Delhi District Court
Sh. Aditya Narula vs Delhi Development Authority on 24 February, 2011
Suit No. 706/2006
IN THE COURT OF MS. SHEFALI SHARMA
CIVIL JUDGE (WEST): TIS HAZARI COURTS: DELHI
SUIT NO. 706/2006
SH. ADITYA NARULA
S/O SH. B. D. NARULA,
R/O B-1/602A, JANAKPURI,
NEW DELHI-110058.
.......PLAINTIFF
VERSUS
DELHI DEVELOPMENT AUTHORITY
THROUGH ITS VICE CHAIRMAN
VIKAS SADAN, I.N.A.
NEW DELHI.
........DEFENDANT
DATE OF INSTITUTION : 20.03.2003
DATE OF RESERVATION : 09.02.2011
DATE OF DECISION : 26.02.2011
JUDGMENT:-
1. This is a suit for permanent injunction filed by the plaintiff for restraining the defendant from demolition of any portion of property bearing no. 13, 14 and 14A, Harijan Basti, Village Palam, New Delhi situated in khasra no. 31/14-17 and 24/225 and 31/7 (hereinafter referred to as suit property).
2. It is the case of the plaintiff vide agreement to sell, registered GPA, registered Will and receipt. The suit property was purchased by the plaintiff in the year 1990 and 1998 where the plaintiff is residing in the upper floor of the suit property and the wife of the plaintiff is running a nursery school on the ground floor. That in September, 2001 some officials of the defendant harassing the plaintiff tried to demolish the suit property and filed a writ petition before the Hon'ble High Court. In the said writ petition a counter affidavit of Sh. N. N. Puri, Director, LM Zone, DDA was filed wherein it was stated that the built up property of the plaintiff falls in khasra no. 31/7, Revenue Estate, Palam, Delhi Aditya Narula Vs. DDA 1/10 Suit No. 706/2006 admeasuring 200 sq. yards and that as per the land records, khasra no. 31/7 of Palam Revenue Estate had been acquired by DDA vide award no. 157/86-87 and the physical possession of the same was handed over by LAC to DDA and DDA is the sole owner of khasra no. 31/7 and plaintiff has no right or title over the said khasra. It is the case of the plaintiff that the abovesaid affidavit is not correct since vide award no. 157/86-87, the land measuring 5 bigha 12 biswa in khasra no. 31/7 belonged to one Sh. Gulzari Lal who was the predecessor in interest of the plaintiff and out of this land, only 5 bigha 8 biswa had been acquired and the remaining 4 biswa was mentioned as 'gair mumkin makan' i.e. a built up property and had not been acquired. This issue required evidence and therefore, the plaintiff withdrew the writ petition on 03.02.2003. It is the case of the plaintiff, thereafter, the plaintiff had contacted the officials of defendant/ DDA several times to clarify his position that the 4 biswa out of the 5 bigha 12 biswa of the land belonged to the plaintiff but the officials of the defendant/ DDA paid no heed and allegedly threatened to demolish the property of the plaintiff which constrained the plaintiff to file the present suit.
3. In the written statement filed on behalf of the defendant, the preliminary objections i.e. that the suit is bad for want of 53-B of DD Act and that the suit had not been valued properly for the purposes of court fees and jurisdiction, had been taken. In reply on merits, it has been contended that the disputed land forms part of khasra no.31/7 min and 31/14 min. of village Palam. An unauthorized school has been constructed unauthorizedly over the land admeasuring 350 sq yards falls in khasra no. 31/7 min. and remaining in khasra no. 31/14 min. As regards the land of Khasra no. 31/7 measuring (5-8) has been acquired vide award no. 157/86-87, physical possession of which was taken over on 13.10.1986. The land of khasra no. 31/14 is a Gaon Sabha Land. It is Aditya Narula Vs. DDA 2/10 Suit No. 706/2006 further stated that the plaintiff is trying to illegally grab the suit property and in fact a demolition programme was also fixed for 08.10.2001 to remove the unauthorized encroachment of the plaintiff. However, the same could not be executed due to non-availability of requisite police force. The defendants have denied that the counter affidavit filed before the Hon'ble High Court was incorrect. It is further reiterated that defendant/ DDA is the owner of the land falling in khasra no. 31/7 min out of which approx. 200 sq. yards have been encroached by the plaintiff unauthorizedly. Rest of the averments made in the plaint were categorically denied.
4. The plaintiff filed his replication to the written statement of defendant wherein the plaintiff reiterated and reaffirmed the contents of the plaint and contested the averments made by the defendant in his written statement.
5. From the pleadings of the parties, following issues were framed by my Ld. Predecessor on 21.07.2003:-
1. Whether suit is bad for want of notice u/s 53-B of DD Act? OPD.
2. Whether suit land falls in khasra no. 31/14-17 and 24-25 and 31/7 bearing built up property no. 13, 14, 14A Harijan Basti, Village Palam, New Delhi? OPP.
