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Delhi District Court

M/S. Lehna Singh Rajinder Singh vs Delhi Development Authority on 28 July, 2010

                                                                                  Suit No. 392/2006


              IN THE COURT OF SH. CHANDER JIT SINGH: CIVIL JUDGE (WEST):
                              TIS HAZARI COURTS: DELHI
                                                                    Suit No. 392/2006

M/s. Lehna Singh Rajinder Singh
2041, Dargah Khawaja Khumeri, Chitra Gupta Marg.
Pahar Ganj, New Delhi-110055
through its Partner,
Sh. Sardar Rajinder Singh, S/o Sardar Lehna Singh,
4500, Shoora Khoti, Pahar Ganj, New Delhi-110055.
                                                                              ...................PLAINTIFF
                                                VERSUS

1. Delhi Development Authority
   Through its vice chairman
   Vikas Minar, I.P. Estate
   New Delhi-110002.
2. Syed Ashfaq Ahmed, S/o Sh. Mohd. Ahmed,
   R/o 2074, Rodgran, Lal Kuan, Delhi-110006.
                                                                               ...........DEFENDANTS

Date of Institution            :       23.12.1980
Date of Reservation            :       27.07.2010
Date of Decision               :       28.07.2010
J U D G E M E N T:

Suit has been filed by the plaintiff for permanent injunction seeking restraint against the defendants. Case of the plaintiff in brief is as follows:

1. That the plaintiff is a partnership firm and Rajender Singh is fully competent to file and verify the plaint. That after partition of country, one of its partner namely Lehna Singh came to Delhi and started residing in plot No.2041, Dargah Khawaja Khumeri, Paharganj, New Delhi (hereinafter referred to as suit property) under the tenancy of Sunni Majlis Auqaas at monthly rent of Rs. 29/-

and later on, one Mohd. Ahmad filed a suit under title "Saiyed Mohamad Ahmad Vs Delhi Wakf Lehna Singh vs. DDA & Anr. 1/6 Suit No. 392/2006 Board and others" wherein the partner of the firm Lehna Singh along with others was the party and was decided on 31.08.1963 by the then Sub Judge Shri Trilochan Singh holding Saiyed Mohamad Ahmad as owner with possession of the suit property along with other plots in dispute at that time and since then, plaintiffs are paying rent to defendant No.2 who is legal heir of late Mohd. Ahmad. Appeal against the above said decision was also dismissed. The then Ld. Sub Judge did not allow defendant No.1 i.e. DDA to become party to the above said suit. Further Sh. Bal Kishan, the then Assistant Custodian (Judicial) had also released property bearing No. 2817/2030, Multani Danda in favour of Mohd. Ahmad as his private wakf property. That certified copy of order 1925/26 of site plan also shows that the said plot along with its whole property of Khawaja Khumeri belongs to defendant No.2 which falls in khasra No.764/218/1 and consisting on 4574 sq yards which is also known as Khawaja Khumeri. Another suit was filed by defendant No.2 against one Karam Singh and again he was held to be the owner. Recently, officials of defendant No.1 have started harassing the plaintiff and visiting the said place and started visiting suit property every now and then claiming defendant No.1 to be the owner. That recently officials of defendant No.1 sent a notice in respect of suit property under Public Premises Act to show cause as to how plaintiff are sitting unauthorizedly in suit property. That super structure in the suit plot belongs to plaintiffs and the land belongs to defendant No.2 according to several judgments passed in favour of defendant No.2 and defendant No.1 has no right, interest or title in respect of suit property. Another notice dated 19.11.1986 was sent by defendant No.1 which was received by plaintiff on 18.12.1986 and forced plaintiff to pay damages for illegal and unauthorized use. Hence, the present suit.

2. Upon notice, defendant No.1 filed a written reply contending that action of defendant No.1 is in accordance with law i.e. Public Premises (Eviction of unauthorized occupants) Act 1971 (hereinafter referred to as PP Act) and hence, present suit is not maintainable. That jurisdiction of this Court is barred under PP Act. The suit of plaintiff is pre-matured; bad for want of notice and plaintiff has not come to court with clean hands. That the plaintiff is in occupation of Government land unauthorizedly and illegally. The suit land is owned by Government and is under control and management of DDA. Hence the suit be dismissed.

