Delhi District Court
Suit No. 428/14 AttaUr Rehman (Through ... vs Dda on 11 February, 2016
Page No. 1 of 23
IN THE COURT OF MS. CHHAVI KAPOOR, CIVIL JUDGE,
WEST DISTRICT, TIS HAZARI COURT, DELHI.
Unique ID No. 02401C0110202002
Suit No. 428/14
1. AttaurRehman (Deceased)
Through Lrs.
(I) AnesurRehman
S/o Late Attaur Rehman
R/o 3369, Bagichi Achha Ji,
Bara Hindu Rao, Delhi - 110006
(ii) ZikrulRehman
S/o Late Attaur Rehman
R/o 3369, Bagichi Achha Ji,
Bara Hindu Rao, Delhi - 110006
(iii) Mohd. Kamilin
S/o Late Attaur Rehman
R/o 3354, Bagichi Achha Ji,
Bara Hindu Rao, Delhi - 110006
(iv) FazleJamil
S/o Late Attaur Rehman
R/o 3354, Bagichi Achha Ji,
Bara Hindu Rao, Delhi - 110006
(v) Mohd. Yunus
S/o Late Attaur Rehman
R/o 3354, Bagichi Achha Ji,
Bara Hindu Rao, Delhi - 110006
Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA
Page No. 2 of 23
(vi) Mohd. Usman
S/o Late Attaur Rehman
R/o 3354, Bagichi Achha Ji,
Bara Hindu Rao, Delhi - 110006
(vii) Fazlur Rehman
S/o Late Attaur Rehman
R/o 3354, Bagichi Achha Ji,
Bara Hindu Rao, Delhi - 110006
(viii) Saeeda Khatoon
W/o Mohd. Zaki
D/o Late Attaur Rehman
R/o Q104 Taj Enclave,
Geeta Colony, Delhi
(ix) Naseema Khatoon
W/o Saeed Chawla
D/o Late Attaur Rehman
R/o 1258, Gali Mahal Sarai.
Ballimaran, Delhi
(x) Shamima Begum
Wd/o Late Mohd. Shoaib
D/o Late Attaur Rehman,
R/o 2228, Naya Mohalla,
Gali Qasimjan, Ballimaran,
Delhi110006
(xi) Fatima Bi
W/o Tanveer Uddin
D/o Late Attaur Rehman
Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA
Page No. 3 of 23
R/o 1105/6 Gali Khirki Wali
Punjabi Phatak, Ballimaran, Delhi
(xii) Noor Jahan Begum
W/o Iqbal Ahmed
D/o Late Attaur Rehman
R/o 2126, Gali Matke WaliKhajoor Wali
Ahata Kale Saheb, Gali Qasim Jaan,
Ballimaran, Delhi 110006.
