Delhi District Court
Mohd. Sultan vs Delhi Urban Shelter Improvement Board ... on 31 March, 2022
Mohd. Sultan v. DUSIB
Civil Suit No.: 1297/16
IN THE COURT OF MS. SONAM SINGH, CIVIL JUDGE-07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Civil Suit No.: 1297/16
CNR No. : DLCT03-000370-2005
Date of Filing of Suit: 18.08.2005
Date of Reserving the Judgment: 31.03.2022
Date of Decision: 31.03.2022
1. Mohd. Sultan
Son of Babu Alias Yasin Babu,
R/o H. No. 97/X, Gali Peepal Wali,
Chhatta Lal Miyan, Dayra Ganj, Delhi-110002.
2. Mohd. Subhan (since deceased)
Through his LRs:
i) Smt. Rafat Begum
W/o Late Mohd. Subhan
ii) Kamran
Son of Mohd. Subhan
iii) Burhan
D/o Mohd. Subhan
All R/o House no. 79/X, Gali Keekarwali,
Chhata Lal Miyan, Darya Ganj, New Delhi-110002
3. Mohd. Arif (since deceased)
Through his LRs:
i) Surayya Begum
Wd/o Mohd. Arif
ii) Mohd. Sadi
S/o Mohd. Arif
iii) Mohd. Asim
S/o Mohd. Arif
iv) Mohd. Kasim
S/o Mohd. Arif
v) Mohd. Shah Nawaz
S/o Mohd. Arif
1
Mohd. Sultan v. DUSIB
Civil Suit No.: 1297/16
vi) Mohd. Anas
S/o Mohd. Arif
vii) Mohd. Uvesh
S/o Mohd. Arif
viii) Mohd. Khuweb
S/o Mohd. Arif
ix) Mohd. Adnan
S/o Mohd. Arif
All R/o 79, Chhatta Lal Miyan,
Dayra Ganj, Delhi-110002.
4. Mohd. Imran (since deceased)
Through his LRs:
i) Smt. Bano Begum
Wd/o Late Moh. Imran
ii) Mohd. Azhar
S/o Late Mohd. Imran
iii) Mohd. Mazhar
S/o Late Mohd. Imran
iv) Mohd. Shan
S/o Late Mohd. Imran
v) Mohd. Salman
S/o Late Mohd. Imran
vi) Farha Begum
D/o Late Mohd. Imran
All R/o 25, Chhatta Lal Mian,
Behind Delite Cinema, Delhi Gate
Darya Ganj, Central Delhi
Delhi-110002.
5. Abdul Mannan
6. Mohd. Asif
2
Mohd. Sultan v. DUSIB
Civil Suit No.: 1297/16
All sons of Babu alias Babu Yasin
R/o 79/X, Gali Keekarwali, Chhatta Lal Miyan,
Dayra Ganj, Delhi-110002
............ Plaintiffs
--versus--
Delhi Urban Shelter Improvement Board (DUSIB)
Through its C.E.O.
Punarwas Bhawan, I.P. Estate,
NewDelhi-110002.
............ Defendant
Suit For Declaration And Consequential Reliefs
Present: None for parties.
JUDGMENT
1) The present suit has been instituted by plaintiffs seeking: (i) a decree of declaration that plaintiffs are owners in possession of Property No. 97/X, Chhatta Lal Mian, Gali Pipal Wali, Darya Ganj, Delhi as shown in the site plan and the said property does not belong to Slum & JJ Department, and (ii) a decree of permanent injunction restraining defendant no.1 (now the only 'defendant') to carry out any repair in the undivided Property No. 97/X, Chhatta Lal Mian, Pipal Wali, Darya Ganj, Delhi and not assess and charge damages from defendant no. 2 to 6 (suit qua them dismissed as withdrawn vide order dated 09.11.15) with respect to their possession of ground floor of the said property and not to interfere in the peaceful possession of the plaintiffs.
Averments in the plaint:
2) It is averred that Plaintiff no. 1 is personally occupying the first floor of property no. 97/X, Gali Peepalwali, Chhatta Lal Miyan, Darya Ganj, Delhi-2. Defendant no. 1 is inter alia responsible for implementation of the Slum Areas (Improvement & Clearance) Act, 1956 (Slum Act, 1956) and to manage and control the properties placed at its disposal from time to time by the Govt. of India or acquired under the Slum Act, 1956. The defendants other than defendant no. 1 are the tenants of the plaintiffs who now dishonestly and in collusion with the 3 Mohd. Sultan v. DUSIB Civil Suit No.: 1297/16 employees of defendant no. 1 are trying to grab a part of the ground floor premises of suit property no. 97/X claiming that the suit property is a public property and not a private one as claimed by plaintiffs and therefore, they would like to be assessed to damages/rents. Property no. 97/X is an ancestral property of the plaintiffs for generations and their great grand-father Abdul Hakim and the predecessors of Abdul Hakim were the owners of the aforesaid property amongst others.
