Delhi District Court
Mrs. Meena Bhanari vs Union Of India on 11 January, 2022
Meena Bhandari V. Union of India & Ors.
IN THE COURT OF SH. ALOK SHUKLA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL
DISTRICT)
TIS HAZARI COURTS, DELHI.
CNR no. DLCT01-000084-2010
SUIT NO.:- 184/2020
UNIQUE CASE ID NO.:- 611468/2016
IN THE MATTER OF :-
Mrs. Meena Bhanari
Aged about 50 years
Avocation Service
W/o Shri Narender Bhandari,
R/o H.No. 53, Glaheri Bagh Scheme,
Prem Nagar, Sabzi Mandi,
New Delhi-110007. ....Plaintiff
VERSUS
1.Union of India Ministry of Home Affairs, (Settlement Wing), Jaisalmer House, New Delhi (Through its Secretary).
2. Government of NCT of Delhi Land & Building Department, Through the Settlement Commissioner, Evacuee Property Cell, "C" Block, Vikas Bhavan, IP Estate, New Delhi 110002
3. Municipal Corporation of Delhi Through its Commissioner Town Hall, Chandni Chowk, Delhi 110006 Suit No. 611468/2016 Page No. 1 of 48 Meena Bhandari V. Union of India & Ors.
4. Municipal Corporation of Delhi Through its Dy. Commissioner Civil Line Zone, MCD Office, 16, Rajpur Road, Civil Line, Delhi 110054
5. Late Sh. Joginder Singh Mehta Through his legal heir Sh. Manjeet Singh S/o Late Sh. Joginder Singh Mehta R/o 29, South Wing, Riviera Apartment, 45, Mall Road, Delhi 110054 ....Defendants SUIT FOR DECLARATION AND MANDATORY INJUNCTION Date of institution of the Suit : 07/12/2010 Date on which Judgment was reserved : 07/12/2021 Date of Judgment : 11/01/2022 ::- J U D G M E N T -::
By way of present judgment, this court shall adjudicate upon suit for declaration and mandatory injunction filed by the plaintiff against the defendants.
CASE OF THE PLAINTIFF AS PER PLAINT :
Succinctly, the necessary facts for just adjudication of the present suit, as stated in the plaint are as under:
1. The plaintiff is the owner and in possession of the built up property on a plot of land ad-measuring 147.482 square yards (equal to 123.29 square meters) bearing no.
53, (having 2 side open) situated in Glaheri Bagh Scheme, Suit No. 611468/2016 Page No. 2 of 48 Meena Bhandari V. Union of India & Ors.
Prem Nagar, Sabzi Mandi, Delhi 11007 having purchased the same from Smt. Mohini Mehta, wife of the defendant no. 5 vide a registered sale deed dated 11/02/2008 having registration no. 856 in Additional Book no. 1, volume no. 2437 on pages 52 to 64 registered on 11/02/2008 in the office of Sub Register -I, New Delhi. After the purchase of the property, plaintiff made fresh constructions on the same by demolishing the old structure after getting the building plan sanctioned from the competent authority.
2. That there is a 20 ft. wide street in the South-East side of the said property of plaintiff and in lay out plan the area of the street in dispute is shown in red colour. The defendant no. 5 wanted to encroach upon the portion of the road situated between the property of plaintiff and his property and he usually threatened plaintiff to close openings of her property towards the said street and that he had right to make construction on the said portion.
3. That there is a deed of conveyance dated 03/06/1958, having registration no. 2918 in Additional Book No. 1, Volume no. 426 on pages 70 to 85 registered on 20/6/1958 in the office of Sub Registrar-I, New Delhi between Pandit Krishna Prasad Bhargava and Shri Madan Lal Chaddha, Shri Kishan Lal Chaddha, Shri Kedar Nath Chaddha and Smt. Leelawati by virtue of which said Pandit Krishna Prasad Bhargava had transferred the land of 39 Plots (from Plot no. 53 to 91) situated in Glaheri Suit No. 611468/2016 Page No. 3 of 48 Meena Bhandari V. Union of India & Ors.
Bagh Scheme, Sabzi Mandi, Delhi measuring 3886 sq. yards in this area to said Shri Madan Lal Chaddha and others. Along with said conveyance deed dated 03/06/1958 a lay out plan of the area is also attached and in the said lay out plan the street in question has been fully marked and delineated.
4. That in these circumstances plaintiff filed a suit for permanent and mandatory injunction on 17/08/2010 against the defendants no. 3 to 5 which was registered as suit no. 147 of 2010. In the said suit defendant no. 5 appeared on 25/8/2010 and filed his written statement along with documents claiming that the said portion of street is owned by him. The defendant no.5 filed certain documents in support of his claim including the certified copies of the letter no. 753/T.A. CCL dated 19/8/1959 informing mutation of property no. 7306/XII, Prem Nagar, Sabzi Mandi, Delhi in favour of defendant no. 5; and a conveyance deed dated 31/5/1960 in respect of the said land in his favour.
5. Thus on 25/8/2010 plaintiff came to know about the deed of conveyance dated 31/5/1960 executed by the President of India through Kuldeep Singh Chatrath, Manging Officer, acquired Evacuee Property in favour of Sh. Jogender Singh s/o Shri Prem Singh of Delhi (defendant No. 5 herein) in the format Appendix XXIV of the Displaced Persons (Compensation and Rehabilitation) Suit No. 611468/2016 Page No. 4 of 48 Meena Bhandari V. Union of India & Ors.
Rules, 1955 in respect of a Parcel of land known as property No. XII7306 (New), Prem Nagar, Sabzi Mandi, Delhi in pursuance of Rule 33 of Rules framed under Displaced Persons (Compensation and Rehabilitation) Act, 1954.
6. Plaintiff also came to know on the said date of 25.8.2010 that Defendant Nos. 3 and 4 have also made mutation in favor of Defendant No 5 in respect of the said land No. 7306 / XII, Prem Nagar, Sabzi Mandi, Delhi vide Letter No. 753 / T, A, CCL dated 19/08/1959.
7. Plaintiff has contended that the area of land comprised under the said conveyance deed dated 31.5.1960 was part of public street even prior to 1958 and under the law any land on which there is settled public street cannot be sold and transferred to any person. According to the plaintiff, the area of the land under dispute is part and portion of a settled public street and thus the defendants Nos. 1 and 2 have no right to give, sell, transfer, allot or convey to any person much less to the defendant No. 5 any part and portion of the said settled public street which is for public use only. According to Plaintiff, the Defendant No. 5 herein has no legal right to occupy the said part and portion of the settled public street meant for public use only as the same would obstruct and hamper free-flow of the traffic and it would also be detrimental to public interest. The State as its owner is Suit No. 611468/2016 Page No. 5 of 48 Meena Bhandari V. Union of India & Ors.
entitled to intervene and maintain an action to get any person in illegal occupation of any part and portion of a settled public street evicted. In the present case the property in dispute falls within the definition of street.
8. According to plaintiff, it appears that without proper investigation, inquiry and proper identification and nature of the said land as also in connivance at Defendant no. 5 Sh. Joginder Singh the said conveyance has been made by the defendant no. 1. Since from 1989 the work relating to administration, management and disposal of evacuee properties situated in the Delhi / New Delhi along with record stands transferred to Land and Building Department of the Govt, of NCT of Delhi, therefore now the defendant No. 2 is a proper party.
9. Plaintiff has stated that the conveyance deed dated 31.5.1960 had no sanctity and force in the eyes of the law and to clear the said confusion the said conveyance deed is liable to be cancelled.
10. Plaintiff has further stated that same is the position of the mutation made by the Defendants No. 3 and 4 in respect of the said land. The same is wrong and illegal as the area of land forming part of the public street cannot be mutated in favor of any individual / person. The same is also liable to be canceled.
