Delhi District Court
Bhagwan Dass vs D.D.A. And Anr on 31 January, 2024
IN THE COURT OF SENIOR CIVIL JUDGE CUM RENT
CONTROLLER (WEST), TIS HAZARI COURTS, DELHI
Presided by : Sh. Himanshu Raman Singh
RCA SCJ 14/22
CNR Number : DLWT-03-001927-2022
In the matter of :-
Sh. Bhagwan Dass
S/o. Late Sh. Bihari Lal
R/o. H.No. 179/F-2, Basant Gaon,
New Delhi-110057. .......Appellant
Versus
1) Delhi Development Authority
Through its Vice Chairman
Vikas Sadan, I.N.A
New Delhi-110023.
2) The Director, Horticulture Department
Under the Control and Management of
Delhi Development Authority, Vikas Minar,
New Delhi-110001. ........Respondents
Date of filing : 16.09.2021
Date of pronouncing judgment : 31.01.2024
JUDGMENT
1. Vide this judgment, I shall dispose of an appeal under Section 96 read with Section 151 read with Order 41 of CPC against the impugned judgment and decree dated 12.04.2021 passed by Sh. Deepak Kumar, Learned Commercial Judge, West District, Tis Hazari Courts, RCA SCJ 14/22 Bhagwan Dass vs. Delhi Development Authority & Anr. Page No. 1 of 25 Delhi in Civil Suit No. 612709/2016. The appellant was the plaintiff before the Trial Court.
2. The appellant/plaintiff in his suit bearing No. 612709/2016, filed before the Learned Trial Court had propounded that he was the owner and in lawful possession of the land i.e. in Khasra no. 32/1/1 specified by MCD bearing No. 179/F-2, in village Basant Nagar, New Delhi-110057. It has been averred that the respondent no.1 is the statutory body and respondent no.2/defendant no.2 is the department functioning under it. It has been averred that appellant's ancestors were in continuous possession of the abovesaid land for the last more than 100 years and on the death of his father, the appellant became the owner of the abovesaid land as per recorded owner in revenue record/Khasra Girdawari of Village Basant Nagar, New Delhi.
2.1. It has been stated that the appellant/plaintiff constructed a pucca house over a portion of land comprising Khasra no. 32/1 and 33/1 of Village Basant Nagar, New Delhi and it was apprised to the appellant/plaintiff by respondent no.1/defendant no.1 by letter dated 04.08.1986 that the structure falling on land measuring 500 sq. yards comprising Khasra no. 32/1 and 33/1, Village Basant Gaon stood regularized alongwith the houses of other Harijans for residential purpose being Abadi Deh of the Village. It has been further stated that vide Award dated 29.11.1965 of the then Collector, they acquired the agricultural land falling within the revenue estate of Basant Gaon, measuring 296 Bighas 3 RCA SCJ 14/22 Bhagwan Dass vs. Delhi Development Authority & Anr. Page No. 2 of 25 Biswas, therefore, the land falling in the residential area of the village Basant Nagar was left out of acquisition alongwith the abovesaid land on which the house of the appellant was erected. It has been further averred that the land falling under Khasra No. 32/1/7 was acquired by the respondent no.1/defendant no.1 on 03.03.1996 and the same was handed over to the Horticulture Department/respondent no.2.
2.2. It has been further stated that respondent no.1 lodged false complaints against the appellant/plaintiff by some influential persons of the village and apprehending his forcible dispossession from the suit property by respondent no.1/defendant no.1, notice dated 30.11.1998 was served upon the appropriate authorities of respondent no.1. It is further stated that thereafter, the appellant filed a suit for permanent injunction but after service of summons upon the respondents on 14.12.1998, the officials of the respondent no.1 demolished the substantial portion of the said property on 15.12.1998. It has been further averred that review petition of the appellant against the abovesaid order was also dismissed.
2.3. It has been stated that upon filing a writ petition, the Hon'ble Delhi High Court has stayed the demolition of the suit property vide order dated 18.12.1998 and directed SDM, Kapashera to appoint a Local Commissioner for demarcation of the appellant's and the respondent no.1's land. It has been further averred that due to non-demarcation of the appellant's and respondent no.1's land, Hon'ble Delhi High Court vide its order dated 23.04.2003 directed the appellant with liberty and with RCA SCJ 14/22 Bhagwan Dass vs. Delhi Development Authority & Anr. Page No. 3 of 25 continuation of interim protection for three weeks to approach the competent Civil Court for his grievances, therefore, the appellant/plaintiff filed a suit for declaration, mandatory and permanent injunction before the Learned Trial Court.
