Delhi District Court
Suit No.644/2004 Dharmo Devi vs . Dda on 19 October, 2011
SUIT NO.644/2004 DHARMO DEVI vs. DDA
IN THE COURT OF SH. SANJAY KHANAGWAL, ADMINISTRATIVE
CIVIL JUDGE (EAST), KARKARDOOMA COURTS, DELHI
SUIT NO. : 644/2004
Unique ID NO. : 02402C0271662006
IN THE MATTER OF :
Smt. Dharmo Devi
S/O Sh. Kartar Singh
R/O House No.F1/2, Dayalpur,
Delhi - 110094.
........ Plaintiff
AND
Delhi Development Authority
1, Canning Lane Kasturba Gandhi Marg
New Delhi, through its Incharge/Manager
New Delhi.
........ Defendant
DATE OF INSTITUTION : 30.01.1999
DATE OF RESERVING THE ORDER : 10.10.2011
DATE OF DECISION : 19.10.2011
(SUIT FOR PERMANENT INJUNCTION)
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SUIT NO.644/2004 DHARMO DEVI vs. DDA
JUDGMENT
1. Vide this judgment, I shall decide a suit for permanent injunction filed by the plaintiff against the defendant.
2. The brief facts of the plaint for the disposal of present suit are that the plaintiff is in possession of house no.817, Gali No.9, Block no.5, Geeta Colony, Delhi 110031 (hereinafter will be referred as the suit property). The construction on the suit property was raised by plaintiff in the year 1959. She is in possession of the same since then and also paying the house tax. Apart from this built up premises, she is also cultivating the land falling in khasra no.391/23/61 measuring 7 biswas for the last more than 44 years without any objection and interference. Plaintiff and her family are growing the crop of wheat, jwar and other vegetable on the said land. The possession of plaintiff regarding the suit property has been duly Page2/18 SUIT NO.644/2004 DHARMO DEVI vs. DDA recorded in the revenue records and the same has been shown in red colour in the site plan. Plaintiff is also enjoying the facility of water, electricity over the properties. During the year 1979, officials of MCD threatened to demolish the aforesaid construction illegally and without serving notice U/S 343, 344 under MCD Act which constrained the plaintiff to file a suit for permanent injunction against MCD. The said suit was dismissed vide order dated 02.02.1983 by the court of Sh. Ghanshyam Gupta, Ld. SubJudge classI . Thereafter, plaintiff preferred a regular appeal and the same was accepted and the decree was set aside restraining the MCD from demolishing the property in question vide order dated 15.07.1988 passed by Sh. V.S. Aggarwal, Ld. Additional District Judge. No appeal was filed by MCD against the same and the said judgment has become final. Thereafter, plaintiff is in continuous physical possession of the suit property. In the year 1999, officials of the defendant/DDA came to the suit property and Page3/18 SUIT NO.644/2004 DHARMO DEVI vs. DDA threatened to demolish the construction and also tried to dispossess the plaintiff from the suit property. It is stated that despite the orders of the Appellate court, defendant's officials are bent upon to demolish the construction and dispossess the plaintiff from the suit property. It is further stated as per section 25(3) of Limitation Act,1963, the limitation of filing the suit in respect of property which belongs to government is 30 years and no steps had been taken by government within limitation for the said purpose. In order to protect her possession over the suit property, plaintiff has filed the present suit against the DDA with the prayer of permanent injunction, thereby restraining the defendant from illegally interfering in the peaceful use and enjoyment of the suit property bearing no.817, Gali No.9, Block no.5, Geeta Colony, Delhi - 110031 built over the land comprised in khasra no.391/23/63 measuring 19 biswas, situated in village Charagah Janubi, Tehsil, Delhi.
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SUIT NO.644/2004 DHARMO DEVI vs. DDA
3. Defendant filed written statement and has taken the preliminary objection that the suit of plaintiff is barred U/S 53(B) of DDA Act for want of statutory notice. It is further stated that plaintiff had filed a suit no.30/79 in the court of Sh. Ghanshyam Gupta, SubJudge ClassI titled as 'Dharmo Devi vs. MCD' and the same was dismissed and in the appeal of the said suit, it was not mentioned that plaintiff cannot be dispossessed from the suit land. Plaintiff is the illegal and unauthorized occupant on the government land. Defendant has initiated action after proper notice to the plaintiff. It is further stated that plaintiff has no legal right, title or interest in the suit property. She has neither produced or prove the ownership record in respect of the suit property. It is further stated that in the earlier suit filed by plaintiff, it is conclusively held that "no documentary proof has been placed on record to establish the ownership, hence the suit of plaintiff is barred by principle of res judi cata. As per defendant, vide judgment dated Page5/18 SUIT NO.644/2004 DHARMO DEVI vs. DDA 15.07.1988, MCD was restrained from taking any action against the plaintiff but DDA has every right to take action against her as per law to protect the government land. Dismissal of the suit is prayed by the defendant.
