Delhi District Court
Karkardooma: Delhi vs Delhi Development Authority on 19 March, 2011
1
IN THE COURT OF SH. JAGDISH KUMAR: JSCCcumASCJcumGJ
KARKARDOOMA: DELHI
Suit No. 119/07
1 Kasturi Lal (Since Deceased)
Through LRs
1(a) Sh. Madan Lal
S/o Sh. Kasturi Lal
R/o 35, East Vinod Nagar,
Delhi.
2(c) Smt. Simmi
W/o Late Sh. Rajesh Kumar
R/o 42F, Kohlapur
Kamla Nagar
New Delhi.
3(d) Ms. Nancy
D/o of Late Sh. Rajesh Kumar
R/o 42F, Kohlapur
Kamla Nagar
New Delhi.
4(e) Master Sanchit Girdhar
S/o Late Sh. Rajesh Kumar
R/o 42F, Kohlapur
Suit No. 345/07 1/20
2
Kamla Nagar
New Delhi.
(Plaintiffs no. 3 and 4 being minors
represented through their natural guardian
i.e. Mother defendant no.
2C) .....Plaintiffs
Vs.
1 Delhi Development Authority
Vikas Sadan INA New Delhi.
Through its Vice Chairman. .....Defendants
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
1 This judgment shall dispose of two suits bearing no. 345/07 (old no. 331/93) and suit bearing no. 119/07 (old no. 358/93). Both the suits were clubbed vide order dated 08.11.05. Facts of the suit bearing no. 345/07 are that the plaintiff Sh. Kasturi Lal claimed himself owner Suit No. 345/07 2/20 3 of the property, land measuring 944 sq. yards, 35, East Vinod Nagar, Delhi. The plaintiff asserted that he has purchased the suit property from one Smt. Chander Kali in the month of November, 1998 who had purchased the said property from Sh. Anant Ram. It is further asserted by the plaintiff in the plaint that there were 50 to 60 shops had already been constructed at the suit property, when the property was purchased. These shops were let out to different parties who were running their business in the shops let out to them. The construction was in existence and no addition and alteration has been made by the plaintiff in the suit property. The property had already been mutated in the name of plaintiff by the Municipal Corporation of Delhi. The plaintiff has also assessed to the house tax since then. 2 The East Vinod Nagar,in which the suit property situated, was initially an unauthorized colony in the revenue Estate of village Kichiripur which was earmarked by the colonizer in the extended Lal dora of the village Kichiripur. The East Vinod Nagar was regularized vide resolution no. 58 dated 01.12.93 by the defendant no. 1 i.e. Delhi Development Authority, thereafter the area was handed over to MCD for maintenance and for other purposes. The DDA has lost all Suit No. 345/07 3/20 4 administrative control over the colony, East Vinod Nagar. The suit property of the plaintiff also falls within the area of East Vinod Nagar. The change of the administration of the area from DDA to MCD, the control of the suit property also goes to the MCD, automatically. 3 It is alleged by the plaintiff that SHO P. S. Kalyan Puri, whosoever posted there, troubles the plaintiff for reasons best known to them. The act of the SHO had compelled the plaintiff to file a suit against the SHO. The SHO P. S. Kalyan Puri was directed by Court not to interfere into the possession of the suit property. 4 The plaintiff alleged that on 22.05.93 the official of the DDA had come to the site and threatened that they will demolish the suit property on 2627/05/93. Fearing apprehension, plaintiff had visited the office of DDA and met the concerned official and apprised the said official that he has not been informed or had not been served with any notice for demolishing of the suit property and no opportunity of being heard is given to the plaintiff. But the behavior of the said official was arbitrary and hostile towards the plaintiff. The said official has also threatened to demolish the suit property. The plaintiff has alleged that Suit No. 345/07 4/20 5 DDA has no jurisdiction to demolish the plaintiff's building as the same has been handed over to MCD. Secondly, the act of the defendant's official is illegal as no notice whatsoever has been given to the plaintiff for demolition. Through suit bearing no. 345/07 the plaintiff has prayed for issuance of permanent injunction thereby directing the defendant permanently not to demolish the suit property measuring 944 sq. yards of plot no. 35, East Vinod Nagar, Delhi.
5 The facts of the suit bearing no. 119/07 are almost similar except the fact that the demolition had been carried out by the defendant on 01.06.93 and 02.06.93. The defendant taking advantage of the situation, that as no interim order was granted in favour of plaintiff in suit no. 345/07 (old no. 331/93), illegally and unauthorizedly demolished the most part of the aforesaid property. After illegal and unauthorized demolition of the most part of the suit property the defendant want to remove malba of the demolished portion which is still lying there at the site. The plaintiff had suffered a loss of about 10 lacs. Vide suit bearing no. 119/07 the plaintiff is seeking permanent injunction against the defendant thereby restraining the defendant not to remove the malba from the suit property and not to interfere with the Suit No. 345/07 5/20 6 possession of the suit property.