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11. According to plaintiff, the plot of land is only street through which the people living in Glaheri Bagh Scheme, Prem Nagar, Sabzi Mandi, Delhi can go to the Park situated in the South-West side of the said colony as also approach to the street of Shakti Nagar. This plot of land is situated just between the street of Prem Nagar and the street of Shakti Nagar. If permitted this land to remain under the alleged ownership of the Defendant No.5, it will create blockade between the two Streets, In fact this land is the part of the street and is wrongly claimed by the Defendant No.5 as his own plot of land on the basis of said conveyance deed dated 31.5.1960.
12. Plaintiff has further stated in the plaint that the Defendants Nos. 3 and 4 are duty bound to maintain, control and regulate all public streets vested it in accordance with bye- laws made on this behalf.
13. Plaintiff has further averred in the plaint that from the documents and records filed by the Defendant No.5 in the said suit No. 147 of 2010, other salient features of this case is stated as under.
(i) Mutation by the Defendant Nos. 3 & 4 has been done on PwA 19.8.1959 even before the execution of the Conveyance Deed dated 31.5.1960.
(ii) Defendant No.5 have also filed a suit for perpetual Injunction in 14.4.1960 against the Defendants Nos. 3 & 4. This suit was also filed even Suit No. 611468/2016 Page No. 7 of 48 Meena Bhandari V. Union of India & Ors.
before the execution of conveyance deed dated 31.5.1960. In the said suit of defendant No.5 the Defendants Nos. 3 & 4 have taken clear stand that the said land was the part of the street but it appears that Defendant No.3 & 4 have not properly followed their stand and had suffered an adverse order from the appellate court.
(iii) In the award dated 5.4.1972 between Defendant No. 5 and his brothers, Defendant No. 5 have claimed the above property to have been purchased from his father of him by means of sale deed dated 21.7.1964.
(iv) It is also important to note that even after alleged acquisition of the said property by Defendant No. 5 vide said conveyance deed dated 31.5.1960, no construction of any building is made on the same. Probably, for not getting any sanction of the building plans on the said area of land on the ground that same is part and parcel of the public street.
14. Therefore, in the view of aforementioned facts and circumstance of the case, by a notice dated 13.9.2010 under section 80 of Code of Civil Procedure, 1908 and section 478 of Delhi Municipal Corporation Act, 1957 the plaintiff called upon all the defendants to take proper action for cancellation of the said conveyance deed and mutation dated 19.8.1959 made in respect of the said Suit No. 611468/2016 Page No. 8 of 48 Meena Bhandari V. Union of India & Ors.
Parcel of land known as property No. XII / 7306 (New), Prem Nagar, Sabzi Mandi, Delhi as early as possible failing which plaintiff would be forced to file an appropriate suit for declaration that the said conveyance deed dated 31.5.1960 and the mutation dated 19.8.1959 are illegal, null and void and have no force in the eyes of law and also in the alternative for cancellation of the said conveyance deed and mutation at the risks of costs and consequences of all the defendants. The said notice dated 13.9.2010 was duly received by the defendants.
15. Plaintiff further states that in the written statement filed by the defendant No. 5 in the said civil suit No. 147 of 2010, Defendant No.5 has also claimed that he has constructed iron guilds and iron gates in the suit property and has also planted some plants of different varieties in the suit property. Therefore, the removal of the defendant No. 5 and his belongings etc. from the said area road has also become necessary. In view of the aforementioned facts and circumstances, the plaintiff filed the present suit for declaration and mandatory injunction against the defendants.
16. Summons were issued. Defendants appeared and filed their written statements.
CASE OF DEFENDANT NO.2 AS PER WRITTEN STATEMENT
17. Succinctly, the case of defendant no.2 is as under:
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(i) That the suit filed by the plaintiff seeking a decree of declaration & mandatory is not maintainable as the jurisdiction of the Civil Court is barred under Section 36 of the Displaced Persons (Compensation & Rehabilitation) Act 1954 and under Section 46 of the Administration of Evacuee Property Act, 1950.
(ii) That the property involved in the present suit is property no. XI/7306 Prem Nagar, Subji Mandi, Delhi earlier owned by Mst. Sabidan who migrated to Pakistan. As per the record the property no.
XII/8040-8044 (Old)/7306/(New) Prem Nagar, Subji Mandi, Delhi was declared Evacuee Property vide order no. AC-J-S-7/1124 passed by Shri R.C. Gulatti, Asst. Custodian (Judicial) on 31/12/1951 as the owner of the property Mst. Sabidan was migrated to Pakistan and the same vested to Custodian vide notification issued on 22/4/1952 under Section 7 (3) of the Administration of Custodian of Evacuee Property Act, 1950.
(iii) That Shri Khairati Lal & Shri Mangal Dass were the occupant of the premises to whom show cause notice was issued under section 8 of the Administration of Custodian of Evacuee Property Act, 1950. Thereafter the property in question was occupied by one Shri Joginder Singh from the previous occupants who had left the property and Suit No. 611468/2016 Page No. 10 of 48 Meena Bhandari V. Union of India & Ors.
handed over the possession to Shri Joginder Singh, a Displaced Person. Subsequently Shri Joginder Singh was declared eligible for purchasing the property in question and the same was sold out vide Deed of Conveyance dated 31.5.1960 in favor of Shri Joginder Singh.
(v) That the suit against the answering defendant is liable to be dismissed on the ground of delay & laches. The Deed of Conveyance was executed on 31.5.1960 and the present suit has been filed by the plaintiff in the year 2010 seeking cancellation of the same after the lapse of more than 50 years thus the same is liable to be dismissed on this ground alone.
(vi) The plaintiff had never approached to the appropriate forum for cancellation of the Deed of Conveyance under the provisions of the Displaced Persons (Compensation & Rehabilitation) Act 1954 therefore it not open to the plaintiff to challenge the same by way of present suit.
(vii) That the plaintiff has no right to challenge the Evacuee status of the property in question after its sale to the Displaced Person under the provisions of the Displaced Persons (Compensation & Rehabilitation) Act 1954.
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CASE OF THE DEFENDANTS NO. 3 & 4 AS PER WRITTEN STATEMENT
18. Succinctly, the case of defendant no.3 and 4 is as under:
(i) That the suit is barred by the provisions of Section 477 and 478 of the DMC Act, 1957 for want of service of statutory notice and as such the suit is not maintainable and is liable to be dismissed.
(ii) That after perusal of the contents of the plaint particularly para no. 3 wherein the plaintiff has alleged that the defendant no. 5 wanted to encroach upon the portion of the road situated between the property of the plaintiff and his property and also threatened to close opening of her property towards the said street. These contents are self explanatory that the suit in respect of these allegations is premature and has been filed in apprehension and as such the present suit in respect of this aspect is not maintainable and is liable to be dismissed.
(iii) That the contents of the suit also reveal that it is a dispute between the plaintiff and defendant no. 5 and by impleading the answering defendants as a party the plaintiff wants to resolve his personal grievances.
(iv) That the main relief sought against the defendants no. 3 and 4 is of declaration of the mutation in favour of defendant no. 5 in respect of said land no. 7306/XII Prem Nagar, Subzi Mandi, Suit No. 611468/2016 Page No. 12 of 48 Meena Bhandari V. Union of India & Ors.
Delhi vide letter no. 753/TA/CCL dated 19/8/1959 as illegal, null and void and have no force in the eyes of law and also order it to be cancelled. The plaintiff is seeking the relief in respect of the letter dated 19/8/1959 after the lapse of more than five decades and on this sole ground the suit is not maintainable being barred by time and the same is liable to be dismissed with heavy costs.
CASE OF DEFENDANT NO. 5 AS WRITTEN STATEMENT
19. Succinctly the case of Defendant no. 5 is as under :
(i) That this court has no jurisdiction to entertain the present suit and present suit is specifically barred under Sections 28 & 46 of Administration of Evacuee Property Act,1950 and also barred under Section 27 of the Displaced Persons compensation & Rehabilitation Act, 1954.
(ii) That the suit of plaintiff is also not within time and defendant has purchased the suit property vide sale deed dated 31/5/1960 duly registered prior to the alleged purchase of property by the plaintiff.