3. It has been contended that before the Learned Trial Court, written statement was filed on behalf of defendants no.1 & 2/ respondents no.1 & 2 stating therein that the appellant/ plaintiff has mislead and confused the Court by misrepresenting the facts mentioning wrong Khasra no. 32/1/1 of land under dispute with ulterior motive and malafide designs to protect unauthorized occupation and to grab the government land. The defendants no. 1 & 2/respondents no.1 & 2 denied and controverted all the facts mentioned by the plaintiff/appellant in his suit.
4. It has been contented that the Learned Trial Court without appreciating the pleadings, documents, evidence and written submissions, dismissed the suit, vide impugned judgment and decree dated 12.04.2021. The appeal has been filed on the following grounds:-
Grounds of Appeal:
4.1 The final judgment and decree dated 12.04.2021 passed by the Learned Trial Court is based on surmises and conjectures.
RCA SCJ 14/22 Bhagwan Dass vs. Delhi Development Authority & Anr. Page No. 4 of 25 4.2 The final judgment and decree dated 12.04.2021 appreciate the exact dispute between the parties as the same was the non-
ascertainment of Khasra no. 32/1/1 and Khasra No. 32/1/7.
4.3 The suit land containing the partial demolished structure as raised by the appellant, falls under Khasra no. 32/1/1 and does not fall under Khasra No. 32/1/17.
4.4 The documents relied upon by the respondents and their averments are contradictory on which Learned Trial Court failed to appreciate.
4.5 The Learned Trial Court failed to appreciate the fact that respondents/defendants themselves failed to provide authentic Tatima Field Book and Tatima Sizra to the Local Commissioners namely Sh. Rati Ram and Sh. V.K. Grover, as both the Local Commissions in their report dated 08.11.2002, 10.11.2002 and 17.02.2004 have specifically stated that the demarcation of the suit property could not be conducted due to non- providing of authentic field book and tatim sizra by respondents officials.
4.6 The DDA/respondent which alleges that the suit property actually comprising in Khasra No. 32/1/7 and hence, the onus to prove the same was on the DDA/respondent which they failed by not filing any site plan in this regard as per admission of Kanoongo Mr. Deo Karan Singh in his cross-examination dated 20.03.2017.
RCA SCJ 14/22 Bhagwan Dass vs. Delhi Development Authority & Anr. Page No. 5 of 25 4.7 The Learned Trial Court failed to appreciate the facts of the Local Commissioner namely Sh. Rati Ram, who was appointed by the Hon'ble Delhi High Court, that "the tatima field book and tatima sizra presented by the Patwari of DDA are not authenticated and it is not possible to carry out demarcation of land in Khasra no. 32/1/1 or other parts based on these".
4.8 The Learned Trial Court did not appreciate the facts mentioned by the representative/Kanoongo namely Deo Karan Singh of respondent no.1 in para no.2 of his affidavit dated 19.10.2015.
4.9 The Learned Trial Court did not appreciate the cross- examination of Mr. Parvinder Tomar (Patwari) dated 24.04.2012.
4.10 The representative/Kanoongo of the respondent no.1 in his cross-examination dated 20.03.2017 has already admitted that there is road in front of the suit property and beyond the road, there is barbed fence erected by the horticulture department and there is also light poles erected on the corners of the road.
4.11 The judgment and decree dated 12.04.2021 passed by the Learned Trial Court is based on assumptions and presumptions without taking into consideration the pleadings and the documents on record filed by the appellant and also not taking into consideration the admission RCA SCJ 14/22 Bhagwan Dass vs. Delhi Development Authority & Anr. Page No. 6 of 25 made by the respondents before the Hon'ble High Court and before the Learned Trial Court.
5. Reply-cum-Written submission has been filed by the respondent.
6. I have heard Learned Counsels for the parties and also gone through the record carefully. Learned Counsels for both the parties have filed written synopsis of their arguments.
Arguments advanced by the Appellant
7. The appellant has contended that the said suit was filed by the appellant/plaintiff for declaration as the "suit property falls in Khasra Nos. 32/1/1 and belongs to the plaintiff Shri Bhagwan Dass specified by MCD as 179/F-2 Village Basant Nagar, New Delhi", alongwith a prayer for injunction against the respondents herein restraining them from interfering with the appellants enjoyment of the said lands.