8 The summons of the suit were issued to the defendant and after service defendant filed its WS. In WS the DDA have stated that no notice U/Sec.53B of DD Act has been served. It is stated that the suit land falls in khasra no. 646/555/35(99) and 647/555/35(708) of village Khichripur. It is stated that the suit land has been acquired vide award no. 30A/7071 and physical possession was taken over from L&B Department on 05.04.77. The suit property has been placed at the disposal of the answering defendant U/Sec.22(1) of the D. D. Act vide notification No. F.8(31)78/L&B/LA(P)Vol.II dated 01.02.1979. The plaintiff is tresspasser and want to grab the government land in the garb of the present suit. The suit property has been demolished in the month of June 1993. The plaintiff has no locus standi to file the present suit. The defendant has prayed for dismissal of the suit as plaintiff has no right, title or interest in the suit property. 9 Replication to the WS of defendant filed by the plaintiff in which he has denied the averments of defendant stated in the WS and reiterated and reaffirmed the contents of his plaint. During the Suit No. 345/07 6/20 7 pendency of the suit the plaintiff had expired and his LRs were brought on record vide order dated 05.03.11 on application U/O.22 R.3 CPC. LR no. B Deepa Monga has been struck off from the array of parties vide order dated 16.07.10.
10 After completion of pleadings following issues were framed in both the suits vide order dated 05.11.01. The issues were framed separately but these were same. The issues are as under:
1. Whether the plaintiff is owner in possession of plot of land measuring 942 sq. yards in the revenue estate of village Khichripur, now known as East Vinod Nagar, Shahdara, Delhi? OPP.
2. Whether the suit is bad for want of notice U/Sec.53b of DD Act? OPD.
3. Whether the suit falls in khasra no. 646/555/35(99) and 647/555/35(708) of village Khichripur which stands acquired and placed at the disposal of DDA? OPD.
Suit No. 345/07 7/20 8
4. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP.
5. Relief.
11 The plaintiff examined six witnesses i.e. himself as PW1, Sh. Ramesh Chandra (Astt. L&B Deptt) as PW2, Sh. Nahar Singh (Planning Assistant, Trans Yamuna Area, DDA) as PW3, Sh. Naresh Kumar (AZI South Zone, MCD, Shahdara) as PW4. Sh. Dinesh Kumar as PW5 and Sh. S. P. Pathak (Director Planning TYA, DDA) as PW6 and closed his evidence. The defendant examined Sh. Ranvir Singh, Patwari, DDLM as DW1.
12 I have heard the counsel for both the parties and given my thoughtful consideration to the submissions made. I also perused the record. My issue wise findings is as under: ISSUE NO. 1 and 3 are taken together Issue no. 1 is framed as, "Whether the plaintiff is owner in Suit No. 345/07 8/20 9 possession of plot of land measuring 942 sq. yards in the revenue estate of village Khichripur, now known as East Vinod Nagar, Shahdara, Delhi?
OPP."
Issue no. 2 is framed as, "Whether the suit falls in khasra no. 646/555/35(99) and 647/555/35(708) of village Khichripur which stands acquired and placed at the disposal of DDA? OPD."
Both these issues are taken up together being interconnected. The onus to prove issue no. 1 is on plaintiff and onus to prove the issue no. 2 is on defendant. The plaintiff has examined 6 witnesses to prove his case. The plaintiff is claiming his right in the suit property on the basis of documents Ex.PW1/1 to Ex.PW1/3. The document Ex.PW1/1 is the GPA executed by Smt. Chander Kali in favour of the plaintiff. The document Ex.PW1/2 is agreement to sell. The same has been executed by Smt. Chander Kali in favour of the Suit No. 345/07 9/20 10 plaintiff. The document Ex.PW1/3 is the receipt of Rs.19,000/ through which Smt. Chander Kali has acknowledge the receipt of Rs.19,000/ from the plaintiff. The question arise whether these document can be accepted in evidence and creates any title in favour of the plaintiff. How, a tangible immovable is to be transferred is governed by T. P. Act, 1972. The immovable property has to be transferred after execution of the written documents. As there are provisions under Registration Act, 1908 to get registered the documents. Sec.17 of Registration Act describes as "any document (other than testamentary instruments) which purports to create, declare, assign, limit or extinguish whether in present or in future any right, title or interest whether vested or contingent of the value of Rs.100/ and upwards to or in immovable property." The Sec.49 of the Indian Registration Act provides that "no document required by Sec.17 to be registered shall, effect any immovable property comprised therein or received as evidence of any transaction effected the said property, unless it has been registered." The Hon. Supreme Court in case titled as Suraj Lamp and Industries P. Ltd. Vs. Thur., The State of Haryana and Ors, AIR 2009 SC 3077 has observed, Suit No. 345/07 10/20 11 "Sale of property by Power of Attorney and Will are illegal and irregular."