4. Plaintiff filed replication to the written statement of both the defendants and denied the contentions made in the written statement and has reiterated the contents of the plaint.
5. On 24.08.2006, the following issues were framed by my Ld. Predecessor:
(i) Whether the suit is not maintainable for want of statutory notice U/S 53B of DD Act? OPD
(ii) Whether the suit is barred by res judi cata? OPD
(iii) Whether the plaintiff is entitled to a decree of permanent Page6/18 SUIT NO.644/2004 DHARMO DEVI vs. DDA injunction as prayed for? OPP
(iv) Relief.
6. In evidence, plaintiff examined himself as PW1. She filed her affidavit, Ex.PW1/A in evidence on the lines of plaint. She placed on record the site plan as Ex.PW1/1; certified copy of khasra girdawari with its English translation as Ex.PW1/2 & PW1/3; photographs of the premises as Mark A1 to A7; copy of ration card, Mark A8; another copy of ration card, Mark A9; receipt issued by DESU as Ex.PW1/4; water bill as Ex.PW1/5; publication notice as Ex.PW1/6; electricity bill as Ex.PW1/7; original notice of MCD in respect of House tax as Ex.PW1/8; money order slip as Ex.PW1/9; certified copies of the judgment and decree dated 02.02.1983 passed by Sh. Ghanshyam Gupta, Sub Judge ClassI as Ex.PW1/10 & PW1/11 and certified copy of judgment dated 15.07.1988 passed by Ld. Page7/18 SUIT NO.644/2004 DHARMO DEVI vs. DDA ADJ as Ex.PW1/12.
Plaintiff also examined Sh. Madan Mohan as PW2, her son. On the other hand, defendant failed to lead any evidence despite giving several opportunities and vide order dated 08.09.2011, defendant's evidence was closed.
7. I have heard the counsels for all the parties and perused the record. My issue wise findings are as under: ISSUE NO.I :
8. Onus to prove this issue is on the defendant. By way of preliminary objection in their written statement, defendant has stated that the suit of plaintiff is not maintainable for want of statutory notice U/S 53B of DD Act which is mandatory. As per this section, no suit shall be Page8/18 SUIT NO.644/2004 DHARMO DEVI vs. DDA instituted against the authority without giving two months prior notice. In the present case, plaintiff failed to issue any notice to the defendant and the suit is barred U/S 53B of DD Act. Plaintiff in her plaint itself has admitted this fact that she had not issued any notice U/S 53 B pf DD Act and she has sought exemption on the ground of emergency. Section 53B of DD Act is read as under: "Notice to be given of suits - (1) No suit shall be instituted against the authority, or any member thereof, or any of its officers or other employees, or any person acting under the directions of the authority or any member or any officer or other employee of the authority in respect of any act done or purporting to have been done in pursuance of this Act or any rule or regulation made there under until the expiration of two months after notice in writing has been, in the case of the authority, left at its office, and in any other case, delivered to, or left at the office or place of abode of, the person to be sued and unless such notice states explicitly the cause of Page9/18 SUIT NO.644/2004 DHARMO DEVI vs. DDA action, the nature of relief sought, the amount of compensation claimed and the name and place of residence of the intending plaintiff and unless the plaintiff contains a statement that such notice has been so left or delivered."
As per this section, two months notice is necessary but clause 3 of this section says: "Nothing contained in subsection (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by giving notice or the postponement of the institution of the suit."
Exemption under this section is given for the relief of injunction for which prior notice for filing the suit is not mandatory. In the present suit, plaintiff has sought the relief of permanent injunction with an apprehension that official and workmen of defendant are trying to dispossess her illegally from the suit premises. In view of the said clause, she has filed the present suit for permanent injunction with respect to the suit property. The nature Page10/18 SUIT NO.644/2004 DHARMO DEVI vs. DDA of the suit falls under the proviso provided under section 53B(3). In these circumstances, it cannot be said that present suit is barred U/S 53B of DD Act. The issue is decided in favour of plaintiff and against the defendant. ISSUE NO.II :
9. Onus to prove this issue lies on the defendant. As per principle of res judi cata, the issue raised in the suit already decided in a previously instituted suit, similar suit cannot be filed for the same relief and such prayer for the same relief and such prayer for the same relief is barred by principle of res judi cata. Section 11 of CPC deals with res judi cata and it reads as under: "No court shall try and suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court Page11/18 SUIT NO.644/2004 DHARMO DEVI vs. DDA competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court."