7.1. It has been contended by the appellant/plaintiff that he is residing for several decades at his residential premises that is specified by MCD as house number '179/F-2'. It has been contended that the main bone of contention between the parties herein is whether the aforesaid property falls within Khasra No. 32/1/1 or Khasra No. 32/1/7 (as claimed before the Learned Trail Court by the respondent). It has been contented RCA SCJ 14/22 Bhagwan Dass vs. Delhi Development Authority & Anr. Page No. 7 of 25 that the appellant's/plaintiff's claims over the suit land was, inter alia, based on the following grounds:
a) Khasra Girdawri issued on 07.01.1998 (Ex.PW1/2), wherein the appellant/plaintiff was shown to be in possession of the suit land, which was otherwise classified as "shamalat deo".
b) DDA Notification dated 04.08.1996 (Ex. PW1/8), whereby the appellant's ownership over the suit land stood regularized.
c) Reports of Local Commissioner appointed by the Hon'ble High Court (in the writ proceedings preceding the present suit), vide Reports dated 11.11.1999, 12.11.1999 and 24.11.1999 (Ex. PW1/16-PW1/18).
7.2. As per the appellant/plaintiff, the respondents/defendants contended before the Learned Trial Court that the suit land fell within Khasra No. 32/1/7, which is admittedly a portion of land that has been acquired by Government. Pertinently, the sole basis for this contention, that the suit land fell within Khasra No. 32/1/1 (and not in Khasra No. 32/1/1) was a copy of 'akash sazara' filed by the respondent No. 1 (Ex. DW1/4). It has been contended that during cross examination, however, it was established that the original copy of the aforesaid 'akash sazara' was neither traceable, nor was the executor thereof ever brought before the Learned Trial Court.
7.3. It has been further contended that in the reports filed by the Local Commissioner appointed by the Hon'ble High Court, it has been time and again noted that an actual survey and demarcation of the land RCA SCJ 14/22 Bhagwan Dass vs. Delhi Development Authority & Anr. Page No. 8 of 25 was made impossible by the respondents. Detailed observations have been made regarding the manner in which original documents and relevant survey records were first withheld, and thereafter claimed to be untraceable by the officials of the respondents. It has been contended that in the aforesaid circumstances, the undisputed facts which emerge are as follows:-
i) The appellant/plaintiff are in possession and occupation of the property demarcated by MCD as '179/F-2', which is claimed to be a part of Khasra No. 32/1/1.
ii) The Khasra Girdawri for Khasra No. 32/1/1 records the Appellant as possessor, and the said land as 'shamalat deo' lands.
iii) The Notification dated 04.08.1986 regularizes the ownership of the appellant over Khasra No. 32/1/1 for residential purposes of the appellant and is evidently addressed to the appellant at his residence bearing no. '179/F-2'.
iv) It has been contended that admittedly, Khasra No. 32/1/7 has been subjected to government acquisition. The appellant claims that the Suit land does not fall within Khasra No. 32/1/7.
v) The sole basis for the respondent claiming that the suit land falls in Khasra no. 32/1/7 is an unverified copy of a 'akash sazara', which was neither prepared nor proved in accordance with law.
7.4. It has been further contended that the main issues of consideration that arise are as follows:-
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a) Whether appellant/plaintiff has established that has acquired title and ownership to the suit land situated at Khasra No. 32/1/1, Village Basant Nagar, New Delhi?
b) Whether, in the absence demarcation/identification of land by the respondent, the appellant ought to be declared as owner in view of admitted possession?
7.5. The appellant/plaintiff has further contended that the appellant has established its title and ownership over the land situated at Khasra No. 32/1/1, Village Basant Nagar, Delhi.
7.6. The appellant has placed reliance on three undisputed documents to claim their rights over the suit lands:-
a). The Khasra Girdawri evidently records the Appellant as possessor of the land situated at Khasra No. 32/1/1. Admittedly, the said land is classified as 'shamalat deo'. As per Wilson's Glossary of Judicial and Revenue Terms, 'shamalat' land means common lands vested in the village. It has been contended that Sec. 77 of the Delhi Land Reforms Act, 1954, the 'Gaon Sabha' is empowered to move for ejectment of any unauthorized possessors of village land. It has been contended that as clearly specified in Sec. 79 of the said Act, if no such suit for ejectment is moved within the period of limitation then the occupier / possessor becomes the bhumidar of the land. It has been contended that In the present case, the possession of the Appellant over the suit land has been undisturbed for decades, and till date no action for ejectment has been RCA SCJ 14/22 Bhagwan Dass vs. Delhi Development Authority & Anr. Page No. 10 of 25 taken against the Appellant in accordance with law. It has been contended that the Appellant has acquired the status of bhumidar of the suit land situated at Khasra No. 32/1/1 on the basis of the said Khasra Girdawri, and hence ought to be declared as the owner thereof.