(iii) That the plaintiff has not come to court with clean hands and has suppressed material facts from this court. Plaintiff has not produced the latest site plan of suit property as well as of her house and also not produced the original sale deed obtained by the Suit No. 611468/2016 Page No. 13 of 48 Meena Bhandari V. Union of India & Ors.
plaintiff from vendor Smt. Mohini Mehta. Infact, the said deed goes against the interest of plaintiff that is why plaintiff has suppressed said sale deed and material facts that the property in dispute is in actual physical possession of answering defendant even before the purchase of property by predecessor of plaintiff, from the court, so the suit of plaintiff is liable to be dismissed only on this ground. Plaintiff has also suppressed the material fact that property in dispute bear municipal No. 7306, Prem Nagar, Delhi and the fact that property in dispute is assessed to House Tax and answering defendant is paying house tax regularly. The plaintiff has also suppressed the fact that property in dispute is covered by iron grills as well as gates and the submersible pump installed in the property for a very long time. Plaintiff has also suppressed the fact that there was construction on the property in dispute and in the year 1960, answering defendant filed a suit no. 106/1960 before Ld. Sub-Judge, Ist class, Delhi against defendant no.
3. Plaintiff has also suppressed the fact that appellate court passed a decree in favour of answering defendant that answering defendant is the owner in possession of the property in dispute and defendant no. 3 MCD was restrained from interfering I possession of answering defendant. Plaintiff has also suppressed the fact that answering defendant filed an execution application against defendant no. 3 i.e. Suit No. 611468/2016 Page No. 14 of 48 Meena Bhandari V. Union of India & Ors.
MCD. Plaintiff has also suppressed the fact that Ld Sub Judge, Ist class, Delhi directed the defendant no. 3MCD vide order dated 4/12/1963 stating therein "I give 90 days to MCD from today to re- construct the premises in same condition in which it was at the time of demolition failing which decree holder (answering defendant) shall be entitled to re construct premises in the same position and recover the expenses from the corporation". Plaintiff has also suppressed the fact that answering defendant has shown the above said record to the police in presence of the Plaintiff and her husband and that question regarding status of suit property has already become res-judicata between the parties and plaintiff has no right to re-agitate the same after 50 years.
(iv) That the plaintiff has not disclosed to this court that property which she has purchased clearly shows that there is no street on the south side of H.No. 53, which has been allegedly purchased by plaintiff from Smt. Mohini Mehta. In the said sale deed House No. 7306 has been shown on the south side of plot no. 53.
(v) That plaintiff has filed non-existent lay out plan which is not according to the actual position on the spot. In the said layout plan, plaintiff has shown plot no. 53 with area measuring 110 sq. yards whereas in sale deed said to be executed in favour of Suit No. 611468/2016 Page No. 15 of 48 Meena Bhandari V. Union of India & Ors.
plaintiff shows that plot no. 53 is measuring 147.483 sq. yards equal to 123.29 sq. metes. In said site plan plot no. 55 measuring 125.5 sq. yards has been shown on the north side of the plot no. 53 but on the spot there is no plot bearing no. 55 measuring 125.5 sq. yards on the spot rather in alleged sale deed, property bearing no. 22/4, Shakti Nagar, Delhi has been shown. There is mention about one nala on the back side of plot no. 53 and 55 but there is no nala, rather there are constructed house of the area of Shakti Nagar, Delhi particularly property no. 22/4, Shakti Nagar, Delhi.
(vi) That the plaintiff has also wrongly shown in the said layout plan that there are plots on the other side of the road rather there were constructed houses on the other side of the road. Layout plan filed by plaintiff was never acted upon rather plots shown in said layout plan were not constructed rather that was a undeveloped area as per the language of sale deed attached with the plaint. Said layout plan is incorrect and was never acted upon even as per documents of plaintiff herself.
(vii) That property in dispute was a constructed house when it was purchased by answering defendant. Even before the Execution of Sale deed of H.No. 7306, answering defendant was living in said house with his family members. It is pertinent to mention that answering defendant has to come to Suit No. 611468/2016 Page No. 16 of 48 Meena Bhandari V. Union of India & Ors.
India from Pakistan at the time of partition of the country and plaintiff and his family members came to India empty handed. Answering defendant and his family members worked very hard and purchased the suit property in good faith with consideration without notice of any right of any person in suit property. Possession of answering defendant on suit property is open and known to entire world. Answering defendant is in possession of suit property for more than 50 years.
(viii) That the suit of the plaintiff is false and frivolous to her knowledge and is a counter blast to the complaints of answering defendant dated 30/6/2010 and 23/7/2010.
(ix) That the plaintiff has intentionally misled this court for unlawful gains by producing nonexistent layout plan and tried to put the answering defendant in loss. In the said layout plan, plaintiff has shown plot no. 53 in a rectangular shape having 4 sides whereas plot no. 53 as per sale deed in favour of Smt. Mohini Mehta from her predecessor shows that plot no. 53 is measuring 22'.10" on south side 63'.6"
on East side and 47'.3" on West side.
(x) That even in sale deed said to be executed in favour of plaintiff it has not been shown anywhere that plot no. 53 is two side open. Smt. Mohini Mehta never stated that H.No. 53 is two side open. Plaintiff with dishonest intention without the knowledge and Suit No. 611468/2016 Page No. 17 of 48 Meena Bhandari V. Union of India & Ors.
consent of Smt. Mohini Mehta has written the word two side open. Smt. Mohii Mehta is taking separate legal action against the plaintiff and her conspirator. Plaintiff has intentionally not make Smt. Mohini Mehta a party to the suit. Smt. Mohini Mehta and her predecessor are necessary parties and in their absence suit cannot be decided. Plaintiff has tried to mislead this court as well as other courts where the suit is pending between the plaintiff, answring defendant and MCD by stating in the plaint that there is 20 ft. wide road on the South East of H.No. 53 and this fact is against the sale deed said to be executed by Smt. Mohini Mehta.
20. Defendant no.5 died during the pendency of the suit and his legal heir was brought on record vide order dated 15.02.2021.
REPLICATION AND ISSUES
21. Plaintiff filed the Rejoinder controverting the allegations/ contentions in the Written Statements of the Defendants and contents of the plaint have been reiterated and reaffirmed. In addition to the facts pleaded in the plaint, plaintiff in replication to the written statement of defendant no.2 has further contended that no notification under section 12 of the Displaced persons (Compensation and Rehabilitation) Act, 1954 had been issued and therefore the suit land was outside the compensation pool Suit No. 611468/2016 Page No. 18 of 48 Meena Bhandari V. Union of India & Ors.
and therefore no conveyance deed would have been executed in respect of the Displaced persons (Compensation and Rehabilitation) Act, 1954.
22. On the basis of the pleadings following issues were framed on 09.01.2013, which were amended vide order dated 19.12.2016:
(i) Whether the conveyance deed dated 31/5/1960 as well as mutation dated 19/8/1959 are null and void? OPP
(ii) Whether the suit is filed within limitation? OPP
(iii) Whether the suit is not hit by res judicata? OPD5 (As amended vide order dated 19.12.2016)
(iv) Whether the street shown in red colour in the site plan mark A is public street? OPP (As amended vide order dated 19.12.2016)
(v) Whether the suit is not barred u/s 28 & 46 of Administration of Evacuee Property Act, 150 and Section 27 of Displaced Persons Compensation & Rehabilitation Act, 1954? OPP
(vi) Whether the suit is barred under Order 2 Rule 2 CPC? OPD
(vii) Relief Suit No. 611468/2016 Page No. 19 of 48 Meena Bhandari V. Union of India & Ors.
PLAINTIFF'S EVIDENCE
23. Plaintiff has examined herself as PW1 and relied upon evidence by way of affidavit ExPW1/A and documents as under:
(i) original sale deed dated 11/2/2008, ExPW1/1. (OSR)
(ii) rough layout plan of the area ExPW1/2.
(iii) certified copy of the deed of conveyance dated 03/06/1958 along with the lay out plan of the area attached with the sale deed is ExPW1/3.
(iv) photocopy of the deed of conveyance dated 31/05/1960 ExPW1/4.
(v) photocopy of the mutation letter dated 19/08/1959 ExPW1/5.
