Delhi District Court
Delhi Development Authority vs Sh. Amar Deep Singh on 31 January, 2019
IN THE COURT OF MANOJ JAIN
ADDITIONAL DISTRICT JUDGE-02, WEST DISTRICT
TIS HAZARI COURTS, DELHI.
RCA No. 60872/16
CNR No. DLWT01-000577-2013
Delhi Development Authority
Through its Vice Chairman
Vikas Sadan, I.N.A.
New Delhi ..... Appellant
Vs
1 Sh. Amar Deep Singh
S/o Sh. Ram Sarup
(Plaintiff No. 1 before Trial Court)
2. Sh. Jagdeep Singh
S/o Sh. Ram Sarup
(Plaintiff No. 2 before Trial Court)
Both R/o CB-98, Naraina
New Delhi
3. Late Smt. Durga Devi (Plaintiff No. 3 before Trial Court)
Through :-
i. Sh. Jwahar Singh ( Husband)
ii. Sh. Sunil Kumar ( Son)
iii. Sh. Kapil Kumar ( Son )
iv. Sh. Anil Kumar ( Son )
All R/o Village Yahya Pur,
P.O. Khatauli
Muzzafar Nagar, U.P.
v. Smt. Rattan Mal (Daughter)
W/o Sh. R.K. Singh
R/o H.No. 27, Type-V,
I.A. R.I., Pusa
New Delhi-110012
vi. Smt. Vijyanti Mala ( Daughter)
W/o Sh. Mahipal Singh
RZ-134, H-1,
Gali No. 10, East Sagarpur
New Delhi-110046
RCA No. 60872/16 page 1 of 10
vii. Smt. Sushanti Mala (Daughter)
W/o Sh. Rajpal
R/o RZ 123/313. Gali No. 2
Geetanjali Pur, West Sagarpur
New Delhi- 110046
viii Smt. Sunit (Daughter)
W/o Sh. Umesh Kumar
Village Sridhan
P.O. Khatuali
Muzzafarnagar, U.P.
ix. Smt. Vinita (Daughter)
W/o Sh. Anil Kumar
R/o WZ-143, Gali No. 10
East Sagarpur
New Delhi-110046
4. Late Smt. Gujar Devi (Defendant No. 1 before Trial Court)
through
i. Smt. Meena Kumari
C-59, Nehru Vihar,
Timarpur, Delhi
ii. Smt. Yogesh Rani
18/86, Gali No. 1
East Moti Bagh
Sarai Rohilla, Delhi
iii. Smt. Koshalya Rani
581, Side-I,
Vikaspuri,
New Delhi
iv. Smt. Tripta Rani
3327/97-A,
Anand Nagar, Near Public School
Rewari, U.P.
5. Sh. Khem Chand Sethi (Defendant No. 2 before Trial Court)
S/o Sh. Dallu Ram Sethi
R/o G-1, Block-C,
Community Center, Naraina
New Delhi
Date of institution : 18.02.2013
Date of conclusion of arguments : 25.01.2019
Date of pronouncement : 31.01.2019
RCA No. 60872/16 page 2 of 10
Memo of Appearance:
Sh. Anupam Sharma, learned counsel for appellant/DDA
Sh. Sanjay Aggarwal, learned counsel for respondents no. 1 & 2
JUDGMENT
1 DDA i.e. defendant No.3 has assailed judgment dated 25.09.2012 passed by ld. Trial Court whereby the suit of the plaintiffs was decreed. For the sake of convenience, I would refer the parties as per their nomenclature in the suit.
2 Right here, I would like to emphasis that plaintiffs were held entitled to a decree of ejectment and arrears of rent besides damages. Such decree was against defendants No. 1 and 2 only. There is no decree against DDA but it has taken exception to some findings.
