Delhi District Court
Sh. Anoop Singh S/O Sh. Inder Singh vs Delhi Development Authority on 23 September, 2016
Page No. 1 to 15
IN THE COURT OF MS. CHHAVI KAPOOR, CIVIL JUDGE,
WEST DISTRICT, TIS HAZARI COURT.
Suit No. 76/14
Case No. 7661/16
1. Sh. Anoop Singh S/o Sh. Inder Singh
(Since deceased through Lr's)
(I) Sh. Satpal Singh S/o Late Sh. Anoop Singh
(ii) Sh. Vikash S/o Late Sh. Anoop Singh
(iii) Sh. Yogesh S/o Late Sh. Anoop Singh
(iv) Smt. Bijendri Devi Wd/o Late Sh. Anoop Singh
All R/o H.No. 278, Panna Tihani,
Village & P.O. Mangolpur Kalan, Delhi - 110085
2. Sh. Hari Singh S/o Sh. Rishal Singh
3. Smt. Manju W/o Late Sh. Jagbir Singh Dagar
S/o Sh. Inder Singh
4. Sh. Deepak S/o Late Sh. Jagbir Singh
5. Sh. Shekhar S/o Late Sh. Jagbir Singh
All R/o Village Mangol Pur Kalan, Delhi110085
............ Plaintiffs
Versus
Delhi Development Authority
Through its Vice Chairman,
I.N.A, Vikas Sadan, New Delhi
.................. Defendant
CS No. 76/14 Anoop Singh & Ors. Vs DDA
Page No. 2 to 15
Date of Institution of the Suit : 24.02.2004
Date of Reserving of Judgment : 02.09.2016
Date of Judgment : 23.09.2016
JUDGMENT
1. This is a suit for permanent injunction.
2. The plaintiffs are the residents of Village Mangol Pur Kalan and are living with their families. It is claimed that the forefathers of the plaintiffs were agriculturists and had various properties within the Lal Dora and outside the Lal Dora of Village Mangolpur Kalan, Delhi. It is claimed that the forefathers of the plaintiffs were having property in the Lal Dora bearing khasra no. 70/1/1. It is stated that the plaintiffs are enjoying the property in the Lal Dora as successors whereas the agricultural land falling outside the Lal Dora has already been acquired and compensation has been paid to them. It is further stated that the property within the Lal Dora has been constructed by the father and forefathers of the plaintiffs and the plaintiffs have been making improvements in the property as per their needs. It is stated that the Lal Dora land is free from all encumbrances and therefore, DDA or MCD has no concern with the same. The plaintiffs state that they have got electricity connection in the premises and have been using the same for their residence. The plaintiff also state that they have obtained a CS No. 76/14 Anoop Singh & Ors. Vs DDA Page No. 3 to 15 license for running a flour mill from the premises. It is claimed that a Lal Dora certificate was issued to the plaintiff on 29.04.1980 after spot verification and on confirmation that the property was falling within the Lal Dora. A municipal license for running the floor mill has also been issued in favour of the plaintiffs and they are also paying house tax for use and occupation of the property. It is therefore stated that DDA has no concern with the suit property. It is alleged that on 20.02.2004, some officials of DDA came to the property and threatened that they shall dispossesses the plaintiff and demolish the property. A quarrel ensued between plaintiffs and officials of DDA and as people collected at the spot, the officials of DDA could not succeed in demolishing the property of the plaintiff. However, fearing the threat of forceful dispossession, plaintiffs filed the present suit praying for the following reliefs:
"(i) Pass a decree for permanent injunction in favour of the plaintiffs and against the defendant thereby restraining the defendant, its officials, employees, servants, agents, associates, etc. from dispossessing the plaintiffs from the suit property and demolishing the suit property situated in khasra no. 70/1/1, Mangolpur Kalan, Delhi, as shown in the site plan attached herewith.
(ii) Award costs of the present suit in favour of the plaintiffs;
(iii) Pass any other or further orders as this hon'ble Court deems fit and proper in the facts and circumstances of the case, in favour of the plaintiffs and against the defendant."
