed that, as per the revenue record brought Civil Suit No. 31/10 Page 34 of 39 and exhibited by him, there are houses existing on the suit land. The testimony of both these witnesses to this extent has gone unrebutted and unchallenged. The record brought and proved by PW3 included Khasra Girdawaris for the years 19911999 and 20012002 as well as Khatauni for the year 19901991. Thus, it is clear that the said houses/pucca structures are old. The defendants, after a long slumber, cannot be allowed to straightaway proceed to demolish the said structures, howsoever illegal, without adopting the procedure prescribed by law. 35.2 Since it has throughout been the case of the plaintiffs that they have not received any notice of demolition, the onus was on the defendants No.1 to 4, 8 and 9 to have proved if they had in fact served any such notice upon the plaintiffs in this regard. However, the same has not even been pleaded in their written statements.
35.3 Even if the houses/pucca structures are illegal, the defendants would be required to adopt the procedure prescribed by law before demolishing the same. Thus, the plaintiffs are entitled to the relief of injunction against demolition without due process of law.
Civil Suit No. 31/10 Page 35 of 39
36. The learned counsel for the defendants No.1 to 4 and 9 had relied upon the decision in Jagpal Singh & Ors. v. State of Punjab & Ors. in Civil Appeal No. 1132/2011 @ SLP (C) No. 3109/2011 dated 28.01.2011. The same is not of any aid to the defendants inasmuch as the facts of the aforesaid case are clearly distinguishable from those of the present case. In the aforesaid case, the land in question was recorded as a public/village pond and the appellants were, therefore, trespassers guilty of encroachment over Gram Panchayat land. In the instant case, however, the plaintiffs have been able to prove that they are not only in settled but also lawful possession of the suit land and are recorded as bhumidars in possession in the revenue records. Thus, the decision in Jagpal Singh (supra) is not applicable in the facts of the present case.
37. In view of the aforesaid discussion, this Court is of the considered opinion that the plaintiffs are entitled to the relief of permanent injunction as prayed for. Accordingly, this issue is decided in favour of the plaintiffs and against the defendants No.1 to 9. Civil Suit No. 31/10 Page 36 of 39 Issue No.3: Relief
38. In view of the findings on issue No.2, the plaintiffs are entitled to the relief of permanent injunction as prayed for. Accordingly, a decree of permanent injunction is passed in favour of the plaintiffs and against the defendants No.1 to 9, thereby restraining the defendants No.1 to 8, their officers, agents and representatives from dispossessing the plaintiffs from their respective portions/structure of the suit land measuring 2 bighas 5 biswas (210'x100') comprised in Khasra No. 278 min situated at Village Saidulajaib, Delhi as shown in the site plan Ex.PW1/M, without due process of law. A further decree of permanent injunction is passed in favour of the plaintiffs and against the defendants No.1 to 9, thereby restraining the defendants No.1 to 8, their officers, agents and representatives from demolishing any built up portion/houses/rooms on the aforesaid suit land, without due process of law.
39. The suit is decreed accordingly. Parties are directed to bear their own costs.
40. It is, however, clarified that nothing hereinabove shall be seen as an impediment to any action by the defendants No.1 to 9 as per law. Civil Suit No. 31/10 Page 37 of 39
41. Decree sheet be prepared accordingly.
42. Before parting with the present judgment, this Court is constrained to express its contempt over the laxity in the functioning of the defendants No.2, 3 and 4 as demonstrated in the instant case. While, in paragraph No.11 of the reply on merits in the written statement of the defendants No.1 to 4 and 9 filed on 02.09.2002, the application of the plaintiff No.3 for demarcation of the suit land was stated to have been pending consideration, no action thereon has been shown to have been taken till date despite expiry of over eight and a half years. Rather, in paragraph 3 of his affidavit dated 13.04.2011 filed on 15.04.2011, Sh. A.K. Yadav, BDO (South), M.B. Road stated, "Further I submit that the application for demarcation of 02Bisghas 05Biswas, stated to be filed by the plaintiff No.3 of the Khasra No.278 of Village Saidulajab, could not be traced presently in the office of Tehsildar (Hauz Khas) Sub Division Hauz Khas at Mehrauli, New Delhi." If such is the fate of the application for demarcation of land, which is subject matter of a judicial proceeding, this court is constrained to wonder has to what the fate would be of other applications made by individuals to the defendants No. 2, 3 and 4. The approach demonstrated in the instant case is highly deprecated. Civil Suit No. 31/10 Page 38 of 39
43. Copy of this judgment be sent to the office of the Financial Commissioner as well as Collector/Divisional Commissioner for information and action, if any.
44. File be consigned to Record Room.
Announced in open Court on 30.04.2011 (MANIKA) Civil Judge05 (South), New Delhi 30.04.2011 Civil Suit No. 31/10 Page 39 of 39