Delhi District Court
Smt. Parkash Wati (Deceased) vs Municipal Corporation Of Delhi on 11 September, 2020
IN THE COURT OF SH. BHARAT AGGARWAL, LD. CIVIL
JUDGE-02, WEST, TIS HAZARI COURT, DELHI
SUIT NO.612474/2016
1. Smt. Parkash Wati (Deceased)
Through her sole legal heir
Sh. Arun Kumar Jain (Son)
S/o Late Sh. Trilok Chand Jain
R/o House No.4071, Gali Ahiran,
Pahari Dhiraj, Delhi - 110006
(Substitution of legal heir allowed vide order dt.01/12/2009)
2. Dr. Mrs. Saroj Jain
W/o Sh. V.K. Jain
R/o I-107, Phase - I, Ashok Vihar,
Delhi - 110052
.........Plaintiffs
Versus
1. Municipal Corporation of Delhi
Town Hall, Chandni Chowk, Delhi - 110006
Through its Commissioner
2. Delhi Development Authority
Vikas Sadan, INA, New Delhi,
Through its Secretary
3. The SHO
Police Station Ambedkar Nagar,
New Delhi
..........Defendants
Suit No.612474/2016 Page No.1/26
Suit filed on - 29/03/1990
Judgment reserved on - 11/09/2020
Date of decision - 11/09/2020
SUIT FOR PERPETUAL INJUNCTION
JUDGMENT:-
By this judgment I shall adjudicate a suit of perpetual injunction filed by the plaintiffs claiming to be the title holder of the land in dispute against threats of dispossession and demolition allegedly by the municipal body and land owning agency of the government. Before adjudicating upon the issues framed in the present suit, it is necessary to state the pleadings in the present suit concisely.
Pleadings of the Plaintiffs: -
1. The present suit has been filed by the plaintiffs against the defendants thereby seeking the relief of perpetual injunction restraining the defendants i.e. Municipal Corporation of Delhi ("MCD", as it then was) and Delhi Development Authority ("DDA") from demolishing any part of the structure existing on the land situated at Khasra No.1029/436, Village Khirki, General Cariappa Marg, Tehsil Mehrauli, New Delhi admeasuring 12 Biswas in total (hereinafter referred to as the "suit land") and furthermore restraining the defendants from dispossessing the plaintiffs from the suit land.
Plaintiffs are stated to be in lawful possession of the land situated in Khasra No.1029/436, Village Khirki, General Cariappa Marg, Tehsil Mehrauli, New Delhi in the capacity of a "Bhumidar". It is stated that the Suit No.612474/2016 Page No.2/26 boundary wall was constructed by the plaintiffs in the said Khasra in the year 1988 and they are enjoying the physical possession of the suit land. However, on 05/03/1990 certain officials of the defendants came to the suit site and started demolishing the properties in the Village of the vicinity and threatened the plaintiffs with demolition of his property and to dispossess him without any notice under the Delhi Municipal Corporation Act, 1957 or under the Delhi Development Act, 1957. It is stated that the land does not belong to either of the defendants and they have no jurisdiction over the land. It is stated that MCD is not providing any civil amenities and the land is not within its jurisdiction and likewise the area is not a development land of DDA and, therefore, the defendants have no right over the suit land.
It is stated that the action of the defendants to threaten the plaintiffs with demolition of their property is illegal and without authority of law and there has never been any acquisition of the suit land. It is further stated that acquisition by the Delhi Administration has already been quashed by the Division Bench of the Hon'ble High Court in respect of 13 Villages including Village Khirki. It is further stated that no notice u/s 343 of the Delhi Municipal Act or any notice under the Delhi Development Act was ever served upon the plaintiffs and there are hundreds of structures similarly situated on the adjacent plots of the plaintiffs and the alleged action of defendants' amount to discrimination.
It is further stated that as per the order of the Lt. Governor of Delhi, any construction made before December, 1989 shall not be demolished and that the area has not been notified as an "urban area" under the Delhi Development Act or the Municipal Corporation Act. In these circumstances, plaintiff has sought injunction against the defendants i.e. MCD and DDA from dispossession or demolition of the boundary wall.
Suit No.612474/2016 Page No.3/26Pleadings of the Defendants: -
2. Written statement was filed on behalf of the defendant no.1/MCD whereby inter alia it was stated that the suit is barred by the provisions of Section - 477/478 of the Delhi Municipal Act, 1957 and the suit has been filed without any cause of action. It was stated that the suit is barred u/s 41(h) of the Specific Relief Act, 1963 and that the area in question was urbanised way back and is no more a development area. It is further stated that after the urbanisation, the provisions of the Delhi Municipal Act and the Building Bye-laws were made applicable to the area in dispute and, therefore, any construction in contravention of the provisions of the Delhi Municipal Act and the Building Bye-laws would be illegal and MCD would have jurisdiction in such a case. It is further stated that no site plan or ownership documents have been supplied by the plaintiffs.
