Delhi District Court
Sh. Kuldeep Singh vs Delhi Development Authority on 17 September, 2016
Page No. 1 to 16
IN THE COURT OF MS. CHHAVI KAPOOR, CIVIL JUDGE,
WEST DISTRICT, TIS HAZARI COURT.
Suit No. 146/14
Case No. 60767/16
Shyam Vir Singh (deceased, through Lr's)
1. Sh. Kuldeep Singh, S/o Late Sh. Shyamvir Singh.
2. Sh. Kulwant Singh, S/o Late Sh. Shyamvir Singh.
3. Smt. Shanti Devi, Wd/o Late Sh. Shyamvir Singh.
All R/o House no. 60, vill. Humayun Pur, New Delhi
4. Smt. Sunita, W/o Sh. Sukhbir Singh, D/o Sh. Shyamvir Singh,
R/o H. No. F135, Gali No. 8, Sadh Nagar, Palam colony, Delhi.
5. Sh. Ram Singh, S/o Late Sh. Tokh Ram.
6. Sh. Om Vir Singh, S/o Late Sh. Tokh Ram
7. Sh. Jag Vir Singh, S/o Late Sh. Tokh Ram
All R/o House no. 170, vill. Humayun Pur, New Delhi
............ Plaintiffs
Versus
Delhi Development Authority
Through its Vice Chairman,
Vikas Sadan, I.N.A. Market, New Delhi
.................. Defendant
CS No. 146/14 Shyam Vir Singh Vs. DDA.
Page No. 2 to 16
Date of Institution of the Suit : 14.05.2003
Date of Reserving of Judgment : 14.09.2016
Date of Judgment : 17.09.2016
JUDGMENT
1. Plaintiffs have filed the present suit for permanent injunction against DDA. Facts in brief, necessary for disposal of the suit are as under.
2. The late father of the plaintiffs Sh. Tokh Ram was the co owner in khasra no. 76 in the Revenue Estate of Village Humayapur, Delhi ( measuring 5 bighas and 7 biswas) alongwith others namely Raghubir Singh, Balbir Singh, Sukh Lal, Jai Lal, Seesh Ram, Deepu, Shiv Lal, Chunni Lal, Ram Kala, Tek Chand, Chain Sukh and others etc. Whereas, the above named Raghubir Singh, Balbir Singh, Sukh Lal, Jai Lal, Deepu, Seesh Ram, Shiv Lal and Chunni Lal were the owners of ¾th share of the above said land whereas Ram Kala, Tek Chand and Chain Sukh were the owners of the 1/8 th share and the late father of the plaintiffs was the owner of the remaining 1/8 th share. After the death of Sh. Tokh Ram, his share was inhereted by the plaintiffs.
3. Somewhere in the year 1943, Sh. Raghubir Singh, Balbir Singh and others, who were owners of the ¾th share in khasra no. 76 CS No. 146/14 Shyam Vir Singh Vs. DDA.
Page No. 3 to 16gave their share i.e. an area of 3 bighas and 18 biswas to one Sh. Wazir Dayal vide mutation no. 260. This portion of land of khasra no. 76 was given number 651/76/1 whereas the remaining part of the plaintiffs as well as that of Ram Kala and others etc was given new number of 652/76/2. The portion, mentioned later measured about 1 bigha and 7 biswa whereas the portion of Sh. Wazir Dayal measured 3 bigha and 18 biswa.
4. Hence, as per the plaint, the portion in possession of the plaintiffs as well as Sh. Tek Chand, Ram Kal, Chain Sukh etc was known as Khasra No. 652/76/2 meausring 1 bigha and 7 biswa only.
5. It is stated that somewhere in the year 1948, the aforesaid Ram Kala, Tek Chand and Chain Sukh gave half of their share out of Khasra No. 652/76/2, measuring 13 biswas on a twenty year lease to one Popular Potteries Works till 13.12.1968. The said property was mutated in favour of Popular Potteries vide mutation No. 390 and the late father of the plaintiffs remained in possession of the remaining 12 biswas out of khasra no. 652/76/2 (herein after referred to as the suit plot).
6. After the death of the father of the plaintiffs on 14.11.1991, the mutation of the suit plot was carried out in the name of the plaintiffs on 24.11.1981, and since then the plaintiffs are enjoying the suit plot, measuring 12 biswas as owners of the same.