To claim dismissal of the suit, as per principle of res judi cata, defendant is required to prove that matter is directly and substantially an issue in the previous suit between the same parties and the issue raised in the previous suit also has been raised in the present suit and issue already been decided in the previous suit. Plaintiff has disclosed the entire proceedings taken placed in the previous court and not only that she has put forward the certified copies with respect to the proceedings and testimony of PW1. Those documents had been exhibited. Decree dated 02.02.1983 passed by Ld. Judge, Sh. Ghanshyam Gupta has been placed on record as Ex.PW1/10 & PW1/11 and the certified copies of the judgment of ld. Appellate court is Ex.PW1/12. As per plaintiff, the suit filed against MCD was against the Page12/18 SUIT NO.644/2004 DHARMO DEVI vs. DDA threat of illegal demolition of the construction which was in possession of plaintiff. The said suit was dismissed and in appeal against the said order, the appellate court vide judgment dated 15.07.1988, Ex.PW1/12 restrained the MCD from demolishing the construction over the suit property. Against the judgment, Ex.PW1/12 no appeal was preferred and the said judgment has attained the finality. Defendant in its written statement stated that in the judgment, Ex.PW1/12, it has not been mentioned that the plaintiff cannot be dispossessed from the suit land since the plaintiff is an illegal and unauthorized occupant over the public land. Defendant has every right to dispossess her from the suit premises. On the one hand, defendant is taking the defence of res judi cata on the other hand submits that the restrain order against MCD was not a protection against dispossession but against the demolition of construction. In the present suit, defendant is taking the defence of res judi cata by stating himself as defendant. The previous suit Page13/18 SUIT NO.644/2004 DHARMO DEVI vs. DDA was against MCD for demolition of construction carried out by plaintiff in the suit property and the MCD was restrained from demolishing the suit property without due process of law. There was no relief against the dispossession prayed by plaintiff. In these circumstances, the prayer of both the suits are different and cause of action were also different. The issues involved are also not directly or substantially similar in both the suits. Hence, the suit is not barred by principle of res judi cata. The issue is decided in favour of plaintiff and against the defendant. ISSUES NO.III :
10. Onus to prove this issue lies on the plaintiff. Present suit is filed by plaintiff against the defendant for restraining him from dispossessing her from the suit property bearing no.817, Gali No.9, Block no.5, Geeta Colony, Delhi 110031. The claim of plaintiff is based upon the fact that Page14/18 SUIT NO.644/2004 DHARMO DEVI vs. DDA she is in possession of the suit property for the last 44 years. Plaintiff had raised construction on the suit property and she is also cultivating the suit land regularly. For the purpose of establishing her possession, plaintiff has relied upon certain documents such as the certified copy of khasra girdawari with its English translation as Ex.PW1/2 & PW1/3; photographs of the premises as Mark A1 to A7; copy of ration card, Mark A8; another copy of ration card, Mark A9; receipt issued by DESU as Ex.PW1/4; water bill as Ex.PW1/5; publication notice as Ex.PW1/6; electricity bill as Ex.PW1/7; original notice of MCD in respect of House tax as Ex.PW1/8; money order slip as Ex.PW1/9. Plaintiff has not examined any witness to prove these documents from the respective departments. As per Evidence Act, only the scriber of the document can be the proper witness for the purpose of proving the documents. But no such witness has been summoned to prove them. Despite the fact that these documents are not Page15/18 SUIT NO.644/2004 DHARMO DEVI vs. DDA proved in the evidence, for the sake of arguments, if they are admitted as true, even then these documents are only showing the possession of the plaintiff on the suit property which is not denied by the defendant. The question remains to be proved by plaintiff is that she is in possession of the suit property in her capacity as an owner of the same and she has the legal right to remain in the possession of the same. The Khasra girdawari with its English translation, Ex.PW1/2 & PW1/3 produced by plaintiff showing the possession of plaintiff, Dharmo Devi in the suit property in the capacity of unauthorized occupant or unauthorized abadi. The copy of another khasra girdawari filed by plaintiff on record is showing the ownership of the suit property with the government regarding the khasra no.391/23/61 and 391/61 by mentioning "Sarkar Daulat Madar" and the plaintiff, namely, Smt. Dharmo Devi W/O Sh. Jai Dev has been shown as 'Najayaj kabij'. These documents filed by plaintiff, on which her claim is based, are showing her Page16/18 SUIT NO.644/2004 DHARMO DEVI vs. DDA as 'unauthorized occupant' over the suit property. Though the defendant has not lead any evidence to prove its version, but this fact does not exempt plaintiff from proving her case on its own feet. Plaintiff is required to prove her legal right to remain in possession or occupation of the suit property. Nothing has been produced by plaintiff which can establish her right over the suit property. It is stated by PW1, Smt. Dharmo Devi in her cross examination that she purchased the suit property from one Mr. Chauhan for Rs.50,000/ but no such person has been examined or produced. In the revenue record, the status of plaintiff is only of an unauthorized occupant. In the absence of any documentary evidence in respect of ownership, plaintiff is not entitled to permanent injunction against the defendant in respect of the suit property. The issue is decided in favour of defendant and against the plaintiff.
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SUIT NO.644/2004 DHARMO DEVI vs. DDA RELIEF :
11. In view of my findings on above issues, suit of plaintiff is without any merit and the same is hereby dismissed. No order as to cost. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
ANNOUNCED IN OPEN COURT (SANJAY KHANAGWAL)
ON 19.10.2011 ADMINISTRATIVE CIVIL JUDGE
KKD COURTS/DELHI
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