It was stated that the suit land was not booked by the MCD as on date of the institution of the present suit. It was stated that inspection was carried out by the MCD at the suit land number of times but due to insufficient details regarding the premises in question, the exact location of the suit land could not be ascertained and, therefore, the suit land could not have been booked by MCD for unauthorised construction. It is further stated that plaintiff has not given the exact details of the suit land including the portion or the khasra number upon which the plaintiffs' dwelling unit has been constructed and plaintiff has deliberately given the address as a plot of land bearing Khasra No.1029/436 and as the khasra land is a land measuring about 1000 to 1500 sq. yds., therefore, it is very difficult to identify the suit land out of the said big khasra. It is further stated that the building activities of the MCD are very much applicable to the area in question and MCD had undertaken in its written statement to initiate appropriate action against the unauthorised construction upon receipt of Suit No.612474/2016 Page No.4/26 correct details of the premises in question. It was further stated that there has been no threat by the MCD to the plaintiff as alleged by the plaintiff.
3. In its replication to the written statement of defendant no.1/MCD, the plaintiff merely denied the contents of the written statement and inter alia stated that no notice was required to be given u/s 478 of Delhi Municipal Act as the suit pertains to injunction. Rest of the averments were merely reiteration of the plaint.
4. Written statement was also filed on behalf of defendant no.2/DDA wherein inter alia it was stated that the suit is barred u/s 41(h) of the Specific Relief Act, 1963 as under the garb of injunction, the plaintiffs seeks to grab the suit land. It was further stated that plaintiffs have no locus standi to file the present suit as they are unauthorised and unlawful occupants of the land in question. More importantly it was stated that the suit land belongs to DDA as it has been transferred by Ministry of Rehabilitation vide transfer order/letter No.4(19)78-SS-II(Volume-II) Government of India, Ministry of Supply and Rehabilitation under a package deal on 02/09/1982. It was further stated that the plaintiffs' possession of the suit land is illegal and unauthorised. It was further stated by the DDA that the suit land is an evacuee property and vests with the Central Government and thereafter the Ministry of Rehabilitation had transferred the same to the DDA under a package deal. That the property in dispute is beyond the purview of the quashing of acquisition proceedings in 13 villages as alleged by the plaintiff. It was further stated by DDA that no notice was required to be served on an unauthorised occupant of Government land. It was further denied by the DDA that the provisions of Delhi Development Act does not apply to the area where the plaintiffs have raised unauthorised and illegal construction. It was further denied by DDA Suit No.612474/2016 Page No.5/26 that the provisions of Delhi Development Act does not apply to the suit land whereby the plaintiff has raised unauthorised construction. It was further stated that the plaintiffs are illegal occupant/ranked trespassers and the defendant/DDA has every right to demolish the unauthorised or illegal construction raised by the plaintiffs.
5. In its replication to the written statement of defendant no.2/DDA, the plaintiffs reiterated the version of the plaint and inter alia stated that there could be no package deal between the DDA and Government of India as the same is illegal and contravenes the Constitution of India and Delhi Development Act. It was further stated that the possession of the plaintiffs is legal and lawful and they cannot be dispossessed in any manner by the defendant/DDA.
Issues: -
6. As the pleadings were complete, the issues were initially framed in the matter vide order dt.25/09/2000 and thereafter as an application u/o VI R.17 CPC seeking amendment of the plaint was allowed vide order dt.20/09/2002, the issues were reframed in the present suit vide order dt.24/04/2006, which are as under : -
(a) Whether the plaintiff is entitled to the relief of perpetual injunction as prayed for? OPP
(b) Whether the plaintiff is entitled to the relief of injunction restraining the defendants from demolishing any part of the structure existing on the suit property? OPP
(c) Whether the plaintiffs are unauthorised occupants and have encroached upon the land belonging to DDA? OPD
(d) Whether the suit is bad against MCD for want of statutory notice as mentioned in preliminary objection No.1? OPD Suit No.612474/2016 Page No.6/26
(e) Whether the suit is barred u/s 41(h) of Specific Relief Act?
OPD
(f) Relief.
Vide order dt.01/12/2009, an application u/o XXII R.3 CPC filed by the plaintiffs was allowed and as the plaintiff no.1 had expired on 28/01/2009, therefore, the legal representative of the plaintiff no.1 was brought on record.
Evidence :-
7. In order to prove their case, plaintiffs led the evidence of Sh. Arun Jain as PW-1 who is the son of the plaintiff no.1 Late Smt. Prakashwati and he filed his evidence affidavit on record which was identified as Ex. PW- 1/A. PW-1 also relied upon certain documents which are as under :-
Identification Description
Mark
Ex. PW-1/1 Death Certificate of Ms. Prakash Wati Jain/plaintiff
no.1.
Ex. PW-1/2 (OSR) Will dt.06/10/1993.
Ex. PW-1/3 (OSR) Photocopies of title documents.
