Delhi District Court
Sh. Mahender Kaushik vs Municipal Corporation Of Delhi on 28 July, 2018
In the court of Sh. Munish Markan, Additional District Judge01,
(South) District Courts, Saket, New Delhi
CS no.7566/16
CNR no.DLST010000082004
Sh. Mahender Kaushik
Son of Late Sh. Om Prakash Kaushik
R/o House no.166, Village Khirki,
New Delhi
..... Plaintiff
Versus
1.Municipal Corporation of Delhi Service to be effected through The Commissioner of the Corporation Town Hall, Chandni Chowk, Delhi
2. Deputy Commissioner Municipal Corporation of Delhi (South Zone) Green Park, New Delhi ........... Defendants Date of institution : 25.05.2004 Date reserved for judgment : 25.07.2018 Date of pronouncement of judgment : 28.07.2018 Decision : Dismissed CS No.7566/16 Sh. Mahender Kaushik Vs. MCD & Anr. 1/17 Suit for Permanent Injunction J U D G M E N T
1. Opposite Sai Baba Mandir at Village Khirki, New Delhi, there is a piece of land measuring about 41.2 meters x 10.20 meters which is the suit property. On its back side, there is a 2 ½ story building bearing house no.166 in Khasra No.78, Village Khirki, New Delhi and plaintiff claims that his house no.166 includes the said open land (suit property) as well and apprehending its demolition by the defendant MCD (which claims the suit property to be a public land encroached by the plaintiff), the plaintiff has filed the present suit for decree of permanent injunction to restrain the defendants or anybody on its behalf from demolishing any portion of the house no.166 comprised in Khasra no.78, Village Khirki, New Delhi. CASE OF THE PLAINTIFF
2. The case of the plaintiff is that his grand father late Sh. Chunni was the owner of the house bearing municipal no.166 situated within the Lal Dora of village Khirki comprised in Khasra no.78, New Delhi. This property of the grand father was inherited by his son late Sh. Om Prakash Kaushik who died in the year 1975 in an accident and plaintiff being the son inherited the suit property. The house was built before 1950 and plaintiff carried out changes and additions and now it is a 2 ½ storey building. Earlier the Revenue Estate of village Khirki was within the jurisdiction of South Delhi Municipal Committee and the property was CS No.7566/16 Sh. Mahender Kaushik Vs. MCD & Anr. 2/17 having Municipal no.89 way back in the 1950s and was assessed to house tax and after coming into force of The Delhi Municipal Corporation Act 1958, the house was given a new no.166. The house still stand in the name of grand father late Sh. Chunni.
3. Plaintiff further stated that in the year 1982, since the plaintiff wanted to raise further construction in the house no.166, plaintiff obtained a Lal Dora certificate from the competent authority i.e. SDM/RA/SO(C), New Delhi. On 20.05.2004, JE of defendant no.2 visited the house no.166 and threatened to demolish the portion of the house depicted in red zebra lines in the site plan of the plaintiff which is a part and parcel of the house since the time of his grand father even prior to 1950.
4. Plaintiff further stated that no notice under Sec.344/343 Delhi Municipal Corporation was ever served nor any objections were invited from the plaintiff. The whole of the house in dispute belongs to the plaintiff and his predecessor in interests and defendant does not have any ownership of any piece of land therein and it is not development area nor any development has been carried out by the defendants over the land in dispute in the village and therefore the defendant have no authority to carry out any demolition in the property house no.166. The defendant has no right to disturb peaceful possession of the property and have no right to demolish any existing structure therein. No demolition can be carried out by the defendant without any show cause notice or any other statutory notice. The plaintiff inquired from the staff and agents of the defendants to CS No.7566/16 Sh. Mahender Kaushik Vs. MCD & Anr. 3/17 which they replied that the open land is a road. However, house of the plaintiff is not located on any portion of any road and the house which was constructed in the 195051 was not erected on any portion of any road or byelanes or street and the same was constructed on ancestral property of the plaintiff in Khasra no.78 which is Lal Dora/Village abadi and the so called road exists in Khasra no.19 whereas the house of the plaintiff is situated in Khasra no.78 which is a Lal Dora land according to the settlement year 190809. It is further stated that the defendants have threatened to demolition with police aid which is contrary of law and illegal. Hence, the present suit for permanent injunction only.
