Delhi District Court
AirVice Marshal M. S. Rao vs Municipal Corporation Of Delhi on 21 February, 2012
Suit No. 120/2006
IN THE COURT OF MS. SHEFALI SHARMA
CIVIL JUDGE(WEST):TIS HAZARI COURTS: DELHI
Suit No. 120/2006
AirVice Marshal M. S. Rao
s/o late Rao Gajraj Singh
R/o Khasra no. 429430, Village Khirki,
Gen. Cariappa Marg, The. Mehrauli, Delhi.
..............Plaintiff
Versus
1. Municipal Corporation of Delhi,
Town Hall, Chandni Chowk,
Delhi110006.
through its Commissioner.
2. Delhi Development Authority,
Vikas Sadan, INA, New Delhi
through its Secretary,
3. The S.H.O.
Police Station Ambedkar Nagar,
New Delhi.
...........Defendants
Date of institution : 07.03.1990
Date of reservation : 15.02.2012
Date of decision : 21.02.2012
Air Vice Marshal M. S. Rao Vs. MCD 1/21
Suit No. 120/2006
JUDGMENT: This is a suit for Perpetual Injunction filed by plaintiff against the defendant.
1. The facts, in brief, as averred in the plaint are that plaintiff is in the lawful possession of the land bearing no.429/430, Village Khirki. That his name is entered as a Bhoomidhar in the revenue record. It is the case of the plaintiff that he had constructed a residential dwelling house on the said land in the year 1988 and has been living in the said house peacefully since then. However on 05.03.1990 some officials of the defendant came to the site and started demolishing the properties in the village in the vicinity of the property of the plaintiff and extended threat to the plaintiff to demolish the suit property and dispossess him without due process of law. It is the case of the plaintiff that the action of the defendant in attempting to demolish and threatening the plaintiff is illegal and contrary to law since neither the MCD, defendant no. 1 nor DDA i.e defendant no.2 have any authority on the suit land as neither there is any notification which places the suit land at the disposal of DDA Air Vice Marshal M. S. Rao Vs. MCD 2/21 Suit No. 120/2006 nor any civic amenities are being provided by MCD. Further no notice under Section 343 or any other provisions of DMC Act or DD Act were ever served upon the plaintiff. It is also the case of the plaintiff that there are 100 of structures similarly situated which are existing on the adjacent plots of the plaintiff however it is only the plaintiff who has been threatened by the defendants. It is the case of the plaintiff that he has acquired interest in the land as he is in the possession of the suit land with a dwelling unit constructed thereon as successor in interest for more than 10 years and that his name has been entered in the revenue records.
2. The aforesaid factual matrix gave the plaintiff the cause of action to file the present suit seeking the relief of perpetual injunction thereby restraining the defendants, their agents etc. from demolishing any part of the structures existing on the property/ suit land situated at Khasra no. 429430, Village Khirki, Tehsil Mehrauli, New Delhi and further restraining the defendants from dispossessing the plaintiffs from the suit land without due process of law.
Air Vice Marshal M. S. Rao Vs. MCD 3/21 Suit No. 120/2006
3. Defendant no. 1/ MCD entered their appearance by filing written statement and contested the present suit by denying the contents of the plaint. It has been specifically stated that the present suit is not maintainable for want of statutory notice under Section 477 and 478 of DMC Act, 1957 and for want of cause of action against the defendant no. 1. Further it is stated that after its urbanization, the provisions of DMC Act and building byelaws made there under are applicable in respect of the suit land and any constructions carried out in controversy in the provisions of DMC Act and building bye law is liable for action as per law. Further it is stated that several inspection were carried out by the MCD on the suit property a number of times but due to insufficient details regarding the premises in question furnished by the plaintiff, the exact location of the suit property could not be ascertained and therefore plaintiff could not be booked for unauthorized construction.