Here, in the present case the plaintiff has asserted that he has purchased the property from Smt. Chander kali and Smt. Chander Kali has purchased this property from Sh. Anant Ram vide documents Ex.PW1/4 to Ex.PW1/6. The documents Ex.PW1/4 to Ex.PW1/6 are also not registered. It is not mentioned in these documents Ex.PW1/4 to Ex.PW1/6, how Sh. Anant Ram has become the owner of the suit property. It seems that Sh. Anant Ram become the self claimed owner of the property and has transferred the property to Smt. Chander Kali and said Smt. Chander Kali has again transferred the property to the plaintiff in a self claimed mode of transfer of property, by side lining the procedure as envisaged under Transfer of Property Act and Indian Registration Act. The documents are only notarized, even without the number of notarization by the Notary. The Hon. Supreme Court in case titled as Yamuna Nagar Improvement Trust Vs. Kharati Lal, AIR 2005 SC 2245 has also observed, "When the plaintiff approached the Court Suit No. 345/07 11/20 12 for permanent injunction claiming to be owner of the property, it was his duty to prove that he was the owner of the property. The said property remained in his possession and that the defendant has no, right, title or interest therein.
The onus to prove issue no. 1 is on plaintiff. The documents placed on record by the plaintiff is not sufficient to declare him owner. The plaintiff has also claimed the title on the basis of documents Ex.PW1/7. The document Ex.PW1/7 is the assessment notice for the period 199192 in this regard. The plaintiff has also examined PW4 Sh. Naresh Kumar, EZI (South Zone Shahdara) who in his crossexamination deposed that no assessment order has been passed as yet. Therefore no house tax is payable for the suit property. He further admitted that house tax is not necessary to be deposited by the owner of the house. Even otherwise, the document Ex.PW1/7 is not the final order of the assessment of the house tax. The house tax receipt does not create any title in favour of the plaintiff. Hon. Supreme Court has held in case titled as R. V. E. Venkatachala Gounder Vs. Arulnigu Viswesaraswami and V. P. Tample and Ors, Suit No. 345/07 12/20 13 AIR 2003 SC 4548 that entry in municipal record is not evidence of title. The PW2 has admitted in his crossexamination that the notification dated 13.07.1987 Ex.PW2/1 does not transferred the ownership rights in land. PW3 has admitted in crossexamination that he do not know whether land falling in khasra no. 646/555/35 min and 647/555/35 min, Kichiripur has been taken over by the MCD from the DDA. So, these two witnesses PW2 and PW3 are not helpful to the plaintiff.
Ld. Counsel for plaintiff further argued and relied upon the document Ex.PW3/1 and PW3/2. (The same documents has been put to DW1 and same has also been exhibited as Ex.DW1/PX1 and DW1/PX2 and already exhibited as PW6/1 (colly)) and claiming that vide these documents East Vinod Nagar has been denotified by the DDA and property has been handed over to MCD. Thereafter, the DDA has no right to demolish the suit property. Ld. Counsel for defendant has argued that there was a proposal to denotify East Vinod Nagar and has further argued that annexure III to the document Ex.PW3/1 specifically describe in para 6 that denotification do not apply to the land owned by the DDA. Para 6 of the annexure III of document Suit No. 345/07 13/20 14 Ex.DW3/1 reads "any construction included in this regularization plan which has come up on the land of DDA/MCD and Govt. of India would not be considered as part of the approved plan and shall be deleted." It is further argued that as envisaged, even if there is a denotification of East Vinod Nagar it will not effect the rights o f the DDA as the suit property is owned by the DDA. The defendant further placed on record Ex.DW1/1 the award no. 30A/7071 which shows that the property bearing no. 646/555/35(909) and 647/555/35(708) land of khasra has been acquired. The document Ex.DW1/2 reveals that the possession of Khasra no. 646/555/35(909) and 647/555/35(708) has been handed over to the DDA. The document Ex.DW1/3 is the notification vide which the Nauzal land was transferred to the defendant (DDA). The document Ex.DW1/4 is the AksSizra which describes the location of the khasra no. 646/555/35(909) and 647/555/35(708). All these documents proves that khasra no. 646/555/35(909) and 647/555/35(708) was acquired and was handed over to DDA. The plaintiff is also claiming the ownership of the suit property falls in khasra no. 35. Being purchased the property in the year 1988. So, from the evidence adduced on record it has been proved that plaintiff is not owner of the suit property. The said property Suit No. 345/07 14/20 15 as revealed was acquired in the year 1971, when it was vacant land and same was handed over to the DDA in the year 1979.
Ld. Counsel for plaintiff argued that the regularization of East Vinod Nagar creats title in favour of the plaintiff with respect to suit property. I am not convinced with these arguments. The transfer of the area to the MCD is only from the purpose of implementation of MCD Act in that area. No ownership rights transferred to the MCD. So, I am of the considered view that plaintiff has failed to prove issue no. 1 and defendant has successfully proved issue no. 3 that the suit land is acquired land. So, issue no. 1 and 3 are decided in favour of defendant and against the plaintiff. The other documents relied upon by parties are either out of pleadings or not relevant to decide the issues involved between the parties.