2. Abdul Latif
S/o Late Sh. Abdul Karim
house No./ 1032, Kishan Ganj,
Teliwara, Azad Market,
Delhi
3. Sh. Iqbal Ahmed
S/o Late Sh. Abdul Karim
H. No. 3368, Bagichi Achheji,
Bara Hindu Rao, Delhi
4. Sh. Feroz Ahmed
S/o Late Sh. Abdul Karim
H. No. 3368, Bagichi Achheji,
Bara Hindu Rao, Delhi
5. Smt. Jamila Begum, Deceased
Through the Legal Heirs
(a) Mohd. Yusuf
S/o Late Mohd. Rafi
R/o 3342, Bagichi Achheji
Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA
Page No. 4 of 23
Bara Hindu Rao
Delhi
(b) Smt. Shehnaz Iqbal
W/o Me. Iqbal Ahmed
R/o 2463, Rang Mahal,
Khurd, Pathak Habash Khan,
Delhi
6. Smt. Sardar Begum,
Daughter of Lste Sh. Abdul Karim,
W/o Mohd. Sami
R/o Near 6975, Beriwal Bagh,
Azad Market, Delhi
.............. Plaintiffs
Versus
1. Delhi Development Authority
Service May Be Effected Through
Its Chairman, Near INA,
New Delhi,
2. The Government of India
Service May Be Effected
Through Its Secretary
Ministry of Works And Housing
& Supply, New Delhi. ............. Defendants
Date of Institution of the Suit : 28.11.1988
Date of Reserving of Judgment : 09.02.2016
Date of Judgment : 11.02.2016
Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA
Page No. 5 of 23
JUDGMENT
1. This is a suit for declaration and Permanent injunction with the following facts.
2. The father of plaintiff no. 1 AttaurRehman and grand father of plaintiff no. 2 to 6 (as per the original memo of parties) namely Sh. Abdul Rehman had purchased the suit property bearing no. 598283 Khwaja Baki Billa, Nabi Karim, Abadi Kadam Saharif, Mohalla Chairmaran, Delhi (old number 7877 to 7912) vide a sale deed dated 21.05.1930. After his demise, the property was inherited by the plaintiff no. 1 AttaurRehman and father of plaintiff no. 2 to 6 i.e. Sh. Abdul Kareem. It is claimed that the suit property had been declared a non evacuee property vide letter dated 01.07.1949 of Sh. H. K. Choudhary, the then Assistant Custodian vide File no. DC/TR/511. It is claimed that vide judgment of Sh. P.C. Saini, SubJudge, Delhi dated 29.05.1964, the plaintiff no. 1 and Sh. Abdul Kareem were held to be the exclusive owners of the suit property. It is stated that the plaintiffs are in exclusive possession and enjoyment of the property since the year 1930 and have been letting out the premises to tenants from time to time. It is also stated that the plaintiffs have been paying house tax and other municipal taxes for enjoyment of the property and that the defendant no. 1 and 2 have no right to realize damages / rent from the tenants of the plaintiff. It is stated that the defendant no. 1 has issued notices to various tenants of the Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA Page No. 6 of 23 plaintiff for recovery of damages under the provisions of Public Premises Act, which is objected to by the plaintiff. The plaintiff has preferred an application for being impleaded as a party in the proceedings going on in the estate office, but the application has not been decided till today. The plaintiff has therefore, served the defendants with a notice u/s. 80 CPC and thereafter, filed the present suit with the following two prayers:
(i) That a decree for declaration may be passed in favour of the plaintiff and against the defendant nos. 1 and 2 declaring the plaintiffs joint owners of the property bearing no. 598283, Khwaja Babik Billa, Nabi Karim, Abadi Kadam Sharif, Mohalla Chirimaran, Delhi (old no. was 7877 to 7912)
(ii) That the defendant nos. 1 and 2, their agents, employees and officers etc. may kindly be restrained permanently from recovering and issuing any notice for recovering any rent or damages from the occupiers/tenants of the plaintiffs in property bearing no. 598283, Khwaja Bakib Billa, Nabi Karim, Kadam Sharif, Mohalla Chirimaran, Delhi (old no. of the property was 7877 to 7912) and recovering any amount. Cost of the suit may also be awarded in favour of the plaintiffs and against the defendant nos. 1 and 2.
3. In reply to the suit, DDA has filed a written statement claiming that the suit property falls on land of khasra no. 81, Revenue Estate of Kadam Sharif. It is claimed that as per revenue record, the said khasra is Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA Page No. 7 of 23 owned by the Government and it is stated that the land has been placed under the control and management of DDA. It is denied that the plaintiff or their predecessor in interest were the owners or landlord of the property or the land in question. Instead, it is stated that the land is under unauthorzied occupation of many people, who have been served with notices u/s. 7 of the Public Premises Act for realization of damages for their unauthorised occupation w.e.f. 01.01.1961 to 31.03.1977. It has been denied that the suit property has been validly purchased by Sh. Abdul Rehman vide sale deed dated 21.05.1930 or that any title has been conferred upon the plaintiffs in respect of the said piece of land. It is claimed that jurisdiction of Civil Court is barred as proceedings u/s. 50 of Public Premises Act have been initiated in respect of the property. It is denied that the plaintiffs have served a notice u/s. 80 of CPC upon the defendants before filing of the suit. Accordingly, it has been prayed that the suit is liable to be dismissed.