The family tree of Abdul Hakim and the plaintiffs is as under:
Abdul Hakim I _____________________ __________ __________ ___________________ ____ __ __I ____ I I Abdul I Mohd. Ibrahim Abdul Gani Rashid Karam Illahi I Babu @ Babu Yasin __________ _________ __________ __________ ________ ________ __ __ __ __ _ I I I I I I Mohd.
Mohd. Mohd. Mohd. Mohd. Mohd. Asif Sultan Subhan Arif Imran Mannan
It is averred that Babu alias Babu Yasin was the father of plaintiffs and Abdul Gani died issueless before partition. Abdul Rashid died issueless on 23.01.75. Sh. Karam Ilahi had two sons namely Yakub and Fazal Ilahi who had migrated to Pakistan, and as such the shares of Abdul Gani and Abdul Rashid devolved upon the sons of his brother Mohd. Ibrahim. Mohd. Ibrahim had died in 1950 leaving one surviving son Babu alias Babu Yaseen. Sh. Babu Yaseen died on 03.04.2001 leaving behind his six sons-the present plaintiffs. As such the Property no.97/X, Gali Pipalwali/Chhatta Lal Mian, Dariaganj, Delhi has devolved upon the sons of Babu alias Babu Yaseen and they are possessing the said property as owners since their predecessors openly, continuously and without any interruption or interference from any quarter. It is further averred that Property no.97/X was wrongly declared as evacuee property vide order dated 18.11.56. The said property could not be transferred to the custodian department as the sons of Late Abdul Hakim except Karam Ilahi never migrated to Pakistan and the property 4 Mohd. Sultan v. DUSIB Civil Suit No.: 1297/16 remained in continuous uninterrupted and peaceful possession of late Sh. Mohd. Ibrahim and after his death in 1950 with his son Babu Alias Babu Yaseen and after his death, in the possession of his sons- the present plaintiffs. It is averred that the share in the property falling in share of Sh. Abdul Rashid was released from evacuee property by Sh. R.N. Malhotra, Deputy Custodian on 22.02.1957 which they came to know recently. The alleged order dated 22.02.1957 is of no value and is not binding upon the plaintiffs as neither their father nor they were put to notice and they had not been heard and not given opportunity and the order has been passed without hearing the parties interested and in possession and as such the order was illegal and void. The said property is in continuous, uninterrupted possession of plaintiffs as owners in the knowledge of all, and the custodian department or Slum & JJ Department has never taken possession of any portion of the said property from the plaintiffs and their predecessors. It is further averred that on the ground floor of the said property there were two tenants viz. Sirajuddin and Ghiasuddin and they died on 06.03.1987 and 28.12.1984 respectively, and they were paying rent to the predecessors of plaintiffs and plaintiffs. After the death of said tenants, their successors though continued in possession of the respective portion under their tenancy, but they had stopped paying rent and in collusion with the officials of Slum & JJ Department alleged that they would pay damage to the Slum & JJ Department for their occupation in the said property. The official of Slum & JJ Department had also visited the said property at the instance of tenants and illegally and unlawfully threatened to carry out the repair in the said property alleging that the said property is a public property belonging to Slum & JJ Department. When the legal heirs of Ghiasuddin and Sirajuddin who continued to stay in the property as tenant, attempted to raise unauthorized construction in the property, as such Late Sh. Babu Yaseen, the predecessor of plaintiffs had filed a suit bearing no. 202/97 against Hasina, W/o Sirajjudin and suit bearing no. 224/97 against Smt. Zubedan, W/o Ghiasuddin. The suit filed against Zubedan was compromised on 15.09.2000 as the counsel for Zubedan made a statement before the Court that she would not raise any illegal construction in the tenanted premises nor make any structural change. However, the suit no. 202/97 is still continuing. As per the legal heirs of Siraujuddin they have been assessed to damage on 31.03.98 by the Slum & JJ Department. The said order is illegal and null and void, as damage could not be 5 Mohd. Sultan v. DUSIB Civil Suit No.: 1297/16 assessed in the name of a dead person as Sh. Sirajuddin had died long back. The order of assessment is otherwise illegal as plaintiffs were not heard and no order was passed against plaintiff. On 26.08.2002 defendant no.1 issued a show cause notice to plaintiff no.1 to show cause treating him as an unauthorized occupant under the Public Premises Act 1971. The plaintiffs responded to the show cause notice and also showed their documents to the officials of defendant no. 1 including survey report of the MCD and other proofs of occupation and ownership. Therefore, no further action was taken on the show cause notice. On 07.03.2005 the plaintiffs through counsel Sh. P. Chakarbotry sent a notice to the Addl. Commissioner (S & JJ) Department, MCD requesting not to interfere with the peaceful possession of plaintiffs with respect to Property no. 97, Ward No. X, Gali Peepalwali, Chhatta Lal Mian, Dariaganj, Delhi, as the said property does not belong to the Slum & JJ Department and not to carry out any repair etc. and not to charge damage from the tenants of plaintiffs with respect to their possession over the ground floor of the said property and plaintiffs would take appropriate action by filing suit for seeking declaration and injunction, but the Slum & JJ Department did not reply to the notice of plaintiffs dated 07.03.2005.