Ex. PW-1/4 (OSR) Photocopy of Khasra Girdwari.
Ex. PW-1/5 Police complaint dt.28/04/2014.
Ex. PW-1/6 (Colly) Photographs.
In his evidence affidavit PW-1 inter alia stated that the name of the plaintiff has been entered in the revenue record and prior to the death of plaintiff no.1, she had executed a registered Will dt.06/10/1993 in respect of the suit land in favour of the PW-1. It was further stated that half undivided share of the plaintiff no.1 was inherited by PW-1 and the suit land was jointly purchased by the plaintiffs. It was further stated that the Suit No.612474/2016 Page No.7/26 plaintiffs are recorded owners of the suit land as shown in the revenue record and in 1988 boundary wall was constructed in the suit land. It was further stated that vide order dt.02/04/1990 the defendants were restrained from demolishing the boundary wall and dispossessing the plaintiffs from the suit land, however, the defendants have illegally demolished the boundary wall on 09/04/2014 thereby violating the order passed by the court on 02/04/1990.
PW-1 was cross-examined by the counsel for defendants whereby inter alia he stated that he is not aware that which of the defendants had broken the boundary wall of the suit land and after the boundary wall was broken, he made a complaint before the local police i.e. Ex. PW-1/5. He further stated that probate letter has not been obtained in respect of the Will dt.06/10/1993 Ex. PW-1/2. He further admitted that no sanctioned plan has been obtained by the plaintiffs from the defendant no.1 and no house tax was paid by the plaintiff in respect of the suit land. PW-1 further admitted that no registered document of transfer of the suit land had been executed or exist in the name of the plaintiff and he stated that he is not aware about the execution of the documents Ex. PW-1/3 which were executed in favour of his mother. PW-1 further stated that the Will Ex. PW-1/2 has not been executed by his mother in his presence for which later the evidence of PW- 2 was recorded in the present case.
He further denied the suggestion of the counsel for the defendants that the plaintiffs are mere cultivators on the suit land paying rent to the Government. He further stated that plaintiff no.1 purchased 500sq. yds. and the plaintiff no.2 purchased 250sq. yds. in the khasra through the documents i.e. Ex. PW-1/3 and at the time of purchase it was not decided as to which portion of the suit land is owned by which plaintiff. He further stated that Ex. PW-1/4 i.e. Khasra Girdawari is the document of ownership of the plaintiffs. He further stated that he cannot file any document to show Suit No.612474/2016 Page No.8/26 ownership of Sh. Om Prakash Sharma from whom the plaintiffs had allegedly purchased the suit land. He further admitted that no site plan of the suit land has been filed on record. He further admitted that there was no other construction on the suit land apart from boundary wall. He further stated that he does not know whether the boundary wall was raised before or after filing of the suit and whether any permission from the relevant authority was sought before raising the same. He further stated that he is not aware about the copy of any orders passed by Hon'ble Lt. Governor as alleged by the plaintiffs in the plaint and in the evidence affidavit. He further stated that he cannot even tell the total area of the Khasra No.1029/436.
Thereafter, plaintiff led the evidence of PW-2 i.e. Smt. Vijay Laxmi Jain i.e. the daughter of the deceased plaintiff no.1 and attesting witness to her last Will dt.06/10/1993 being Ex. PW-1/2. PW-2 filed her evidence affidavit i.e. Ex. PW-2/A whereby she inter alia stated that her mother plaintiff no.1 died on 28/01/2009 and she was having sound mind during the execution of her last Will. She further stated that the Will Ex. PW-1/2 was duly registered and she identified her signature at Mark-B on Ex. PW- 1/2 and the signatures of her mother i.e. plaintiff no.1 at Mark-A on Ex. PW-1/2.
PW-2 was also cross-examined by the counsel for both the defendants whereby she inter alia stated that the Will has not been probated by any court and she has two sisters and two brothers. She denied the suggestion by the counsel for defendant no.2/DDA that her mother had no right, title or interest in the suit land.
Thereafter, upon the statement of the counsel for plaintiffs, the plaintiffs' evidence was closed vide order dt.28/09/2019.
Suit No.612474/2016 Page No.9/268. No evidence in the present case was led by defendant no.1/MCD.
Defendant no.2/DDA in order to prove its defence led the evidence of one Sh. Rajbir Singh, Kanoongo as D2W-1 and who filed his evidence affidavit which was taken on record as Ex. D2W1/A. D2W-1 also relied upon certain documents which are as under :-
Identification Description Mark
Ex. D2W-1/1 (OSR) Photocopy of letter dt.02/09/1982 issued by Ministry of Supply and Rehabilitation, Governemnt of India to the Vice Chairman, DDA pertaining to the transfer of unutilized land measuring approximately 1020 acres to the DDA on payment of Rs.30Crores.
