Delhi District Court
Shri J. S. Chowdhary vs Municipal Corporation Of Delhi on 23 August, 2019
IN THE COURT OF SH. RAJINDER KUMAR, JSCC-CUM-
ASCJ-CUM-GUARDIAN JUDGE (WEST): DELHI
Suit No. 6933/16
1. Shri J. S. Chowdhary
27/10, East Patel Nagar,
New Delhi.
2. Shri R. S. Ahluwalia
151, Carriapa Marg,
Village Khirki, M. B. Road,
New Delhi. .....Plaintiffs
Versus
1. Municipal Corporation of Delhi
Town Hall, Chandni Chowk,
Delhi - 110006
Through its Commissioner
2. Delhi Development Authority
Vikas Sadan, I. N. A.,
New Delhi.
Through its Secretary
3. The S. H. O.
Police Station Ambedkar Nagar,
New Delhi. ......Defendants
J. S. Chaudhary & Anr. vs Municipal Corporation of Delhi & Ors.
Suit No. 6933/16
Page No. 1/12
Date of filing of the suit : 07.03.1990
Date of reserving judgment : 16.08.2019
Date of pronouncement : 23.08.2019
JUDGEMENT
1. Vide this judgment, I shall decide the present suit filed by the plaintiffs for perpetual injunction.
2. The brief facts of the case as per the plaintiffs are that they are in lawful possession of the land bearing Khasra no. 427 in Village Khirki, General Criappa Marg, Tehsil Mehrauli, New Delhi. That the plaintiff is entered as as a Bhumidhar in the Revenue Records. That the plaintiffs have constructed a residential dwelling house in the year 1988 and have been living in the said house peacefully. That suddenly on 05.03.1990, some officials of the defendants came to the site and started demolishing the properties in the village and threatened the plaintiff to demolish the property existing on the said Khasra of the plaintiff and to dispossess him without any notice. That the land does not belong either to the defendant no. 1 or to the defendant no. 2. That the defendant no. 1 has no right to demolish any structure existing on the land without statutory notice. That at present, there is no acquisition because acquisition resorted to by the Delhi J. S. Chaudhary & Anr. vs Municipal Corporation of Delhi & Ors.
Suit No. 6933/16 Page No. 2/12Administration has been already quashed by the Division Bench of Hon'ble High Court of Delhi in respect of all the thirteen villages including the Village Khirki. That the defendants have no right, title or interest in the suit land.
3. In the written statement filed by the defendant no. 1/MCD, certain preliminary objections are taken like that suit was barred under Section 477/478 of DMC Act for want of statutory notice, the suit is without cause of action and also that the plaintiffs have not come with clean hands and suppressed the material facts and not entitled to any relief.
In the written statement filed by the defendant no. 2/DDA, certain preliminary objections are taken like that the plaintiffs are not in possession of the land made subject matter of the suit and the same belongs to DDA. That the plaintiffs are having no legal right as to the ownership in respect of the suit land. It is also pleaded that the suit land was the property of the Department of Rehabilitation, Government of India, which was transferred including land comprising of Khasra no. 427 in favour of the DDA under package deal dated 02.09.1982 and the same was taken over by DDA on 23.12.1987. It is also the plea of the defendant no. 2 that the suit land was part of the package deal of approx. 1020 acres and was transferred to DDA on payment of Rs. 30 crores. It is also pleaded that the structure appearing in Khasra in suit was J. S. Chaudhary & Anr. vs Municipal Corporation of Delhi & Ors.
Suit No. 6933/16 Page No. 3/12demolished by the DDA on 06.04.1988. It is also pleaded that the plaintiffs are encroacher on the land of DDA.
4. In the replications, the plaintiffs controverted the contentions raised in the written statements of the defendants and re-affirmed the averments made in the plaint.
5. From the pleadings of the parties, following issues were settled on 23.04.2005:-
1. Whether the suit is bad for want of notice under 53 B, DD Act against defendant no. 2?
OPD2
2. Whether the suit is bad for notice against defendant no. 1- MCD U/S 477/478, DMC Act? OPD1
3. Whether the suit land falls in Khasra no. 427, Village Khirki transferred to the defendant no. 2 by virtue of package deal dated 02/09/82, if so, its effect? OPD2
4. Whether the plaintiff is entitled for decree of injunction, as prayed? OPP
5. Relief.
J. S. Chaudhary & Anr. vs Municipal Corporation of Delhi & Ors.
Suit No. 6933/16 Page No. 4/126. The plaintiffs got examined Sh. A. S. Ahluwalia as PW-1 in support of their case, who relied upon various documents i.e. Ex. PW1/1 to Ex. PW1/4, Ex. PW1/6 to Ex. PW1/9 and Mark A. The plaintiffs also got examined Sh. Pradeep Kapahi as PW-2, Sh. Yudhvir Singh as PW-3, Sh. Chattarpal Singh as PW-5 and Sh. G. S. Meena as PW-6. PE was closed on 23.02.2019.