However, to the knowledge of plaintiffs the officials of defendant no.1 in collusion with the legal heirs of Sirrajjuddin and Giasuddin are assessing them to damages with respect to ground floor of the suit property presumably for granting alternative allotment under the Slum Clearance Scheme. Hence, the present suit.
Version of defendant:
3) In its Written Statement (WS) defendant no.1 (now the only defendant) has stated that the suit of the plaintiffs is not properly valued for the purpose of court fee and jurisdiction as the plaintiffs have filed the instant suit for declaration and consequential reliefs which cannot be allowed by this court as the plaintiffs could not be declared as owners without consequential reliefs of conferring the title upon the plaintiffs which requires ad valorem court fees which has not been paid on the plaint. It is stated that as per the record with the answering defendant the suit property no. 97/X was acquired by the Delhi Improvement Trust vide Award No. 715/1198, Survey No. 274 dated 23.08.1949 under Delhi Ajmeri Gate Slum Clearance Scheme and the same is under management and control of the answering defendant. It is further stated that no copy of site plan has been 6 Mohd. Sultan v. DUSIB Civil Suit No.: 1297/16 supplied to the answering defendant. In its Reply on merits, defendant has denied the contents of plaint and stated that as per record of the answering defendant, the suit property no. 97/X (Old No. 69/X) was acquired by the Delhi Improvement Trust vide Award No. 715/1198, Survey No. 274 dated 23.08.1949 under Delhi Ajmeri Gate Slum Clearance Scheme and the same is under management and control of the answering defendant and has no concern with the family tree of plaintiffs. It is further stated that the question of assessment of damages does not arise as no request has been received from defendants no. 2 to 6 for payment of damages regarding the suit property and even otherwise, assessment of damages does not give any right to any of the occupants. It is further stated that the answering defendant was not a party to the suits mentioned in plaint, and that the occupants of suit property have no right to raise any kind of construction in the suit property and if it is raised, the same is liable to be demolished.
4) Written statement and Replication have also been filed on behalf of other defendants i.e. defendants no. 2 to 6, however, as the present suit has been dismissed as withdrawn qua defendants no. 2 to 6 vide order dated 09.11.15 of the Ld. Predecessor, therefore, pleadings with respect to these defendants have not been discussed herein.
Replication by plaintiffs:
5) In the replication filed by plaintiffs, contents of WS of defendant- DUSIB have been denied and averments of plaint have been reaffirmed by plaintiffs. In the replication, it is stated that the property was released from evacuee property by the Custodian Department in favor of original owners vide order dated 22.02.1957, therefore, the question of property being acquired by Award No. 715/1198 does not arise. It is further stated that plaintiffs have every right to enjoy the property and so far as other occupants are concerned, it is admitted that they have no right to make any kind of construction/alteration on the suit property.
6) Perusal of record shows that vide order dated 07.11.14 a certified copy of judgment dated 06.09.2013 passed by Sh. Jitender Pratap Singh, Ld. C.J. was filed and following preliminary issue was framed: "Whether the present suit is maintainable in view of the judgment dt. 06.09.2013 passed by Sh. Jitender 7 Mohd. Sultan v. DUSIB Civil Suit No.: 1297/16 Pratap Singh, Ld.Civil Judge, Delhi in civil suit No. 150/06, titled as Shri Babu @ Babu Yasin vs Ms Haseena through LRs? OPP"
On 14.07.15 Ld. Counsel for plaintiffs had filed certain documents along with list of documents and submitted that the judgment dt. 06.09.13 has been appealed against by plaintiffs and appeal is still pending and the fact was not disputed by defendants no. 2 to 5. Thus in view of this admission, it was ordered by the Ld. Predecessor that the preliminary issue framed vide order dt. 07.11.14 is kept open to be decided at the appropriate stage.
It is to note here that PW-1 in his cross examination has stated that defendant No.
2 to 6 and he has already compromised the suit bearing No. 202/97 and 224/97 and the appeal arising out thereto. Further, perusal of certified copy of judgment dated 06.09.2013 shows that the issues therein pertained to plaintiff being owner / landlord and permanent injunction against the LRs of Sirajuddin & Mst. Hasina whereas relief in the present suit is declaration against DUSIB. It is to also note here that suit qua defendant no. 2 to 6 was dismissed as withdrawn vide order dated 09.11.2015.
Settlement of Issues:
7) From the pleadings of parties, hearing and material available on record, following issues have been framed by the Ld. Predecessor of this Court vide order dt.