7.7. It has been contended that the Notification dated 04.08.1986 regularises the ownership of the Appellant over Khasra No. 32/1/1 for residential purposes of the Appellant and is evidently addressed to the Appellant at his residence bearing No. '179/F-2'. It has been submitted that the judgment of Jaipal Singh Vs. State of Punjab (2011) SCC 316 does not, in any way, lead to the Notification dated 04.08.1996 - as the facts and circumstances in the said judgment are entirely different. It is submitted that the present case of regularization is evidently within the parameters defined in the said judgment itself, aside from also being in accordance with the provisions of the Delhi Land Reforms Act.
7.8. During the course of arguments before the Court, the Respondents have raised a huge hue and cry over the evident clerical error at para 4 of the suit wherein it is erroneously stated that the said suit land is Khasra No. "31/1/1" instead of "32/1/1". It has been contended that the obvious nature of this mistake is clear from the corresponding para of the evidence affidavit of PW-1, which has gone unrebutted in cross-examination.
7.9. It has been contended that In the absence RCA SCJ 14/22 Bhagwan Dass vs. Delhi Development Authority & Anr. Page No. 11 of 25 demarcation/identification of land by the respondent, the appellant ought to be declared as owner in view of admitted possession.
7.10. It has been contended that in the Reports filed by the Local Commissioner appointed by the Hon'ble High Court (Ex. PW1/16- PW1/18), it has been time and again noted that an actual survey and demarcation of the land was made impossible by the Respondents. Detailed observations have been regarding the manner in which original documents and relevant survey records were first withheld, and thereafter claimed to be untraceable by the officials of the Respondents.
7.11. Respondents contended before the Learned Trial Court that the suit land fell within Khasra No. 32/1/7, which is admittedly a portion of land that has been acquired by government. It has been contended that the sole basis for this contention, that the suit land fell within Khasra No. 32/1/7 (and not in Khasra No. 32/1/1) was a copy of 'akash sazara' filed by the respondent No.1 (Ex. DW1/4). It has been contended that during cross examination however, it was established that the original copy of the aforesaid 'akash sazara' was neither traceable, nor was the executor thereof ever brought before the Learned Trial Court.
7.12. It has been further contended by the appellant that on the other hand, the possession of the appellant over the suit land is undisputed. It has been contended that in view of the demolition action RCA SCJ 14/22 Bhagwan Dass vs. Delhi Development Authority & Anr. Page No. 12 of 25 against appellant initiated by respondent No.1, claiming that the said land falls within government acquired lands, it cannot be disputed that the appellant is actually in possession of the land. It has therefore been submitted that, inter alia, in accordance with Sec. 110 of the Evidence Act, the appellant ought to be declared as the owner of the suit land bearing Khasra No. 32/1/1, Village Basant Gaon, New Delhi. Reliance in this regard has been placed on the following judgments :
a). State of Gujarat v. Alaudding Babumiya Sheikh, 1991 Supp (1) SCC 146 ; and
b). Noida v. Desh Raj and Anr. (2010) 15 SCC 451.
8. Arguments advanced by the Respondent/DDA 8.1. Per contra, it has been contended by the respondent/DDA in their written submission that there has been a heap of Court Cases filed by various individuals claiming that they are the owners and in possession of the land of a certain Khasra number. The Khasra number so cited by the plaintiffs in such cases, is usually the khasra number of the land adjoining or nearby to the land acquired by the Government. It has been contended that the modus-operandi has been to usurp the acquired government land by citing the same to be in a different khasra number or part thereof which is left unacquired and which is adjoining and nearby. It has been contended that the persons who seek to encroach upon the government land file some misleading litigation with wrong & malafide averments which has also been done in the captioned suit/appeal and this RCA SCJ 14/22 Bhagwan Dass vs. Delhi Development Authority & Anr. Page No. 13 of 25 is one such case and has to be seen in this light.