(vi) copy of notice dated 13/9/2010 is ExPW1/6.
DEFENDANTS' EVIDENCE
24. Sh. Vivek Mittal, Dy. Secretary (E.P. Cell), Land and Building Department has deposed as D2W1 and reiterated the contents of the written statement and relied upon evidence by way of affidavit ExD2W1/A and documents as under:
(i). Copy or order passed by Sh. R.C. Gulati, Asst. Custodian (Judicial) dated 31/12/1951 as ExDW1/1 (OSR)
(ii). Copy of notification issued on 22/4/1052 as ExDW1/2 (OSR) Suit No. 611468/2016 Page No. 20 of 48 Meena Bhandari V. Union of India & Ors.
(iii) Copy of deed of conveyance dated 31/5/1960 as ExDW1/3 (OSR)
25. Sh. Sunil Sabikhi, Assistant Assessor & Collector (House Tax), Keshavpuram Zone, Keshavpuram, NDMC, Delhi has deposed as D3-4W1 and reiterated the contents of the written statement filed on behalf of the Defendants no. 3 and 4 and relied upon evidence by way of affidavit ExD3-4W1/A and documents as under:
(i) Letter dated 05/12/1978 as ExD3-4W1/1A.
(ii). Notice dated 01/04/1977 for assessment of the plot no. 53, proeprty no. 7306, Prem Nagar Sabji Mandi (2 pages) as ExD3-4W1/1B.
(iii). Receipt dated 12/6/2017 issued in favour Smt. Bharti Sinha as ExD3-4W1/1C.
(iv). Application for mutation dated 20/6/2017 for third floor of the property ExD3-41/1D.
(v). Application for change of name dated 12/6/2017 as ExD3-41/1E.
(vi) Indemnity Bond by Smt. Bharti Sinha dated 22/5/2017 as ExD3-4W1/1F (4 pages).
(vii) Affidavit of Smt. Bharti Sinha dated 22/5/2017 as ExD3-4W1/1G.
(viii) Sale deed dated 10/10/2013 as ExD3-4W1/2A (8 pages)
(ix) Mutation letter in favour of Smt. Meena Bhandari dated 22/7/2008 as ExD3-4W1/2B.Suit No. 611468/2016 Page No. 21 of 48
Meena Bhandari V. Union of India & Ors.
(x) House tax receipt dated 21/7/2008 as ExD3- 4W1/2C.
(xi) House tax receipt dated 18/3/2016 as ExD3- 4W1/2D.
(xii) House tax receipt dated 18/3/2016 as ExD3- 4W1/2E.
26. Sh. Joginder Singh Mehta, Defendant no. 5 has deposed as D5W1 and reiterated the contents of the written statement filed on behalf of defendant no. 5 and relied upon evidence by way of affidavit ExD5W1/A and documents as under:
(i) Copy of the sale deed dated 31/5/1960, ExPW1/4.
(ii) Receipts of payment of house tax as ExD5W1/1 colly. (15 receipts)
(iii). Photographs of suit property as Mark A, B, C and D (mentioned in my affidavit as ExD5W1/2 (Colly.)
(iv). Copy of order dated 4/12/1963 as mark E (mentioned in affidavit as ExD5W1/3).
(v) Copy of latest site plan showing plot no. 7306 as ExD5W1/4.
(vi) Complaints with postal receipts as ExD5W1/5 (Colly.)
(vii) Copy of Caveat filed before the court as Mark F (mentioned in affidavit as ExD5W1/6).Suit No. 611468/2016 Page No. 22 of 48
Meena Bhandari V. Union of India & Ors.
(viii) Certified copy of written statement filed in previous suit as ExD5W1/7.
(ix) Letter dated 15/10/1960 sent by MCD as ExD5W1/9.
(x) Copy of register showing destruction of recored as ExD5W1/10.
(xi) Application for certified copies and report therein as ExD5W1/11 (Colly.) ISSUEWISE FINDINGS ISSUE NO. I & IV
(i) Whether the conveyance deed dated 31/5/1960 as well as mutation dated 19/8/1959 are null and void? OPP and
(iv) Whether the street shown in red colour in the site plan mark A is public street? OPP (As amended vide order dated 19.12.2016) FINDINGS ANDCONCLUSIONS
27. The burden to prove issue no.i and issue no.iv was on the plaintiff. Both these issues are interconnected as the plaintiff has claimed that street shown in red colour in the site plan mark A (Ex. PW1/2) is public street even prior to 1958 and under the law any land on which there is settled Suit No. 611468/2016 Page No. 23 of 48 Meena Bhandari V. Union of India & Ors.
public street cannot be sold and transferred to any person. According to the plaintiff, the area of the land under dispute is part and portion of a settled public street and thus the defendants Nos. 1 and 2 have no right to give, sell, transfer, allot or convey to any person much less to the defendant No. 5 any part and portion of the said settled public street which is for public use only. In support of this issue plaintiff deposed as PW1 and placed reliance on ExPW1/3, which is the certified copy of the deed of conveyance dated 03/06/1958 along with the lay out plan of the area attached with the conveyance deed.
28. PW1 deposed that there is a deed of conveyance dated 03/06/1958, having registration no. 2918 in Additional Book No. 1, Volume no. 426 on pages 70 to 85 registered on 20/6/1958 in the office of Sub Registrar-I, New Delhi between Pandit Krishna Prasad Bhargava and Shri Madan Lal Chaddha, Shri Kishan Lal Chaddha, Shri Kedar Nath Chaddha and Smt. Leelawati by virtue of which said Pandit Krishna Prasad Bhargava had transferred the land of 39 Plots (from Plot no. 53 to 91) situated in Glaheri Bagh Scheme, Sabzi Mandi, Delhi measuring 3886 sq. yards in this area to said Shri Madan Lal Chaddha and others. Along with said conveyance deed dated 03/06/1958 a lay out plan of the area is also attached and in the said lay out plan the street in question has been fully marked and delineated.
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29. Plaintiff has also relied upon Ex PW1/1, copy of sale deed dated 11/02/2008 having registration no. 856 in Additional Book no. 1, volume no. 2437 on pages 52 to 64 registered on 11/02/2008 in the office of Sub Register -I, New Delhi by virtue of which plot of land ad-measuring 147.482 square yards (equal to 123.29 square meters) bearing no. 53, (having 2 side open) situated in Glaheri Bagh Scheme, Prem Nagar, Sabzi Mandi, Delhi 11007 was purchased by the plaintiff same from Smt. Mohini Mehta, wife of the defendant no. 5. On page no.3 of the Ex. PW1/1, the boundaries of the land purchased by the plaintiff are mentioned as under:
North: Others property No.22/4 Shakti Nagar, Delhi. South: Plot No. 7306 East: Others property built on Plot No. 54. West: Park
30. Plaintiff in her cross-examination admitted that when she purchased the property, site plan was filed alongwith the sale deed. In the present suit, the Ex. PW1/1 does not contain the site plan. In her cross-examination, PW1/1 has denied the suggestion that the site plan which was attached with Ex. PW1/1 has not been produced intentionally, however the witness does not offer any explanation as to why the site plan attached with the Ex.
PW1/1 has not been placed on record. PW1 in her cross examination further admitted that in the entire sale deed Ex. PW1/1, no street is mentioned in the south east side of the Plaintiff's property.
Suit No. 611468/2016 Page No. 25 of 48Meena Bhandari V. Union of India & Ors.
31. The plaintiff has place on record Ex. PW1/2 (Mark A), rough lay out plan of the area. PW1 in her cross examination has stated that PW1/2 was prepared by the Architect. PW1 has further deposed that she does not know the particulars of the said architect and the same may be known to the husband of the plaintiff. Perusal of the Ex PW1/2 shows that Ex. PW1/2 does not contain signatures/stamp of any architect nor plaintiff has examined him as witness to prove this site plan. In Ex. PW1/1, the area of plot No.53 owned by the plaintiff is shown to be 147.482 sq yards (equal to 123.29 Sq. Mtr.), whereas in Ex. PW1/2, the area of plot no. 53 is shown to be 110 square yards. In Ex. PW1/1, it is shown that plot no.53 owned by the plaintiff is bounded by Plot No. 7306 in the south, whereas in the Ex. PW1/2, a street/road has been shown. Both these facts show that Ex. PW1/2 is itself contradictory to the Ex. PW1/1, which governs the rights of the plaintiff qua suit land.