ISSUE NO. 2.
Whether the suit is bad for want of notice U/Sec. 53b of DD Act? OPD.
Suit No. 345/07 15/20 16 The onus to prove this issue is on defendant. The present suit has been filed by plaintiff for injunction. The plaintiff was apprehension that defendant will demolish the suit property. Sec.53(b) says that "nothing contain in said section but shall be deemed to comply in a suit in which the only relief claimed is an injunction of which the object would be defeated by giving of the notice by the plaintiff of the institution of the suit." The present suit has been filed by plaintiff thereby claiming that defendant will demolish the suit property. Suit is for injunction. Hence, the suit of the plaintiff is not barred U/Sec. 53(b) of DDA Act.
ISSUE NO. 4.
Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP.
As I have given my detailed reasons on issues no. 1 and 3 before claiming any equitable relief of injunction the plaintiff has to prove whether he has right in his favour and defendant has omission to Suit No. 345/07 16/20 17 observe the rights of plaintiffs. The plaintiff has failed to prove that he is owner of the suit property. On the other hand defendant has successfully proved that suit property falls in khasra no. 646/555/35(909) and 647/555/35(708) which has been acquired. The Hon. Supreme Court has observed in case titled as Yamuna Nagar Improvement Trust Vs. Kharati Lal (supra) that for claiming injunction the party has to prove his title to the suit land.
Even otherwise the suit of the plaintiff bearing no. 345/07 (old no. 331/09) has already been infructous as suit property has been demolished by DDA on 01.06.93 and 02.06.93, which is admitted by the plaintiff. Thereafter the plaintiff has filed the second suit bearing no. 119/07 (old no. 358/93). Even otherwise, the relief claimed by plaintiff in second suit was also become infructous as property has been demolished which means that the defendant has taken over the Suit No. 345/07 17/20 18 possession of the property and plaintiff had not remained in possession of the property. The malba was lying there only. An injunction can not be granted against the person, who is otherwise entitle to occupy his property as per his wishes, following the rule regulations established by law. I am of the considered view that no relief can be granted to the plaintiff as equity does not favour the person who does not come to the Court with clean hands. The plaintiff has created the documents by imaginations.
Ld. Counsel for plaintiff relied upon three judgments of Hon. High Court of case titled as Harijan Kalyan Samiti Regd. & Ors. Vs. Govt. of NCT of Delhi & Ors, 167 (2010) DLT 368, Mool Chand Gaur Vs. Delhi Development Authority, 2004 II AD (DELHI)_17. and Manoj Kumar Vs. Delhi Development Authority, 2007 VII AD (DELHI) 558. The judgments relied by plaintiffs are not applicable in Suit No. 345/07 18/20 19 the present case. Firstly these judgments has been passed in writ jurisdiction and Hon. High Court of Delhi in WP (C) 3996/2010 titled as Jai Pal Chandel & Ors. Vs. MCD and Ors. Dated 08.09.10 has observed that factual controversy can not be adjudicated in the writ petition and same can be adjudicated only in a suit. Secondly, the judgments are distinguishable on facts. In that cases premises were residential. Here, in the present suits the plaintiffs claim was of owner of 5060 shops (suit property), which are rented out to various tenants. I have given findings on the issues and held that suit property vested with Central Govt. and handed over to defendant. The plaintiff was getting rents from the tenant without any right and title. The property had already been demolished. Thirdly, in the present case both the parties had given full opportunities to prove their rights and contentions as averred by them in their pleadings. The present cases has come up for final hearing after giving opportunities to the parties to prove Suit No. 345/07 19/20 20 their case during trial. I have perused the judgments of Hon. High Court with utmost regard and care. So, I am of the considered view that the judgment relied upon by the plaintiff are not helpful to the plaintiff. On the other hand, it is established beyond any reasonable doubt that the petitioner being a trespasser and encroacher of public land is not entitled to relief from this Court. The process of court would not leand a helping hand to the trespasser and the encroachers of public land. It has been held by Hon. Supreme Court in case titled as Bakshi Ram Vs. DDA, 1995 (32) DRJ. So, I am of the considered view that plaintiff is not entitled for injunction, So, issue no. 4 is decided in favour of defendant and against the plaintiff.
RELIEF So, in view of the abovesaid discussions I am of the view that the plaintiff is not entitled for the relief as claimed. Accordingly the Suit No. 345/07 20/20 21 suit of the plaintiff is dismissed. No order as to cost.
File be consigned to Record Room.
(Announced in open Court (JAGDISH KUMAR)
today i.e 19.03.11) JSCC/ASCJ/GJ(East)
KKD COURT
Suit No. 345/07 21/20
22
Suit No. 119/07
19.03.11
Present: None.
Vide separate judgment dictated and announced in open Court suit of the plaintiff is dismissed. No order as to cost. File be consigned to Record Room.