3 I have gone through the trial court record.
4 A careful perusal of the plaint would indicate that suit had been filed by the plaintiffs seeking ejectment of defendant No.1 Smt. Gujar Devi and defendant No. 2 Sh. K.C. Sethi. When the suit was instituted in the year 1994, DDA was not even a party to the lis. According to plaintiffs, they had let out open plot of land admeasuring 95 sq. yds. forming part of Khasra No. 1179 situated at Naraina to Sh. V.D. Sethi and defendant no. 2 Shri K.C. Sethi in 1974 for running a coal depot. After the death of Sh. V.D. Sethi, Smt. Gujar Devi, defendant No. 1 was accepted as tenant. The rent agreement was initially executed on 22.11.1974 and the last rent-deed is of 01.05.1983. The rate of rent was Rs. 100/- which was increased from time to time and the last paid rent in respect of the demised plot of land was Rs. 225/- per month.
5 As per plaintiff, it had rent out open plot of land of 95 sq. yds but such defendants, illegally and wrongfully, occupied another piece of land RCA No. 60872/16 page 3 of 10 measuring about 45 sq. yds. which was lying vacant and which was situated on the rear side of the demised portion. Fact, however, remains that suit was filed against these two defendants only seeking their ejectment from the entire such portion and also for recovery of arrears of rent as well as for damages for use and occupation.
6 Such suit was resisted by the said defendants. They, though, challenged the locus standi of the plaintiff to file the suit, they did admit that a tenancy was created. They claimed that the land in question had already been acquired by Land Acquisition Collector, Delhi vide Award No. 1953, Village Naraina and the possession had been taken over by the government on 23.02.1968 and, therefore, the plaintiffs could not have claimed anything from the defendants having lost right, title and interest with respect to the land in question. Various other preliminary objections were also taken.
7 It will be worthwhile to mention here that said defendants also moved an application under order 1 Rule 10 CPC praying therein that since the land in question had already been acquired, DDA may be impleaded as a necessary party. Said application was decided by ld. Trial court on 16.07.2001 and by a composite order, the application under order 1 Rule 10 CPC was allowed holding that the question whether the DDA could acquire the land or not would not be an impediment in allowing the application and since the suit property had been acquired by the DDA, DDA had become a necessary party for the purpose of adjudication of the case.
8 This is how the DDA came into picture and filed its written statement.
9 In its written statement, DDA claimed that no cause of action had arisen in favour of the plaintiff and against the DDA and plaint was liable to be dismissed under the provision of order 7 Rule 11 of CPC. It was also claimed that the suit was not maintainable as notice under Section 53 B DD RCA No. 60872/16 page 4 of 10 Act had not been served upon the DDA before filing the present suit. It was also claimed that land in question bearing no. 1179/2/1 min. of Village Naraina and Khasra No. 1179/2/1 (2 Bighas 10 Biswas) had been acquired vide Award No. 1954 and the physical possession of Khasra No. 1179/2/1 (2-10) had been handed over to DDA by LAC/ L & B on 23.02.1968. It is also claimed that the land was under the disposal of the DDA under Section 22(1) of DDA Act, 1957 vide Notification No. F8{49}63/L & H dated 16.02.1972 and, therefore, plaintiff had no right, title or interest in the said property and was merely trespasser. On merits also, all the contents of the plaint were disputed or denied.
10 Following Issues were framed by the trial court vide order dated 24.12.2004:-
1. Whether the suit is bad for want of notice under Section 53 B DD Act? OPD-3
2. Whether there is no cause of action against defendant no. 3? OPD-3
3. Whether the suit and land has been acquired by the government placed at the disposal at DDA? OPD
4. Whether the suit is liable to be stayed in view of preliminary objections in the written statement of defendant no. 1 and 2? OPD1 and 2.