14.07.2015:
1. Whether the property no. 97/X, Gali Peepalwai, Chhatta Lal Miyan, Darya Ganj, Delhi-2 was acquired by Delhi Improvement Trust? OPD1
2. Whether the plaintiffs are the owner of property no. 97/X, Gali Peepalwali, Chhatta Lal Miyan, Darya Gnaj, Delhi-2 as shown in the site plan? OPP
3. Whether the present suit is barred by period of limitation? OPD 2 to 5
4. Whether the defendants are the tenant of the plaintiffs? OPP
5. Whether the plaintiffs are entitled for declaration as prayed in para (i) of the prayer clause? OPP
6. Whether the plaintiffs are entitled for permanent injunction as prayed in para (ii) of the prayer clause? OPP
7. Relief, if any.8
Mohd. Sultan v. DUSIB Civil Suit No.: 1297/16
8) At this stage, it is pertinent to note that vide order dated 07.08.2012, defendant no.4 was deleted, and vide order dated 09.11.15 the suit qua defendant no. 2 to 6 was dismissed as withdrawn by the Ld. Predecessor of this Court on the application filed on behalf of plaintiffs under Order I Rule 10(2) of CPC read with Section 151 of CPC, statement made by plaintiff no.1 as also on behalf of other plaintiffs and no objection given by defendant no.2 and ld. Counsel for defendant no.2 to 6 and in view of the fact that plaintiffs are the master of their suit.
9) Vide order dated 23.08.2017 the amended memo of parties filed by the ld.
Counsel for plaintiffs was taken on record and order was passed by the Ld. Predecessor of this Court that as the name of defendant stands changed to DUSIB, it is hereby directed that now onwards the name of Slum and JJ Department wherever it occurs in the original plaint shall be read as DUSIB.
10) At this juncture, it is relevant to mention that as the suit has been dismissed as withdrawn qua defendants no. 2 to 6 vide order dated 09.11.15 as mentioned above in para no.7, therefore the issues in respect of which the onus to prove lies on defendants no.2 to 6 need not be decided, and accordingly, this Court shall decide issues pertaining to dispute between parties to the present suit i.e. plaintiffs and DUSIB only i.e. issues no. 1, 2, 5 and 6 respectively.
Plaintiffs' evidence:
11) To prove their case, on behalf of plaintiffs two witnesses namely: Mohd. Sultan has been examined as PW-1 and Sh. Sujeet Kumar Jha: PW-2 has been examined as PW-2.
12) PW-1 Mohd. Sultan has tendered his evidence by way of affidavit which is Ex.
PW-1/A and has relied upon the following documents:
1. Ex. PW-1/1 original S.P.A dated 22.12.2008.
2. Ex .PW-1/2 site plan of the suit property.
3. EX.PW-1/3 original Hibbanama (in Urdu) with its translation in English.
4. Ex. PW-1/4 original death certificate of Mohammad Ibrahim.
5. Ex. PW-1/5 original death certificate of Babu @ Yasin Babu.
6. Ex. PW-1/6 House tax receipt dated 21.09.1946 has wrongly type in place of 04 July 1941. (objected to the mode of proof)
7. Ex.PW-1/7 House tax receipt dated 14.12.1949.9
Mohd. Sultan v. DUSIB Civil Suit No.: 1297/16
8. Ex.PW-1/8 Extract of inspection book for the year 1949 along with translation in Hindi. (objected to the mode of proof).
9. Ex. PW-1/9 Notice under section 123 and 123B of the DMC Act dated 29.12.2005.
10. Ex.PW-1/10 Another notice dated 11.12.2009.
11. Ex.PW-1/11 and Ex.PW-1/12 i.e. House tax receipt No.1122263 and 2287291.
12. Ex.PW-1/13 Order dated 4.02.2006 passed by Assistant Assessor and Collector, City Zone, Delhi.
13. Ex.PW-1/14 Notice dated 14.12.2004 issued by Sh. L.N. Sharma Advocate.
14. Ex.PW-1/15 (colly) Notice dated 07.03.2005 along with postal receipt.
15. Mark "A"- Copy of order of deputy custodian dated 22.10.1957 has wrongly typed in place of 22.02.1957.
In his cross-examination, PW-1 has stated he know the contents of his evidence affidavit and that the legal heirs of Mohmmad Arif have not authorized him to contest the case and voluntarily stated that the Legal heirs are already impleaded in place of Mohmmad Arif. The witness has stated that he does not remember the name of drafts man who prepared the site plan and voluntarily stated that same was prepared at Tis Hazari and also stated the drafts man had not visited the suit property. It is further stated that he does not know the date and month but drafts man had visited in the suit property in the year 2005 and denied that the site plan is not correct. The witness has stated he has withdrawn the relief against defendant no.2 to 6 and voluntary stated that defendant no. 2 to 6 have agreed not to raise unauthorized construction in the suit premises in the ground floor as the defendant no. 2 to 6 have already compromised the suit bearing no. 202/97 and 224/97 and the appeal arising out thereto. It is further stated that defendant no. 2 to 6 had not made the statement before the court. The witness has denied that the suit property no.97/X (Old no. 69/X) was acquired by the Delhi Improvement Trust vide Award no. 715/1198, Survey no. 274 dated 23.08.1949 under Delhi Ajmeri Gate Slum Clearance and same is under management and Control of Slum and J.J. Department of MCD. The witness has denied that the family pedigree as shown by him in plaint as well as in evidence affidavit is incorrect and also denied that the exhibited documents are false and fabricated. The witness has further denied that the suit property is a public 10 Mohd. Sultan v. DUSIB Civil Suit No.: 1297/16 property