4. A replication has been filed by the plaintiff in which it has been denied that the property in dispute is owned by the government or that the same has been placed under the management and control of DDA.
5. On the basis of pleadings of the parties, following issues were framed for adjudication of the suit on 23.11.1989.
1. Whether jurisdiction of the civil court to entertain the suit is barred?
2. Whether the suit is barred under Section 53B of the Delhi Development Act against defendant no. 1?
Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA Page No. 8 of 23
3. Whether notice under Section 80 Cr.P.C. has been served upon the Union of India? If not, its effect.
4. Whether plaintiffs are entitled to the declaration and the injunction prayed?
5. Relief.
6. In order to prove their case, plaintiffs have examined as many as eight witnesses in all. Plaintiff i.e. AttaUrRehman has examined himself as PW1. PW1 has relied upon sale deed dt. 10.06.1980; Ex. PW1/1 (OSR), Order passed by Sh. P.C. Saini, SubJudge in the year 1964 in favour of predecessor in interestof the plaintiff; Ex. PW1/2, Order of custodian dt. 01.07.1949, Ex. PW1/3, Copy of suits filed by the plaintiff against tenants on the gound of non receipt of rent and encroachment etc.; Ex. PW1/4 to Ex. PW1/15, Legal notice; Ex. PW1/16, Postal receipts; Ex. PW1/17 & Ex. PW1/18, Registered AD Ex. PW 1/19 & Ex. PW1/20.
7. One Sh. Abdul Latif S/o Sheikh Abdul Karim was examined as PW2. PW2 has proved the sale deed dt. 10.06.1980; Ex. PW1/1.
8. One Sh. Hari Singh, Record Keeper , Sadar Pahar Ganj Zone, MCD was examined as PW3. PW3 has brought the summoned record in respect of suit property bearing no. 598283, Nabi Karim, Delhi.
9. One Sh. Shyam Lal, Record Keeper, S.P. Zone, Delhi was examined as PW4. PW4 has brought the certified copies of house tax record in respect of property no. 59825983 (old no. 78777912) for the Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA Page No. 9 of 23 year 194950; Ex. PW4/1.
10. One Sh. Attar Singh was examined as PW6 as the translator. He has exhibited translation done by him as Ex. PW6/1.
11. One Sh. Hafiz Zikrur Rehman s/o Atta Ur Rehman was examined as PW7. PW7 has relied upon the copy of rent receipts; Ex. PW7/1 to Ex. PW7/6, copy of house tax receipts; Ex. PW7/A to Ex. PW7/C, Site plan; Ex. PW7/S. Vide order dt. 29.08.2012 of the hon'ble High Court of Delhi, plaintiff was given opportunity to lead further evidence. Thereafter, plaintiff reexamined PW7 in PE. PW7 has relied upon the following documents; Sale deed executed by Khurshida Begum in favour of Maulvi Hussain ; Ex. PW7/1, translated copy of sale deed dt. 18.08.1909; Ex. PW7/2, Sale deed dt. 18.12.1920 executed by Maulvi Mohd. Hussain in favour of Abdul Latif ; Ex. PW7/3, Translated copy of the sale deed; Ex. PW7/4, Sale deed dt. 10.06.1930 xecuted by Abdul Latif in favour of Abdul Rehman; Ex. PW7/5, Translated copy of sale deed; Ex. PW7/6, Gazette of India dt. 04.06.1948; Ex. PW7/7, copy of petition before the Custodian Authorities; Ex. PW7/8, Sale deed Ex. 10.06.1930; Ex. PW7/9, List of tenants submitted before the custodian; Ex. PW7/10, Copy of order passed by Assistant Custodian dt. 04.01.1949; Ex. PW7/11, Copy of sale deed dt. 10.06.1930; Ex. PW7/12, Translation of sale deed dt. 10.06.1930; Ex. PW7/13, Copy of Gazette Notification dt. 01.07.1959; Ex. PW1/14 and Copy of rectified order dt. 01.07.1949; Ex. PW1/15.
Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA Page No. 10 of 23
12. One Sh. Vinod Mathur was examined as PW8. PW8 has proved the site plan (Ex. PW7/S) relied upon by the plaintiff in this case.
13. One Sh. Sanjay Saxena, book binder, Department of Delhi Archives, 18A, Satsang Vihar Marg was examined as PW9. This witness has proved sale deeds of suit property no. 598283, Nabi Karim, Qadamb Sharif as mentioned in the testimony of PW7 Hafiz Zikrur Rehman and exhibited as Ex. PW7/1A, PW7/3A and Ex. PW7/5A.
14. One Sh. Nagender Shah, UDC, Evacuee Property Cell, Land and Building Department, Vikas Bhawan was examined as PW10. This witness has proved the documents relied upon by PW7 as Ex. PW7/8A, Ex. PW7/9A, Ex. PW7/10A, Ex. PW7/11A, Ex. PW7/12A, Ex. PW7/14A and Ex. PW7/15A.
15. After conclusion of plaintiffs evidence, DDA has led defence evidence. Defendant/DDA has examined one Sh. Dhir Singh, Patwari, T.N. Section, DDA as DW1. This witness has relied upon the documents as; Attested copy of Jamabandi for the year 191819; Ex. DW1/1, Nazul Agreement executed between the government and Delhi Improvement trust; Ex. DW1/2, Attested copy of Jamabandi for the year 196869; Ex. DW1/3, Aks Shajra; Ex. DW1/4. None of the documents were filed or taken on record in the case.
16. After conclusion of evidence, final arguments were heard by this court.
17. I have considered the rival contentions raised by both the sides Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA Page No. 11 of 23 and have perused the judicial record. My issue wise findings are as follows:
ISSUE NO. 418. The above said issue is the main issue for adjudication of the suit. Onus of proving the issue is on the plaintiff. Hence, the issue is being taken up first for disposal.
19. This suit for declaration of title and grant of relief o f permanent injunction was filed by plaintiff no. 1 AttaurRehman and LRS of Sh. Abdul Kareem i.e. plaintiff no. 2 to 6 on the averments that the suit property bearing No. 598283 Khwaja Baki Billa, Nabi Karim, Abadi Kadam Saharif, Mohalla Chairmaran, Delhi (old number 7877 to 7912) was purchased by the deceased father of plaintiff no. 1 and grand father of plaintiff no. 2 to 6 i.e. Shri Abdul Rehman through a Sale Deed dated 21.05.1930. In paragraph no. 5 of the plaint (amended plaint filed on 23.04.2005) it was stated that the above said suit property was declared a non evacuee property on 01.07.1949 by an order of Sh. H. K. Choudhary, the then Assistance Custodian. It was claimed that the property was mutated in favour of the plaintiffs in the records of Municipal Corporation and that the plaintiffs were realizing rent from various tenants who were occupying the suit property. DDA had issued notice to various tenants for recovery of damages on the claim that they were occupying government acquired land which was placed at the disposal of DDA by virtue of Nazul Agreement of 1937. It was claimed Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA Page No. 12 of 23 by DDA that the suit property was situated on land khasra no. 81 of Revenue Estate of Kadam Sharif , which as per the jamabandi records was owned by the Government. It was claimed that the land underneath the suit property was owned by the Government of India since the year 191819 and hence, proceedings under the Public Premises Act were issued against encroachers for unauthorized occupation w.e.f. 01.01.1961 to 31.03.1977. Therefore, it was pleaded by DDA that plaintiff had no locus standi to file the suit and claim for the relief of injunction against the rightful owner of the land underneath the suit property.