3. Defendant no. 2 has not filed the written statement and therefore, there is no defense on behalf of defendant no. 2.

4. Replication to the written statement of defendant No.1 was filed by plaintiff reiterating the claims made in the plaint and denying that suit property falls within the ambit of Act and also denying the ownership of Government.

5. From the pleadings of the parties, following issues were framed:

1. Whether jurisdiction of this court is barred under the provision of PP Act? OPD.

2. Whether suit is bad for want of notice under Section 53-B of DD Act? OPD.

3. Whether land is owned by Government and is under the management of defendant? OPD.

4. Whether plaintiff is entitled for the relief of injunction as prayed for? OPP.

5. Relief.

6. Plaintiff has examined one witness only to prove his case and relied upon certified copy of the order in Petition No. ACJ/misc./275 by the then Assistant Custodian Judicial as Ex. PW1/1; Copy of judgment dated 31.08.1963 of Shri Trilochan Singh, the then Sub Judge as Ex. PW1/2; Copy of order in appeal No.242 of 1963 dated 21.03.1964 as Ex. PW1/3; copy of judgment dated 22.02.1966 by Shri R.K. Singhal, the then Sub Judge as Ex. PW1/4; rent receipts as Ex. PW1/A; Municipal House Tax Receipt as Ex. PW1/5; Electricity bill as Ex. PW1/6; Registration under Shop and Establishment Act as Ex. PW1/7 and copy of license as Ex. PW1/8. Defendant has examined two witnesses to prove his case and relied upon Nazul Agreement as Ex. D1W1/1; show cause notice dated 19.11.1986 as Ex. D1W1/3; Jamabandi of Moza Pahar Ganj for the year 1967-68 as Ex.

D1W1/2 and certified copy of the judgment dated 07.02.2005 involving the same suit property as Ex.D1W1/4.

7. I have heard the contentions raised by both the parties and perused the material available on record.

8. My issue wise findings are as under:-

Issue No. 3 and 4:-

Both these issues are taken up together as they are interconnected and to achieve brevity. Plaintiff himself entered the witness box to prove the case of plaintiff and deposed on the lines of the claim made in the plaint in his examination-in-chief by way of affidavit. In his cross Lehna Singh vs. DDA & Anr. 3/6 Suit No. 392/2006 examination, he has stated that his father was in possession of suit property since 1947-48 and since 1948, they have been paying rent to Warkf Board and he has filed rent receipt to show payment to Warkf Board. He has also stated by way of voluntary statement in cross-examination that if it is proved that suit land belongs to DDA, then he is ready to pay damages to DDA for the land in his possession. He further stated that after the decision in the proceedings referred as Ex. PW1/1 to Ex. PW1/4, his father started paying rent to defendant No. 2 herein. After completion of evidence of plaintiff, defendant No.1 examined two witnesses. Ranbir Singh, Patwari was examined as DW 1 and he reiterated the defense raised in the written statement in his examination-in-chief. In his cross- examination, he stated that it is correct that Nazul Agreement does not mention khasra number however, he has instantly cleared by voluntarily mentioning that the entire revenue estate is mentioned in Nazul Agreement. After that S.K. Aggarwal, UDC in Damage Section,DDA was examined as DW 2 who stated in his examination-in-chief that the lands belongs to Government and is under control and management of DDA and, therefore, action under provisions of PP Act were initiated against the plaintiff. In his cross examination, he has stated that he has seen the suit site and there exists neither any Kabristan nor any Masjid. He further stated that no notice was served on defendant No. 2 i.e. Mohd. Saiyed Ahmad or his successors. He further stated that on the basis of the records, he cannot say since when plaintiff is in occupation, however, he further stated by way of voluntarily statement that notice was served in the year 1986 and at that time, plaintiff was in possession. Defendant No.2 has not led any evidence and his evidence was closed by order on 27.08.2009.