5. Defendants filed the written statement wherein it took the stand that plaintiff is a rank encroacher of public land and encroached the public land in front of house no.166 and 167 of Khirki Village, Delhi by erecting a wall. Plaintiff has not impleaded the revenue authority which is a necessary party and the land in dispute is actually a right of way and the defendant MCD has only cleared the encroachment which is falling in the public road. The area in question was transferred by DDA to MCD alongwith site plan of village Khirki wherein road and street have been specifically mentioned and as per the plan, MCD has started removing unauthorized encroachment from the public land to construct the road as mentioned in the plan submitted by the DDA.
6. Defendants further stated that in Writ petition WP (C) no.7968/03 filed by Sh. Gyan Prakash who is the neighbour of the plaintiff CS No.7566/16 Sh. Mahender Kaushik Vs. MCD & Anr. 4/17 and resident of adjoining property no.167 against the wall erected by the plaintiff, Hon'ble High Court had directed the MCD vide order dated 28.11.2003 to carry out the inspection of the site and file the status report and it was found that the road side berm admeasuring 41.2m x 10.20m was encroached upon by the plaintiff by erecting a boundary wall on the public land which was meant for the public road. On filing of contempt objections by Sh. Gyan Prakash, the MCD carried out joint survey with the local police and chalked out the action for removal of encroachment in front of house no.166 and 167 and on 25.05.2004, removed the encroachment with the help of the police. The plaintiff did not disclose about the said writ petition in his plaint. Further, plaintiff has not clarified for which portion of the property, the SDMC issued house tax receipts and the genuineness and veracity of the receipt is also doubtful. Defendant justified the removal of the encroachment from the public road as per law. Defendant undertook to supply the copy of the site plan to show the encroached portion of the public land. As per the defendants, the said public land is very much in possession of the defendant and prayed for dismissal of the suit.
7. Plaintiff filed the replication wherein he reiterated his case as made out in the plaint and further stated that the house of the plaintiff bearing No.166 has been correctly depicted in the site plan. There is no right of way belonging to MCD or DDA or anybody else. As a result of agricultural activity coming to an end, agricultural land has been converted into houses of a colony known as Khirki Extension towards West of the CS No.7566/16 Sh. Mahender Kaushik Vs. MCD & Anr. 5/17 house of the plaintiff. Consequently, a private passage was left by the owners which is now used by them. MCD is claiming right in this passage but it has no concern or right, title or interest in this passage which is a private passage and meant for use for 67 houses as shown in the site plan i.e. House No.164/1B to 167/A. The MCD/ or DDA cannot carve out road or street in the house of the residents of the village and there has never been any road or street nor any acquisition of land has taken place for carving of road and street. There is no public land at the alleged place and there has not been any authorized encroachment of any land or any road side berm. The demolition took place after the filing of the suit.
8. From the pleadings of the parties, following issues were framed.
ISSUES
1. Whether plaintiff has any right, title or interest in the House No.166 and 167 Khirki Village, New Delhi? OPP
2. Whether the plaintiff has effected encroachment on public land in front of house no.166 & 167? If so, to what effect? OPD
3. Whether the demolition has been effected by the defendant as per the directions made in Writ Petition No.7968/2003 ? OPD
4. Whether the plaintiff is entitled to injunction, as prayed? OPP
5. Relief.
9. During plaintiff evidence, plaintiff examined 6 witnesses.
CS No.7566/16 Sh. Mahender Kaushik Vs. MCD & Anr. 6/17 PW1 Sh.Mahender Kaushik/ plaintiff tendered his affidavit as Ex.PW 1/A and relied upon following documents.