and not private property and that the suit is time barred. The witness has further stated that he resides in property bearing House No. 97/X, Gali Peepal Wali, Chhatah Lal Miyan, Daryaganj, New Delhi-110002 measuring 80-85 Sq.Yds. (approx) consisting of Ground and First Floor with roof rights, and has denied that the contents of his affidavit are false and fabricated. The witness has thereafter stated that Yaqub and Fazal Elahi were legal heirs of Abdul Hakim and he does not remember Yaqub's father name. He has further stated that Fazal Elahi was the son of Karam Elahi. The witness has stated that he has not filed the death certificate of Sirajuddin and voluntary stated that he knows the year of his death as he expired in the year 1987. The witness has further stated that the ownership does not come from the House Tax. PW-1 has further stated that he has filed all the documents available to him from his forefathers namely Late Sh. Hafiz Kallu Kasab, Late Sh. Abdul Hakim, Late Sh. Mohd. Ibrahim, Late Sh. Babu @ Yasin Babu and himself (plaintiff no. 1), and has denied that whatever documents he has placed on record do not create ownership regarding this property in favor of plaintiffs. PW-1 has denied that he has withdrawn all the allegations against defendants no. 2 to 6 and also denied that he made wrong allegation that defendant no.1 and the other defendants are in collusion with each other. It is further stated that there is one document on record by which defendant no.1 claimed damages from defendants no. 2 to 6, though the said defendants no. 2 to 6 are the tenants of the predecessors-in-interest of the plaintiffs. The witness has then stated that at present Delhi Development Authority (DDA) is not the party in the present suit and denied that notice u/s 53 (B) is not relevant. It is also denied that he has not challenged the show cause notice 26.08.2002 and voluntary stated that he has already filed its reply which is on record and consequent there upon he has filed the present suit in the year 2005. It is denied that he has not challenged the notice dated 26.08.2002 in the present suit. The witness has then stated that he has not issued legal notice to DUSIB and voluntary stated that DUSIB came into existence only in the year 2010 in place of MCD, Slum & JJ Department. It is denied that he has not mentioned that on which date, month & year the officials of defendant i.e. MCD, Slum and JJ Dept. visited the suit property and also denied that no request was made to MCD, Slum & JJ Dept. from defendants no. 2 to 6 for payment of damages of suit property. It is stated that he has lodged different complaints/representations to different authorities of 11 Mohd. Sultan v. DUSIB Civil Suit No.: 1297/16 MCD, JJ Slum Department. It is further stated that the suit no. 202/97 titled as Babu @ Babu Yasin vs. Smt. Zubedan has been compromised on 15.09.2000. It is denied that the official of defendant no.1 (MCD, JJ Slum Dept.) never visited the suit property. The witness has further stated that he does not have any knowledge whether the suit property is acquired or not, and voluntary stated that he along with other plaintiffs are in the continuous and uninterrupted possession. The witness has denied that the great grandfather Abdul Hakim and his predecessor were not the owner of the suit property and further denied that whatever damage was assessed by Slum and JJ Department is as per law against unauthorized occupants in the suit property, and then voluntary stated that the defendants no.2 to 6 and their predecessors are the tenants of plaintiffs and their predecessors. The witness has denied that he along with other plaintiffs are trespassers in the suit property and further denied that the property bearing House No. 97/X is ancestral property of plaintiffs. The witness has denied that he has no authority to file the present suit and further denied that he is deposing falsely.
13) PW-2: Sh. Sujeet Kumar Jha, Zonal Inspector, Property Tax Department, CSP Zone, Nigam Bhawan, Kashmere Gate, Delhi-06 has in his examination-in-chief deposed that he is the summoned witness in the present matter and has brought original records of inspection book pertaining to the year 1949-50. It is stated that he has seen and compared the certified copy of the same which is already exhibited as Ex. PW1/8. It is further stated that he has brought the original record of order dt. 04.02.06 passed by Assistant Accessors and Collector, City Zone, Delhi, and has seen and compared the certified copy of the same which is already exhibited as Ex. PW1/13. It is further stated that he has also brought the counter foil record of order property tax receipt bearing no. 1123363 dt. 04.01.05 for Rs. 810/- for the year 2004-05, pertaining to property no. 97/X, Chatta Lal Mian, Turkman Gate, Delhi, and has seen and compared the original copy of the same, which is exhibited as Ex. PW2/1.
In his cross-examination, PW-2 has stated that there is no translation copy of document Ex. PW1/8 in their record and he cannot identify the translation copy filed by the plaintiff. He has further stated that he has no personal knowledge regarding the present case.
12Mohd. Sultan v. DUSIB Civil Suit No.: 1297/16
14) Vide separate statement made by the Ld. Counsel for plaintiffs, PE was closed on 13.03.2019.