32. PW1 has further deposed that on 25/8/2010 plaintiff came to know about the Ex. PW1/4, deed of conveyance dated 31/5/1960 executed by the President of India through Kuldeep Singh Chatrath, Manging Officer, acquired Evacuee Property in favour of Sh. Jogender Singh s/o Shri Prem Singh of Delhi (defendant No. 5 herein) in the format Appendix XXIV of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 in respect of a Parcel of land known as property No. XII7306 (New), Prem Nagar, Sabzi Mandi, Delhi in pursuance of Rule 33 of Rules Suit No. 611468/2016 Page No. 26 of 48 Meena Bhandari V. Union of India & Ors.
framed under Displaced Persons (Compensation and Rehabilitation) Act, 1954.
33. PW1 has further deposed that on 25/8/2010 plaintiff came to know about the Ex. PW1/5 by virtue of which Defendant Nos. 3 and 4 have made mutation in favor of Defendant No 5 in respect of the said land No. 7306 / XII, Prem Nagar, Sabzi Mandi, Delhi vide Letter No. 753 / T, A, CCL dated 19/08/1959.
34. On the strength of site plan attached with Ex.
PW1/3, The plaintiff has contended that street shown in red color in the site plan mark A (Ex. PW1/2) is public street even prior to 1958 and therefore Ex. PW1/4 and Ex. PW1/5 be declared illegal, null and void, having no force in the eyes of law and also ordered to be delivered and cancelled. The site plan attached with Ex. PW1/3 shows that the street shown in red color in the site plan Mark A (Ex. PW1/2) is a public street. Defendants had vehemently contested this claim of the Plaintiff. Defendant No.5 has placed reliance on the judgment passed by the Hon'ble High Court of Punjab and Haryana in Joginder Pal Vs Joginder Singh; 2016 SCC OnLine P&H 12339, wherein the Hon'ble High Court held as under:
'14. The aforesaid well reasoned findings do not suffer from any legal infirmity. Learned senior counsel for the appellants has laid the much stress on the recitals of the sale deed dated 15.03.1980 (copy Ex.PY) vide which defendant-Swaran Singh has sold the plot measuring north-south 57 feet and east-west 64 feet to plaintiff no. 2-Ram Murti. No doubt, in this sale deed the passage has been shown on the southern Suit No. 611468/2016 Page No. 27 of 48 Meena Bhandari V. Union of India & Ors.
side of the said plot. But, mere recitals in the sale deed cannot establish the existence of the passage. The said recitals has to be corroborated from other cogent, convincing and reliable evidence. To support this view reference can be made to case Mohan Singh v. Nirmal Singh 1971 PLJ 27. In case Smt. Joginder Kaur v. Amrik Singh 2009 (4) R.C.R (Civil) 82, this Court again reiterated the legal position that merely on the basis of recitals in the document i.e. agreement, the possession cannot be said to be proved to be delivered. The Hon'ble Himachal Pradesh High Court in case Prem Lal v. Bhagdei 2014 (sup) Him. L.R. 2017 has also laid down that mere recitals in the agreement to sell that possession of the suit property has been delivered at the time of its execution by vendor to the vendee was of no importance nor have any probative force. Thus, mere recitals in the sale deed Ex.PY with respect to the passage on the southern side of the plot sold by defendant to appellant-plaintiff no. 2-Ram Murti is not sufficient to establish the existence thereof.'
35. D2W1, Dy. Secretary (E.P. Cell), Land and building Department, Govt. of NCT of Delhi, Vikas Bhawan relied upon ExD2W1/1 (Copy or order passed by Sh. R.C. Gulati, Asst. Custodian (Judicial) dated 31/12/1951), ExD2W1/2 (Copy of notification issued on 22/4/1052), ExD2W1/3 (Copy of deed of conveyance dated 31/5/1960). The Witness brought the original record pertaining to the suit. DW1 in his cross-examination stated that he do not know whether the Ex. D2W1/2 was published in the official gazette or not. The witness further states that he do not know whether any notification under section 12 of the Displaced Persons (Compensation and Rehabilitation), Act, 1954 has been issued or not.
36. Ex.D2W1/1, Ex. D2W1/2 and Ex. D2W1/3 are more than thirty years old and section 90 of the Indian Evidence Suit No. 611468/2016 Page No. 28 of 48 Meena Bhandari V. Union of India & Ors.
Act lays down that where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Similarly there is no contest as to the execution of the Ex. PW1/4 and Ex. PW1/5.
37. Plaintiff has also contended in the replication that no notification under section 12 of the Displaced Persons (Compensation and Rehabilitation), Act, 1954 was ever issued and therefore Ex.PW1/4 and Ex. PW1/5 are liable to be declared null and void. During Arguments plaintiff has also contended that Ex. D2W1/3 has not been proved in accordance with law and the same has not been published in the official Gazette. The burden to prove these facts was on the plaintiff; however except for the self serving testimony of the Plaintiff herself, no evidence has been led by the plaintiff on this issue. In her cross-examination PW1 has admitted that she does not know whether the suit property is evacuee property or not. Plaintiff cannot shift the burden of proof to the defendants to prove Plaintiff's case. Furthermore Ex. PW1/4, Ex. PW1/5, Ex.D2W1/1, Ex. D2W1/2 and Ex. D2W1/3 are more than fifty year old and there is a statutory presumption in favor of Suit No. 611468/2016 Page No. 29 of 48 Meena Bhandari V. Union of India & Ors.
genuineness of these documents, which the plaintiff has failed to rebut. These Exhibits shows that the property was occupied by Mst. Sabidan W/o Mahfuz Ali, who had migrated to Pakistan and thereafter the property was declared as evacuee property. Ex. PW1/4, Ex. PW1/5, Ex.D2W1/1, Ex. D2W1/2 and Ex. D2W1/3 show the existence of a residential property in place of street as shown in red color in the site plan mark A (Ex. PW1/2). As rightly contended by Defendant no.5, mere recitals in the or site plan attached with Ex.PW1/3 does not prove the fact that street shown in red color in the site plan mark A (Ex. PW1/2) was public street even prior to 1958. More so when the Plaintiff's own right is governed by the Ex. PW1/1, wherein it is shown that plot no. 53 is bounded by plot no. 7306 on the south.
38. Plaintiff in her cross-examination admitted that when she purchased the property, site plan was filed alongwith the sale deed. In the present suit, the Ex. PW1/1 does not contain the site plan. In her cross-examination, PW1/1 has denied the suggestion that the site plan which was attached with Ex. PW1/1 has not been produced intentionally, however the witness does not offer any explanation as to why the site plan attached with the Ex. PW1/1 has not been placed on record. The Hon'ble Delhi High Court in Kanak Jain v. Chakresh Kumar Jain, 2019 SCC OnLine Del 8271 has held that if a party withholds important documents in his possession which can throw Suit No. 611468/2016 Page No. 30 of 48 Meena Bhandari V. Union of India & Ors.
light on the facts at issue, the Court may draw an adverse inference, even if the burden of proof does not lie on the party.
39. In the present case, Ex. PW1/1 relied upon by the Plaintiff herself shows that the property of the plaintiff is bounded by plot no. 7306 on the south. Furthermore careful perusal of Ex. D5W1/P1, which is the sanctioned site plan by the zonal building committee, MCD also shows a plot of land exists instead of a street as shown in red color in the site plan mark A (Ex. PW1/2).
40. Plaintiff has further contended that even after alleged acquisition of the said property vide conveyance deed dated 31.5.1960, Defendant No. 5 has made no construction on the suit land, probably, for not getting any sanction of the building plans on the said area of land on the ground that same is part and parcel of the public street. In this regard plaintiff has himself stated in the plaint that Defendant No.5 also filed a suit for perpetual Injunction in 14.4.1960 against the Defendants Nos. 3 & 4. Plaintiff has further contended that in the said suit filed by defendant No.5, the Defendants Nos. 3 & 4 have taken clear stand that the said land was the part of the street but it appears that Defendant No.3 & 4 have not properly followed their stand and had suffered an adverse order from the appellate court.