(Jagdish Kumar) JSCC/ASCJ/GJ(East) KKD COURTS/19.03.11 Suit No. 345/07 22/20 23 IN THE COURT OF SH. JAGDISH KUMAR: JSCCcumASCJcumGJ KARKARDOOMA: DELHI Suit No. 345/07 1 Kasturi Lal (Since Deceased) Through LRs 1(a) Sh. Madan Lal S/o Sh. Kasturi Lal R/o 35, East Vinod Nagar, Delhi.
2(c) Smt. Simmi W/o Late Sh. Rajesh Kumar R/o 42F, Kohlapur Kamla Nagar New Delhi.
3(d) Ms. Nancy D/o of Late Sh. Rajesh Kumar R/o 42F, Kohlapur Kamla Nagar New Delhi.
4(e) Master Sanchit Girdhar S/o Late Sh. Rajesh Kumar R/o 42F, Kohlapur Suit No. 345/07 23/20 24 Kamla Nagar New Delhi.
(Plaintiffs no. 3 and 4 being minors represented through their natural guardian i.e. Mother defendant no.
2C) .....Plaintiffs
Vs.
1 Delhi Development Authority
Vikas Sadan INA New Delhi.
Through its Vice Chairman. .....Defendants
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
1 This judgment shall dispose of two suits bearing no. 345/07
(old no. 331/93) and suit bearing no. 119/07 (old no. 358/93). Both the suits were clubbed vide order dated 08.11.05. Facts of the suit bearing no. 345/07 are that the plaintiff Sh. Kasturi Lal claimed himself owner Suit No. 345/07 24/20 25 of the property, land measuring 944 sq. yards, 35, East Vinod Nagar, Delhi. The plaintiff asserted that he has purchased the suit property from one Smt. Chander Kali in the month of November, 1998 who had purchased the said property from Sh. Anant Ram. It is further asserted by the plaintiff in the plaint that there were 50 to 60 shops had already been constructed at the suit property, when the property was purchased. These shops were let out to different parties who were running their business in the shops let out to them. The construction was in existence and no addition and alteration has been made by the plaintiff in the suit property. The property had already been mutated in the name of plaintiff by the Municipal Corporation of Delhi. The plaintiff has also assessed to the house tax since then. 2 The East Vinod Nagar,in which the suit property situated, was initially an unauthorized colony in the revenue Estate of village Kichiripur which was earmarked by the colonizer in the extended Lal dora of the village Kichiripur. The East Vinod Nagar was regularized vide resolution no. 58 dated 01.12.93 by the defendant no. 1 i.e. Delhi Development Authority, thereafter the area was handed over to MCD for maintenance and for other purposes. The DDA has lost all Suit No. 345/07 25/20 26 administrative control over the colony, East Vinod Nagar. The suit property of the plaintiff also falls within the area of East Vinod Nagar. The change of the administration of the area from DDA to MCD, the control of the suit property also goes to the MCD, automatically. 3 It is alleged by the plaintiff that SHO P. S. Kalyan Puri, whosoever posted there, troubles the plaintiff for reasons best known to them. The act of the SHO had compelled the plaintiff to file a suit against the SHO. The SHO P. S. Kalyan Puri was directed by Court not to interfere into the possession of the suit property. 4 The plaintiff alleged that on 22.05.93 the official of the DDA had come to the site and threatened that they will demolish the suit property on 2627/05/93. Fearing apprehension, plaintiff had visited the office of DDA and met the concerned official and apprised the said official that he has not been informed or had not been served with any notice for demolishing of the suit property and no opportunity of being heard is given to the plaintiff. But the behavior of the said official was arbitrary and hostile towards the plaintiff. The said official has also threatened to demolish the suit property. The plaintiff has alleged that Suit No. 345/07 26/20 27 DDA has no jurisdiction to demolish the plaintiff's building as the same has been handed over to MCD. Secondly, the act of the defendant's official is illegal as no notice whatsoever has been given to the plaintiff for demolition. Through suit bearing no. 345/07 the plaintiff has prayed for issuance of permanent injunction thereby directing the defendant permanently not to demolish the suit property measuring 944 sq. yards of plot no. 35, East Vinod Nagar, Delhi.
5 The facts of the suit bearing no. 119/07 are almost similar except the fact that the demolition had been carried out by the defendant on 01.06.93 and 02.06.93. The defendant taking advantage of the situation, that as no interim order was granted in favour of plaintiff in suit no. 345/07 (old no. 331/93), illegally and unauthorizedly demolished the most part of the aforesaid property. After illegal and unauthorized demolition of the most part of the suit property the defendant want to remove malba of the demolished portion which is still lying there at the site. The plaintiff had suffered a loss of about 10 lacs. Vide suit bearing no. 119/07 the plaintiff is seeking permanent injunction against the defendant thereby restraining the defendant not to remove the malba from the suit property and not to interfere with the Suit No. 345/07 27/20 28 possession of the suit property.