5. Whether the plaintiff has no locus standi to file the present suit? OPD 1 AND 2
6. Whether the Court has no jurisdiction to try and entertain the suit? OPD 1 AND 2
7. Whether suit is not properly valued for the purpose of Court Fees and jurisdiction? OPD 1 and 2
8. Whether the plaintiff has not approached the Court with clean hands? OPD1 and 2?
9. Whether there is no valid existing notice of termination of tenancy of the defendant? OPD 1 and 2 RCA No. 60872/16 page 5 of 10
10. Whether the plaintiff is entitled for decree of ejectment, as prayed for ? OPP
11. Whether the plaintiff is entitled for decree of recovery of arrears of rent, if so to what amount and for which period? OPP
12. Whether the plaintiff is entitled for decree of recovery of damages, as prayed? If so, to what amount and for which period? OPP
13. Relief
11 Sh. Anupam Sharma, ld. Counsel for the appellant is primarily aggrieved by the findings given by Ld. Trial Court with respect to issue No.2 and issue No. 3.
12 According to him, the land had already been acquired and despite that, DDA is finding itself totally helpless in view of the findings recorded by the Ld. Trial Court. He has argued that such issue was not required to be framed at all by the learned trial court and, therefore, prays that the interest of DDA may be protected. Admittedly, the onus to prove the aforesaid issue was put on DDA i.e. defendant no. 3.
13 According to defendant no. 3, Khasra No. 1179/2/1, Village Naraina, New Delhi was the government land and said Khasra had been acquired. Interestingly, even the plaintiffs admitted that the said Khasra had been acquired but according to plaintiff, the land in question was never part of Khasra No. 1179/2/1. According to plaintiffs, said land was part of Khasra No. 1179/2/2.
14 Ld. Trial Court, holding that since no evidence had been led by DDA to show that the suit land fell in Khasra No. 1179/2/1, decided the aforesaid issue in favour of the plaintiff and against DDA. Para 14 of the impugned judgment reads as under:-
RCA No. 60872/16 page 6 of 10 "14. Issue No. 3: Whether the suit land has been acquired by the government placed at the disposal of DDA? OPD The onus of proving this issue was on the defendant no. 3. Defendant no. 3 has stated that the Khasra No. 1179/2/1, Village Naraina is government land. It is admitted by the plaintiff also that the said khasra is acquired. However, the real issue in controversy is whether the suit property falls in Khasra No. 1179/2/1 as is claimed by defendant no. 3 or in khasra No. 1179/1 and khasra No. 1179/2/2 as is claimed by the plaintiff. No evidence has been led to show that the suit land falls in khasra no. 1179/2/1. Even the ask sizra Ex. DW1/4 fails to establish the exact location of suit property as DW1 could not recognize the acquired and unacquired portions of land in the same. He was unable to say clearly who had encroached the same and when the encroachment was done. Thus the only defendant's witness has failed to show where the suit property is situated.
Accordingly, this issue is decided in favour of plaintiff and against the defendants"
15 According to Sh. Aggarwal, plaintiffs have already received the possession of the premises in question from defendants no. 1 & 2 albeit after prolonged litigation and after filing of execution petition.
16 During the course of the consideration, Sh. Sanjay Aggarwal, ld. Counsel for respondents no.1 and 2 (plaintiffs) has very fairly contended that the suit in question was primarily for ejectment and for recovery of rent and damages which had been filed against defendants no.1 and 2 and in context thereof, the aforesaid issue i.e. issue no.3 was totally irrelevant. He has gone to the extent of stating at the bar that he, too, would have no objection if such issue is directed to be deleted from the scope of the present controversy. Sh. Aggarwal also states at the bar that since no relief was claimed against DDA as such, he would have no objection, if issue no.2 is also deleted.
RCA No. 60872/16 page 7 of 10 17 Admittedly, it was basically a suit for ejectment and recovery of
rent and damages and according to the case of the plaintiffs, they had let out an open plot of land measuring 95 sq. yds. forming part of Khasra No. 1179 situated at Naraina, New Delhi to defendants No.1 & 2 who also encroached upon adjacent land.
18 Main issues i.e. issue no. 9 and issue no. 10 were decided in favour of plaintiffs and accordingly, the plaintiffs were held entitled to decree of ejectment qua defendants no.1 and 2. As regards recovery of arrears of rent, the plaintiffs were held entitled to arrears of rent and damages were assessed @ Rs. 1,000/- per month and accordingly, issue no. 11 and 12 were decided in favour of plaintiffs and against the defendants no.1 and 2.