8.2. It has been further contended that whereas, the disputed/suit lands, actually fall in Khasra No.31/1/7, Village Basant Nagar, Delhi and has duly been acquired through Award No.1879, whereupon, possession thereof was also taken over through proper possession proceedings dated 28th March 1966 and transferred to the respondent/DDA through a Notification under Section 22(i) of the Delhi Development Act, 1957. It has been contended that the plaintiff/appellant has absolutely no right, title or interest in the suit land and he sought to encroach upon the aforesaid public land. It has been further contended that the onus & burden of proving all the material facts was upon the plaintiff/appellant and not upon the respondent/defendant.
8.3. It has been further contended that since the Plaintiff/Appellant has sought a decree of declaration of title with consequential relief of injunction, therefore, in view of the law settled by the Hon'ble Supreme Court in the matter of, "Union Of India & Ors. Vs Vasavi Co-Operative Housing Society Ltd. & Ors." (2014) 2 SCC 269, plaintiff has to prove his case and has to stand on his own legs and the weaknesses, if any, in the defence raised by the respondent/defendant cannot be of any help to him. The relevant portion of the aforesaid judgment is reads as:
"14. At the outset, let us examine the legal position with regard to whom the burden of proof lies in a suit for RCA SCJ 14/22 Bhagwan Dass vs. Delhi Development Authority & Anr. Page No. 14 of 25 declaration of title and possession, this Court in Maran Mar Basselios Catholicos vs. Thukalan Paulo Avira reported in AIR 1959 SC 31 observed that "In a suit for declaration if the plaintiffs are to succeed, they must do so on the strength of their own title." In Nagar Palika Jind v. Jagat Singh, Advocate (1995) 3 SCC 426, this Court held as under:
"The onus to prove title to the property in question ws on the plaintiff. In a suit for ejectment based on title it was incumbent on the part of the Court of appeal first to record a finding on the claim of title to the suit land made on behalf of the plaintiff. The Court is bound to enquire or investigate that question first before going into any other question that may arise in a suit."
8.4. It has been further contended that plaintiff was required to prove his alleged ownership by proving on record the complete chain of documents showing devolution of ownership of the Suit land in his favour and also the exact location & area of the Suit land. It has been contended that the plaintiff/appellant has not proved any legal, valid & reliable documents which could either prove their alleged ownership or the exact location or even the area of the suit land.
8.5. It has been further averred that plaintiff/appellant has not lead any evidence at all to prove the location, area & dimensions of the suit land, therefore, he miserably failed to prove his alleged ownership as well as the location of the suit land.
8.6. It has been further contended that the suit being with respect to an immovable property, therefore, in view of provisions of Order VII RCA SCJ 14/22 Bhagwan Dass vs. Delhi Development Authority & Anr. Page No. 15 of 25 Rule 3 CPC, plaint was required to contain the specific & clear location, area, length & breadth, size, boundaries, number etc. of the suit land and also a proper Site Plan stating clearly all such details was also required to be proved on record through cogent evidence and in the absence thereof, no decree can either be sought for or claimed with respect to an immovable property. It has been contended that all that is alleged in the plaint (para 1) is that the suit land forms part of Khasra No.32/1/1 of Village Basant, New Delhi-110057 but no specific area, dimensions & location, boundaries etc., are mentioned.
8.7. It has been further contended that in para 4 of the Plaint it is alleged that the suit land forms part of Khasra No.31/1/1, Village Basant Gaon and in para 7 of the plaint, it is alleged that plaintiff's alleged construction is comprised in Khasra No.32/1 and 33/1 and the area of the land is mentioned as 500 sq. yds. with dimensions 75" X 16".
8.8. Reliance has been placed upon the judgment of the Hon'ble Supreme Court passed in the matter of, "Jagpal Singh Vs State of Punjab" (2011) 11 SCC 396, wherein, the Hon'ble Supreme Court has held as under :
"2. Since time immemorial there have been common lands inhering in the village communities in India, variously called gram sabha land, gram panchayat land, (in many North Indian States), shamlat deh (in Punjab etc.), mandaveli and poramboke land (in South India), kalam, maidan, etc., depending on the nature of user. These public utility lands in the villages were for centuries used for the common benefit of the villagers of the village RCA SCJ 14/22 Bhagwan Dass vs. Delhi Development Authority & Anr. Page No. 16 of 25 such as ponds for various purposes e.g. for their cattle to drink and bathe, for storing their harvested grain, as grazing ground for the cattle, threshing floor, maidan for playing by children, carnivals, circuses, Ramlila, cart stands, water bodies, passages, cremation ground or graveyards, etc. These lands stood vested through local laws in the state, which handed over their management to gram sabhas/gram panchayats. They were generally treated as inalienable in order that their status as community land be preserved. There were no doubt some exceptions to this rule which permitted the gram sabha/gram panchayat to lease out some of this land to landless labourers and members of the scheduled castes/tribes, but this was only to be done in exceptional cases.