4. Defendant no. 2/DDA has contested the present suit by filing written statement. It has been specifically stated that the land which is the subject matter of the suit belongs to the department of Air Vice Marshal M. S. Rao Vs. MCD 4/21 Suit No. 120/2006 Rehabilitation, Government of India and the said department after negotiation held with the Ministry and with the sanction of the President of India transferred the entire land of H. No. 429/430, Village Khirki along with other lands in favour of defendant authority. In the year 1982, the defendant authority was entrusted with the suit land by Govt. of India, Ministry of Rehabilitation by a package deal dated 02.09.1982 wherein the physical possession of area of land measuring 52 bigha 10 biswa was handed over to the defendant/ DDA on 23.12.1987. A structure belonging in the khasra in question was demolished by the authority on 06.04.1988 and the development of such land was undertaken after removal of the encroachment. It is the case of the defendant/ DDA that the plaintiff had no point of time was even in possession of the suit land from the date of taking over the physical possession of the land i.e. 23.12.1987 to the date of the removal of the date of encroachment and thus the claim propounded by the plaintiff is exfacia, false and fabricated. In addition to this it has been further stated that the suit of the plaintiff is barred as a writ petition under Air Vice Marshal M. S. Rao Vs. MCD 5/21 Suit No. 120/2006 article 226 bearing no. CWA 506/88 had been filed against the defendant authority by one Sh. Sukhbir Singh with respect to the land in khasra no. 440, 441, 442, 443, 448, 461. Thus the present suit filed by the plaintiff entails dismissal.
5. The plaintiff filed his replication to the written statement of defendant wherein the plaintiff reiterated and reaffirmed the contents of the plaint and denied the averments made by the defendant in his written statement. Same are not reproduced herein for the sake of brevity.
6. On the basis of pleadings of the parties, following issues were framed on 24.05.2002 by my Ld. Predecessor:
1. Whether the plaintiff is Bhoomidhar in possession of land bearing no.429430 in village Khirki, Tehsil Mehrauli, Delhi? OPP.
2. Whether land falling in khasra no.429430 in village Khirki alongwith other land was placed at the disposal of DDA vide Ministry of Rehabilitation? OPD.
3. Whether plaintiff is entitled for relief of injunction as prayed for? OPP.
Air Vice Marshal M. S. Rao Vs. MCD 6/21
Suit No. 120/2006
4. Relief.
7. In order to prove his case, plaintiff has examined only one witness i.e. plaintiff himself who has relied upon the contents of affidavit Ex. PW1/A and relied upon the documents Ex. PW1/1 to Ex. PW1/11. Agreement to sell dated 15.02.1988 is Ex. PW1/1; GPA is Ex.PW1/2; Affidavit of Sh. T. S. Chaudhary is Ex.PW1/3; receipts executed by Sh. T. S. Chaudhary are Ex.PW1/4; certified copy of the khatoni for the year 198788 is Ex.PW1/5; khatoni for the year 198889 is Ex.PW1/6; decree dated 23.04.1997 passed by Hon'ble Mr. Justice K. Ramamurty is Ex. PW1/7, copy of house tax receipt for the year 198788 is Ex. PW1/8, the copy of order fixing the ratable value of the house of the plaintiff w.e.f. 01.04.1987 is Ex. PW1/9, certified copy of writ petition no. 2738/1988 dated 27.02.2001 is Ex. PW1/10 and certified copy of LPA no. 15/2003 dated 03.02.2003 is Ex. PW1/11.
8. It is pertinent to mention here that despite opportunity, no oral or documentary evidence has been adduced on behalf of defendant/ MCD.
Air Vice Marshal M. S. Rao Vs. MCD 7/21 Suit No. 120/2006
9. In order to prove their case, defendant/ DDA has also adduced only one witness i.e. DW1 Sh. Surender Singh who vide his affidavit Ex. DW1/A reiterated the contents of the written statement and relied upon the documents Ex. DW1/1 to Ex. DW1/4. Ex. DW1/1 is the copy of letter written by the Ministry of Rehabilitation Division (Settlement), Jaisalmer House, New Delhi to the Director, Land and Management, DDA, Vikas Sadan, New Delhi, Ex. DW1/2 is the copy of kabja karbai dated 23.12.1987, Ex. DW1/3 is the copy of akssijra and Ex. DW1/4 is the copy of notification issued by the Ministry of Supply and Rehabilitation (Department Rehabilitation) to the ViceChairman, DDA.
10.I have heard Sh. Rahul Gaur, counsel for plaintiff and Ms. Beena Sharma counsel for DDA/ defendant and meticulously, perused the record.
11.My issue wise findings are as follows: Issue no. 1: Whether the plaintiff is Bhoomidhar in possession of land bearing no.429430 in village Khirki, Tehsil Mehrauli, Delhi? OPP.