CS No. 146/14 Shyam Vir Singh Vs. DDA.
Page No. 4 to 167. It is stated that a portion of 235 square yards of the suit plot has been sold by the plaintiffs to various persons namely Shanti, Chhote Lal, Ram Swaroop, Gulab, Jagan Nath who have constructed their respective houses and are now enjoying the possession of their respective properties. However, an area of 225 square yards of the suit plot is still lying vacant, adjacent to the built up portions of the above named Chhote Lal, Ram Swaroop and others etc.
8. It is stated that the adjoining khasra no. 651/76/1 as well as khasra no. 56/9/21/1/2, 51, 58/2, 72, 74 and 73 have been acquired by the Government vide an award No. 38/7879, but since the khasra no. 652/76/2 was built up on account of construction by Popular Potteries Works and construction by people who had purchased the land from plaintiffs, the same was not acquired by the Government.
9. It is stated that in the year 1996, the plaintiffs had applied for demarcation of their vacant portion of suit plot as the adjoining khasra bearing no. 651/76/1 was positioned towards the East direction of the same. On 03.04.2002, demarcation was carried out by the Local Commissioner in the presence of DDA officials and a report was submitted to Tehsildar, Hauz Khas. The 225 square yards portion of the plaintiff was demarcated and possession of the same was given to the plaintiff at the spot on 03.04.2002. The portion in possession of the plaintiffs was then, fenced by them with barbed CS No. 146/14 Shyam Vir Singh Vs. DDA.
Page No. 5 to 16wires.
10. Plaintiffs claim that they are owners in possession of 225 square yards vacant land of khasr no. 652/76/2 (suit plot), which has not been acquired by the Government or DDA till date, for which a report has been given by the Local Commissioner on 28.11.2001. It is alleged that on 07.05.2003, employees of the defendant tried to forcibly dispossess the plaintiff from the suit plot by removing the barbed wires around the same. It is alleged that orders have been issued by the Deputy Director (LM) DDA to the SDM Vasant Kunj to take the possession of 5 acres of land in Village Humayapur, which consists the 12 bighas of land of the plaintiffs. It is claimed that the plaintiffs have not encroached upon any part of the Government Land and that they are in possession of the suit plot in their right of being the owner of the same. Hence, it is prayed that the defendant be restrained by way of decree of permanent injunction from interfering in the peaceful enjoyment and possession of the 225 square yards vacant land of khasra no. 652/76/2 (suit plot) and they further be restrained from removing the barbed wires of the plaintiffs and encroaching upon the land of the plaintiffs.
11. Suit of the plaintiff has been contested by the defendants. It is claimed in the Written Statement that the land of Village Humayapur, consisting of Khasra NO. 651/76 (measuring 3 bighas CS No. 146/14 Shyam Vir Singh Vs. DDA.
Page No. 6 to 16and 18 biswas) and khasra no. 652/76 (measuring 1 bighas and 7 biswa) was acquired vide award No. 38/7879, but physical possession of land of only khasra no. 651/76 was taken by DDA on 06.04.1993. However, it is admitted that the physical possession of Khasra no. 652/76 was not handed over to DDA. It was claimed that the land of Khasra no. 652/76 was lying vacant at the site and was not being fenced by a stone boundary wall. It was claimed that two sides had already been bounded but the constructions at the third side was being hindered by the plaintiff without any right, title or interest over the government land. It was further claimed that the land measuring 225 Sq. yds, over which the plaintiffs were raising their claim were part of the Khasra no. 651/76, which was government land. It was alleged that the plaintiffs were misleading the court by claiming that there 225 sq. yds of vacant land was a part of Khasra no. 652/76/2, when in facts the same was falling in the portion of Khasra no. 651/76. The demarcation report, submitted to the SDM, Hauz Khas was claimed to be absolutely incorrect for being carried out in gross violation of the rules/regulations and procedures of demarcation. It was further denied that the local commissioner had handed over possession of land measuring 225 sq. yds to the plaintiff on 03.04.2002 or that they had fenced the lands by a barbed wire. It was claimed that khasra no. 652/76 was also CS No. 146/14 Shyam Vir Singh Vs. DDA.