3. In the written statement filed by defendant no. 1, it was claimed that the suit land fell in khasra no. 29/21/2 (39), Village Mangol Pur Kalan, Delhi and not in khasra no. 70/1/1 as claimed in the plaint. It was stated that the land under occupation of the plaintiffs was acquired vide award no. 1672 CS No. 76/14 Anoop Singh & Ors. Vs DDA Page No. 4 to 15 dt. 22.01.1964, of which physical possession was handed over to DDA on 06.03.1964. It is claimed that vide notification dt. 30.11.1965, issued u/s. 22 (1) of DD Act, the land was placed at the disposal of DDA. It was stated that the encroachments made by the plaintiffs were removed on 08.01.2004 and 04.03.2004 by demolition of the structures, whereafter the land was lying in possession of DDA. It was denied that the portion in possession of the plaintiffs fell within the Lal Dora of Village Mangol Pur Kalan, Delhi. It was further denied that any official of DDA had visited the suit property on 20.02.2004 and had given illegal threats to the plaintiffs. It was therefore stated that there was no cause of action in favour of the plaintiff and hence, it was prayed that the suit was liable to be dismissed.
4. After completion of pleadings, following issues were framed for adjudication of this case on 29.07.2004:
1. Whether the suit is bad for want of notice U/S 53 B of DD Act? OPD
2. Whether the suit land falls in Khasra No. 70/1/1 of Village Mangol Pur Kalan, Delhi? OPP
3. Whether the suit land falls in Khasra No. 29/21/2 of Village Mangol Pur Kalan, Delhi? OPD
4. Whether the plaintiff is entitled for relief of Permanent Injunction as prayed? OPP
5. Relief.
5. In plaintiff's evidence, plaintiffs have examined 07 witnesses CS No. 76/14 Anoop Singh & Ors. Vs DDA Page No. 5 to 15 in their evidence. One Dr. Shushu Pal S/o Sh. Karam Singh was examined as PW1 who has tendered his evidence by way of affidavit Ex. PW1/X.
6. One Sh. Rajbir Singh S/o Prithi Singh was examined as PW2, he has tendered affidavit Ex. PW2/X.
7. One Sh. Om Prakash S/o Sh. Balbir singh was examined as PW3, he has tendered his evidence by way of affidavit Ex. PW3/A.
8. One Sh. Ashok Kumar S/o Sh. Surat Singh was examined as PW4, he has tendered his evidence by way of affidavit Ex. PW4/A.
9. Plaintiff no. 2 has examined himself as PW5 and has tendered his affidavit Ex PW5/A. PW5 has relied upon the following documents; Original site plan; Ex. PW5/1, Copy of Lal Dora Certificate dt. 19.04.1980; Mark X, Copy of License to Run Floor Mill dated 01.02.1989; Mark X1, Copy of Lal Dora Certificate; Mark X2, Copy of Khatoni dated 198081 (OSR), Copy of certified copy of judgment dated 12.05.1987 (OSR).
10. One Sh. Satpal Singh, Bailiff from Office of SDM Kotwali, 14, Darya Ganj, Delhi was examined as P3W1.
11. One Sh. Smt. Manju W/o Lat Sh. Jagbir Singh Dagar was examined as P3W2, she has tendered her affidavit Ex. P3W2/A.
12. In defence evidence, defendant/DDA has examined one Sh. Tej Pal, Kanoongo, Rohini Zone, Lamd Management Department, CS No. 76/14 Anoop Singh & Ors. Vs DDA Page No. 6 to 15 DDA as DW1, he has tendered his evidence by way of affidavit Ex. DW1/A. DW1 has relied upon the following documents; Certified copy of award no. 1672 dt. 22.01.1964, Possession proceeding dt. 06.03.1964; Ex. DW1/2, Translation copy of possession proceeding dt. 06.03.1964; Ex. DW1/2A, Notification dt. 30.11.1965; Ex. DW1/3 (OSR), Aks Sijra; Ex. DW1/4, Copy of demolition diary dt. 08.01.2004 and 04.03.2004; Ex. DW1/5 (OSR) and Ex. DW1/6 (OSR), Two photographs of the suit land; Mark C and Mark D, 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.