Air Vice Marshal M. S. Rao Vs. MCD 8/21 Suit No. 120/2006 Issue No. 3: Whether plaintiff is entitled for relief of injunction as prayed for? OPP.
The onus to prove issues no. 1 and 3 was upon the plaintiff.
It is the case of the plaintiff that he is in lawful possession of the land bearing no. 429/430 of Village Khirki and that he had purchased the same from one Sh. T. S. Chaudhary vide documents like Agreement to Sell, GPA etc on 15.02.1988 and has been living in the residential house constructed on the said land since then. That he is still in possession of the suit property.
On the other hand, it is the case of defendant/ DDA that in the year 1982, the defendant authority was entrusted with the suit land by Govt. of India, Ministry of Rehabilitation by a package deal dated 02.09.1982 wherein the physical possession of area of land measuring 52 bigha 10 biswa was handed over to the defendant/ DDA on 23.12.1987. A structure belonging in the khasra in question was demolished by the authority on 06.04.1988 and the development of such land was undertaken after removal of the encroachment.
Air Vice Marshal M. S. Rao Vs. MCD 9/21 Suit No. 120/2006 That the plaintiff had no point of time was even in possession of the suit land from the date of taking over the physical possession of the land i.e. 23.12.1987 to the date of the removal of the date of encroachment and thus the claim propounded by the plaintiff is ex facia, false and fabricated. The plaintiff, vide the testimony of PW1, has placed on record the agreement to sell which is Ex. PW1/1, GPA Ex. PW1/2, Affidavit of Sh. T. S. Chaudhary Ex. PW1/3, receipts Ex. PW1/4, all dated 15.02.1988 to show that he had purchased the suit property from Sh. T. S. Chaudhary.
It is pertinent to mention that neither the said documents are registered nor any registered Sale Deed has been placed on record. It is a settled law laid down in the case of "G. Ram Vs. DDA", AIR 2003 Delhi 120 passed by Hon'ble High Court wherein it is stated that "an agreement of sale is not a document of transfer not by reason of execution of a power of attorney, the right, title or interest of an immovable property can be transferred.
Such a transfer can only be effected by executing a registered document as provided Air Vice Marshal M. S. Rao Vs. MCD 10/21 Suit No. 120/2006 for under Section 54 of the Transfer of Property Act read with Section 17 of the Indian Registration Act".
This proposition of law has been further emphasized in the case of Braham Singh vs. Sumitra & Ors. 182 (2011) Delhi Law Times 350 by the Hon'ble High Court of Delhi. The said law has been further reiterated by Hon'ble Supreme Court in a recent judgment of the year 2011. Thus it is clear that plaintiff has failed to show that he is the owner of the suit property, in the absence of a registered Sale Deed.
The next issue under consideration is whether the plaintiff is in settled possession. As is stated above, vide documents Ex. PW1/1 to Ex. PW1/4, although the plaintiff has failed to show that he is the owner of the suit property, yet the execution of the said documents have not been controverted by the defendant. Therefore, prima facie it can be inferred that plaintiff has some right in the suit property. However, it is pertinent to mention that the said documents are dated 15.02.1988 whereas it is the case of the defendant/ DDA that they had already taken possession of the suit property on Air Vice Marshal M. S. Rao Vs. MCD 11/21 Suit No. 120/2006 23.12.1987 i.e. almost 2 months prior to the aforesaid transactions between the plaintiff and Sh. T. S. Chaudhary. This issue calls for deliberation.
The defendant/ DDA, vide the testimony of DW1, have proved that the suit property in question comprising in khasra no. 429/430 of village Khirki along with other lands, was entrusted to DDA by Ministry of Supply and Rehabilitation, Government of India in a packaged deal dated 02.09.1982; in pursuance thereof, the physical possession of the land measuring 52 bigha 10 biswa, including the suit property, was handed over to DDA by the Department of Rehabilitation on 23.12.1987. The letter written by Ministry of Rehabilitation to the Director, LM (DDA) is proved as Ex. DW1/1 and the kabza Karwai (possession proceedings) are proved as Ex. DW1/2. The case of DDA is that when the possession of land in question has already been taken on 23.12.1987, therefore, plaintiff has no right in the suit property.