Page No. 7 to 16acquired by the award no. 38/78/79 and hence, the plaintiffs had no rights, whatsoever to claim of any part of the land in dispute in the present case. It was claimed that the land in question was under the possession and jurisdiction of the DDA and therefore, the government officials were well, within their rights to protect the government land from any encroachers or tresspassers. It was claimed that the suit of the plaintiff had been filed any cause of action and thus, a prayer was made to dismiss the suit .
12. A detailed replication, thereby denying the averments made in the written statement was filed by the plaintiff.
13. After completion of pleading, following five issues were framed on 27.04.2004 for adjudication in this case.
1. Whether the suit property falls in khasra no. 652/76/2 which is unacquired as claimed by plaintiff ? OPP
2. Whether the suit property falls in khasra no. 651/76/1 which is acquiared and placed at the disposal of DDA ? OPD
3. Whether the suit is bad for want of notice u/s. 53B of DD Act ?
4. Whether the plaintiff is entitled for decree of permanent injunction as prayed for ? OPP
5. Relief.
14. In plaintiff's evidence, one Sh. Ram Phool Singh was examined as PW1. He has tendered his evidence by way of affidavit CS No. 146/14 Shyam Vir Singh Vs. DDA.
Page No. 8 to 16Ex. PX.
15. One Sh. Lachhman Singh was examined as PW1. He has tendered his evidence by way of affidavit Ex. PX2.
16. PW3 Sh. Chattarpal Singh, Kanoongo, Record Room, Tehsil Hauz Khas, Mehrauli has proved the demarcation report of khasra no. 652/76, Village Humaypur, Delhi as Ex. PW3/1 collectively.
17. PW4 Sh. Rati Ram has also relied upon Ex. PW3/1 i.e. demarcation report of khasra no. 652/76 and Mark B i.e. notice / letter issued to the DDA.
18. Pw5 Sh. Jagbir Singh has tendered his affidavit Ex. PW5/X and relied upon Ex. PW5/1 i.e. certified copy of jamabandi, Ex. PW5/2 i.e. certified copy of mutation order, Ex. PW5/3 i.e. Certified copy of mutation order dt. 10.03.1973, Ex. PW5/4 i.e. Certified copy of Jamabandi for 194849, Ex. PW5/5 i.e. certified copy of mutation no. 390, Ex. PW5/6 i.e. Site plan, Ex. PW5/7 i.e. copy of award no. 38/7979 dated 23.01.1979 and Mark A i.e. copy of letter written by Sh. Pankaj Kumar, Dy. Director (LM), South West Zone, DDA, Ex. PW5/9 i.e. Aks Sizra.
19. PW6 Sh. Sanjeet Sangwan has proved the Ex PW5/7 i.e. Award no. 38/7879 of Village Humayunpur.
20. In defence, defendant has examined one Sh. Ranvir Singh, Kanungo, DDA. This witness has tendered his evidence by way of CS No. 146/14 Shyam Vir Singh Vs. DDA.
Page No. 9 to 16affidavit Ex. DW1/X and relied upon Ex. DW1/1 i.e. copy of award no. 38/7879, Ex. DW1/2 i.e. copy of possession proceedings dt. 06.04.1993, Ex. DW1/3 i.e. notification dt. 30.04.1993.
21. After conclusion of evidence, final arguments were heard by this court.
22. I have considered the rival contentions raised by both the sides and have perused the judicial record.
23. My issue wise findings are as follows : Issue No. 1.
24. The suit is filed with the claim that the vacant land of the plaintiffs falls in khasra no. 652/76/2, Village Humayapur, Delhi in which DDA or any other Government Authority has no ownership rights. It is an admitted case that Khasra no. 651/76/1 and 652/76/2, Village Humayapur, Delhi are situated adjacent to each other. DDA has claimed that both these khasras are acquired vide award no. 38/7879. The possession report of land of khasra no. 651/76 measuring 3 bigha and 18 biswa is exhibited in the testimony of DW1 as document Ex. DW1/2 whereas it is stated in the affidavit of DW1 that physical possession of land of khasra no. 652/76 has not been handed over to DDA. In paragraph no. 3 of the affidavit of DW1, it is stated that the land of khasra no. 652/76has been encroached upon by villagers by constructing an "old boundary CS No. 146/14 Shyam Vir Singh Vs. DDA.