3. Whether suit land forms part of khasra no. 31/7 min and 31/14 minor Village Palam which has since been acquired and has been placed at the disposal of DDA? OPP.
4. Whether plaintiff is entitled for the relief of injunction as prayed for? OPP.
5. Relief.
6. Plaintiff examined four witnesses. The plaintiff himself entered into the witness box as PW1 and filed his affidavit which is Ex.PW1/A and reiterated the contents of the plaint and relied upon the documents Ex.PW1/1 to Ex. PW1/23 and also relied upon documents marked as Mark-A and Mark-B. Ex.PW1/1, Aditya Narula Vs. DDA 3/10 Suit No. 706/2006 Ex.PW1/2 and Ex.PW1/3 are the photocopy of the khatonies, Ex.PW1/4 is the agreement to sell dated 24.08.1998, Ex. PW1/5 is the registered Will in favour of Aditya Narula, Ex. PW1/7 and Ex. PW1/8 are the registered Will and agreement to sell executed by Raja Ram in favour of Smt. Aruna, another agreement to sell dated 24.08.1998 is Ex. PW1/9, Ex.PW1/10 is the registered Will executed in favour of Aditya Narula, Ex. PW1/11 to Ex. PW1/14 are the agreements to sell in favour of Smt. Aruna and the two registered Wills dated 20.07.1992 and 27.01.1993 in favour of Smt. Aruna, Ex. PW1/15 is the agreement to sell executed by Sh. Subhash Chander dated 24.08.1998, Ex.
PW1/16 is the registered Will executed by Sh. Subhash Chander, Ex. PW1/17 and Ex. PW1/18 are the agreement to sell, Ex. PW1/19 and Ex. PW1/20 are the registered Wills, Ex.PW1/21 to Ex. PW1/23 are the copies issued by Patwari & Tehsildar of the Palam Circle, of khatonies in favour of Bale and Others. Documents marked as Mark-A is the summons issued to Raj and Mark-B is the copy duly signed by his counsel. One Sh. Ranjeet Singh entered in the witness box as PW2 and testified on the lines of the plaint and relied upon the documents Ex.PW2/1 to Ex.PW2/10. He further proved the documents Ex.PW1/11 to Ex.PW1/14. PW3 was the Sh. Praveen Kumar, Patwari, Palam, New Delhi who relied upon the record Ex.PW3/1. He testified that 5 bigha 12 biswa was acquired by LAC/ LAB and out of that possession of only 5 bigha 8 biswa was taken from Sh. Gulzari Lal vide award no. 157/86-87 dated 19.09.1986. PW3/2 is the copy of the record. He further proved the documents Ex.PW1/2, Ex.PW1/3, Ex.PW1/22 and Ex.PW1/23. He categorically testified that plots bearing khasra no. 31/14-17, 24 and 25 were alloted to various persons in chakbandi in the year 1953-54 and were never acquired by the Government. PW4 is one advocate Sh. S. K. Blain, who Aditya Narula Vs. DDA 4/10 Suit No. 706/2006 testified that he had filed a written statement in case tiled as Banwari Lal Vs. Sri & Ors at the instructions of defendants no. 1 to 6. He had brought the original record filed maintained by him in discharge of his duties and as per his records, the said suit which was filed in the court of Sh. S. K. Sarwaria, the then Sub- judge, Delhi had been dismissed on 14.07.1998.
In the cross-examination of PW1, it is stated that he has not filed any site plan of the land in dispute. Further he is not aware as to how much land falls in khasra no. 31/7 and 31/14. It is further stated that he had not confirmed the title of the land from DDA at the time of purchase in the year 1990 and 1998.
7. DW1 Sh. Karan Singh Patwari, LM (W) Zone, DDA who through his affidavit Ex.DW1/X testified the contents of the written statement and relied upon the documents Ex.DW1/1 to Ex.DW1/4. Ex.DW1/1 is the copy of the award bearing no. 157/86-87, Ex. DW1/2 is the copy of the possession proceedings, Ex.DW1/3 is the copy of notification dated 30.10.1986 and Ex.DW1/4 is the copy of aks sajra.
8. I have heard both the counsels of respective parties and carefully perused the material available on record.
9. My issue-wise findings are as follows:
Issue No. 1:- Whether the suit is bad for want of notice under Section 53-B of DD Act?OPD The onus to prove this issue was on defendant. However, no substantial evidence has been led on behalf of defendant to show that suit is bad for want of notice under Section 53-B of DD Act.
After analysis of provision of Section 53-B, it is clear as per clause (3) of the section that in a case of injunction, the mandate of statutory notice is not Aditya Narula Vs. DDA 5/10 Suit No. 706/2006 applicable. Thus, this issue is disposed off accordingly.