1. Site plan is Ex.PW1/1.
2. Copy of House Tax Receipt is Ex.PW1/2.
3. The letter dated 12.10.1995 issued by the MCD is Ex.PW1/3.
4. Lal Dora Certificate dated 07.01.1982 is Ex.PW1/4.
5. Copy of Electricity Bills are Ex.PW1/5 and Ex.PW1/6 respectively.
6. Certified copy of AksSajra is Ex.PW1/7.
10. PW2 Sh.Raghubir Singh a resident of the village Khirki filed a short affidavit Ex.PW2/A and deposed in favour of the plaintiff.
11. PW3 Sh.Kanwar Singh Saini another resident of the village Khirki tendered his affidavit as Ex.PW3/A and deposed on the similar lines as that of PW2 and his affidavit is almost verbatim as that of PW2 and supported the case of the plaintiff.
12. PW4 Sh.Kuldeep Singh JE/ DDA deposed that the summoned record has been transferred to MCD and placed on record the original Office noting of the Director (AP)I DDA Ex.PW4/1.
13. PW5 Sh.M. L. Meena Patwari from the SDM, Hauz Khas, New Delhi produced the original Aksshizra certificate whereof is Ex.PW 1/7. PW5(A) Sh.Pappu Meena Patwari simply deposed regarding the production of the Aksshizra of village Khirki, New Delhi.
14. PW6 Sh.A. A. Khan (hereinafter referred to as Ex.PW6/A) CS No.7566/16 Sh. Mahender Kaushik Vs. MCD & Anr. 7/17 compared the Urdu copy of the Aksshizra Ex.PW1/7 and stated that he cannot read the copy of the Aksshizra or Ex.PW1/7 as the numbers are not legible to him. PW6 Sh.Ratti Ram Ex. Naib Tehsildar deposed and relied upon the site plan Ex.PW1/7 and exhibited it as Ex.PW6/1 and stated that there is no passage towards West of Lal Dora, Abadi Deh, Village: Khirki, Khasra No.18, 19, 20, 71, 72, 253, 254 and 255 are on the western site.
15. During the defendant evidence, defendant examined only one witness DW1 Sh.Brajesh Kumar Engineer (Maintenance)II, South Zone, SDMC, New Delhi who tendered his affidavit as Ex.DW1/A and relied upon documents i.e. Ex.DW1/1 which is proposed development plan of Village Khirki and print out of the order sheets in the Writ Petition Ex.DW1/2 and affidavit U/s 65B of the Indian Evidence Act as Ex.DW 1/3.
16. I have heard Ld. Counsel for both the parties and have gone through the record carefully. The issue wise findings of the court are as under:
FINDINGS OF THE COURT:
ISSUE No.1
1. Whether plaintiff has any right, title or interest in the house No.166 and 167 Khirki Village, New Delhi? OPP
17. In the present case, the defendant MCD has not disputed the ownership of the plaintiff to the house No.166, Khirki Village, Delhi. This CS No.7566/16 Sh. Mahender Kaushik Vs. MCD & Anr. 8/17 is also not a suit for title as plaintiff has sought only decree of permanent injunction. The grievance of the plaintiff is that the open land adjoining to the built up 2 and ½ storey house No.166, Khirki Village, is in fact part of the property no.166. Per contra, the stand of the defendant is that the open land measuring 41.2 Mtrs. X 10.2 Mtrs is a part of the public road and has been encroached by the plaintiff by erecting a boundary wall on the public land. Even as per the plaintiff himself, the house No.166 Khirki Village has not yet been mutated in his name and the same stands in the name of his grand father Sh.Chunni in Khasra No.78 Village: Khirki.
18. During the cross examination of PW1, the possession of the plaintiff to the 2 and ½ storey house has also not been disputed by the defendant MCD. Moreover, plaintiff has stated that the house No.166 was owned by his grand father Sh.Chunni and thereafter by his father and he has inherited the house No.166 through his father. During his cross examination, PW1 had stated that they are 6 brothers namely Sh.C. P. Kaushik, Sh.R. K. Kaushik, Sh.Sushil Kaushik, Sh.Satish Kaushik and Sh.Ashok Kaushik. None of these brothers has been arrayed as party in the present case.