Ex. D2W-1/2 (OSR) Photocopy of letter dt.22/12/1987 issued by Department of Internal Security, Ministry of Home Affairs, Governemnt of India to DDA regarding physical possession of land in Village Khirki. The relevant portion of concerned Khasra No.1029/436 is shown at Point-A, item No.7.
Ex. D2W-1/3 (OSR) Photocopies of Sizra Plan of Village Khirki.
In his evidence affidavit D2W-1 inter alia stated that the suit land is measuring 12 Biswas and is situated in Khasra No.1029/436 which was a evacuee property and vested with Central Government. It was thereafter stated that vide package deal dt.02/09/1982 the Ministry of Rehabilitation, Union of India transferred about 1020 acres of land to the DDA for a valuable consideration of Rs. 30 Crores and the suit land is a part of the aforesaid package deal. It was stated that the actual physical possession of the land measuring 52 Bighas and 10 Biswas including suit land was taken Suit No.612474/2016 Page No.10/26 over by DDA on 23/12/1982. It was stated that the structures existing on the Khasra No.1029/436 were demolished and plaintiffs had encroached upon the suit land after its physical possession was delivered to DDA. It was further stated that suit land is in actual and physical possession of DDA and plaintiffs are ranked trespassers.
D2W-1 was cross-examined by the counsel for the plaintiffs whereby inter alia he stated that the proceedings in Ex. D2W-1/1 does not bear his signature and he does not have any personal knowledge about the execution of the letter dt.02/09/1982. He stated that Khasra No.436 is divided in two portions i.e. 1029/436 measuring 2 Bighas and 2 Biswas and 1030/436 measuring 1 Bigha and 18 Biswas. He further stated that the entire khasra and both the portions were acquired by DDA. He further stated that towards the North, East and South of the suit land lies somebody else's partly constructed property and towards the West of the suit land lies a road. He stated that all these properties are unauthorizedly occupied by trespassers over DDA land and DDA is not in physical possession of the said property.
Thereafter, no other evidence was led on behalf of the defendants and defendants' evidence was closed vide order dt.07/01/2020.
Decision with reasons :-
9. The arguments were heard on behalf of parties and the record has been carefully perused. Now, I shall give my issue-wise findings which are as under: -
10. Issue No.(d) -
(d) Whether the suit is bad against MCD for want of statutory notice as mentioned in preliminary objection No.1? OPD The onus to prove this issue was upon the defendant no.1.
Suit No.612474/2016 Page No.11/26It was stated by defendant no./MCD in the written statement that plaintiffs have not served the mandatory notice as per Section-478 of the Delhi Municipal Corporation Act, 1957 to the defendant no.1/MCD before the institution of the present suit. Defendant no.1 submitted that suit is liable to be dismissed on this ground. Section 478 of the aforesaid Act provides for service of notice on the MCD prior to the institution of suits against MCD. In this regard, it is relevant to refer to Section-478(3) which provides that the requirement of service of notice prior to the institution of the suit shall not be applicable in a case where the only relief claimed is injunction and the object of which would be defeated by giving notice to MCD.
In the present suit there is an allegation of immediate threat of dispossession and demolition of the construction raised by the plaintiffs on the suit land and the object of the suit would have been defeated by serving the notice. Accordingly, the present suit is governed by the exception carved out in Sub-Section (3) of Section- 478 of DMC Act and thus the suit is maintainable even without the service of prior notice under Section- 478 of DMC Act.
Even otherwise, the present suit has already seen a life span of about three decades and has gone through the rigours of trial including comprehensive pleadings and evidence and, hence, the court is of the opinion that the suit does not merit dismissal on the mere technical ground of non-service of notice. In any event, Section-478(3) carves out an exception for service of notice in the cases where the only relief claimed by the plaintiff is that of injunction and which would be defeated by service of notice. In the present case, the plaintiff has sought injunction against the demolition and dispossession which allegedly was imminently threatened by the defendants i.e. MCD and DDA. Therefore, there was no Suit No.612474/2016 Page No.12/26 requirement of service of statutory notice to the defendant no.1/MCD as per Section-478(3) of the Delhi Municipal Corporation Act, 1957.
Accordingly, in view of the aforesaid observations, issue no.(d) is decided in favour of plaintiffs and against the defendant no.1.
11. Issue No.(e) -
(e) Whether the suit is barred u/s 41(h) of Specific Relief Act? OPD The onus to prove this issue was upon the defendants.
The MCD has stated in its written statement that the plaintiff is not entitled to any relief in view of Section-41(h) of the Specific Relief Act, 1963. Section-41(h) of the said Act provides that an injunction cannot be granted when equally efficacious relief can be obtained by any other usual mode of proceedings except in the case of breach of trust. In these circumstances, the defendants should have stated that as to what is the equal efficacious remedy that the plaintiff should have applied for, apart from filing the present suit.
