Delhi District Court
Mohd. Bi vs The Union Of India on 22 December, 2011
IN THE COURT OF AJAY GOEL: SCJ CUM RC (CENTRAL):
DELHI.
S.No: 851/06/87
In the matter of :
1. Mohd. Bi, W/o Late Mohd. Ismile.
2. Mst. Kanwar Sultan
3. Mst. Akhtar Sultan, Daughters of Mohd. Ismile.
4. Mst. Gohar Begum
5. Sh. Allauddin, Sons of late Haji Mohd. Ismile @ kale.
6. Sh. Mirajuddin.
7. Sh. Amiruddin.
8. Sh. Raesuddin
9. Sh. Mohd. Hafiz.
10.Sh. Mohd. Sultan
11.Sh. Mohd. Irfan.
12.Miss Nasreen Sultan(Deleted by order of the court)
13.Miss Asifa Sultan.
14.Nazneen Sultan. Legal heirs of late Mohd. Ibrahim
15.Mss. Nasra Sultan.
16.Miss. Nargis Sultan.
17.Miss. Yasmin Sultan. Son of late Haji Mohd. Ismile @
Hazi Kale.
Through Sh. Mirajuddin General Attorney of 1 to 17
except himself as plaintiff No. 6,
All R/o 2235 Gali Chamra Wali,
Bazar Chitli Qabar,
Jama Masjid Delhi. ........Plaintiffs.
VERSUS
1. The Union of India,
Ministry of Urban Development Delhi,
Service to be made on the
Secretary of the Ministry.
2. Delhi Development Authority,
Vikas Sadan, INA, New Delhi.
Service to be effected through its
Vice-Chairman, Delhi.
S851/06/87 Page No. 1/10
3. Ministry of Rehabilitation,
Vikas Sadan, I.P. Estate, New Delhi.
Service to be effected
Through Secretary. ......Defendants.
Date of Institution: 10.12.1987
Date of assignment to this court: 02.04.2009
Date of arguments: 16.12.2011
Date of Decision: 22.12.2011
JUDGMENT
1. This is a suit for possession filed by plaintiffs against defendants.
The facts of the case are that Late Sh. Haji Mohd. Ismile @ Haji Kale was the leasee of the plot No. 37 and 38 of khasra No. 143/20 and 140/20 measuring 150 Sq. yards or there about and of plot No. 41 of Khasra No. 147/20 measuring 150 sq. yards situated at Motia Khan, Delhi and he continued in possession of the aforesaid suit plots as a leasee till his death. It was stated that Haji Mohd. Ismail @ Haji Kale died at Delhi on 25.12.1955 and the plaintiffs inherited his lease hold rights being his legal heirs. It was stated that Mohd. Ibrahim one of the sons of late Haji Mohd. Ismail died after his death and his right, title and interest has been inherited by the plaintiff's No. 11 to 18. It was stated that after the death of Haji Mohd. Ismail, the plaintiffs through their general attorney Sh. Mirajuddin applied to the DDA representing defendant to substitute them in place of deceased S851/06/87 Page No. 2/10 lease holder. It was stated that office of DDA called upon the plaintiffs to furnish documents regarding death of late Sh. Haji Mohd. Ismail and affidavits showing the name of LRs. As stated the plaintiffs accordingly supplied requisite documents under the bonafide impression that the DDA in due course of time will substitute the plaintiffs name in place of deceased lease holder. As stated suddenly some time in 1983 the DDA through tis officials illegally encroached upon the plots in dispute and ousted and dispossessed the plaintiffs by force and without recourse to law. It was further stated that plaintiffs claim and assert that they are the lease holders of the plots in suit having inherited by them from late Haji Mohd. Ismail @ Haki kale who continued in possession of the suit property till his death and accordingly they are entitled to possession of the suit plots. Hence, the present suit was filed by plaintiffs.