20. The plaintiff no. 1 had stepped into the witness box as PW1 on 05.10.1995 and had exhibited the sale deed dated 21.05.1930 by which the property was purportedly purchased by his father Sh. Abdul Rehman from the previous owner. The document is exhibited as Ex. PW1/1 (OSR). The Order of the Assistant Custodian declaring the suit property as non evacuee, (dated 01.07.1949) is Ex. PW1/3. PW1 had also filed certified copy of Court proceedings of civil cases filed by them against various tenants on the ground of non payment of rent and carrying out of unauthorized construction on the suit property, which documents were exhibited as Ex. PW1/4 to Ex.PW1/15. However, it is a matter of record that the details of these pending cases were not disclosed to in the pleadings of the plaintiff and therefore, the same could not be considered to be a part of record of this case.
Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA Page No. 13 of 23
21. It is observed that there was no specific reply to the averments contained in the written statement of DDA that the suit property was situated on land of khasra no. 81 of revenue estate of Kadam Sharif as the replication was silent in this respect. PW1 stated in his cross examination that there was no khasra number of the land on which his property was situated. However, in the same breathe, the witness also admitted that the property no. 59825983, which was situated in khasra no. 81 of Mauza Kadam Shareef was the new number for old property no. 7887 to 7917. Another plaintiff namely Sh. Abdul Lateef was examined as PW2 in this case and in his crossexamination, even he had stated that there was no khasra number of the property in dispute. The witness had however denied the suggestion that the suit property fell in khasra no. 81 of Kadam Sharif, belonging to the Government. PW7 also failed to disclose the khasra number in which the suit property was situated. Infact, on a specific suggestion that the suit property fell in khasra no. 81, the witness stated that he did now know about this fact. However, in the next part of crossexamination, witness denied the suggestion that the property was situated in khasra no. 81. During the course of final arguments, SLO for DDA kept agitating on the fact that the plaintiff was guilty of concealing material facts from the Court as he had failed to disclose the khasra number of the land on which his property was situated. The contention of DDA counsel is not completely meritless as it is possible that a person may not be in knowledge of the Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA Page No. 14 of 23 khasra number in which his property is situated, however, it is not possible that the land may not have any khasra number for identification of the same. The plaintiffs have not set up a case herein pleading that no khasra number was allotted to their land or that the same was non agricultural in nature. There was merely a bald denial that the suit property was not situated in khasra No. 81 without disclosing the khasra in which the property was located. Such evasive denials can be easily construed as admission of the case of the defence that the suit property was situated in khasra no. 81 of Revenue Estate of Kadam Shareef.
22. It is observed that counsel for defendant had consistently questioned the plaintiff witnesses regarding the nature and description of the suit property, more particularly on the municipal number of the property as appearing in the sale documents. It was suggested to PW1 as well as PW2 that the sale deed Ex. PW1/1 did not pertain to the suit property bearing old No. 7877 to 7912, now 5982 to 5983, but to a different property number. During the course of final arguments, it was observed that the document Ex. PW1/1 i.e. Sale Deed dated 21.05.1930 by which the predecessor of the plaintiff had purportedly purchased the suit property contained the description of the property as bearing no. 56765677, measuring 1100 yards situated at Kadam Shareef Mohalla, Chairmaran, Delhi Province. This sale deed dated 21.05.1930 Ex. PW1/1 was filed in Urdu and an English Translation was exhibited by PW7 in the course of his examination on 08.11.2012 as document Ex. PW7/13.
Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA Page No. 15 of 23 At the end of the translated document Ex. PW7/13, it has been stated that a copy of the document is being signed by Sh. Abdul Rehman of the concerned Katra property bearing no. 7877 to 7917 , Kadam Shareef, Nabi Kareem, Basti Chairmaran, Delhi.
23. In order to counter the argument of the defence that the document Ex.PW1/1 (translated as document Ex. PW7/13), did not pertain to the suit property, it was suggested by the plaintiff counsel that the municipal number of the suit property was changed from time to time and that the property no. 56765677 as mentioned in Ex. PW1/1 was infact the suit property, now bearing no. 598283. This contention of the plaintiff is self contradictory as it is not possible that the suit property was in existence in the year 1930 and was being identified by two different numbers i.e. 56675677 and 75227912/17 at the same time. Infact, the document Ex. PW7/13 (Translation) shows Abdul Rehman to be resident of property no. 78777917 whereas, by relying on the said document, plaintiff is trying to prove that the suit property was being identified with the number 56675677 and not with number 78777912 at the relevant time. This contradiction has resulted in a fatal blow to the case of the plaintiff.
24. In order to prove that the Predecessor in interest of the plaintiff had obtained a valid title of the suit property, plaintiffs had examined PW7 and exhibited two more sale deeds, one dated 18.08.1909 (Ex. PW7/1 and English Translation Ex. PW7/2) and other sale deed dated Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA Page No. 16 of 23 18.12.1920 (sale deed exhibited as Ex. PW7/3 and English Translation Ex. PW7/4) showing the chain of title documents by which the Predecessor of plaintiff had acquired interest in the suit property. None of the above said two sale deeds contained any municipal number of the suit property. In fact, the suit property is described in terms of directions, the extent of land over which the built up property is situated and the nature of constructions carried there upon. None of the above said two sale deeds contained any identification number of the suit property. Suffice to say, that both the said deeds fell short of proving that the suit property bore number as 56675676 as its identification number at any point of time. Further more, plaintiff failed to bring any municipal record or record from the Department of Archives to prove to the Court that the suit property now bearing no. 598283 was ever identified by the Government or Municipal Authorities with the number 56675676. One witness from the Municipal Department was examined in the course of plaintiff evidence as PW4 and this witness has testified that the property no. 598283 was earlier known as property no. 7877 to 7912. The witness has brought the record pertaining to House Tax for the year 194950 as well as 1951 to 1952 which shows that the property has been mutated in the name of the Predecessor in interest of the plaintiff. However, the record exhibited by this witness (Ex. PW4/1 and Ex. PW4/2 respectively) fails to prove that the property was ever identified with the number 56675676. The record exhibited by PW4 cannot be Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA Page No. 17 of 23 said to be a conclusive proof of title of the plaintiff to the suit property, nonetheless, it can be considered to be a reliable piece of evidence to prove possession of the plaintiff in the same. Hence, the testimony of PW4 fails to lend credence to the plaintiffs plea that he is the valid title owner of the property.