I have carefully gone through the possession proceedings Ex. DW1/2 dated 23.12.1987. It is clearly reveals at Sr. No. 4 and 5 Air Vice Marshal M. S. Rao Vs. MCD 12/21 Suit No. 120/2006 that in khasra no. 429/430 of village Khirki, Sh. Tejinder Singh Chaudhary was in possession i.e. it reveals that Predecessor of the plaintiff was in possession at the time DDA allegedly took possession. However, the actual taking of physical possession has not been clearly brought forth by the defendants vide the said document. On the end of the said document Ex. DW1/2, there are written words "handing over and taking over" but where the word "handing over" is written, the signatures of the concerned official from the Ministry of Rehabilitation have been affixed and where the word "taking over" is written, the signatures of concerned tehsildar of DDA namely one Sh. MehmoodulHasan are affixed. This is very clear from the documents which had been filed by DDA along with list of documents tagged at page no. 413 of the court file. This is the same document as is Ex. DW1/2.
Most importantly, there is no punchnama which has been prepared at the time of taking over of the alleged possession. Neither the signatures of any independent witness have been adduced.
Air Vice Marshal M. S. Rao Vs. MCD 13/21 Suit No. 120/2006 At this stage reliance is placed on the case of Prahlad Singh & Ors. vs. UOI & Ors., (2011) 5 Supreme Court Cases 386, wherein the Government had failed to produce any evidence that possession was taken by preparing a punchnama in the presence of independent witness and their signatures were obtained on the punchnama, the finding with the land vested with the State Government was held to be unsustainable.
It was held that "vesting of land presuppose actual taking of possession and till that is done, legal possession of vesting cannot be raised".
In the present case, as is already stated above, the document Ex. DW1/2 which is the possession proceedings does not bear the signature of the independent witness. Thus not much reliance can be placed on the said document to infer whether the actual physical possession of the khasra in question had been taken by DDA.
On the contrary, DDA, vide the said documents, have clearly revealed that Sh. Tejinder Singh Chaudhary, the Predecessor Air Vice Marshal M. S. Rao Vs. MCD 14/21 Suit No. 120/2006 of the plaintiff was in possession at the relevant time. Further DW1, in his crossexamination, has categorically admitted that as per the records, Sh. Tejinder Singh Chaudhary was in possession of the suit property.
Moreover, the plaintiff, vide the revenue record, proved as Ex. PW1/5 which is the khatoni for the year 198788 as well as Ex. PW1/6 which is khatoni for the year 198889 has proved that Sh. Tejinder Singh Chaudhary was in possession from whom he allegedly derives interest in the property.
Further there was a mere assertion raised by the defendant that some structure had already been demolished on 06.04.1988 and since then the plaintiff is not in possession of the same. However, defendants has failed to adduce any iota of oral or documentary evidence to the effect that as to what was the exact structure which was demolished and whether the house of the plaintiff was demolished or not.
The defendants have not even proved the aks sizra Ex. DW1/3 which could have shown the actual location of suit property Air Vice Marshal M. S. Rao Vs. MCD 15/21 Suit No. 120/2006 and whether it is in possession of DDA since the person who must have prepared the same by comparing with the original sizra, has not been brought into the witness box. Ex. DW1/3 is mere a photocopy and not even a certified copy.
The witness on behalf of defendant has failed to reveal as to who has been in possession after alleged demolished structure.
The defendants have not even proved the aks sizra Ex. DW1/3 which could have shown the actual location of suit property and whether it is in possession of DDA since the person who must have prepared the same by comparing with the original sizra, has not been brought into the witness box. Ex. DW1/3 is mere a photocopy and not even a certified copy.
The defendant had also raised the plea that the suit is barred since a writ petition bearing no. 506/1988 had already been decided. However, admittedly, the said writ was pertaining to khasra no. 440, 441, 442, 443, 448 & 461 whereas the present suit property is regarding khasra no. 429/430. DW1 has categorically admitted in his crossexamination that the suit property has no concern with the Air Vice Marshal M. S. Rao Vs. MCD 16/21 Suit No. 120/2006 said khasra no. 440, 441, 442, 443, 448 & 461.
The plaintiff has also relied upon Ex. PW1/10 which is the certified copy of the judgment in the case of Air Commodore J. S. Kumar vs. DDA & anr. wherein various residents of Khirki Extension, Cariappa Marg where the suit property is situated, had filed the writ petition before Hon'ble High Court bearing no. 2738/98 whereby directions had been issued by Hon'ble High Court by the Devision Bench of the then Hon'ble Chief Justice and Hon'ble Justice D. K. Jain vide judgment dated 27.02.2001. Specific directions had been issued to UOI to notify the colonies which are to be regularized and which cannot be regularized.