22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of gram sabha/gram panchayat/poramboke/shamlat land and these must be restored to the gram sabha/gram panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some government notification to landless labourers or members of scheduled castes/scheduled tribes, or where there is already a school, dispensary or other public utility on the land."
8.9. It has been further contended that the plaintiff, although RCA SCJ 14/22 Bhagwan Dass vs. Delhi Development Authority & Anr. Page No. 17 of 25 admitted the suit land to be Gaon Sabha land but failed to produce or prove any sort of grant or lease from the Gram Sabha or for that matter from any Authority at all. Instead, it was not at all his case that the Suit land had been allotted to him by any authority. It has been contended that it stands proved beyond any doubt that plaintiff's allegations of being owner of the suit land was absolutely baseless, bogus and self-serving and same deserves to be held so because plaintiff has not produced any other document of ownership/title over the suit land.
8.10. It has been further contended that the plaintiff/appellant has sought to rely upon some electricity & house-tax bills etc. However, it has been submitted that no official/officer from the concerned authorities had been summoned to prove the same and, in any case, the ownership of the property comes to a person through a properly registered Sale Deed/Gift Deed, Transfer Deed, Relinquishment Deed or any such legal descent. It has been contended that neither of any such document has been filed nor been proved in any manner. It has been contended that it is relevant to note that plaintiff/appellant has alleged in the plaint that his forefather had been holding various piece of lands in the Village Basant and he had been residing there. It has been contended that under these circumstances, the plaintiff/appellant must be having the electricity & water connections, voter I-card, house-tax receipts etc. It has been contended that no linkage of these documents to the suit land has been proved and, therefore, they are of no help at all especially in view of the fact that no official had been summoned for the purpose.
RCA SCJ 14/22 Bhagwan Dass vs. Delhi Development Authority & Anr. Page No. 18 of 25 8.11. It has been further contended that the plaintiff/appellant has not lead any evidence to prove the alleged house number of the suit land and the DW-1, during his cross-examination, has categorically stated that he does not have any record with respect to the house numbers, he maintains record as per khasra numbers and that all the construction in Khasra No.32/1/7 is unauthorised. It has been contended that the alleged house number over the suit land/construction could also not be proved in any manner.
8.12. It has been further contended on behalf of the respondent that as per the plaintiff, his alleged house/construction over the suit land has been regularised by the DDA vide letter dated 4th August 1986. But, the same is absolutely of no help to him because neither could he link the said letter to the suit land nor to the alleged construction nor even it could be proved that the area and construction mentioned in the said letter is with respect to the land claimed by the plaintiff in the Suit.
8.13. It has been contended that plaintiff has neither been able to prove even a shred of document with respect to his alleged title over the suit land nor the location thereof nor the actual area thereof nor even the alleged construction.
8.14. It has been further contended that the defendant/respondent has duly proved its case by proving the Award No.1879 as Ex. DW-1/1, RCA SCJ 14/22 Bhagwan Dass vs. Delhi Development Authority & Anr. Page No. 19 of 25 Possession Proceedings dated 28th March 1966 as Ex. DW-1/2 and Notification dated 3rd January 1968 issued under Section 22 (i) of the Delhi Development Act, 1957 as Ex. DW-1/3, Aks Shizra as Ex. DW-1/4.
8.15. It has been further contended that DW-1 had constantly withstood the cross-examination and had throughout maintained that the suit land does not form part of Khasra No.32/1/1 but forms part of Khasra No.32/1/7 which is acquired land and whose possession has also been handed over to the DDA.