There is no evidence led by the defendant no. 1. The defendant no. 2/DDA got Sh. Rajbir Singh examined as D2W1 in support of its defence, who relied upon various documents i.e. Ex. D2W1/1 to Ex. D2W1/3. DE was closed on 02.08.2019.
ISSUE WISE FINDINGS ARE AS UNDER :
ISSUE NO. 1 and 2:-
"Whether the suit is bad for want of notice under 53 B, DD Act against defendant no. 2? OPD2 Whether the suit is bad for notice against defendant no. 1- MCD U/S 477/478, DMC Act? OPD1"
7. The onus to prove the issue no. 1 was put upon the defendant no. 2 and that of the issue no. 2 was upon the defendant no. 1. It is the plea of the defendant no. 2 that the suit is bad for want of notice under 53B, DD Act. It is also the plea of the defendant no. 1 that the suit is bad for notice under Section 477 and 478 of DMC Act.
J. S. Chaudhary & Anr. vs Municipal Corporation of Delhi & Ors.
Suit No. 6933/16 Page No. 5/12The plaintiffs have sought an urgent relief in the present suit and in view of provisions as laid down under Section 478 (3) of DMC Act and Section 53-B DDA Act, the said Section would not be applicable to the suits in which an injunction is prayed for. The present suit is for injunction hence, keeping in mind the urgency of the matter, the plaintiffs are not required to issue any notice.
Accordingly, both the issues are decided against the defendants and in favour of the plaintiffs.
ISSUE NO. 3 :-
"Whether the suit land falls in Khasra no. 427, Village Khirki transferred to the defendant no. 2 by virtue of package deal dated 02/09/82, if so, its effect? OPD2"
8. The onus to prove this issue was upon the defendant no. 2, who has pleaded that the suit land comprising Khasra no. 427 was the property of the Department of Rehabilitation, Government of India, which was transferred to DDA under the package deal vide notification dated 02.09.1982. It is also pleaded that the suit land is the part of package deal of approx., 1020 acres and was transferred to the defendant Authority on payment of Rs. 30 crores.
J. S. Chaudhary & Anr. vs Municipal Corporation of Delhi & Ors.
Suit No. 6933/16 Page No. 6/12In the corresponding para of the replication, the plaintiffs have simply denied the contents of the written statement.
9. In his evidence affidavit, Sh. Rajbir Singh (D2W1) did not state anything that the suit property falls in Khasra no. 427 as pleaded by it for the reasons best known to it. There is no evidence brought on record by the defendant no. 2 in support of this issue. Moreover, it is the plea of the plaintiff that the acquisition of the land has already been cancelled by Hon'ble High Court of Delhi in B. R. Gupta vs Union of India & Ors. It is pertinent to mention here that the same is not denied by the defendant no. 2 for the reasons best known to it.
Hence, on the basis of the pleadings and evidence led by the parties, specially by the defendant no. 2, the Court has no hesitation in holding that the defendant no. 2 has failed to prove this issue.
Accordingly, the issue is decided against the defendant no. 2 and in favour of the plaintiffs.
ISSUE NO. 4: -
"Whether the plaintiff is entitled for decree of injunction, as prayed? OPP"
10. The onus to prove this issue was upon the plaintiffs, who have pleaded that they are in lawful J. S. Chaudhary & Anr. vs Municipal Corporation of Delhi & Ors.
Suit No. 6933/16 Page No. 7/12possession of the land and are entered as a Bhumidhar in the Revenue Records. It is also pleaded that the plaintiffs have constructed a residential dwelling house in the year 1988 and have been living in the said house peacefully. It is also pleaded that some officials of the defendants threatened the plaintiff to demolish the property existing on the said Khasra of the plaintiff and to dispossess him without any notice. It is also pleaded that the land does not belong either to the defendant no. 1 or to the defendant no. 2.
It is the plea of the defendant no. 1/MCD that the plaintiffs have not come with clean hands and suppressed the material facts and not entitled to any relief. It is the plea taken by the defendant no. 2/DDA that the plaintiffs are not in possession of the land made subject matter of the suit and the same belongs to DDA. It is also the plea taken by it that that the plaintiffs are having no legal right as to the ownership in respect of the suit land and the suit land was the property of the Department of Rehabilitation, which was transferred including land comprising of Khasra no. 427 in favour of DDA and the same was taken over by DDA on 23.12.1987. It is also the plea of the defendant no. 2/DDA that the structure appearing in Khasra in suit was demolished by the DDA on 06.04.1988 and the plaintiffs are encroacher on the land of DDA.