25. Plaintiffs were also relying upon the order of the custodian dt. 01.07.1949 to show that the suit property bearing no. 78777912 was declared as nonevacuee in favour of their predecessor in interest. The said order has been exhibited and proved in the evidence of PW 1. However, plaintiff has also exhibited an order of the Assistant Custodian dt. 16.02.1952 (Ex. PW7/15) which shows that the initial order of the custodian dt. 01.07.1949, Ex. PW1/3 pertained to property bearing no. 78777917, Nabi Karim and not property no. 78777912, which is the suit property of this case. In this regard, document Ex. PW7/15 shows that the predecessor in interest of plaintiff had applied before the Assistant Custodian on 16.02.1952 stating that the earlier order dt. 01.07.1949 (Ex. PW1/3) had been improperly passed. It was stated by the applicant/predecessor in interest of plaintiff that he was the owner of property no. 78777912 and that the property no. 79137917 was owned by one Bankey Khan. Taking into note the said circumstance, the then Assistant Custodian, by his order dt. 16.02.1952 had opined that the orders dt. 01.07.1949 were required to be amended. With these observations, the file was submitted to the Deputy Custodian for Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA Page No. 18 of 23 amendment of order, if approved. No further order of custodian has been exhibited by the plaintiff in order to show that the orders dt. 01.07.1949 were amended or clarified. The plaintiff has also exhibited on record statement of his predecessor in interest Sh. Abdul Rehman dt. 23.12.1948 recorded by the Assistant Custodian, in which he had stated that he had purchased the property no. 78777917, Nabi Karim. This statement is Ex. PW7/9. It is on the basis of this statement that the order of the custodian dt. 01.07.1949 and 04.01.1949 have been passed in his favour. Thereafter, applicant had resiled from the said statement by claiming that his application was filed for being declared the owner of property no. 78777912, Ward No. 15. There appears to be no further order of the Custodian thereby amending the previous orders dt. 01.07.1949 (Ex. PW7/14) and 04.01.1949 (EX. PW7/11). No such orders have been exhibited by the plaintiff in their evidence. PW7 has stated in his examination in chief dt.08.11.2012 that the order dt. 01.07.1949 was rectified by the Assistant Custodian by his order dt. 16.02.1952 and that the corrected numbers of the suit property were reflected in document Ex. PW7/15. However, it is not so as the document itself shows that the final decision of amendment as prayed for was left to higher authorities for approval. No such order has been placed on record in order to show that plaintiff was held to be owner of nonevacuee property bearing no. 78777912. Infact, by the own admission of the plaintiff, the order of the custodian dt.
Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA Page No. 19 of 23 01.04.1949declaring him to be the owner of the property no. 78777917 was erroneous. This order talks of a different property, over which the plaintiff is not claiming title by way of a present suit. Therefore, the said order of the custodian also fails to support the plea of the plaintiffs that they are the legal owners of the property.
26. DDA had claimed that the suit property was built up on government land of khasra no. 81, Revenue estate of Kadam Sharif and that the land was placed at the disposal of DDA by virtue of Nazul Agreement of the 1937. Only one witness was examined by DDA in defence evidence. The affidavit of this witness mentions that he is relying upon four documents but it appears that none of the documents have been proved during the course of trial of this case. Infact, it is admitted by DW1 in his cross examination dt. 23.09.2004 that document Ex. DW1/1, Ex. DW1/3 and Ex. DW1/4 have not been filed on the court record. However, an unsigned copy of the Nazul Agreement has been filed as document Ex. DW1/2. In the course of cross examination of PW7 dt. 25.03.2013, witness has been confronted with the jamabandi of the land of khasra no. 81 but the witness has clearly stated that since the same is in Hindi, he cannot understand the contents of the document. This jamabandi record has not been proved in accordance with law as no witness has been summoned from the revenue department to appear before the court alongwith the original records. On the other hand, DW 1 has himself admitted that DDA is maintaining their own revenue Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA Page No. 20 of 23 record which is different from the record of revenue department of Government of Delhi. In the written statement, it has been stated that the property of the plaintiff was situated on land of khasra no. 81 of revenue estate of Kadam Sharif, which revenue estate was the property of the government. However, it was also stated that this khasra no. 81 was a big chunk of land but DW 1 did not know the entire area of the land of this khasra. The witness also admitted that no record was proved by the defendants to show that the property of plaintiff fell in municipal ward no. 15. DDA had not filed