The plaintiffs have stated that they had to approach the court because of the consistent threats by the defendants regarding demolition and dispossession from the suit land. In these circumstances, it is quite apparent that plaintiffs were left with no other remedy except to approach the court seeking injunction against the defendants. In any event, a litigant has the right to approach a civil court under the Code of Civil Procedure, 1908 with a suit of civil nature upon threat of violation of any legal right by the defendants. In the considered opinion of this court, the present suit for injunction is well maintainable and not barred under the provisions of Section 41(h) of the Specific Relief Act, 1963.
Accordingly, in view of the aforesaid observations, issue no.(e) is decided in favour of plaintiffs and against the defendants.
Suit No.612474/2016 Page No.13/2612. Issue No.(a), (b) and (c) -
(a) Whether the plaintiff is entitled to the relief of perpetual injunction as prayed for? OPP
(b) Whether the plaintiff is entitled to the relief of injunction restraining the defendants from demolishing any part of the structure existing on the suit property? OPP
(c) Whether the plaintiffs are unauthorised occupants and have encroached upon the land belonging to DDA? OPD The onus to prove issue no.(a) and (b) was upon the plaintiff and the onus to prove issue no.(c) was upon the defendants.
Plaintiffs have filed the present suit against the MCD and DDA in respect of the Khasra No.1029/436, Village Khirki, General Cariappa Marg, Tehsil Mehrauli, New Delhi alleging themselves to be a Bhumidar in the revenue record and relying upon Ex. PW-1/4 i.e. Khasra Girdawari. The plaintiff has further relied upon Ex. PW-1/3 i.e. the alleged title documents being GPA executed by one Sh. Om Prakash Sharma in favour of plaintiff no.2, agreement dt.21/12/1987 executed by Sh. Om Prakash Sharma in favour of plaintiff no.2 and affidavit in respect of 250sq. yds. and similar documents by said Sh. Om Prakash Sharma in favour of the plaintiff no.1 for 500sq. Yds. of land. It is alleged that on 05/03/1990 some officials of the defendants came to the site and started demolishing the properties in the vicinity and threatened the plaintiffs to demolish their property without any notice.
On the other hand, MCD inter alia has defended the suit by stating that it has the authority to take action against the unauthorised constructions under the Delhi Municipal Corporation Act, 1957 and the Building Bye-laws. The plaintiff has not specifically pointed out the exact location of the property and deliberately stated the suit land to be an entire khasra number without stating any particular identification number of the Suit No.612474/2016 Page No.14/26 property in question. More particularly, defendant no.2/DDA has argued that the suit land is a part of land procured by the DDA from Ministry of Rehabilitation, Government of India under the package deal vide letter dt.22/09/1987 and relied upon the said letter Ex. D2W-1/1 and other letter dt.23/12/1987 Ex. D2W-1/2 to show possession.
During the cross-examination of PW-1 i.e. the son of the deceased plaintiff no.1, he admitted that there is no registered document of the transfer of suit land which exists in favour of the plaintiffs. He further stated that the Khasra Girdwari Ex. PW-1/4 is the document of ownership in favour of the Plaintiffs. He admitted that no site plan of the suit land has been filed on record and he failed to answer a question about the total area of Khasra No.1029/436, where the suit land is stated to be situated.
In the plaint, the plaintiffs have failed to properly point out the exact details of the suit land in question and has only mentioned that the suit pertains to Khasra No.1029/436. The total size of the khasra land is surprisingly not disclosed by the plaintiffs neither in pleadings nor in evidence. Even in the prayer clause, the plaintiffs have not specified the exact portion and simply stated that it is a land admeasuring 12 Biswas in total in Khasra No.1029/436, Village Khirki, General Cariappa Marg, Tehsil Mehrauli, New Delhi. Admittedly, plaintiffs have not filed any site plan on record for identification of the suit land which is a necessity in cases of injunction like the present one. Identification of the suit land is one of the pivotal requirements of pleadings so as to ensure proper adjudication of the controversy between litigants and avoid multiplicity of proceedings. Even as per Order-VII R.3 of CPC where the subject matter of the suit is immovable property, the plaintiff has to mention description of the property sufficient enough to identify the same and the plaintiff shall also give the boundaries or numbers in the record of a survey for the purpose of identification. For such purpose, usually a site plan is filed for Suit No.612474/2016 Page No.15/26 identification of the properties or land in civil cases in order to avoid any controversy pertaining to the exact description of the disputed land or property. However, in the present case it is beyond comprehension as to why the plaintiff chose not to given the exact particular details of the suit land in the present suit and even further refrained from filing any site plan especially when the MCD in its written statement has specifically stated that the Khasra No.1029/436 admeasures about 1000 to 1500sq. yds. and the plaintiff has not given any property number which makes it difficult to identify the suit property out of the entire big khasra land. In such circumstances, even if the suit would succeed on merits, no relief can be granted in favour of the Plaintiffs till the exact particulars of the suit land were given disclosing the boundaries of the same for identification.