Issue No. 2:- Whether suit land falls in khasra no. 31/14-17 and 24-25 and 31/7 bearing built up property no. 13, 14, 14A Harijan Basti, Village Palam, New Delhi? OPP.
Issue No. 3:- Whether suit land forms part of khasra no. 31/7 min and 31/14 minor Village Palam which has since been acquired and has been placed at the disposal of DDA? OPP.
Issue No. 4:- Whether plaintiff is entitled for the relief of injunction as prayed for? OPP.
These issues are taken up together being interconnected with each other.
The onus to prove these issues were upon the plaintiff. According to the plaintiff, the suit land falls in khasra no. 31/14-17, 24 and 25 and 31/7. Plaintiff has not filed any document to show that the suit land falls in the said khasras. There are only two documents i.e Ex.PW1/2 and Ex.PW1/3 showing the name of Gulzari Lal, allegedly his predecessor in interest.
Khasra Girdawari/ Khatoni is the record of cultivation which is also an important document showing possession of a person over the land. It is clear that a khatoni is not a document of title which confers the right of ownership in favour of a person. Moreover, in a khatoni for the year 1997-98, it has already been mentioned that the land stands acquired and it is in the name of the Government. Even in the cross-examination of DW1, it has been categorically stated that land measuring 5 bigha 12 biswas in khasra no. 31/7 was acquired vide award no. 157/86-87 and this fact has been proved vide Ex.DW1/A. Even if possession of only 5 bigha 8 biswas was handed over to DDA that does not mean that the remaining 4 biswas ceased to be Government land.
The plaintiff claims his right over the suit property by virtue of an agreement to sell dated 03.03.1990 and another agreement to sell dated 24.03.1998, a registered Will Ex.PW1/5. No sale deed has been placed on the Aditya Narula Vs. DDA 6/10 Suit No. 706/2006 record. In view of the above discussions and the law laid down in "G.Ram Vs. DDA", AIR 2003 Delhi 120 passed by Hon'ble High Court wherein it is held that an agreement of sale is not a document of transfer not by reason of execution of a power of attorney, the right, title or interest of an immovable property can be transferred. Such a transfer can only be effected by executing a registered document as provided for under Section 54 of the Transfer of Property Act read with Section 17 of the Indian Registration Act, the plaintiff has failed to show that he has any legal right over the suit property.
Further the plaintiff had allegedly purchased the property in the year 1990 and 1998 whereas the land had already been acquired in the year 1986. Thus the person from whom the plaintiff had purchased the suit property is actually an encroacher upon the Government land and therefore, could not have passed the title better than his and plaintiff stepped into his shoes as an encroacher upon the Government land. Thus plaintiff has not been able to prove his title over the suit land.
On the other hand, defendant/ DDA vide Ex.DW1/1 to Ex. DW1/4 has proved that the land measuring 5 bigha 12 biswas was acquired and out of that 5 bigha & 8 biswas placed at its disposal in the year 1986. The notification which is marked as Mark-B1 dated 19.08.2002 categorically shows that the entire Palam Revenue Estate had been acquired and placed at the disposal of defendant/ DDA as per column 3 of the schedule at Sr. No. 1. Thus the contention of the plaintiff that merely 4 biswas out of 5 bigha 12 biswa of land belonging to his predecessor in interest were not acquired, does not seem probable. Further as is already discussed even if possession of only 5 bigha 8 biswas was handed over to DDA that does not mean that the remaining 4 biswas ceased to be Government land.
Further, the plaintiff had sought the relief of permanent injunction on Aditya Narula Vs. DDA 7/10 Suit No. 706/2006 the ground that the defendant have been threatening to demolish his property on the suit land. These appear to be merely vague allegations made by the plaintiff since neither any specific instance of a threat being extended to him by the officials of DDA has been proved or even alleged. It appears that under the garb of the present suit, the plaintiff is trying to establish his possession over the land bearing khasra no. 31/14-17, 24 and 25 which actually does not belong to him. It is a settled law that in order to be entitled for a claim of injunction, the plaintiff has to prove that there exists a right in his favour and the same has been violated or is under the threat of being violated. The plaintiff has neither been able to establish his right nor the fact of it being violated. Thus relief of injunction cannot be granted in his favour.
In view of the abovesaid, these issues are decided against the plaintiff and in favour of defendant.
10.In view of the aforesaid discussions, the suit of the plaintiff is hereby dismissed. No order as to cost. Decree sheet be prepared accordingly. File be consigned to record room.
Pronounced in the open court today on 26.02.2011.
(SHEFALI SHARMA) CIVIL JUDGE (WEST) THC, DELHI/ 26.02.2011 Aditya Narula Vs. DDA 8/10