19 Ld. counsel for appellant has reiterated that the aforesaid findings given by the Ld. Trial Court with respect to the fact that the land in question did not fall within the acquired land is coming his way in getting the possession. He has also very fairly stated that since the opposite side has given no objection for deletion of issue no. 2 and 3, the same may be ordered so that DDA can initiate appropriate further action to take possession. He has contended that he would not, in such eventuality, seek any further relief in the appeal.
20 I have carefully gone through the trial court record and seen the deposition of PW1 Amardeep Singh (Plaintiff No. 1). He did claim that property in dispute was bearing khasra no. 11/79 but could not admit or deny whether such suit property was situated within khasra no. 1179/2/1 min of Village Naraina. He also claimed that compensation had been taken by his father for part of the property. In his further cross-examination, he also claimed that suit property was forming part of 1179/2/2 Naraina. I have also seen testimony of DW1 Sh. Karan Singh, official of DDA. According to his cross-examination, the acquired land had been given khasra no. 1179/2/1. He denied that disputed land i.e. suit land was not part of the RCA No. 60872/16 page 8 of 10 acquired land.
21 It is quite obvious that since DDA had been impleaded as one of the parties to the lis, an issue was framed and the onus was put on DDA to prove the same. Merely because DDA could not show and substantiate as to where actually the suit property was situated, would not mean that DDA would be precluded altogether in future also to establish the same. It needs no discerning eyes to note that suit in question was between a landlord and a tenant and such fact cannot be brushed aside and forgotten.
22 I am, therefore, compelled to take a holistic approach of the entire matter and on perusal of the entire material, I also feel that since the suit was primarily between the plaintiffs on one side and defendants no. 1 and 2 on the other, there was no real requirement of impleading DDA and framing issues no. 2 and 3. The suit was essentially between the landlord and his tenants and the question whether the land in question had been acquired by DDA or not was never, actually speaking, within the scope of the suit. The findings recorded by the court, particularly with respect to issue no.3 may indeed cause serious obstacles in the way of DDA which, despite being fully convinced that land in question was part of acquired land, did not lead enough of evidence to said effect. No useful purpose would be served by remanding the matter and by giving another opportunity to DDA to substantiate the same particularly in view of the peculiar factual matrix of the case.
23 I may add here that even when the application under order 1 rule 10 CPC was contested by the plaintiffs, the plaintiffs had claimed that their suit was for ejectment and it was between landlord and tenant and, therefore, tenant had no locus standi to challenge the title of the landlord, particularly when he had admitted that he was tenant under the plaintiff.
RCA No. 60872/16 page 9 of 10 24 Even if for a moment, it is assumed without admitting that it
was a collusive suit between the plaintiffs and his alleged tenants, learned Trial court should not have given a "specific and positive finding" that the suit land had not been acquired by the government. Such finding was evidently and manifestly beyond the scope of the suit.
25 In view of aforesaid, issues No. 2 and 3 are directed to be deleted. Needless to say, therefore, the findings with respect to those issues i.e. issues No.2 and 3 as recorded by learned trial court also evaporate and would not come in the way of DDA, in case it is advised to take any further action. Resultantly, it would be open to DDA to show and establish before any forum or authority that the land in question falls within the acquired land. Similarly, even the plaintiffs would be at liberty to show to the contrary before any such forum or authority.
26 Appeal stands disposed of as partly allowed in aforesaid terms. Decree-sheet be prepared accordingly.
27 A copy of the judgment be sent to learned trial court along with trial court record.
Digitally signed by 28 Appeal file be consigned to Record Room. MANOJ MANOJ JAIN Date:
JAIN 2019.02.01
16:02:01
+0530
Announced in the open court
On this 31st day of January 2019 (MANOJ JAIN)
Addl. District Judge-02
West Distt: Tis Hazari Courts: Delhi
RCA No. 60872/16 page 10 of 10