Defendant's witness:
15) On behalf of defendant, one witness: Sh. Arun Kumar Mathur has been examined as DW-1 who has tendered his evidence by way of affidavit which is Ex. DW1/A. The witness has relied upon the following documents:
Ex. DW1/1 (OSR) (colly) Copy of Award no. 715/1198 dated 04.08.1949 date of possession 23.08.1949 In his cross-examination, DW-1 has stated that he worked as Deputy Director (properties) w.e.f. April 2018 till 18.10.2019 and that he has never dealt with this property during his tenure. He has further stated that whatever he has stated in his affidavit is based on the documents available on the file maintained by the Dept. and during his tenure he has not dealt with any letter, communication or complaint in regard to the property in dispute. The witness has further stated that in his official capacity, he did not visit the property during his tenure and he cannot say how many occupants are there in the property and their capacity under which they are occupying the property. The witness has further stated that there are documents on record which shows that physical possession of the property was taken by Delhi Improvement Trust on 23.08.1949. The witness has denied hat the documents pertaining to the taken over of possession of the property on 23.08.1949 does not speak of taking over the physical possession of the property.
It is further stated that except for the Award and the document referred to herein above there is no other document showing vesting of property in Delhi Improvement Trust and that there is nothing on record brought by him showing payment of compensation to any person in terms of the Award. The witness has voluntary stated that from the document i.e. PWD Survey relating to property in dispute shows that total amount of compensation awarded was to the extent of Rs.2406.6 anas. It is further stated that the witness does not have anything in his record which may prove that property in dispute was ever declared as evacuee property. The witness has denied the suggestion the property was declared as evacuee property but later on the orders were revoked as the actual owners were 13 Mohd. Sultan v. DUSIB Civil Suit No.: 1297/16 alive and not migrated to Pakistan. The witness has further denied that the property in dispute never vested in Delhi Improvement Trust/DDA or later in DUSIB. The witness has stated that he has no knowledge that ever since in 1949 till date any proceedings for seeking eviction of the occupants of the property was ever initiated either by Delhi Improvement Trust/DDA/DUSIB and no proceedings for recovery of damages from the occupants was not initiated by DUSIB during his tenure. He has further stated that so far as he has gathered knowledge from the record brought by him, no proceedings or recovery of damages were ever initiated against the occupant. The witness has denied that the property in dispute was owned by the predecessor in interest of plaintiff and is still in occupation and possession of the plaintiff and their tenant as owners. The witness has further denied that the claim of DUSIB of vesting of the property in it is false and frivolous and also denied that he is deposing falsely.
16) Vide separate statement made by the Ld. Counsel for defendant, DE was closed on 16.12.2019.
Findings:
17) Before appreciating the evidences of parties, it is to note here that all the remaining issues shall be decided together being interconnected and being dependent inter se. As stated above, on behalf of defendant, one witness- Arun Kumar Mathur has been examined as DW-1. In his affidavit which is Ex. DW1/A, the witness has deposed that as per record of the DUSIB, the property no. 97 (Old no. 69/X) situated at Ward No.X, Gali Pipal Wali, Chatta Lal Miyan, Darya Ganj, Delhi (suit property) was acquired under the United Province Town Improvement Act 1919 as extended to the province of Delhi by the then Delhi Improvement Trust (now Delhi Development Authority) through special land acquisition collector vide Award No. 715/1198 announced on dated 04/08/1949 under Delhi Ajmeri Gate Slum Clearance Scheme. Later, the same property was transferred to DUSIB w.e.f 01/09/1961 along with other properties as per transferred properties list maintained in the office and at present the same property is under management and control of the DUSIB. DW-1 has relied upon the copy of Award no. 715/1198 dated 04/08/1949 date of possession 23/08/1949 which is Ex.
DW1/1 (OSR) (colly). It is further deposed that the suit property is not the ancestral property of plaintiff and same is acquired govt. property as mentioned 14 Mohd. Sultan v. DUSIB Civil Suit No.: 1297/16 above. It is further deposed that the award passed by the Land Acquisition Collector towards acquisition of the suit property cannot be challenged by plaintiffs by way of present proceedings before this court. Perusal of Ex. DW1/1 (OSR) (colly) shows that it is the Award No. 715/1198 for the purpose of permanent acquisition of the Property bearing municipal house tax assessment no. 69 and Public Works Department Survey No. 1362 situated in Ward No. 10 of the Delhi Municipal Committee. Perusal of this Award bearing date 04.08.1949 further shows that one Rashid, S/o Abdul Hakim Sheikh has been stated to be the resident of the house under acquisition, area covered under acquisition measures 91.6 sq. yards for total sum awarded to be awarded to the rightholder for Rs 2406.6, and the date of possession taken over by the Trust is stated as 23.08.1949. Perusal of notice dated 07.06.1960 shows that it is issued by the Chairman, Delhi Improvement Trust in favour of one Shri Riazuddin, S/o Faqiruddin, House No. 69/96, Ward No.10, Delhi for recovery of damages from the date of acquisition by Trust ie. 23.08.49, as accumulated damages on account of use and occupation of the premises and also to pay regularly every month in future. It is further stated in the notice that payment of damages will not entitle to claim tenancy rights in the premises. No cross-examination has been done on behalf of plaintiffs with respect to Ex. DW1/1 i.e. Award No. 715/1198, rather, DW-1 has been cross- examined on the points of physical possession of the suit property, payment of compensation in terms of the said Award and proceedings initiated by DUSIB for recovery of damages against occupant. Further, DW-1 in his cross- examination has denied that the property in dispute never vested in Delhi Improvement Trust/DDA or subsequently in DUSIB. DW-1 has also denied that the property in dispute was owned by the predecessor in interest of plaintiff who are still in occupation and possession of plaintiff and their tenant as owners.