Page No. 10 to 16wall". In paragraph no. 4 of the affidavit of DW1, it is stated that the plaintiffs are occupying 225 square yards of land of khasra no. 651/76 which is Government acquired land. It has been argued that the plaintiff is misusing the process of the Court by claiming to be in possession of land of khasra no. 652/76, whereas he is trying to encroach upon the land of khasra no. 651/76. It is however, admitted by DDA that the land is lying vacant at the spot.
25. In the written statement filed by DDA, it is not disputed that the father of the plaintiffs namely Late Sh. Tokh Ram was co owner of khasra no. 76 of Village Humayapur. DDA has specifically not denied the claim of the plaintiffs that after the death of their father, the land measuring 12 biswa, out of khasra no 652/76/2 was mutated in their favour on 24.11.1981 and that the plaintiffs were occupying the land as owners. In the written statement, DDA has not denied that the father of the plaintiffs was one of the original bhumidars of land of khasra no. 76 of Village Humayapur. In paragraph no. 10 of the plaint, it is clearly stated that the land of khasra no. 652/76 was built up and was left out from acquisition and possession was not taken by the Government. In the corresponding reply to this paragraph in the written statement, DDA has admitted that the possession of the land has not been handed over to them till today. There is no explanation as to why and how was the physical CS No. 146/14 Shyam Vir Singh Vs. DDA.
Page No. 11 to 16possession of an acquired land not taken over for all these years by the Government. Plaintiffs had stated that the entire khasra no. 652/76/2 was heavily built up and was therefore, left out from acquisition. Notice of the Court was brought to the award no. 38/78 79 (Document Ex. PW5/7) which shows that the land of khasra no. 652/76 was shown as GAIR MUMKIN MAKAN in the category of soil. Further more, the statement of claims and evidence attached in the award no. 38/7879 show that various claimants had applied for compensation in lieu of their vacant land as well as constructed structures upon land of khasra no. 652/76. In fact, the name of father of the plaintiff i.e. Sh. Tokh Ram, S/o Sh. Lal Chand was also being reflected in the category of claimants and the proceedings of the award recorded that he was claiming an amount of Rs. 400/ for per square yard of land under his occupation. In page no. 9 of the above said award, it is mentioned that the valuation report for structures existing in khasra no. 652/76 has not been received and therefore, a supplementary award will be drawn in respect of the said khasra number. It has been claimed by the plaintiff that no supplementary award was passed to acquire the land of khasra no. 652/76 and hence, the acquisition proceedings could not have culminated for the above said piece of land. Surprisingly, when the witness of DDA stepped into the witness box, he admitted that the land of khasra no.
CS No. 146/14 Shyam Vir Singh Vs. DDA.
Page No. 12 to 16652/76 was not acquired by the government. The witness remarked that he had wrongly stated the fact of acquisition of land of khasra no. 652/76 in his affidavit. The witness also admitted that no supplementary award was announced in respect of land of khasra no. 652/76 and that the said piece of land was not acquired vide award no. 38/7879. Hence, the admissions of DDA witness were sufficient to prove that the land of the plaintiffs, stated to be falling in khasra no. 652/76, Village Humayapur was left out from acquisition and therefore, DDA or the Government had no ownership rights in it.
26. However, it was the case of DDA that plaintiffs were occupying government acquired land of khasra no. 651/76, Village Humayapur and representing themselves to be occupying their own land of khasra no. 652/76. In order to prove this plea, DDA has not relied upon any demarcation report in order to show that the plaintiffs were occupying land of khasra no. 651/76. DW1 had merely relied upon a copy of the aks sizra, but it does not seem that the said document is prepared by him as there is no averment to the said effect. In the proceedings of the present case, demarcation was ordered to be carried out on the orders of Appellate Court dt. 25.05.2006 whereafter demarcation was carried out on 11.09.2006 and 03.10.2006 by a revenue official. DW1, despite deposing that CS No. 146/14 Shyam Vir Singh Vs. DDA.