a site plan of their own to show the position of the suit property at the site but had instead filed an akssizra, which was not prepared from the Massavi but was a mere sketch taken from the original akssizra itself. This document; akssizra was not taken on record by the court as the documents were not filed at the appropriate stage by the defendants. Nevertheless, the crossexamination of DW1 suggested that the area of the suit property and the fact that it was known by the municipal number 598283 was not apparent from the said aks sizra. The massavi of the area was also not produced for being compared with the akssizra. Hence, it was suggested to DW1 that the site plan as filed was not prepared according to the site. The witness of DDA had stated that he was the ilaka patwari of the area of Kadam Sharif since the year 2001, but he could not affirm or deny the correctness of the site plan Ex. PW7/5 as was filed by the plaintiff. It was suggested to DW that the Nazul Agreement of 1937 was illegal, Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA Page No. 21 of 23 which suggestion was not denied by him. Instead, he stated that he did not have knowledge if the agreement was executed as per law. The witness also admitted that the construction of the suit property was an old one. However, he stated that he did not know if the construction (Katra) was made by Delhi Improvement Trust or DDA or the then Delhi Government. He also feigned knowledge if any documentary evidence existed in order to show that DDA had taken possession of the premises from the concerned authority at the time of execution of the Nazul Agreement. The witness could also not tell the dimensions of the suit property. It was also suggested that the suit property belonged to the custodian, who had passed an order in favour of the predecessor in interest of the plaintiff, but this suggestion was not denied by DW1 as he stated that he did not know about the same. On the basis of the abovesaid testimony of DW, it appeared that the witness was not well conversant with the facts of the present case. In any other case, DDA had failed to produce documentary evidence to prove that the suit property was situated on land of khasra no 81, Revenue estate of Kadam Sharif, which belonged to the government of India and had been placed at the disposal of DDA by virtue of the Nazul Agreement of 1937. Hence, the defendant also failed to prove their ownership of the suit property.
27. In view of the foregoing discussion, since it becomes clear that the plaintiff is not the owner of the suit property, hence, he is not entitled Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA Page No. 22 of 23 to the relief of declaration and injunction against Defendant. Issues are accordingly, decided against the plaintiff.
ISSUE NOS. 2 AND 328. In the written statement of DDA, it was alleged that plaintiff had not served the mandatory legal notices u/s 80 of CPC or u/s 53 B of DD Act before filing of the suit. However, PW1 has exhibited the legal notices as PW1/16 and has furnished proof of its service as Ex. PW1/17 to Ex. PW1/20. It is observed that the defence counsel has not suggested to PW1, PW2 or PW7 in their cross examination that they have not served defendant with the said notices before filing of the suit. The defence witness (DW1) has not denied the suggestion that legal notices were issued and served upon defendant before filing of the suit. Resultantly, it has been proved that plaintiff has issued and served legal notices upon defendants before filing the suit against them. Hence, it becomes clear that defendant has miserably failed to show that the suit is barred in view of provisions of Section 80 of CPC or Section 53 B of DD Act. Issue nos. 2 and 3 are decided against the defendants.
ISSUE NO. 129. DDA had taken up a plea that the suit was barred as proceedings under the Public Premises Act were pending in respect of the same suit property. However, it was admitted by DDA that plaintiff was not a party in the said proceedings as his application for being impleaded as a party had not been decided during the pendency of this case.
Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA Page No. 23 of 23 Furthermore, a bare perusal of the pleadings of the plaintiff made it clear that the suit was filed for obtaining declaration that the plaintiff was the owner of the suit property and hence, DDA was not entitled to realize damages from the tenants, who were occupying the property at the behest of the plaintiff. Therefore, the objection of the defendants that the suit was barred in view of provisions of public premises act cannot be sustained. Issue is accordingly decided against the defendants. RELIEF
30. In view of my findings on the issues as stated above, suit of the plaintiff is dismissed. No order as to costs.
31. Decree Sheet be prepared.
Announced in the Open Court (CHHAVI KAPOOR)
th
today on 11 February, 2016 Civil Judge06/West
Tis Hazari Courts, Delhi
This judgment contains 23 pages and all the pages are signed by me.
(CHHAVI KAPOOR)
Civil Judge06/West
Tis Hazari Courts, Delhi
Suit No. 428/14 Attaur Rehman (through LRS) Vs DDA