Suit No. 611468/2016 Page No. 31 of 48Meena Bhandari V. Union of India & Ors.
41. Defendant no.5 deposed as D5W1 and relied upon mark E (copy of order dated 04.12.1963) and Ex. D5W1/10 (Application for certified copies and report therein). Mark E is the order dated 04.12.1963 passed in the suit filed by Defendant no.5 against Defendant no.3 and 4, which fact has been admitted by the plaintiff. Mark E shows that Defendant no.3 and 4 had demolished the premises owned by the Defendant no.5. The Executing Court in terms of the orders passed by the Appellate Court directed the MCD vide order dated 04.12.1963 to reconstruct the premises in the same condition in which it was at the time of demolition. Ex. D5W1/10 shows that Defendant No.5 has also applied for the certified copy of orders passed in the Civil Appeal; however the report shows that the record has been destroyed due to weeding out.
42. D3-4W/1, Assistant Assessor & Collector (House Tax), NDMC, Delhi deposed as witness and in his cross examination by Ld. Counsel for Plaintiff stated that as per house tax record of the MCD, plot no. 53 and property no. 7306 are one/same plot/property and this witness also volunteered that property no.7306 is part of the plot no.53. On his cross-examination by the Ld. Counsel for the Defendant no.5, this witness states that he has stated that property no. 7306 is part of plot no.53A on the basis of the record. The witness was confronted by the Counsel for Defendant no.5 with the Ex. D5W1/1 (Colly) (house tax Receipts) and the witness admitted that Ex. D5W1/1 Suit No. 611468/2016 Page No. 32 of 48 Meena Bhandari V. Union of India & Ors.
(Colly) are the house tax receipts issued by the department in favor of defendant no.5. It has never been the case of the plaintiff that property no.7306 is part of plot no.53. Further Ex. D5W1/1 clearly shows that the Defendant no.5 was assessed for the purposes of house tax for property no.7306, wherein no such fact is mentioned. Ld. Counsel for the Defendant no.5 also confronted D3-4W1 with Ex. D3-4W1/D5X1 to D3-4W1/D5X4. Ex. D3-4W1/D5X1 to D3-4W1/D5X4 shows that no record is available with MCD regarding copy of map of prem nagar and shakti nagar which was in existence prior to the constitution of MCD or regarding map of streets of prem nagar in the year 1947.
43. The plaintiff has failed to show that street shown in red color in the site plan mark A (Ex. PW1/2) was public street even prior to 1958. Even from the Annexure PW1/1, relied upon by the Plaintiff, it is evident that the property of the plaintiff is bounded by plot no. 7306 on the south. Plaintiff has also withheld the site plan attached with the Ex. PW1/1 and filed a rough site plan Ex. PW1/2. Further Ex. PW1/4, Ex. PW1/5, Ex.D2W1/1, Ex. D2W1/2 and Ex. D2W1/3 are more than fifty year old and there is a presumption in favor of genuineness of these documents, which the plaintiff has failed to rebut. These Exhibits shows that the property was occupied by Mst. Sabidan W/o Mahfuz Ali, who had migrated to Pakistan and thereafter the property was declared as evacuee property.
Suit No. 611468/2016 Page No. 33 of 48Meena Bhandari V. Union of India & Ors.
Ex. PW1/4, Ex. PW1/5, Ex.D2W1/1, Ex. D2W1/2 and Ex. D2W1/3 show the existence of a residential property instead of street as claimed by the Plaintiff. The Plaintiff has thus failed to prove that conveyance deed dated 31/5/1960 as well as mutation dated 19/8/1959 are liable to be declared null and void.
44. Accordingly, in view of the discussion made hereinabove, the issue no.i and issue no.iv are decided against the plaintiff and in favor of defendants.
ISSUE NO.II
(ii) Whether the suit is filed within limitation? OPP FINDINGS AND CONCLUSIONS
45. That with regard to accrual of cause of action Plaintiff has asserted in the plaint as under:
19.That the cause of action firstly arose when the plaintiff became the owner and came in possession of the built up property No.53 (having two side open) situated in Glaheri Bagh Scheme, Prem Nagar, Sabzi Mandi, Delhi-110007 through registered sale deed dated 11.02.2008, when there is a 20ft wide street in the South-East side of the said property of plaintiff; when defendant no.5 wanted to encroach upon the portion of the road situated between the property of plaintiff and his property, when the plaintiff was forced to file a suit for permanent and mandatory injunction being the suit no. 147 of 2010; when in the said suit Defendant no.5 has on 25.08.2010 filed his written statement along with documents claiming that the said portion of street is owned by him and informing mutation of property no. 7306/XII, Prem Nagar, Sabzi Mandi, Delhi a conveyance deed dated 31.05.1960 in respect of the said land in his favor, and has also claimed that he has constructed iron guilds and iron gates in the suit property and has also planted some plants of different varieties in the suit property; when by a notice dated Suit No. 611468/2016 Page No. 34 of 48 Meena Bhandari V. Union of India & Ors.
13.09.2010 under section 80 of the Code of Civil Procedure, 1908 and section 478 of the Delhi Municipal Corporation Act, 1957 the plaintiff called upon all the defendants to take proper action for cancellation of the said conveyance deed and mutation dated 19.08.1959 made in respect the said parcel of land known as property no. XII.7306(New), Prem Nagar, Sabzi Mandi, Delhi. The cause of action lastly arose when the defendants have not complied with the demands made in the said legal notice dated 13.09.2010.
46. Plaintiff has also relied upon the judgments passed in Daya Singh & Anr. Vs. Gurudev Sing (Dead) by LRs & Ors; AIR 2010 SC 3240, Harjas & Ors Vs State of Haryana & Ors; judgment dated 24.12.2015 passed in CWP No. 13027 of 2014, C.Mohammed Yunus vs Syed Unissa & Ors; 1962 AIR 808; Harswaroop Sharma vs Gian Prakash Sharma & Ors., Shankar Dastidar vs. Shrimati Banjula Dastidar & Anr.; AIR 2007 SC 952 and Hari Ram vs. Jyothi Prasad & Anr.; AIR 2011 SC 952 to contend that the limitation to cancel or set aside a document is 3 years from the date when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first became know to him. On the strength of the citations, the plaintiff has also asserted that the obstruction of road affecting unhindered access and movement in the road creates a continuing source of injury, which is governed by Section 22 of the limitation act and therefore the present suit is filed within limitation.
47. PW1 has proved the Ex.PW1/1 (sale deed dated 11.02.2008) and there is no evidence on record to show Suit No. 611468/2016 Page No. 35 of 48 Meena Bhandari V. Union of India & Ors.
that the plaintiff was aware of the existence of Ex.PW1/4 or Ex.PW1/5 prior to 25.08.2010. The Hon'ble Supreme Court in Dahiben v. Arvindbhai Kalyanji Bhanusali, (2020) 7 SCC 366 held as under:
'27. In Khatri Hotels (P) Ltd. v. Union of India [Khatri Hotels (P) Ltd. v. Union of India, (2011) 9 SCC 126 : (2011) 4 SCC (Civ) 484] this Court held that the use of the word "first" between the words "sue" and "accrued", would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. That is, if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued.
28. A three-Judge Bench of this Court in State of Punjab v. Gurdev Singh [State of Punjab v. Gurdev Singh, (1991) 4 SCC 1 : 1991 SCC (L&S) 1082] held that the Court must examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words "right to sue" mean the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted. Order 7 Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected.'
48. In view of the legal position, as the plaintiff has claimed that he became aware of the existence of Ex.
PW1/4, Ex. PW1/5 on 25.08.2010, the suit filed by the plaintiff is within limitation. Even if it is presumed that the plaintiff became aware of the factual position on 11.02.2008, when he came in possession of the property Suit No. 611468/2016 Page No. 36 of 48 Meena Bhandari V. Union of India & Ors.
bearing no. 53, the suit is within limitation as the suit is filed on 06.02.2010 i.e. within three year from the date of coming in possession of the property bearing no. 53.