18) Per contra, PW-1 in his affidavit has deposed that he is in occupation and possession of first floor of suit property and marked in red colour in the site plan which is Ex. PW1/2. It is deposed that property no. 97/X is an ancestral property of the plaintiffs for generations and their great grandfather Abdul Hakim and the predecessors of Abdul Hakim were the owners of suit property amongst others. It is deposed that Abdul Rashid died issueless on 23.01.1975 and as such his share devolved upon the sons of his brither Mohd. Ibrahim. However, it is pertinent to 15 Mohd. Sultan v. DUSIB Civil Suit No.: 1297/16 note here that in the Award which is Ex. DW1/1 bearing date 04.08.1949 Sh. Rashid, S/o Abdul Hakim Sheikh has been stated to be the resident of the house under acquisition and area covered under acquisition measures 91.6 sq yds. and the date of possession taken over by the Trust is stated as 23.08.1949. Moving further, PW-1 has further deposed that Sh. Karam Ilahi had migrated to Pakistan, however, in his cross-examination, PW-1 has stated that Yaqub and Fazal Ilahi were the legal heirs of Abdul Hakim, and further stated that he does not remember Yaqub's father's name. PW-1 has also stated that Fazal Ilahi was the son of Karam Ilahi. It is to observe that nowhere in the affidavit of PW-1 as well as in the family pedigree table, names of Yaqub and Fazal Ilahi are mentioned. In para no. 6 of his affidavit PW-1 has further deposed that Mohd. Ibrahim- his grandfather during his lifetime had created Hibba of the suit property in favour of his son- Babu alias Babu Yaseen vide written Hibbanama dated 05.09.1944 as per Muslim Personal Law which is Ex. PW1/3 and the said document came in the hand of plaintiff through his father, and Mohd. Ibrahim died on 09.02.1950 and his death certificate is Ex. PW1/4. It is note here that the aforesaid facts as mentioned in para no.6 have not been averred in plaint. Perusal of Ex. PW1/3 shows that the said document is written in Urdu, however, the English Translated copy attached therewith reveals that Mohd. Ibrahim, son of Abdul Hakim, Resident of 52 and 69, Chhatta Lal Mian, Delhi City, Delhi has stated himself to be owner in possession of one house constructed up to First Floor which is self- acquired and purchased property and there is no one else as share holder or co- owner of said house. It is further stated that for services and dedications provided by his son- Yasin alias Babu, he has gifted both the houses with all rights, title and interest as owner to him. The date of execution of this Hibbanama i.e. Ex. PW1/3 is stated as 05.09.1944. Now, it is pertinent to note here that whereas in para no.4 of his affidavit PW-1 has deposed that the suit property is an ancestral property of plaintiffs for generations and their great grandfather - Abdul Hakim and predecessors of Abdul Hakim were its owners amongst others, however, on perusal of the Hibbanama which is Ex. PW1/3 it is revealed that the donor- Mohd. Ibrahim (grandfather of plaintiffs) has stated himself to be the exclusive owner and has also stated that the suit property is his self-acquired and purchased property, and there is no one else as share holder or co-owner of the said house. It is also pertinent to note herein that the aforesaid Hibbanama Ex. PW1/3 was 16 Mohd. Sultan v. DUSIB Civil Suit No.: 1297/16 executed on 05.09.1944, and even if it is believed that the suit property was ancestral property, then same could not have devolved upon Mohd. Ibrahim alone as on the said date i.e. 05.09.1944, the other sons of Abdul Hakim (also, the other brothers of Mohd. Ibrahim) were living and alive as would appear from para no.5 of Ex. PW1/A. The death certificate of Babu alias Babu Yaseen is Ex. PW1/5. However, death certificate of Abdul Rashid who is stated to have died issueless on 23.01.1975 has not been tendered in evidence by plaintiffs. In Para no. 8 of his affidavit Ex. PW1/A, PW-1 has deposed that the suit property was wrongly declared as evacuee property vide order dated 18.11.1956, and the said property could not be transferred to custodian department as the sons of Late Abdul Hakim except Karam Ilahi have never migrated to Pakistan and property remained in continuous, uninterrupted and peaceful possession of late Sh. Mohd. Ibrahim and after his death, with his son Babu alias Babu Yaseen and after his death with the present plaintiffs. It is further deposed that the share in the property falling to the share if Sh. Abdul Rashid was released from evacuee property by Shri R.N. Malhotra, Deputy Custodian on 22.02.1957 which they came to know recently. Copy of the said order dated 22.10.1957 is Mark-A. Perusal of Mark-A dated 22.02.1957 shows that the evacuee property declared vide order dated 18.11.56 belonged to Yaqub, Fazal Elahi, Niazi and Mst. Mumtazi. With respect to houses- X/52 and X/69 it is mentioned therein that the said houses are properties of Abdul Hakim who has died and has left behind four sons and two daughters, namely:
Mohd. Ibrahim, Karam Elahi, Abdul Ghani, Abdul Rashid, Mst Mumtaz and Mst. Niazi. It is further stated therein that Mohd. Ibrahim has died and is survived by Yaqub and Karam Elahi is survived by Fazal Elahi and Babu. It is further stated that Abdul Rashid is alive and is in India and Abdul Ghani also died issueless before partition and his share reverted to his brothers and sisters. It is also stated that Yaqub, Fazal Elahi, Mst. Niazi and Mst. Mumtaz have migrated to Pakistan and their share comes to 5/8th and this share therefore in House No. X/52 and X/69 is evacuee property while 3/8 th share belonging to Abdul Rashid 2/8 th and Babu 1/8th is non-evacuee property. It is to note here that Mark-A is the copy of order dated 22.02.1957 and therefore in absence of proper proof, it cannot be relied upon. In any case, as has been stated in the said order, Mohd. Ibrahim was survived by Yaqub and Karam Elahi was survived by Fazal Elahi and Babu, however, in the family pedigree table as mentioned in the affidavit of PW-1, 17 Mohd. Sultan v. DUSIB Civil Suit No.: 1297/16 plaintiff has shown Babu alias Babu Yasin as the only son of Mohd. Ibrahim and there is no mention of Yaqub at all.