13. After conclusion of evidence, final arguments were heard by this court.
14. I have considered the rival contentions raised by both the sides and have perused the judicial record.
15. My issue wise findings are as follows : ISSUE NO. 2, 3 AND 4
16. The above stated three issues can be disposed off by way of a common finding, which is as under :
17. The suit as framed, talks of ancestral land of the plaintiffs in khasra no. 70/1/1, Village Mangolpur Kalan, Delhi. The plaintiffs have claimed in the suit that this property falls within the Lal Dora of the CS No. 76/14 Anoop Singh & Ors. Vs DDA Page No. 7 to 15 Village Mangolpur Kalan and has not been acquired by DDA or any other Government body till today. The plaint speaks of landed property of the plaintiffs in the Lal Dora, but is silent as to the extent of the property in their possession in the Lal Dora. Paragraph no. 2 of the plaint is vague in as much as it merely states that the plaintiffs and their forefathers have landed property within the lal dora, but fails to mention the area in their ownership or possession. In the entire plaint, there is no whisper of the portion of the land of khasra no. 70/1/1, which is under occupation and possession of plaintiffs. Paragraph no. 4 states that the plaintiff are occupying and enjoying the property within the lal dora. Paragraph no. 5 of the plaint states that the plaintiffs have been making improvements in the property without specifically stating the nature of improvements. Paragraph no. 6 of the plaint states that the plaintiffs have installed an electricity connection in the premises in question and have been using the same for residential purposes. Paragraph no. 7 of the plaint states that the plaintiffs are also using the property for running a flour mill and have also obtained a factory license. Plaintiffs have also claimed to have been paying house tax for the property and as per paragraph no. 9, the situation of the property is being indicated in the lal dora certificate and in the site plan filed alongwith the plaint. A site plan has been exhibited by the plaintiffs in the testimony of PW5 as document Ex.
CS No. 76/14 Anoop Singh & Ors. Vs DDA Page No. 8 to 15 PW5/1. This site plan has been filed alongwith the plaint wherein it is shown that there is a covered area of 200 square yards (approximately) in the suit property whereas the remaining area is vacant. The site plan further shows that there is a plot of Raghunath in the North and a road on the South of this plot. On the East, is a Dal Mill whereas in the West, there is a pond. The plaint is silent on these aspects and it has not even been mentioned in the suit that the plaintiffs are claiming the relief of injunction for the covered area of 200 square yards or the adjoining vacant land. Furthermore, there is no averment in the suit that the plaintiffs have constructed a boundary wall or have installed a barbed wire to safeguard their property from that of others. The description of the suit property is therefore, uncertain on these counts alone. However, while under crossexamination, PW5 has stated that he and the other plaintiffs are eight brothers and are joint owners of 1878 square yards of land of khasra no. 70/1/1. This claim does not find mention in the plaint and seems to have been taken as an after thought. PW5 has stated in his crossexamination that all the houses in khasra no. 70/1/1 have municipal numbers, but he has not stated the municipal number of the suit property, which is in dispute in this case. The plaint states that the suit property is being used for residential purposes as well and PW5 has stated in his crossexamination that he is residing in H. No. 362, in Khasra no. 70/1/1, Village Mangolpur CS No. 76/14 Anoop Singh & Ors. Vs DDA Page No. 9 to 15 Kalan. He has also stated that apart from the plot of 1878 square yards, he does not have any other plot in khasra no. 70/1/1 thereby showing that the house bearing no. 362 is situated on the disputed plot of land. It is therefore, strange that his house has been given a municipal number, but the remaining part of the property is not. This house is otherwise not depicted in the site plan Ex. PW5/1. It therefore, suggests that the plaintiff is misleading the Court on the question of identification of the property. In a successive part of his cross examination, PW5 has sated that no municipal number has been allotted