49. Accordingly, in view of the discussion made hereinabove, the issue no. ii is decided against the defendants and in favor of plaintiff.
ISSUE NO.III
(iii) Whether the suit is not hit by res judicata? OPD5 (As amended vide order dated 19.12.2016) FINDINGS AND CONCLUSION
50. In this regard plaintiff has himself stated in the plaint that Defendant No.5 also filed a suit for perpetual Injunction in 14.4.1960 against the Defendants Nos. 3 & 4. It is further contended by the plaintiff that in the said suit filed by defendant No.5, the Defendants Nos. 3 & 4 have taken clear stand that the said land was the part of the street but it appears that Defendant No.3 & 4 have not properly followed their stand and had suffered an adverse order from the appellate court.
51. Defendant no.5 deposed as D5W1 and relied upon mark E (copy of order dated 04.12.1963) and Ex. D5W1/10 (Application for certified copies and report therein). Mark E is the order dated 04.12.1963 passed in the suit filed by Defendant no.5 against Defendant no.3 Suit No. 611468/2016 Page No. 37 of 48 Meena Bhandari V. Union of India & Ors.
and 4, which fact has been admitted by the plaintiff. Mark E shows that Defendant no.3 and 4 had demolished the premises owned by the Defendant no.5. The Executing Court in terms of the orders passed by the Appellate Court directed the MCD vide order dated 04.12.1963 to reconstruct the premises in the same condition in which it was at the time of demolition. Ex. D5W1/10 shows that Defendant No.5 has also applied for the certified copy of orders passed in the Civil Appeal; however the report shows that the record has been destroyed due to weeding out.
52. The burden to prove this issue was on defendant no.5. Neither the pleadings in the earlier suit have been placed on record nor the judgment passed by the Ld. Trial Court and Ld. Appellate Court been placed on record. The only document placed on record by the Defendant no.5 is mark E, which is the copy of the order dated 04.12.1963 passed by the Executing Court. It is not clear from mark E, as to what were the issues, which were directly and substantially in issue in the earlier suit filed by the Defendant No.5.
53. Accordingly, in view of the discussion made hereinabove, the issue no. iii is decided against the defendants and in favor of plaintiff.
Suit No. 611468/2016 Page No. 38 of 48Meena Bhandari V. Union of India & Ors.
ISSUE NO.V
(v) Whether the suit is not barred u/s 28 & 46 of Administration of Evacuee Property Act, 1950 and Section 27 of Displaced Persons Compensation & Rehabilitation Act, 1954? OPP FINDINGS AND CONCLUSIONS
54. Plaintiff in the present case has prayed for the relief that that Ex. PW1/4 (conveyance deed dated 31/5/1960) and Ex.PW1/5 (mutation dated 19/8/1959) are liable to be declared null and void.
55. D2/W1 deposed that the property No. XII/8040- 8044 (Old)/ 7306 (New), Prem Nagar, Sabji Mandi, Delhi was earlier owned by Mst. Sabidan, who migrated to Pakistan and vide order No. AC-J/1124 dated 31.12.1951 (Ex.D2W1/1), the property was declared evacuee property. Witness further deposed that vide notification dated 22.04.1952 issued under section 7(3) of Administration of Evacuee Property Act, 1950 (Ex. D2W1/2), the property was vested in Custodian. D2/W1 further deposed that one Shri Khairati Lal and Mangal Dass were the occupant of the premises to whom show cause notice was issued under section 8 of the Administration of Evacuee Property Act, 1950. Thereafter the property was acquired by Defendant No.5. Subsequently Defendant no.5 was declared eligible for purchasing the property in question and the same was sold out to defendant no.5 vide conveyance deed dated Suit No. 611468/2016 Page No. 39 of 48 Meena Bhandari V. Union of India & Ors.
31.05.1960 (Ex. D2W1/3). The witness has deposed that the plaintiff has no right to challenge the evacuee status of the property in question after its sale to the displaced person under the provision of the Displaced person (Compensation and Rehabilitation) Act, 1954.
56. D5W1 has deposed on the same line and stated that the suit property was transferred to him being a displaced person under the provisions of Displaced person (Compensation and Rehabilitation) Act, 1954.
57. PW1 deposed that conveyance deed dated 31.05.1960 is wrong and illegal and without jurisdiction as the same was executed in exercise of excess of jurisdiction. The witness has deposed that the suit land was outside the compensation pool and therefore not conveyance would have been executed in respect of the suit land under the provisions of the Displaced persons (Rehabilitation and Compensation), Act and rules made thereunder as there has been no notification under section 12 of the said act, 1954. PW1 has further deposed that the portion of the road in question has not been an evacuee property. The witness further deposed that it is not shown that the portion of the road in question has ever been adjudicated upon to be evacuee property.
58. Section 28 & 46 of Administration of Evacuee Property Act, 1950 reads as under:
Suit No. 611468/2016 Page No. 40 of 48Meena Bhandari V. Union of India & Ors.
'28. Finality of orders under this Chapter. Save as otherwise expressly provided in this Chapter, every order made by the Custodian- General, Custodian, Additional Custodian, authorized Deputy Custodian, deputy Custodian or Assistant Custodian shall be final and shall not be called in question in any Court by way of appeal or revision or in any original suit, application or execution proceeding.' '46. Jurisdiction of Civil Courts barred in certain matters. Save as otherwise expressly provided in this Act, no Civil or Revenue Court shall have jurisdiction--
(a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property; or
(c) to question the legality of any action taken by the Custodian- General or the Custodian under this Act; or
(d) in respect of any matter which the Custodian-
General or the Custodian is empowered by or under this Act to determine.'
59. Section 27 of the Displaced person (Compensation and Rehabilitation) Act, 1954 reads as under:
27. Finality of orders. Save as otherwise expressly provided in this Act, every order made by any officer or authority under this Act, including a managing corporation, shall be final and shall not be called in question in any Court by way of an appeal or revision or in any original suit, application or execution proceeding.
60.The Hon'ble High Court in Sohan Lal Jain thru LRs Vs. Union of India & Ors.; 2008 SCC OnLine Del 794 held as under:
'13. As mentioned above, the appellants availed this statutory remedy also, but unsuccessfully. The question of jurisdiction of the Civil Court is to be considered in the aforesaid perspective and background. It is clear that in the 1954 Act the Legislature has provided for the statutory remedies to challenge the orders passed by the authorities. These are in the form of appeal and revision. Under Section 27 of the 1954 Act, finality is attached to these orders.
Section 27, in no uncertain terms, states that not only the order shall be final, it shall not be called in Suit No. 611468/2016 Page No. 41 of 48 Meena Bhandari V. Union of India & Ors.
question in any court by way of appeal or revision or in any original suit, application or execution proceedings. Section 36 of the Act makes the position beyond the pale of controversy or doubt as it bars the jurisdiction of Civil Court. It is provided in Section 36 that no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Central Government or any officer or authority appointed under that Act is empowered by or under that Act to determine. Thus, after the orders were passed by the Central Government, the jurisdiction of Civil Court to challenge those orders is specifically barred.