2. The suit was contested by defendants and written statement was filed wherein preliminary objections were raised stating that plaintiffs have no locus standi to file and maintain the present suit. It was also stated that suit is misuse of process of law and is liable to be rejected. On merits, it was stated that land measuring 181 sq. yards falling in Khasra No. 28/1 Qadam Sharif Estate was leased to Sh. Ismail on monthly basis on 01.1.1944, S851/06/87 Page No. 3/10 which was declared evacuee property by the custodian. It was stated that it was never restored by the Ministry in favour of Sh. Ismail and further there was never any structure on it and it was lying vacant. It was submitted that land measuring 10.5 acres including this piece of land has been transferred to Ministry of Rehabilitation, Govt. of India on 06.11.58 for Motia Khan Development Scheme for construction of double storey quarters. It was stated that plaintiffs had never been in possession over the suit land sicne 1947, till date. It was further submitted that since the lease hold rights were on monthly basis and the land in dispute was transferred to Ministry of Rehabilitation and the actual leasee has expired, there is no rights of any kind in respect to land which plaintiffs or anybody could inherit and plaintiffs have no right to get the land mutated on lease in their favour. The other contents were denied.
3. Replication was filed by plaintiffs and contents of the plaint were reiterated and those of the written statement were denied.
4. On the pleadings of the parties, the following issues were framed vide order dated 05.10.2001:-
1. Whether the plaintiffs have no locus standi to file the present suit?OPD
2. Whether the plaintiffs served notice U/s 53-B DDA Act on D-2? S851/06/87 Page No. 4/10
OPP
3. Whether the plaintiffs have served notice U/s 80 CPC on D-1 to D-3?OPP
4. Whether the plaintiff was in possession of the suit land?OPP
5. Whether the suit has been properly valued for the purposes of court fee and jurisdiction?OPP
6. Whether the plaintiff is entitled to the decree of possession as prayed for?OPP
7. Relief.
5. In evidence, plaintiff examined four witnesses in support of his case i.e. PW-1 Sh. Raj Kumar, PW-2 Sh. Ashok Kumar, PW-3 Sh. Amiruddin and PW-4 Sh. Rohtas Singh. One more PW i.e. Mairajuddin was also examined.
6. In defence, no DW was produced and counsel for defendants No. 1 and 3 made his statement to close D.E. and resultingly D.E. was closed vide order dated 12.12.2011.
7. During proceedings, none appeared on behalf of defendant No. 2 despite calls, hence he was proceeded ex-parte vide order dated 27.5.2005.
8. I have gone through the record and have heard the arguments.
My issue-wise finding is given below:-
9. Issue No. 1. Whether the plaintiffs have no locus standi S851/06/87 Page No. 5/10 to file the present suit?OPD:- The plaintiff has asserted his rights which have been denied by defendant. It is alleged by him that he was in possession of suit property and was dispossessed. There is no alternative forum for redressal of grievances. No evidence has been led to show as to how the plaintiffs have no locus-standi. Hence on all counts, this issue stands decided in favour of plaintiffs and against the defendants.
10.Issue No. 2. Whether the plaintiffs served notice U/s 53-B DDA Act on D-2?OPP and Issue No. 3. Whether the plaintiffs have served notice U/s 80 CPC on D-1 to D-3? OPP:- Both these issues are taken up together. Ex. PW-3/5 is notice issued U/s 80 of CPC as well as Notice U/s 53-B of DDA Act. Postal receipts are Ex. PW-3/6 and 3/7 and A.D. is Ex. PW-3/8. The same was served upon UOI and Ministry of Urban Development and thus it cannot be stated that notice was not served. Hence, this plea is not tenable and both these issues are decided in favour of plaintiff and against the defendants.