to the plot till today. Needless to state that when no municipal number has been allotted to the plot, then there can be no question of deposition of house tax on its account. In crossexamination of PW5 dt. 05.03.2015, he has stated that the disputed land was earlier built up over area of 1878 sq. yds., which fact is no where stated in the plaint. In his cross examination, PW5 has admitted that the suit property was demolished by DDA on 08.01.2004 and 04.03.2004. This revelation was not made in the plaint but was stated for the first time in the written statement filed by DDA. However, the fact of the demolition was not controverted with or denied in the replication filed by the plaintiffs. Infact, PW2, PW3 as well as PW4 have admitted that demolition was carried out by DDA on 08.01.2004 and 04.03.2004 but no reason has been shown or averred as to why this fact was hidden CS No. 76/14 Anoop Singh & Ors. Vs DDA Page No. 10 to 15 from the court. The suit had been framed with a view to show that threat of demolition was imminent at the hands of DDA and hence, the suit was filed without serving the defendants with a prior notice under provisions of Delhi Development Act. Furthermore, PW5 admitted that the suit property was lying in a damaged condition but this picture had not been elaborated in the site plan Ex. PW5/1. The witness had changed his stance many a times in his crossexamination as one point of time he had stated that he was in possession of 1878 sq. yds. Whereas at another point, he had stated that he was in possession of 200250 sq. yds. Only. On being questioned, the witness had stated that he was not in a position to tell the dimensions of the disputed land but had admitted that the West side of the land was in possession of DDA. He has also admitted that there was a road on the South Side, which was built on DDA land. The witness had admitted that khasra no. 70/1/1 was lying adjacent to khasra no. 29/21/2 of Village Mangolpur Kalan, Delhi, whereas, there was no rebuttal evidence to the claim of DDA that land of khasra no. 29/21/2 was acquired by them. In the replication filed, plaintiffs had alleged that they had applied for demarcation of their land but they had not proved this fact as no evidence had been led to show so. DDA, on the other hand, has alleged that plaintiffs were occupying government acquired land of adjoining khasra no. 29/21/2 by portraying themselves to be in CS No. 76/14 Anoop Singh & Ors. Vs DDA Page No. 11 to 15 occupation of land of khasra no,. 70/1/1, Village Mangolpur Kalan. Plaintiffs had relied upon copy of Lal Dora Certificate Mark X and X2 to show that land of khasra no. 70/1/1 of village Mangolpur Kalan falls within the Lal Dora and belongs to the villagers. The defendants, on the other hand, had suggested that this document did not pertain to the disputed land and was issued in respect of the property, falling in khasra no. 70/1/1 of village Mangolpur Kalan. The defendants had accordingly suggested to the plaintiff witness that the Lal Dora Certificate was forged. During the course of plaintiff evidence, a witness from the office of SDM , Kotwali, Daryaganj was summoned to produce the Lal Dora Certificate of Village Mangolpur Kalan but it was reported that the record would be available with SDM Rohini. Plaintiffs had not cared to summon the record from SDM, Rohini to prove the documents Mark X and X2. The plaintiffs had also admitted that they had no documents to prove that the land has been mutated in their names or in the names of their ancestors in the government records. P3W2 had infact claimed that there was a "Fard" of khasra no. 70/1/1 in the name of their ancestors but no such document had been filed. P3W2 has claimed that after the demolition on 08.01.2004 and 04.03.2004, an area of about 100 sq. yds was still in possession of the plaintiff, which stand was contrary to the one taken by PW5 in his cross examination. In her crossexamination, P3W2 had admitted that CS No. 76/14 Anoop Singh & Ors. Vs DDA Page No. 12 to 15 there was a park of DDA on one side of disputed plot. She had also stated that the village abadi of Mangolpur Kalan, Delhi was situated after crossing the road from the disputed land. This admission was sufficient to hold that the disputed site is not situated in the village abadi i.e. within the Lal Dora. The witness had stated that her other relatives were having houses at a