Furthermore, the plaintiff has based his entire suit on the basis of Ex. PW-1/3 i.e. the alleged title documents and Ex PW-1/4 Khasra Girdawari. Perusal of the said documents reveal that one Sh. Om Prakash Sharma had executed two sets of documents in favour of plaintiff no.1 and plaintiff no.2 for 500sq. yds. and 250sq. yds. respectively on 21/12/1987. The said documents are admittedly unregistered which would attract the consequences spelled out in Section-17 r/w Section-49 of the Registration Act, 1908. The combined effect of those provisions would entail that the unregistered sale documents in respect of immovable property shall not be read in evidence in respect of the transaction affecting such property unless they have been duly registered.
It is not a disputed position in the present case that there is no registered sale deed in favour of the plaintiffs. Rather, they have relied upon documents in the nature of GPA, Agreement, Affidavit, receipt etc. In this regard it is beneficial to quote here the observations of Hon'ble High Court of Delhi in the case of "Bishan Chand V/s Ved Prakash, (2018 SCC online Del 11408)", where inter alia it was held that :-
Suit No.612474/2016 Page No.16/26"...12. The counsel for the appellant/plaintiff, aware of Suraj Lamp & Industries P. Ltd. Vs. State of Haryana 2009 (7) SCC 363, (2012) 1 SCC 656, states that the same does not apply to the appellant/plaintiff since the documents are of the year 1984 i.e. prior to the pronouncement of the said judgment. However on enquiry as to why the said judgment would not apply, the counsel for the appellant/plaintiff is unable to give an answer.
13. There appears to be a prevalent misconception that Suraj Lamp & Industries P. Ltd. supra is only prospective and not retrospective. The following paragraphs of the said judgment as reported in (2012) 1 SCC 656 are relevant:-
"23. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank, that the "concept of power-of-attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
24. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance.
Transactions of the nature of "GPA sales" or "SA/GPA/WILL transfers" do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited Suit No.612474/2016 Page No.17/26 extent of Section 53-A of the Transfer of Property Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.
25. It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship.
26. We have merely drawn attention to and reiterated the well- settled legal position that SA/GPA/WILL transactions are not "transfers" or "sales" and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreements of sale. Nothing prevents the affected parties from getting registered deeds of conveyance to complete their title. The said "SA/GPA/WILL transactions" may also be used to obtain specific performance or to defend possession under Section 53-A of the TP Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by development authorities. We make it clear that if the documents relating to "SA/GPA/WILL transactions" has been accepted acted / upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision.
27. We make it clear that our observations are not intended to in any way affect the validity of sale Suit No.612474/2016 Page No.18/26 agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favor of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding "SA/GPA/WILL transactions" are not intended to apply to such bonafide/genuine transactions."
14. However, as would be clear from the aforesaid paragraphs, the judgment does not lay down any new law or principle and is not pathbreaking and merely reiterates the well settled legal position as always understood in the past as well. Even on request to make the judgment applicable prospectively, it was clarified that SPA/GPA/Will transactions effected prior to the said judgment, could not be treated as completed transfers or conveyances and could be treated as existing agreements of sale on basis of which conveyance deeds to perfect title could be obtained or specific performance sought or defence of Section 53A of Transfer of Property Act, 1882 taken or registration from development authorities sought. It was further clarified that where on basis of SPA/GPA/Will transactions, mutations had already been effected, such mutations will also not be disturbed on account of the judgment. Supreme Court nowhere said that SPA/GPA/Will transactions of a date prior to the judgement will constitute a title. Rather, it was held, they would not. The appellant / plaintiff thus cannot claim that he has title to the property as agreement purchaser and the courts cannot declare the appellant / plaintiff to be having title to the property."
Suit No.612474/2016 Page No.19/26In view of the aforesaid observations of the Hon'ble Delhi High Court and the Hon'ble Supreme Court, it is quite evident that the documents relied upon the plaintiff in Ex. PW-1/3 do not confer any title upon the plaintiffs in respect of the suit land. Furthermore, the plaintiffs have not shown as to how the alleged previous owner Sh. Om Prakash had any right or title to transfer the suit land in question to the plaintiffs especially when question regarding his right or interest was raised during the cross examination of PW-1 by the ld. Counsel for the Defendant no.2/DDA. In fact PW-1 himself admitted that he has not filed any document to show any right, title or interest of Sh. Om Prakash Sharma over the suit land and he cannot file the same. This raises huge suspicion over the genuineness of the transaction and the authority/right of the alleged previous owner to create a right in favour of the plaintiffs as it is well settled that no person can transfer something which he does not lawfully have.