J. S. Chaudhary & Anr. vs Municipal Corporation of Delhi & Ors.
Suit No. 6933/16 Page No. 8/1211. During his examination in chief, Sh. A. S. Ahluwalia (PW-1), re-iterated and re-affirmed the contents of the plaint but while under cross-examination, it was deposed by him that the suit property was purchased by him from Sh. J. S. Chowdhary and that Sh. J. S. Chowdhary has not given any document to him claiming that he was the owner of the same. It was also deposed by him that at the time of execution of documents, Sh. J. S. Chowdhary told him that he can do agriculture in the property until and unless, he constructs the same. It becomes pertinent to mention here that in para no. 3 of the plaint, it is pleaded that the plaintiffs have constructed a dwelling unit in the year 1988 and have been living there. But after consideration of the cross-examination of the PW-1, it is clear that Sh. J. S. Chowdhary has told him to do agriculture unless and until, he construct the same, indicates that there was no construction over it as alleged by the plaintiffs in this case.
It was also deposed by Sh. A. S. Ahluwalia (PW-
1) that the documents which were executed between him and the owner Sh. J. S. Chowdhary were Agreement to Sell, GPA, Affidavit etc. At page no. 3 of the cross- examination, it was admitted to be correct by him that the document Ex. PW1/2 was the agreement and not Agreement to Sell. It was also admitted to be correct by him that in the said Agreement, it was not mentioned that there was one room and boundary wall. It was further J. S. Chaudhary & Anr. vs Municipal Corporation of Delhi & Ors.
Suit No. 6933/16 Page No. 9/12deposed by him that he did not get the sale deed registered from Sh. J. S. Chowdhary with regard to said 500 sq. yds. It was also deposed that the affidavit Ex. PW1/4 has not been attested by any Notary/Oath Commissioner.
It was also deposed by Sh. A. S. Ahluwalia (PW-
1) at page no. 2 of his cross-examination that he does not have any knowledge whether the property in question was a Government land. It was further deposed by him that he was not having any knowledge whether the same has been transferred to DDA from the Ministry of Rehabilitation, under a package deal in the year 1987.
It was held by Hon'ble Supreme Court of India in M/s K. B. Saha & Sons Pvt. Ltd vs M/s Development Consultant Ltd. (2008) 2 SCC 564, that from the principles laid down in the various decisions of this Court and the High Courts, as referred to herein above, it is evident that a document required to be registered is not admissible into evidence under Section 49 of the Registration Act. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
It was also held by Hon'ble Supreme Court of India in M/s Sms Tea Estates Pvt. Ltd. Vs M/s Chandmari Tea Co. Pvt. Ltd., 2011 (4)-Arb. L. R. J. S. Chaudhary & Anr. vs Municipal Corporation of Delhi & Ors.
Suit No. 6933/16 Page No. 10/12-265 SC., that Section 49 makes it clear that a document which is compulsorily registrable, if not registered, will not affect the immovable property comprised therein in any manner.
12. The plaintiffs are supposed to prove their case on the scale of preponderance of probabilities but in the case in hand, admittedly, the plaintiffs are not having any registered documents to show that they have duly purchased the suit land as pleaded by them. Admittedly, the plaintiffs are not aware whether the suit land was Government land or further, whether the same was got transferred to DDA by the Ministry of Rehabilitation. Undoubtedly, the plaintiffs are not supposed to prove their title over the suit land but only to show that are the owners of the same.
13. For the sake of arguments, if the contention of the plaintiffs are proved to be correct that they have constructed one room and boundary wall, the same is not acceptable because the same is not found any mentioning in the documents i.e. Agreement to Sell, GPA, Affidavit etc. The plaintiffs are not the owners of the land in question. Hence, the plaintiffs have no rights over the same.
Accordingly, the issue no. 4 is decided against the plaintiffs and in favour of the defendants.
J. S. Chaudhary & Anr. vs Municipal Corporation of Delhi & Ors.
Suit No. 6933/16 Page No. 11/12Relief :-
14. In view of above discussion and findings on the issues, the plaintiffs are not found entitled to any relief. The suit is dismissed. No order as to costs.
Decree sheet be prepared accordingly.
Announced in the open Court today the 23rd August, 2019 RAJINDER KUMAR Digitally signed by RAJINDER KUMAR Date: 2019.08.29 16:00:11 +0530 J. S. Chaudhary & Anr. vs Municipal Corporation of Delhi & Ors.
Suit No. 6933/16 Page No. 12/12