8 The summons of the suit were issued to the defendant and after service defendant filed its WS. In WS the DDA have stated that no notice U/Sec.53B of DD Act has been served. It is stated that the suit land falls in khasra no. 646/555/35(99) and 647/555/35(708) of village Khichripur. It is stated that the suit land has been acquired vide award no. 30A/7071 and physical possession was taken over from L&B Department on 05.04.77. The suit property has been placed at the disposal of the answering defendant U/Sec.22(1) of the D. D. Act vide notification No. F.8(31)78/L&B/LA(P)Vol.II dated 01.02.1979. The plaintiff is tresspasser and want to grab the government land in the garb of the present suit. The suit property has been demolished in the month of June 1993. The plaintiff has no locus standi to file the present suit. The defendant has prayed for dismissal of the suit as plaintiff has no right, title or interest in the suit property. 9 Replication to the WS of defendant filed by the plaintiff in which he has denied the averments of defendant stated in the WS and reiterated and reaffirmed the contents of his plaint. During the Suit No. 345/07 28/20 29 pendency of the suit the plaintiff had expired and his LRs were brought on record vide order dated 05.03.11 on application U/O.22 R.3 CPC. LR no. B Deepa Monga has been struck off from the array of parties vide order dated 16.07.10.
10 After completion of pleadings following issues were framed in both the suits vide order dated 05.11.01. The issues were framed separately but these were same. The issues are as under:
6. Whether the plaintiff is owner in possession of plot of land measuring 942 sq. yards in the revenue estate of village Khichripur, now known as East Vinod Nagar, Shahdara, Delhi? OPP.
7. Whether the suit is bad for want of notice U/Sec.53b of DD Act? OPD.
8. Whether the suit falls in khasra no. 646/555/35(99) and 647/555/35(708) of village Khichripur which stands acquired and placed at the disposal of DDA? OPD.
Suit No. 345/07 29/20 30
9. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP.
10.Relief.
11 The plaintiff examined six witnesses i.e. himself as PW1, Sh. Ramesh Chandra (Astt. L&B Deptt) as PW2, Sh. Nahar Singh (Planning Assistant, Trans Yamuna Area, DDA) as PW3, Sh. Naresh Kumar (AZI South Zone, MCD, Shahdara) as PW4. Sh. Dinesh Kumar as PW5 and Sh. S. P. Pathak (Director Planning TYA, DDA) as PW6 and closed his evidence. The defendant examined Sh. Ranvir Singh, Patwari, DDLM as DW1.
12 I have heard the counsel for both the parties and given my thoughtful consideration to the submissions made. I also perused the record. My issue wise findings is as under: ISSUE NO. 1 and 3 are taken together Issue no. 1 is framed as, "Whether the plaintiff is owner in Suit No. 345/07 30/20 31 possession of plot of land measuring 942 sq. yards in the revenue estate of village Khichripur, now known as East Vinod Nagar, Shahdara, Delhi?
OPP."
Issue no. 2 is framed as, "Whether the suit falls in khasra no. 646/555/35(99) and 647/555/35(708) of village Khichripur which stands acquired and placed at the disposal of DDA? OPD."
Both these issues are taken up together being interconnected. The onus to prove issue no. 1 is on plaintiff and onus to prove the issue no. 2 is on defendant. The plaintiff has examined 6 witnesses to prove his case. The plaintiff is claiming his right in the suit property on the basis of documents Ex.PW1/1 to Ex.PW1/3. The document Ex.PW1/1 is the GPA executed by Smt. Chander Kali in favour of the plaintiff. The document Ex.PW1/2 is agreement to sell. The same has been executed by Smt. Chander Kali in favour of the Suit No. 345/07 31/20 32 plaintiff. The document Ex.PW1/3 is the receipt of Rs.19,000/ through which Smt. Chander Kali has acknowledge the receipt of Rs.19,000/ from the plaintiff. The question arise whether these document can be accepted in evidence and creates any title in favour of the plaintiff. How, a tangible immovable is to be transferred is governed by T. P. Act, 1972. The immovable property has to be transferred after execution of the written documents. As there are provisions under Registration Act, 1908 to get registered the documents. Sec.17 of Registration Act describes as "any document (other than testamentary instruments) which purports to create, declare, assign, limit or extinguish whether in present or in future any right, title or interest whether vested or contingent of the value of Rs.100/ and upwards to or in immovable property." The Sec.49 of the Indian Registration Act provides that "no document required by Sec.17 to be registered shall, effect any immovable property comprised therein or received as evidence of any transaction effected the said property, unless it has been registered." The Hon. Supreme Court in case titled as Suraj Lamp and Industries P. Ltd. Vs. Thur., The State of Haryana and Ors, AIR 2009 SC 3077 has observed, Suit No. 345/07 32/20 33 "Sale of property by Power of Attorney and Will are illegal and irregular."