9. The Learned Trial Court framed the following issues:
i) Whether the suit of the plaintiff is not maintainable for want of Notice u/s. 53-B DD act? OPD.
ii) Whether the suit property falls in Khasra no. 32/1/17 of village Basant Nagar which has been acquired and placed at the disposal of the DDA? OPD.
iii) Whether the suit property falls in Khasra no. 32/1/1 ? OPP.
iv) Whether the suit property i.e. house belonging to the plaintiff has been regularized by the defendant alongwith 20 other houses and plaintiff is discriminated by the defendant against the similarly situated persons, if so, its effect ? OPP.
v) Whether the plaintiff is entitled for decree of declaration as prayed ? OPP.
vi) Whether the plaintiff is entitled for permanent injunction as prayed ? OPP.
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vii) Relief.
10. Before the Learned Trial Court, the plaintiff/appellant had examined two witnesses including himself as PW-1. He relied upon the documents Ex. PW1/1 to Ex. PW1/21.
11. Plaintiff/appellant also examined PW-2 Sh. Parvinder Tomer, Patwari from Tehsil, Vasant Vihar, New Delhi, who proved the document Ex. PW2/1 i.e. Khasra Girdawari of Khasra No. 32/1/1 of village Basant Gaon, New Delhi.
12. Defendants/respondents had examined Sh. Deokaran Singh, Kanoongo, DDA as DW-1, who relied upon the following documents :
i) Ex. DW1/1 (OSR) certified copy of Award no. 1879 dated 20.11.1965.
ii) Ex. DW1/2: Certified copy of Kabza Karwahi dated 28.03.1966.
iii) Ex. DW1/3: Certified copy of Notification No. F8 (49)63/L&H-II dated 03.01.1968.
iv) Ex. DW1/4: Copy of Akash Sizara showing khasra No. 32/1/17 (OSR).
13. Thereafter, Learned Trial Court heard the final arguments and upon giving its findings on the aforesaid issues, dismissed the suit of the plaintiff.
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14. The Learned Trial Court had specifically framed Issue no.2 and Issue no.3 regarding the Khasra in which the suit property falls. The onus to prove Issue no.2 was on the defendant and the onus to prove issue no.3 was on the plaintiff. The Learned Trial court gave conjoint finding on issues no.2,3,4 and 5. The Learned Trial Court placed reliance upon the judgment of the Hon'ble Supreme Court in the case titled 'Anathula Sudhakar Vs. P. Buchi Reddy & Ors. (AIR 2008 SC 2033). The relevant findings of the Learned Trial Court are as under:
"16. In the present case, admittedly no title document has been filed on behalf of the plaintiff against the proof of ownership over the suit land. Albeit, a site plan has been filed, however, no independent witness has been examined by the plaintiff to prove the location and boundaries. In the present case, admittedly no title document has been filed on behalf of the plaintiff against the proof of ownership over the suit land. Albeit, a site plan has been filed, however, no independent witness has been examined by the plaintiff to prove the location and boundaries of the suit land. Plaintiff claims to have inherited the suit land from his ancestors. However, no document of probative value has been filed to show how did they become owner of the suit property. There is no document on record to inspire the confidence of the court that the suit property falls in Khasra No. 32/1/1. Except bald averments, no substantive material has been brought to the notice of the court to back this claim. Perusal of record of present case shows that during his cross- examination, PW-1 Bhagwan Dass stated that he does not remember when does the suit land was allotted the number 178/F-2 Village Basant Gaon by the MCD. He further significantly admitted that currently the suit land belongs to Gaon Sabha. He further admitted to have not filed any allotment letter issued by Gaon Sabha. He went on to concede that the Gaon Sabha never issued any allotment letter to them.
17. Plaintiff examined PW-2 Parvinder Tomar to prove his case. In his examination-in chief, the said witness stated that on the fourth side of suit land, there is DDA land. During his cross-examination, he further stated that he can not say in which Khasra No. 32/1/1 or 32/1/7, the suit property is situated. Moreover, this witness also RCA SCJ 14/22 Bhagwan Dass vs. Delhi Development Authority & Anr. Page No. 22 of 25 produced Khasra Girdawari i.e. PW-2/1 which clearly shows the Gaon Sabha as owner of the suit land.
20. Another contention of the Learned Counsel for plaintiff has been that plaintiff has sought demarcation of the suit property on number of occasions and on three different occasions, the demarcation proceedings were initiated but the same could not be completed due to non -production of concerned revenue records by the DDA. It was the contention of the counsel for the DDA that they produced the photocopies of relevant revenue records during the demarcation proceedings however, the concerned Local commissioner refused to rely upon the same on the ground that it is unsigned. It was further argued that the original records must be having with concerned revenue authority. Be that as it may, it is relevant to note that It is the plaintiff who sought the demarcation proceedings and as such it was incumbent upon them to produce the relevant records or take appropriate steps to ensure that the demarcation proceedings are carried out successfully. However, plaintiff is silent as to what steps they have taken to take the demarcation proceedings towards its logical conclusion. Plaintiff simply cannot wriggle out his responsibility by shifting the entire burden on the defendant. The conspicuous silence/inaction of plaintiff leaves no scope before the court but to take adverse inference against the case set up by the plaintiff.