During the course of arguments, the plaintiff has placed on record various documents which revealed that the colony in question is under consideration for regularization in terms of Draft Zonal Development Plan approved by DDA. Further there is a list of members which has been filed along with the said draft which clearly reveals the name of the plaintiff at Sr. No. 6. Thus undisputedly plaintiff is still in possession of the suit property.
Air Vice Marshal M. S. Rao Vs. MCD 17/21 Suit No. 120/2006 Thus even though the plaintiff has not been able to adduce sufficient evidence to prove his title, yet he has been successful in establishing his settled possession in the suit property. At this stage, reliance is placed on the preposition of law laid down in "M.C. Chockalingam vs. Manick A. Vasagam", 1974(1) SCC 48, the court held that: "law forbids forcible dispossession, even with the best of title".
Similarly, in "Krishna ram vs. Shobha Venkat Rao", 1984 (4) SCC 131, it was held that: "Where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law".
Analogous view was propounded by the Hon'ble Apex Court of the land in "Nagar Palika Jind vs. Jagat Singh", 1995(3) SCC 426, and "Ramesh Chand vs. Anil Panjwani", 2003 (7)SCC
350. In "Ramegowda vs. M. Varadappa Naidu", 2004 (1) SCC 769, the speaking for the three Judges' bench their Lordship, Air Vice Marshal M. S. Rao Vs. MCD 18/21 Suit No. 120/2006 R.C. Lahoti J. (as he then was) succinctly laid down as herein after reproduced: "8....The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands and also by restoring him in possession even from the rightful owner.
In Thomas Cook (India) Ltd Vs. Hotel Imperial & Others, 127 (2006) Delhi Law Times 431, Delhi High Court, it has been held that "If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse of law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession.
There are two limbs of relief of injunction sought by the plaintiff in the present suit. Firstly, plaintiff has sought the relief of perpetual injunction thereby restraining the defendants, their agents etc. from demolishing any part of the structures existing on the property/ suit land situated at Khasra no. 429430, Village Khirki, Tehsil Mehrauli, New Delhi. However, the said relief cannot be granted since the plaintiff has failed to prove that he is the owner of the suit property and further failed to prove sufficient title documents Air Vice Marshal M. S. Rao Vs. MCD 19/21 Suit No. 120/2006 in his favour.
Secondly, plaintiff has sought the relief of injunction thereby restraining the defendants from dispossessing the plaintiffs from the suit land without due process of law. In view of the aforesaid findings, it is clear that plaintiff is in settled possession. Therefore the said relief is granted in favour of the plaintiff. Issue no. 2: Whether land falling in khasra no.429430 in village Khirki alongwith other land was placed at the disposal of DDA vide Ministry of Rehabilitation? OPD.
The onus to prove this issue was upon the defendants. The defendant/ DDA, vide the testimony of DW1, have proved that the suit property in question comprising in khasra no. 429/430 of village Khirki along with other lands, was entrusted to DDA by Ministry of Supply and Rehabilitation, Government of India in a packaged deal dated 02.09.1982; in pursuance thereof, the physical possession of the land measuring 52 bigha 10 biswa, including the suit property, was handed over to DDA by the Department of Rehabilitation on 23.12.1987. The letter written by Ministry of Rehabilitation to the Director, LM (DDA) is proved as Ex.
Air Vice Marshal M. S. Rao Vs. MCD 20/21 Suit No. 120/2006 DW1/1 and the kabza Karwai (possession proceedings) are proved as Ex. DW1/2.
In the light of the findings in issues no. 1 and 3, this issue is decided in favour of the defendant.
Relief In view of the aforesaid discussions, the suit of the plaintiff is decreed to the extent that defendants are restrained from dispossessing the plaintiff and from demolishing the structure over the suit property without due process of law. Decree sheet be prepared accordingly. File be consigned to record room. Pronounced in the open court, Today on 21.02.2012 (Shefali Sharma) Civil Judge(West) THC, Delhi/ 21.02.2012 Air Vice Marshal M. S. Rao Vs. MCD 21/21