On the other hand, the defendant no.2/DDA has relied upon D2W- 1/1 i.e. the letter dt.02/09/1982 issued by the Ministry of Supply and Rehabilitation, Government of India to the DDA regarding transfer of unutilized lands in Delhi measuring approximately 1020 acres on a payment of Rs.30 Crores. The defendant no.2 also relied upon Ex. D2W1/2 whereby the physical possession of land in Village Khirki was handed over by the Ministry of Home Affairs, Department of Internal Security, Rehabilitation Division (Settlement) to the DDA and the said proceedings also contain mention of Khasra No.1029/436 measuring 2 Bighas 2 Biswas at item No.7 in the list. The witness D2W-1 withstood his testimony during cross-examination pertaining to the procurement of the land by DDA. These documents in fact goes on to show that the suit land has been acquired by the DDA way before the institution of the present suit and the Plaintiffs have not disclosed any such fact in the pleadings. Rather Suit No.612474/2016 Page No.20/26 it has been vaguely averred in the plaint that acquisitions were quashed of 13 villages and the Lt. Governor has by order stopped the action on such properties. The plaintiffs were obligated to prove such averments on record and supply enough cogent material but they have miserably failed to place on record any such orders or notifications.
At this juncture, it is beneficial to refer the observations of Hon'ble High Court of Delhi made in case titled as "Rajinder Kakkar And Others V/s DDA, {1994 (1) AD (Delhi) 432}" which are as under :-
"Time has now come where the society and the law abiding citizens are being held to ransom by persons who have no respect for law. The wheels of justice grind slowly and the violators of law are seeking to take advantage of the laws delays. That is why they insist on the letter of the law being complied with by the respondents while, at the same time, showing their-complete contempt for the laws themselves. Should there not be a change in the judicial approach or thinking when dealing with such problems which have increased many fold in recent years viz., large scale encroachment on public land and unauthorised construction thereon, most of which could not have taken place without such encroachers getting blessings or tactic approval from the powers that be including the Municipal or the local employees. Should the courts give protection to violators of the law? The answer in our opinion must be in the negative. Time has now come when the courts have to be satisfied, before they interfere with the action taken or proposed to be taken by the governmental authorities qua removal of encroachment or sealing or demolishing unauthorised construction especially when such construction, like the present, is commercial in nature.
Before action for demolition or removal of encroachment is taken the court must be satisfied, prima facie, on the basis of some document or other tangible evidence that the petitioners or the applicants have a legal title to the property or a right to remain in possession thereof. Where a person is an encroacher and never had any right to legal Suit No.612474/2016 Page No.21/26 possession of public land, the courts should not grant any injunction or relief which will have the result of permitting or protecting the continued illegal occupation of public land. There may be a case where at a point of time the possession or occupation may have been valid under a lease or a grant and which lease or grant may have subsequently been wrongfully terminated and the termination challenged, such a case may, however, fall in a different category where the question of balance of convenience will have to be carefully examined especially when the action of termination of lease or grant is seriously challenged. But, in a case like the present, where at no point of time the petitioners had any valid right, title or interest to the property the court ought not to grant any relief to such a petitioner even if there has been any procedural irregularity by the respondent while seeking to get back possession of public land."
In view of the aforesaid observations, it is incumbent upon the court before grant of the equitable relief of injunction, to see whether the plaintiffs have a legal title in the property or any right to remain in legal possession of the land in question. Time and again it has been the view of the courts that restraint shall be exercised before granting any injunction which would result in protection of illegal occupation over the public land. Where the Defendant public body has specifically taken the defense that the suit land or property was duly procured by the government agency by following appropriate procedure, the Plaintiff has to prove that the land/ property in dispute is either beyond the purview of such acquisition or the acquisition itself has been set aside. An additional duty is casted upon the Plaintiff in such a case to show that the suit land is free of acquisition and the Plaintiff holds a valid title or legal possession over the same. The plaintiffs in the present case have miserably failed to show any title over the suit land and their legal possession or nature of their possession in the suit land. It is not even the case of the plaintiffs that they are in the settled possession of the suit land as PW-1 has himself admitted in his cross-
Suit No.612474/2016 Page No.22/26examination that he does not have any proof of possession i.e. Khasra Girdwari or any other revenue document other than Ex. PW-1/4 to show possession prior to 1988-1989. Since plaintiffs themselves have neither averred nor proved their settled possession over the suit land, the court cannot come to the rescue of the plaintiffs in order to protect their possession. Even otherwise, the plaintiffs did not even call the officials from Revenue Department to support their case and file the relevant revenue records in order to prove continuous possession or alleged Bhumidari rights. In the present case, no evidence of the revenue officials has been led by the plaintiffs despite the suit land being a vacant piece of land admittedly under the jurisdiction of the revenue authorities.