distance of 600 feet from the disputed land, which shows that the disputed land is not the only piece of land in their occupation in the village area. The witness of DDA has claimed in his crossexamination that the plaintiffs were using the disputed land unauthorisedly as an open godown. During cross examination of DW1, he was asked as to whether the land of khasra no. 70/1/1 and 29/21/2, village Mangolpur Kalan was demarcated, to which the witness replied in negative. This witness had merely relied upon copy of the award no. 1672 dt. 22.01.1964, possession proceedings dt. 06.03.1964 and notification dt. 30.11.1965 and aks sijra Ex. DW1/4 to show that the disputed property was falling in khasra no. 29/21/2 but in the absence of a demarcation report or even a spot inspection report, it was difficult to hold that the plaintiffs were occupying land of khasra no. 29/21/2. The defendants had therefore failed to discharge the onus of issue no. 3. however, even the plaintiffs had failed to prove that they were in occupation of land of Khasra no. 70/1/1 of Village Mangolpur Kalan and were entitled to protect the CS No. 76/14 Anoop Singh & Ors. Vs DDA Page No. 13 to 15 same. The case of the plaintiff was marred by concealment in as much as they failed to state the area of land under their occupation. They also concealed the fact that demolition had taken place before institution of the suit. Two of their witnesses had given contradictory statements with regard to the area in occupation at present. The plaintiffs had not filed the original of the document Mark X1, which was copy of license granted to them to run the flour mill from the suit property. During the course of arguments, it was claimed by the plaintiff that they were running marble business from the suit property, which story was again new to the case set out in the plaint. No house tax/property tax receipts were proved by the plaintiff to show their occupation of land of khasra no. 70/1/1, Village Mangolpur Kalan, Delhi. The records of khatoni Ex. PW5/2 could not prove the possession of the plaintiff in the disputed land. Be that as it may, it is proved by DDA that it has already carried out demolition twice upon the disputed property. The plaintiff has failed to prove that after these demolitions, they are in possession of any other portion of land of village Magolpur Kalan, Delhi. On 05.03.2015, PW5 has admitted that the property was demolished by DDA prior to filing of the suit whereas no such averment has been made in his affidavit. Resultantly, it has been proved that the plaintiffs have approached the court with unclean hands to obtain the discretionary relief of injunction on false facts.
CS No. 76/14 Anoop Singh & Ors. Vs DDA Page No. 14 to 15 Since it was the plaintiffs onus to discharge to show that he was entitled for the relief of permanent injunction, he was required to prove that his peaceful possession of land of khasra no. 70/1/1 of village Mangolpur kalan was threatened with illegal attempts of DDA to dispossess him from the property. The witness of DDA has denied the suggestion that officials had extended threats to the plaintiff on 20.02.2004 with a view to illegally dispossess him from the suit property. It being so, the relief of permanent injunction is not made out in favour of the plaintiff. Issue no. 2 and 4 are decided against the plaintiffs. Issue no. 3 is decided against the defendants.
ISSUE NO. 118. It has been proved in the findings of issues stated above that demolition action had already been carried out by DDA before institution of the suit and hence, the claim of the plaintiff that there was a threat of imminent dispossession at the time of the filing of the suit is false. No cause of action exists in favour of the plaintiff and hence, suit being based upon false facts is bad for want of service of notice u/s 53 (B) of DD Act. Issue is decided against the plaintiff. RELIEF
19. In view of my findings on the abovesaid issues, the suit of the plaintiffs is dismissed. Parties to bear their own costs.
CS No. 76/14 Anoop Singh & Ors. Vs DDA
Page No. 15 to 15
20. Decree sheet be prepared.
Announced in the Open Court (CHHAVI KAPOOR)
today on 23rd of September, 2016 Civil Judge06/West
Tis Hazari Courts, Delhi
This judgment contains 15 pages and all the pages are signed by me.
(CHHAVI KAPOOR)
Civil Judge06/West
Tis Hazari Courts, Delhi
CS No. 76/14 Anoop Singh & Ors. Vs DDA