Ld counsel for the plaintiff has argued that plaintiff is tenant under defendant No.2 and defendant No. 2 has been held to be owner by the Civil Court as well as by the Appellate Court. Further, property has been held to be evacuee property by the Assistant Custodian Judicial and order has been made in favour of Mohd. Ahmad who was father of defendant No.2. He further argued that no notice to the original owners was made and also in the notice under PP Act and in the entire written statement nothing was mentioned that it was required for public use. He also referred to DW1/2 and stated that the column 8 of the Jamabandi states that it is in the possession of Dargah. He prayed that in view of this material record, suit be decreed.

Ld counsel for defendant has argued that the suit land belongs to government and Lehna Singh vs. DDA & Anr. 4/6 Suit No. 392/2006 plaintiff is unauthorized occupants in the suit property and hence, no right, title or interest vested in them. He further argued that notice under PP Act is given to the unauthorized occupants only & that is why no notice was issued to defendant No.2 or his successor. He further argued that by Nazul Agreement and Jamabandi, which are authentic records, they have proved their case. Hence, the suit be dismissed with cost.

Interestingly, suit has been filed by the plaintiff seeking a restraint against the defendant No.1 from dispossession and interference, however, focus of this suit appears to establish the ownership of defendant No.2. But, defendant has placed on record Nazul Agreement which is Ex. DW1/1, perusal of which shows that it is with regard to different revenue estates including Paharaganj which is mentioned at serial No.8 in Schedule 1. Further, vide jamabandi of the year 1967-68, ownership is mentioned in the name of the government with regard to the suit property whereas in order to prove the ownership of defendant No.2 reliance has been placed in the judgment passed in favour of defendant No.2 . However, perusal of the judgment shows that DDA was not a party to these proceedings. It is settled law that judgments are binding only qua the the parties to proceedings unless it is a judgment in rem which is not the case in present circumstances and, therefore, they have no bearing on DDA. However, DW 2 has admitted in his cross examination that at the time of service of notice in 1986, plaintiff was in possession. Admittedly, notice under PP Act was issued as the plaintiff was in unauthorized possession. Ld. Counsel for plaintiff has placed reliance on Anamalli Club Vs. Government of T.N. & Others (1997) 3 Supreme Court Cases 169 wherein Hon'ble Supreme Court has held that law respects possession even if there is no valid title to support it and he cannot be allowed to be disposed without due process of Law. In view of the above said discussions, defendant has been able to show that Government is the owner of land and it is under the management of DDA. Further, it is also proved that plaintiff is in possession of suit property. Issue No. 1:-

Section 15 of PP Act provides that "no court shall have jurisdiction to entertain any suit or proceedings in respect of the eviction of any person who is in un-authorized occupation of any public premises". Present suit is not against the eviction as admittedly only a notice was served.

Hence, court has jurisdiction to entertain the suit. Ld. Counsel for defendant has relied upon M/S Bharat Coking Coal Ltd. Vs. Estate Officer and others, AIR 1991 NOC 3 (PAT.) but it is not applicable as it refers to the ambit of scope of Tribunal. Therefore, this issue is decided in favour of plaintiff and against defendant.

Issue No. 2:-

Section 53-B of DD Act requires that notice must be served on DDA before filing a suit. This section is at pari-metria with section 80 of CPC. The purpose of these provision is that before approaching court, party must be approach the concerned office for solution of problem. In other words, the purpose is to cut short the controversy and to avoid unnecessary litigation. However, once a suit has been entertained and contested on merits, the effect of failure to give notice is superfluous only. In view of this discussion, this issue is decided in favour of plaintiff and against defendant. Relief:-

In view of the above discussions, defendants are permanently restrained to interfere in possession of plaintiff and dispossessing plaintiff from suit property i.e. Plot no. 2041, Dargah Khawaja Khumeri, Pahar Ganj, New Delhi except in due course of law and defendant will be at liberty to take action as per law. Decree sheet be prepared accordingly. File be consigned to record room.

Pronounced in the open court today on 28.07.2010 (CHANDER JIT SINGH) CIVIL JUDGE (WEST) THC, DELHI/ 28.07.2010 Lehna Singh vs. DDA & Anr. 6/6