19) Moving further, PW-1 has further deposed in para no.10 of his affidavit that the property for last several decades has been lying mutated in the name of Abdul Hakim and thereafter plaintiff is continuously paying the House Tax and their rights are duly recorded in the revenue record (House Tax) maintained by MCD.
House Tax receipt dated 21.09.1946 and 14.12.1949 in the name of Abdul Hakim and Mohd. Ibrahim are exhibited as Ex. PW1/6 and Ex. PW1/7 and the extract of inspection book for the year 1949 is Ex. PW1/8. Notice under Section 123 and 123B of DMC Act dated 29.12.2005 issued in the name of Mohd. Ibrahim is Ex. PW1/9 and another notice dated 11.12.2009 issued in the name of deponent is Ex. PW1/10. House Rax receipt no. 1122263 and 2287291 are Ex. PW1/11 Aand Ex. PW1/12 and the Assessment Order dated 04.02.2006 is Ex. PW1/13. In his cross- examination, PW-1 has stated that ownership does not come from the House Tax. He has further stated that he does not have any knowledge whether the suit property is acquired or not. Perusal of Ex. PW1/13 dated 04.02.2006 shows that in it is stated therein that the said mutation does not confer any legal title and any concealment of facts will automatically cancel the mutation. Moreover, it is settled law that mutation of the property is no evidence of its ownership and it simply reflects as to who is liable to pay tax therein. Recently, the Hon'ble Supreme Court in Jitendra Singh v. State of Madhya Pradesh & Others (2021 SCC Online SC 802) has observed as under:
"7. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue.
Similar view has been expressed in the series of decisions thereafter.
8. In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186, it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only "fiscal purpose", i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin 18 Mohd. Sultan v. DUSIB Civil Suit No.: 1297/16 v. Tajuddin, (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70."
In The Commissioner Bruhath Bangalore Mahanagara Palike & Anr v. Faraulla Khan & Anr (SLP(C) 5743/2020) decided on 25.01.2021, it was reiterated by the Hon'ble Supreme Court that mutation entries do not by themselves confer title which has to be established independently in a declaratory suit.
Thus, even if plaintiffs have been paying the House Tax and the suit property lies mutated in revenue records in their names, however, it is well settled that mere mutation entries do not by themselves confer title and same has to be established independently, as it neither creates nor extinguishes title to the property nor has it any presumptive value on title. Furthermore, even though PW-1 has deposed and claimed to be absolute owner of the suit property being inherited from predecessor- in-interest, however, plaintiffs have failed to adduce any evidence showing their title or their predecessor's ownership rights in the suit property. It is settled law that plaintiffs have to stand on their own legs and cannot rely upon the weakness of defendant. Plaintiffs have to prove their own case by adducing evidence, however, in the present suit plaintiffs have failed to prove their ownership rights and claims. The issues are accordingly decided against plaintiffs and in favour of defendant.
Relief:
20) In light of settled legal position and discussion made hereinabove, the present suit of plaintiffs is hereby dismissed. No order as to costs.
21) Decree sheet be prepared accordingly.
22) File be consigned to record room after due compliance.
SONAM Digitally signed
by SONAM SINGH
SINGH 17:53:17 +05'30'
Date: 2022.03.31
Pronounced in open court: (Sonam Singh)
Dated: 31.03.2022 Civil Judge-07, Central,
19
Mohd. Sultan v. DUSIB
Civil Suit No.: 1297/16
Tis Hazari Courts, Delhi
Note: This Judgment contains twenty pages and all the pages have been checked and signed by me.
SONAM Digitally signed by SONAM SINGH SINGH 17:53:38 +05'30' Date: 2022.03.31 (Sonam Singh) Civil Judge-07, Central, Tis Hazari Courts, Delhi 20