Here, in the present case the plaintiff has asserted that he has purchased the property from Smt. Chander kali and Smt. Chander Kali has purchased this property from Sh. Anant Ram vide documents Ex.PW1/4 to Ex.PW1/6. The documents Ex.PW1/4 to Ex.PW1/6 are also not registered. It is not mentioned in these documents Ex.PW1/4 to Ex.PW1/6, how Sh. Anant Ram has become the owner of the suit property. It seems that Sh. Anant Ram become the self claimed owner of the property and has transferred the property to Smt. Chander Kali and said Smt. Chander Kali has again transferred the property to the plaintiff in a self claimed mode of transfer of property, by side lining the procedure as envisaged under Transfer of Property Act and Indian Registration Act. The documents are only notarized, even without the number of notarization by the Notary. The Hon. Supreme Court in case titled as Yamuna Nagar Improvement Trust Vs. Kharati Lal, AIR 2005 SC 2245 has also observed, "When the plaintiff approached the Court Suit No. 345/07 33/20 34 for permanent injunction claiming to be owner of the property, it was his duty to prove that he was the owner of the property. The said property remained in his possession and that the defendant has no, right, title or interest therein.
The onus to prove issue no. 1 is on plaintiff. The documents placed on record by the plaintiff is not sufficient to declare him owner. The plaintiff has also claimed the title on the basis of documents Ex.PW1/7. The document Ex.PW1/7 is the assessment notice for the period 199192 in this regard. The plaintiff has also examined PW4 Sh. Naresh Kumar, EZI (South Zone Shahdara) who in his crossexamination deposed that no assessment order has been passed as yet. Therefore no house tax is payable for the suit property. He further admitted that house tax is not necessary to be deposited by the owner of the house. Even otherwise, the document Ex.PW1/7 is not the final order of the assessment of the house tax. The house tax receipt does not create any title in favour of the plaintiff. Hon. Supreme Court has held in case titled as R. V. E. Venkatachala Gounder Vs. Arulnigu Viswesaraswami and V. P. Tample and Ors, Suit No. 345/07 34/20 35 AIR 2003 SC 4548 that entry in municipal record is not evidence of title. The PW2 has admitted in his crossexamination that the notification dated 13.07.1987 Ex.PW2/1 does not transferred the ownership rights in land. PW3 has admitted in crossexamination that he do not know whether land falling in khasra no. 646/555/35 min and 647/555/35 min, Kichiripur has been taken over by the MCD from the DDA. So, these two witnesses PW2 and PW3 are not helpful to the plaintiff.
Ld. Counsel for plaintiff further argued and relied upon the document Ex.PW3/1 and PW3/2. (The same documents has been put to DW1 and same has also been exhibited as Ex.DW1/PX1 and DW1/PX2 and already exhibited as PW6/1 (colly)) and claiming that vide these documents East Vinod Nagar has been denotified by the DDA and property has been handed over to MCD. Thereafter, the DDA has no right to demolish the suit property. Ld. Counsel for defendant has argued that there was a proposal to denotify East Vinod Nagar and has further argued that annexure III to the document Ex.PW3/1 specifically describe in para 6 that denotification do not apply to the land owned by the DDA. Para 6 of the annexure III of document Suit No. 345/07 35/20 36 Ex.DW3/1 reads "any construction included in this regularization plan which has come up on the land of DDA/MCD and Govt. of India would not be considered as part of the approved plan and shall be deleted." It is further argued that as envisaged, even if there is a denotification of East Vinod Nagar it will not effect the rights o f the DDA as the suit property is owned by the DDA. The defendant further placed on record Ex.DW1/1 the award no. 30A/7071 which shows that the property bearing no. 646/555/35(909) and 647/555/35(708) land of khasra has been acquired. The document Ex.DW1/2 reveals that the possession of Khasra no. 646/555/35(909) and 647/555/35(708) has been handed over to the DDA. The document Ex.DW1/3 is the notification vide which the Nauzal land was transferred to the defendant (DDA). The document Ex.DW1/4 is the AksSizra which describes the location of the khasra no. 646/555/35(909) and 647/555/35(708). All these documents proves that khasra no. 646/555/35(909) and 647/555/35(708) was acquired and was handed over to DDA. The plaintiff is also claiming the ownership of the suit property falls in khasra no. 35. Being purchased the property in the year 1988. So, from the evidence adduced on record it has been proved that plaintiff is not owner of the suit property. The said property Suit No. 345/07 36/20 37 as revealed was acquired in the year 1971, when it was vacant land and same was handed over to the DDA in the year 1979.
Ld. Counsel for plaintiff argued that the regularization of East Vinod Nagar creats title in favour of the plaintiff with respect to suit property. I am not convinced with these arguments. The transfer of the area to the MCD is only from the purpose of implementation of MCD Act in that area. No ownership rights transferred to the MCD. So, I am of the considered view that plaintiff has failed to prove issue no. 1 and defendant has successfully proved issue no. 3 that the suit land is acquired land. So, issue no. 1 and 3 are decided in favour of defendant and against the plaintiff. The other documents relied upon by parties are either out of pleadings or not relevant to decide the issues involved between the parties.