14. In view of the above provisions and having regard to Section 9 of the Code of Civil Procedure, 1908, civil suit would not be maintainable in the instant case. As noted above, in the plaint the appellants had alleged that the orders passed by the authorities under the 1954 Act were illegal. It was open to the appellants to challenge those orders, on whatever grounds available to them, by invoking extraordinary jurisdiction available to the appellants under Article 226 of the Constitution of India by preferring a writ petition. In fact, this was the course of action which was adopted by Mr. Balwant Singh as well, though he failed in his writ petition as well as Letters Patent Appeal. Instead of preferring the said remedy, the appellants filed civil suit, which was specifically barred. The learned Single Judge has discussed nuances of the aforesaid provisions in conjunction with the relevant case law in much detail. Our purpose would be served in reproducing the relevant portion of the judgment as we are agreeing with those conclusions:--
"Normally, the outseter of jurisdiction of a civil court to enforce a civil right cannot readily be acceded to. Where, however, there is an express bar of jurisdiction of the civil court or an examination of the scheme and provisions of a statute shows that adequate and sufficient remedies are provided by the statute for dealing with rights and liabilities arising under the statute, even if, there is no express bar of the jurisdiction of civil court, the bar can be inferred by implication. In the present case I am of the view that not only is there an express bar of the jurisdiction of the civil court but the scheme of the Act also shows that the decisions of the Rehabilitation Authorities mentioned in the act cannot be questioned in civil court. To my mind none of the features which Suit No. 611468/2016 Page No. 42 of 48 Meena Bhandari V. Union of India & Ors.
would take the present suit out of the ambit of the above rule are attracted. Indeed, applying the rule laid down by the Supreme Court in Dbulabhai etc. v. State of Madhya Pradesh and another, A.I.R. 1969 Supreme Court 78 it has to be held that the controversy raised by the plaintiffs in the present suit is not entertainable in a civil court. The Displaced Persons (Compensation & Rehabilitation) Act, 1954 is a complete code in itself in the matter of dealing with properties included in the compensation pool. Rule 91 framed under the Act sets out the complete procedure as well as the powers and the authorities in respect of a sale by tender. Against the decision of the Settlement Commissioner, as already noticed, an appeal is provided as well as a revision. Assuming that the Settlement Commissioner has erred in his order his error can be rectified by the Chief Settlement Commissioner and even if he has erred the same can be rectified by the Central Government. Section 36 bars the jurisdiction of the civil court to consider the matter of the sale or rejection of the tender. No civil court can entertain any suit or adjudicate upon any question whether a particular property or right to or interest therein is or is not transferred or transferable. Section 27 makes the finality of orders passed by Competent Authorities unassailable in civil court. The provisions in the Act are analogous to Sections 28 and 46 of the Administration of Evacuee Property Act, 1950. The same ratio which is attracted in the case of Sections 28 and 46 of the Administration of Evacuee Property Act would be attracted in the case of Sections 27 and 36 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. It was held by the Supreme Court in the case of Custodian, Evacuee Property, Punjab and others v. Jafran Begum, A.I.R. 1968 Supreme Court 169 as under:--
Generally speaking the jurisdiction of the civil or revenue court is barred under Section 46 and no such court can entertain any suit or adjudicate upon any question "Whether a particular property or right to or interest therein is or is not evacuee property. Where the question whether certain properties are evacuee properties has been decided under Section 7 etc., whether that decision is based on issues of fact or issues of law, the jurisdiction of courts is clearly barred under Section 46(a). No distinction can be drawn between decisions under Section 7 based on question of fact, and decisions based on question of Suit No. 611468/2016 Page No. 43 of 48 Meena Bhandari V. Union of India & Ors.
law. The decision is made final whether based on issues of law or of fact by Section 28 and Section 46 bars the jurisdiction of civil and revenue courts in matters which are decided under Section 7 whatever may be the basis of decision, whether issues of fact or of law and whether simple or complicated."
61. Plaintiff in the present suit is contending that the suit property cannot be treated as evacuee property as the same fall outside the compensation pool being part of the street. Thus the plaintiff in the present suit is seeking adjudication of the fact whether the suit property is evacuee property or not, which is expressly barred under section 28 and 46 of the Administration of Evacuee Property Act, 1950. Plaintiff has sought declaration of conveyance deed dated 31.05.1960 as null and void. The conveyance deed dated 31.05.1960 has been executed in favor of the defendant no.5 under the provisions of Displaced person (Compensation and Rehabilitation) Act, 1954 and the jurisdiction of the Civil Courts are expressly barred by the provision of section 27 of the Displaced person (Compensation and Rehabilitation) Act, 1954.
62. The plaintiff has placed reliance on the judgment passed by the Hon'ble Supreme Court in Dr. Rajendra Prakash Sharma Vs. Gyan Chandra & Ors. 1980 AIR 1206, however the ratio of the judgment is not applicable to the present case. In the judgment relied upon by the ld. counsel for plaintiff, the plaintiff in the said matter was not questioning the finality of the order of the sale alleged to have been made by the managing officer rather it was the Suit No. 611468/2016 Page No. 44 of 48 Meena Bhandari V. Union of India & Ors.
defendant in that matter, who was resisting the plaintiff's claim that the sale was nullity. In the present case, the plaintiff is seeking adjudication of the fact whether the suit property is evacuee property or not which is expressly barred by the Section 28 and Section 46 of the Administration of Evacuee Property Act, 1950.
63. It is apposite to note that the Administration of Evacuee Property Act, 1950 and Displaced Person (Compensation and Rehabilitation) Act, 1944 stand repealed vide The Displaced Persons Claims and Other Laws Repeal Act, 2005, however, in view of the Section 6 of the General Clauses Act, the right of the defendant no. 5 stands crystallized and protected under the law.
64. Accordingly, in view of the discussion made hereinabove, the issue no. v is decided against the plaintiff and in favor of defendants.
ISSUE NO.VI
(vi) Whether the suit is barred under Order 2 Rule 2 CPC? OPD FINDINGS AND CONCLUSION
65. The burden to prove this issue was on defendant no.5. Defendant no.5 has contended that the suit of the plaintiff is barred under order 2 rule 2 of C.P.C. as the plaintiff has failed to claim reliefs claimed in the present suit filed by the plaintiff against the defendant no.5 for permanent and mandatory injunction.
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66. PW1 has deposed that he filed a suit for permanent and mandatory injunction on 17/08/2010 against the defendants no. 3 to 5 which was registered as suit no. 147 of 2010. In the said suit defendant no. 5 appeared on 25/8/2010 and filed his written statement along with documents claiming that the said portion of street is owned by him. The defendant no.5 filed certain documents in support of his claim including the certified copies of the letter no. 753/T.A. CCL dated 19/8/1959 informing mutation of property no. 7306/XII, Prem Nagar, Sabzi Mandi, Delhi in favour of defendant no. 5; and a conveyance deed dated 31/5/1960 in respect of the said land in his favour.
67. It is apposite to reproduce the provisions of Order II Rule 1 & 2 CPC:-
"1. Frame of suit.--Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.
2. Suit to include the whole claim.--
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.--Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs.--A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for Suit No. 611468/2016 Page No. 46 of 48 Meena Bhandari V. Union of India & Ors.
all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.--For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.
68. The Constitution bench of Hon'ble Supreme Court in Gurbux Singh V. Bhooralal, AIR 1964 SC 1810, while explaining the true scope of Order II Rule 2 of CPC, laid down the parameters as to how and in what circumstances, a plea should be invoked against the plaintiff. The Hon'ble Mr. Justice Ayyangar J. speaking for the bench held as under:
"In order that a plea of a bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed, the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief;
(3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit has been filed."
69. The present suit is filed by the plaintiff for declaration of Ex. PW1/4 and Ex. PW1/5 as null and void and the earlier suit was filed for permanent and mandatory injunction before the Court of Ld. Civil Judge, who did not have jurisdiction to entertain the present suit and the cause of action of both the suits are different. Defendant has failed to prove that plaintiff had knowledge of Ex. PW1/4 and Ex. PW1/5 at the time of filing of the earlier suit. Moreover in the present suit the relief is also claimed against the Defendant no.1 and 2, who were not necessary party in the earlier suit.
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70. Accordingly, in view of the discussion made hereinabove, the issue no. vi is decided against the defendants and in favor of plaintiff.
RELIEF
71. Since the issue no. (i), (iv) and (v) are decided against the plaintiff, he is not entitled to any relief and the suit of the plaintiff is liable to be dismissed.
72. In view of the aforementioned discussion, as adumbrated above, the suit of the plaintiff is dismissed.
Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Announced through video conferencing on this 11th Day of January, 2022.
(ALOK SHUKLA) ADJ-07 (Central) Tis Hazari Courts, Delhi Suit No. 611468/2016 Page No. 48 of 48