Page No. 13 to 16he had full knowledge of the facts of the present case, cited his ignorance about demarcation proceedings in respect of land of khasra no. 652/76. The plaintiffs had relied upon another demarcation proceeding carried out in the year 2002, but DW1 seems to be unaware of the proceedings or the said reports also. In the affidavit of DW1, the demarcation report of the year 2002 (exhibited as Ex. PW3/1) has not been assailed upon, neither has its authenticity been disputed. The revenue official who has carried out demarcation in the year 2002 has been examined as PW4. It seems from his testimony that the revenue official was well aware of the rules of demarcation and has carried out the demarcation by fixing permanent points and considering the revenue record. There is no suggestion to this witness that plaintiffs were occupying land of khasra no. 651/76, Village Humayapur in the garb of occupying land of khasra no. 652/76. The main witness of the plaintiff (PW5) has denied a suggestion that he was in occupation of land measuring 225 square yards out of khasra no. 651/76, Village Humayapur. Onus to prove that plaintiffs were in unauthorized occupation of Government acquired land of khasra no. 651/76, Village Humanyupur was upon the defendants, but they failed to discharge the said onus. On the other hand, plaintiffs succeeded in proving that they were one of the original occupants/ owners of land of khasra CS No. 146/14 Shyam Vir Singh Vs. DDA.
Page No. 14 to 16no. 652/76, which was not acquired by the government till today. It being so, the defendant is not justified in interefering in possession of the plaintiff in 225 square yards of khasra no. 652/76, Village Humayapur. The issue is accordingly decided in favour of the plaintiff.
Issue no. 2
27. It has already been discussed and observed in the findings of the preceding issue that land of khasra no. 651/76, Village Humanyupur is Government acquired land and is placed at the disposal of DDA. However, DDA has failed to prove that plaintiff is occupying Government acquired land of the above said khasra and is therefore, liable to be removed from the site. The issue is, therefore, decided against the defendant.
Issue No. 328. It has been alleged in the plaint that on 07.05.2003 and 12.05.2003, the plaintiffs were called upon in the police station of the concerned area on false complaints registered by DDA that they were attempting to forcibly occupy the government acquired land. However, plaintiffs have argued that threat of dispossession from defendants was imminent and hence, they could not wait for expiration of the statutory term before filing this suit. There is no ex CS No. 146/14 Shyam Vir Singh Vs. DDA.
Page No. 15 to 16parte order passed in this case in the absence of DDA and therefore, it cannot be said that the opposite side has been prejudiced due to non service of the mandatory notice. Evenotherwise, it is apparent that the purpose of the suit would have been defeated if the plaintiffs would have waited for expiration of the prescribed period before instituting the suit. Accordingly, the suit is not bad for want of service of notice u/s. 53B of DD Act.
Issue No. 429. In view of my findings on issue no. 1 and 2 as stated above, it has been proved that plaintiff is occupying their own land of khasra no. 652/76/2, Village Humayapur. The said piece of land was acquired, but a supplementary award was to be passed to meet the claims of various land owners. The testimony of PW6 and witness Sh. Arvind Chopra (Naib Tehsildar, LAC Office, MB Road, Delhi) show that there is no supplementary award a/w award no. 38/7879. The testimony of PW6 makes it clear that no compensation has been paid to plaintiffs or their father in respect of land of khasra no. 652/76. Evidence led on record suggests that no award of compensation is made in respect of land of khasra no. 652/76 and hence, it cannot be said that the land of plaintiffs falling in khasra no. 652/76, Village Humanyupur is acquired by the Government. Therefore, DDA has no right to interefere in possession of the plaintiffs over the said piece of CS No. 146/14 Shyam Vir Singh Vs. DDA.
Page No. 16 to 16land. Accordingly, I grant the relief of permanent injunction and restrain DDA from causing any interference in any manner in the peaceful enjoyment of the plaintiffs over 225 square yards of land of khasra no. 652/76/2, Village Humayapur, Delhi. Issue is decided in favour of the plaintiff.
Relief.
30. In view of my findings as stated above, the suit of the plaintiff is decreed with costs. Decree sheet be prepared.
Announced in the Open Court (CHHAVI KAPOOR)
today on 17th of September, 2016 Civil Judge06/West
Tis Hazari Courts, Delhi
This judgment contains 16 pages and all the pages are signed by me.
(CHHAVI KAPOOR)
Civil Judge06/West
Tis Hazari Courts, Delhi
CS No. 146/14 Shyam Vir Singh Vs. DDA.