11.Issue No. 4. Whether the plaintiff was in possession of the suit land?OPP and Issue No. 6. Whether the plaintiff is entitled to the decree of possession as prayed for? OPP:- Both these issues are taken up together. Plaintiff has stated in the chief that he was in possession of suit property and S851/06/87 Page No. 6/10 same was also mentioned in the plaint. In WS, nothing has been stated regarding suit property and rather different stand taken that some land falling in Khasra No. 28/1, Kadam Sharif Estate was leased out to Ismile on monthly basis on 01.1.1944 which was declared evacuee property and later on transferred to Ministry of Rehabilitation. There is not even single whisper regarding land in question and the same is not helpful for the decision of the case. The plaintiff is talking about Khasra No. 144/20, 143/20 and 147/20 measuring 150 sq. yards each (In para 1 of the plaint, it is wrongly mentioned as Khasra No. 140/20 and in prayer clause it is mentioned as 144/20 but case of plaintiff had been that it was Khasra No. 143/20) and has relied upon Ex. PW-3/1 and 3/2 in which name of Mohd. Ismile is mentioned. The defendants have stated that earlier suit was filed by plaintiffs bearing No. 74/87 and same was dismissed. The filing of suit is not denied by defendant but that was with respect to Khasra No. 28/1 measuring 180 sq. yards and not for this land as depicted in copy of plaint Ex. PW-3/11 and copy of WS as Ex. PW-3/12 and same has no bearing on the decision of present case. The defendants have further argued that stray entry in Jamabandi has no relevancy and it was stated that in PW-3/2 it is mentioned that lease was cancelled w.e.f. S851/06/87 Page No. 7/10 04.10.1956 and stray entry cannot be relied upon. But the fact is that that arguments may be helpful in case of tress passer but not in case of original entrant who was given Patta legally. Nothing material has come out in cross-examination. Evidence of plaintiff has not been rebutted by defendant. It has been stated by plaintiff that they have been ousted from suit land. PW-1 has admitted that property is still today shown in the record in the name of Mohd. Ismile, S/o Kale Khan. In Jamabandi of the year 1973-74 Ex. PW-1/3 and 1/4, the name of Mohd. Ismile is entered and as per PW-1 had continued so as per record. It is not made out as to how lease was cancelled. What order was passed and by whom and if the lease was cancelled why and how the name continued in Ex. PW-3/3 and Ex. PW-3/4. The defendants could not have taken the law in their hands and plaintiff could not have ousted without due procedure of law. The counsel has relied upon AIR 1999 Supreme Court 997 State of UP Vs Lucknow Development Authority and argued that even though lease is cancelled, still lessor can take the possession only in a manner recognised by law. It has been observed by Hon'ble Supreme Court that "A lessor, with the best of title, has no right to resume possession extra judicially by use of force, from a lessee, even after the expiry or earlier S851/06/87 Page No. 8/10 termination of the lease by forfeiture or otherwise. The use of the expression 're-entry' in the lease-deed does not authorise extra judicially methods to resume possessions. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited; a lessee cannot be dispossessed otherwise than in due course of law. In the instant case the fact that the lessor is the state does not place it in any higher or better position. On the contrary, it is under an additional inhibition stemming from the requirement that all actions of Government and Governmental authorities should have a 'legal pedigree',. Therefore, there is no question in the instant case of the Government thinking of appropriating to itself an extra judicial right of re-entry. Possession can be resumed by Government only in a manner known to or recognised by law. It cannot resume possession otherwise than in accordance with law. Government is, accordingly, prohibited from taking possession otherwise than in due course of law". Thus plaintiff has proved that he was in possession of suit property and is entitled to same. Accordingly, both these issues are S851/06/87 Page No. 9/10 decided in favour of plaintiff and against the defendants.
12.Issue No. 5. Whether the suit has been properly valued for the purposes of court fee and jurisdiction?OPP:- The suit has been valued on the basis of land revenue and defendant has failed as to how the suit has not been properly valued. The suit is not liable to be valued as per section 7 (iv) (c) and has been rightly valued. Accordingly, this issue is decided in favour of plaintiff and against the defendants.
13.Relief:- In view of the above observations on all the issues, the suit of the plaintiffs stands decreed. Decree of possession of suit property bearing No. 37 and 38 of Khasra No. 143/20, 144/20 and plot No. 41 of Khasra No. 147/20 situated at Motia Khan, Delhi, is passed in favour of plaintiff and against the defendants. The defendants are directed to hand over peaceful and vacant possession of the suit property. Decree sheet be prepared. File be consigned to record room.
Announced in open court (AJAY GOEL)
22.12.2011 SCJ cum RC(Central)/ Delhi.
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