21. It is the case of the defendant that the suit land forms part of Khasra No. 32/1/7 of village Basant Nagar. That the land of Khasra No. 32/1/7 measuring 41 bigha 16 biswa stands acquired vide award No. 1879. The possession was taken over by DDA through LAC/L&B after its acquisition for its planned development. Defendant examined DW-1 Deokaran singh, Kanoongo who relied upon documents i.e.Certified copy of Award No. 1879 dated 20.11.1965 i.e Ex. DW1/1, Certified copy of Kabza Karwahi dated 28.03.1966 i.e. Ex. DW1/2, Certified copy of Notification No. F8 (49) 63/ L&H-II dated 03-01-1968 i.e Ex. DW1/3 and Akash Sazara showing Khasra No. 32/1/7 i.e Ex.DW1/4.
24. So far as claim of the suit property i.e. house belonging to the plaintiff being regularized by the defendant along with 20 other houses and plaintiff being discriminated by the defendant against the similarly situated persons is concerned, the onus to prove this issue was on plaintiff. However, no independent witness has been examined or materials produced to substantiate this claim.
RCA SCJ 14/22 Bhagwan Dass vs. Delhi Development Authority & Anr. Page No. 23 of 25 Moreover, even if it is assumed that DDA has not set up the claim against the similarly situated persons as of now, the same itself does not make the plaintiff entitled to the suit property. The case of the plaintiff needs to stand on its own legs. Furthermore, the claim of regularization of suit property loses the standing for the reason that plaintiff has not been able to prove if the suit property lies in Khasra No. 32/1/1 and moreover the plaintiff himself admitted during his cross-examination that presently the suit land belongs to Gaon Sabha and no allotment letter was ever issued to them by Gaon Sabha."
15. This court finds no fault in the reasoning given by the Learned Trial Court. The respondent DDA has been able to prove that it has acquired the suit property and taken over the possession. The Learned Trial court has right held that the plaintiff has failed to place any document on record to prove that the suit property falls in khasra no.32/1/1. The Learned trial Court has rightly observed that PW-1 in his cross-examination could not even tell the date when the suit land was allotted a different number by the MCD. Further, PW-1 Bhagwan Dass has admitted that the suit land belongs to the Gaon Sabha. Another witness of the plaintiff PW-2 Mr. Parvinder Tomar could not say in which khasra the suit land is situated, however he stated that Gaon Sabha is the owner of the suit land.
16. The Learned Trial Court has also rightly rejected another contention of the plaintiff that the demarcation of the suit property has not been done. The Learned Trial Court right observed that it was the plaintiff who sought the demarcation proceedings and as such it is incumbent upon them to produce the relevant records and to take appropriate steps to RCA SCJ 14/22 Bhagwan Dass vs. Delhi Development Authority & Anr. Page No. 24 of 25 ensure that the demarcation proceedings are carried out successfully. The Learned Trial Court right observed that the plaintiff cannot wriggle out of this responsibility. The Learned Trial Court referred to cross-examination of the plaintiff and observed that even the plaintiff has not denied the taking over of the suit land by the DDA. The observations of the Learned Trial Court with respect to the site plan relied upon by the plaintiff also cannot be faulted with. The Learned Trial Court further rightly observed that the plaintiff has not been able to produce any proof to prove that the house belonging to the plaintiff was regularized and no independent witnesses have been examined.
17. This court is of the considered view that the Learned Trial Court has rightly dismissed the suit. There is no legal infirmity in the judgment passed by the Learned Trial Court. None of the grounds raised by the appellants in this appeal are found tenable on merits.
18. In view of the abovesaid findings, the appeal of the appellant/ plaintiff is dismissed. No order as to costs. Decree sheet be prepared accordingly. Copy of this order be sent to the Learned Trial Court for information.
Appeal file be consigned to record room.
Announced in open Court (Himanshu Raman Singh)
on 31.01.2024. SCJ cum RC(West)
Tis Hazari Courts, Delhi.
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