ISSUE NO. 2.
Whether the suit is bad for want of notice U/Sec. 53b of DD Act? OPD.
Suit No. 345/07 37/20 38 The onus to prove this issue is on defendant. The present suit has been filed by plaintiff for injunction. The plaintiff was apprehension that defendant will demolish the suit property. Sec.53(b) says that "nothing contain in said section but shall be deemed to comply in a suit in which the only relief claimed is an injunction of which the object would be defeated by giving of the notice by the plaintiff of the institution of the suit." The present suit has been filed by plaintiff thereby claiming that defendant will demolish the suit property. Suit is for injunction. Hence, the suit of the plaintiff is not barred U/Sec. 53(b) of DDA Act.
ISSUE NO. 4.
Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP.
As I have given my detailed reasons on issues no. 1 and 3 before claiming any equitable relief of injunction the plaintiff has to prove whether he has right in his favour and defendant has omission to Suit No. 345/07 38/20 39 observe the rights of plaintiffs. The plaintiff has failed to prove that he is owner of the suit property. On the other hand defendant has successfully proved that suit property falls in khasra no. 646/555/35(909) and 647/555/35(708) which has been acquired. The Hon. Supreme Court has observed in case titled as Yamuna Nagar Improvement Trust Vs. Kharati Lal (supra) that for claiming injunction the party has to prove his title to the suit land.
Even otherwise the suit of the plaintiff bearing no. 345/07 (old no. 331/09) has already been infructous as suit property has been demolished by DDA on 01.06.93 and 02.06.93, which is admitted by the plaintiff. Thereafter the plaintiff has filed the second suit bearing no. 119/07 (old no. 358/93). Even otherwise, the relief claimed by plaintiff in second suit was also become infructous as property has been demolished which means that the defendant has taken over the Suit No. 345/07 39/20 40 possession of the property and plaintiff had not remained in possession of the property. The malba was lying there only. An injunction can not be granted against the person, who is otherwise entitle to occupy his property as per his wishes, following the rule regulations established by law. I am of the considered view that no relief can be granted to the plaintiff as equity does not favour the person who does not come to the Court with clean hands. The plaintiff has created the documents by imaginations.
Ld. Counsel for plaintiff relied upon three judgments of Hon. High Court of case titled as Harijan Kalyan Samiti Regd. & Ors. Vs. Govt. of NCT of Delhi & Ors, 167 (2010) DLT 368, Mool Chand Gaur Vs. Delhi Development Authority, 2004 II AD (DELHI)_17. and Manoj Kumar Vs. Delhi Development Authority, 2007 VII AD (DELHI) 558. The judgments relied by plaintiffs are not applicable in Suit No. 345/07 40/20 41 the present case. Firstly these judgments has been passed in writ jurisdiction and Hon. High Court of Delhi in WP (C) 3996/2010 titled as Jai Pal Chandel & Ors. Vs. MCD and Ors. Dated 08.09.10 has observed that factual controversy can not be adjudicated in the writ petition and same can be adjudicated only in a suit. Secondly, the judgments are distinguishable on facts. In that cases premises were residential. Here, in the present suits the plaintiffs claim was of owner of 5060 shops (suit property), which are rented out to various tenants. I have given findings on the issues and held that suit property vested with Central Govt. and handed over to defendant. The plaintiff was getting rents from the tenant without any right and title. The property had already been demolished. Thirdly, in the present case both the parties had given full opportunities to prove their rights and contentions as averred by them in their pleadings. The present cases has come up for final hearing after giving opportunities to the parties to prove Suit No. 345/07 41/20 42 their case during trial. I have perused the judgments of Hon. High Court with utmost regard and care. So, I am of the considered view that the judgment relied upon by the plaintiff are not helpful to the plaintiff. On the other hand, it is established beyond any reasonable doubt that the petitioner being a trespasser and encroacher of public land is not entitled to relief from this Court. The process of court would not leand a helping hand to the trespasser and the encroachers of public land. It has been held by Hon. Supreme Court in case titled as Bakshi Ram Vs. DDA, 1995 (32) DRJ. So, I am of the considered view that plaintiff is not entitled for injunction, So, issue no. 4 is decided in favour of defendant and against the plaintiff.
RELIEF So, in view of the abovesaid discussions I am of the view that the plaintiff is not entitled for the relief as claimed. Accordingly the Suit No. 345/07 42/20 43 suit of the plaintiff is dismissed. No order as to cost.
File be consigned to Record Room.
(Announced in open Court (JAGDISH KUMAR)
today i.e 19.03.11) JSCC/ASCJ/GJ(East)
KKD COURT
Suit No. 345/07 43/20
44
Suit No. 345/07
19.03.11
Present: None.
Vide separate judgment dictated and announced in open Court suit of the plaintiff is dismissed. No order as to cost. File be consigned to Record Room.
(Jagdish Kumar) JSCC/ASCJ/GJ(East) KKD COURTS/19.03.11 Suit No. 345/07 44/20