The reliance upon alleged title documents Ex. PW-1/3 has been dealt with above and they cannot be held to constitute conferment of valid title upon the Plaintiffs. Next reliance is placed by the plaintiffs upon Khasra Girdawari Ex. PW-1/4 for proving title. In this regard, it is relevant to study the observations of Hon'ble High Court of Delhi made in a case titled as "Mahesh Chandra Agarwal V/s Rameshwar & Others, {(2009) 162 DLT 684}" which are as under :-
"......11. So far as the declaratory relief sought by the plaintiff is concerned, the suit is premised upon two documents, i.e., the demarcation report (Ex.PW-1/5) and the extract of Khasra Girdawari issued in June, 2005. The latter document records that one "Mahesh Chandra s/o Shri Bhartendu is cultivator of the land". The photographs annexed along with the Suit and even the Khasra Girdawari clearly state that the site is an unauthorized colony. The plaintiff claims to be in "settled possession" of the lands and further states that they are ancestral. If that were the case, having regard to the dimension of the plot i.e.1184.4 sq. yds., surely the plaintiff would have been able to produce something more. It is well known that revenue records are not title documents and that courts do not rely upon them while deciding issues of ownership. Often Suit No.612474/2016 Page No.23/26 revenue laws contain provisions that enjoin presumptive value of the entry made in the record; however, such presumption is only that such entries are made and the extracts in such entries having correctly shown in the certified copy issued for the purpose. They are never seen as vouchsafing veracity of the source reflecting the true position. It has thus been held in State of Bihar v. Radha Krishna Singh : 1983 (3) SCC 118 that in the absence of the revenue records disclosing how and what manner of enquiry was conducted before the entry was made, the Court will not accord it evidentiary value. The Court also concluded that such document is never to be treated as evidence of title. This view, i.e., the revenue records are not documents of title has also been affirmed in other decisions [refer Corporation of City of Bangalore v. M. Papaiah : 1989 (3) SCC 612; Guru Amarjit Singh v. Rattan Chand : 1993 (4) SCC 349; Nagar Palika v. Jagat Singh : 1995 (3) SCC 426].
......"
Furthermore, it is beneficial to refer the observations of Hon'ble High Court of Delhi made in case titled as "Mahesh Chand Sharma V/s Jamia Millia Islamia University, (2017 SCC OnLine Del 6503)" which are as under :-
"....12. However, the crux of the question which has to be decided by this court is whether there is a bonafide dispute qua the title of the property or not? This shall now be examined in the ensuing paragraphs.
13. The documents relied upon by the petitioner are no documents of title. The only document worth a revisit is the khasra girdawari; this is also not a document of title. It only evidences the cultivatory possession of the name of the person mentioned in column No. 3. The name of the aforenoted person is Chuttan. Column No. 3 records that Chuttan is the shareholder of Ramji Lal. The possessory rights in column No. 8 mention the name of Mahesh Chand Sharma. This document is of the year 1995. The other documents relied upon by the petitioner are only electricity bills and payment of house-tax. These are unilateral payments made by petitioner No.1. Relevant would it be to note that all these later documents Suit No.612474/2016 Page No.24/26 refer to property No. 113/1, Gafur Nagar, New Delhi. In the course of evidence which had been adduced before the Estate Officer; petitioner No. 1(RW-3) had deposed that he had constructed this house in the year 1972 and he was in possession since then; the land was originally owned by Chuttan. He had purchased this land from Chauttan vide certain documents which documents had got destroyed in the heavy rain of the year 1978; he had not filed any complaint about the destruction of these documents. RW-3 admitted that he had not checked the title of Chuttan and was unaware whether Chuttan was the owner of this land or not; he further admitted that this property falls in khasra No. 112 as also in khasra No. 113; his father Ramphal had never resided in this house."
In view of the aforesaid observations, the Khasra Girdwari cannot be stated to be a document proving ownership of the plaintiffs. Therefore, the reliance of the Plaintiffs upon the Khasra Girdawari Ex. PW-1/4 to allege title over the suit land is also bad in law. Mere mention of the Plaintiffs are land cultivators would not entitle the Plaintiffs for discretionary relief of injunction especially in light of the procurement of the suit land by Defendant No. 2/DDA from the Central Government. In view of the aforesaid observations as it has become quite apparent that the plaintiff has failed to show his locus in the suit property by establishing cogent evidence, the court is not inclined to grant any relief of injunction which is an equitable relief in favour of the plaintiff, and hence, the suit filed by the plaintiffs is liable to be dismissed.
Accordingly, issue no.(a), (b) and (c) are decided in favour of defendants and against the plaintiffs.
13. Issue no.(f) -
(f) Relief - In view of the findings given on issues no.(a) & (e), documents placed on record, pleadings of the parties and evidence led by the parties, the plaintiffs have failed to prove their case on the scale of Suit No.612474/2016 Page No.25/26 preponderance of probabilities. Accordingly, the suit of the plaintiffs is hereby dismissed.
Decree sheet be prepared accordingly. File be consigned to record Digitally signed room after completing the necessary formalities. BHARAT by BHARAT AGGARWAL AGGARWAL Date:
2020.09.11 14:42:22 +0530 (BHARAT AGGARWAL) Civil Judge, Delhi (West)-02 Pronounced, through video conferencing through Cisco Webex application, on 11/09/2020.Suit No.612474/2016 Page No.26/26