19. Since the ownership of the plaintiff to the house No.166, Khirki Village has not been disputed and the main subject matter of the lis is the open area adjacent and towards to the west of the built up 2 and a half storey house. Therefore, the primary question is whether the open land adjoining the built up 2 and ½ storey house No.166 is part and parcel of CS No.7566/16 Sh. Mahender Kaushik Vs. MCD & Anr. 9/17 house No.166 and this question has been addressed in issue no.4 below. None of the parties raised/ disputed any claim for property no.167. Therefore, in my considered opinion, in the absence of the necessary averments to decide this issue and on account of defendant MCD having not challenged the ownership of the plaintiff to the house no.166 Khirki Village, in my considered opinion, for the purpose of the present suit, it can be safely said that plaintiff has interest in the property No.166, Khirki Village. This issue is accordingly decided in favour of the plaintiff.
ISSUE No.2 and 4Whether plaintiff has effected encroachment on public land in front of house no.166 and 167, if so, to what effect? OPP Whether plaintiff is entitled to injunction as prayed? OPP
20. The core of the dispute between the parties pertains to the open land opposite the Sai Baba Mandir in Khirki Village. The claim of the plaintiff is that house no.166 comprises not only 2 and ½ storey built up house in Khasra no.78 but also the open land adjoining to the said house. At the outset, it is worthwhile to note that the case of the plaintiff is not of adverse possession but plaintiff claims to be the owner of the said chunk of land. Therefore, in order to ascertain this question, first of all the documents relied upon by the plaintiff are looked into.
21. Ex.PW1/1 is the Site Plan relied upon by the plaintiff. This site plan Ex.PW1/1 only prima facie shows the position as it exists on the spot. The site plan which has been got prepared by the plaintiff cannot by CS No.7566/16 Sh. Mahender Kaushik Vs. MCD & Anr. 10/17 any stretch of imagination be treated as a document of the ownership of the plaintiff to the said open land shown in red with crossed lines. It only shows the location of the said open land. It is worthwhile to note that not only this open land of the plaintiff but the adjoining 3 properties on the left side are also shown as open space/ open/ open on the western side. It shows a road and across the road, there is Sai Baba Mandir. Therefore, this document cannot be treated as document of ownership.
22. Ex.PW1/2 is the house tax receipt for Rs.10.80 dated 04.10.1958 in respect of address 89 Khirki issued by SDMC in favour of Sh.Chunni Lal. It was argued by Ld. Counsel for defendant that no document has been placed on record by the plaintiff to show that house no.166 and the address 89 Khirki are one and the same address. In my considered opinion, for a moment even if, this receipt is assumed to be correct and refers to the property No.166, even then, it does not throw any light about the description of the area of the property no.166. House Tax receipt cannot be treated as a document of ownership and this document does not help the plaintiff in any manner.
23. Ex.PW1/3 is the letter dated 12.10.1959 issued by MCD in respect of the objection under Section 124 (5) of DMC Act asking Sh.Chunni Lal to attend office on 15.10.1959 in respect of the property no.166. This document only shows that Sh.Chunni Lal is in occupation of property no.166 and may be owner but it does not give the description of the property no.166 for the purposes of ascertaining the area and dimension CS No.7566/16 Sh. Mahender Kaushik Vs. MCD & Anr. 11/17 of the property no.166 more particularly the open land.
24. Ex.PW1/5 again is the water Bill dated 14.01.1980 issued to Sh.Chaini at 166, Khirki. This document can also not be treated as document regarding the ownership of the suit property and more particularly does not throw any light on the description of the property no.166. Similarly, Ex.PW1/6 is the Electricity Bill issued by DVB for the month of July 2002 issued to Sh.Chunni Lal, 166, Village: Khirki. Even this document does not help for the reasons stated above.
25. Ex.PW1/7 is the copy of the Aksshizra of Khirki village and its English translation copy is Ex.PW6/1. Ld. Counsel for plaintiff has vehemently argued that Lal Dora of the village Khirki falls in Khasra No.78 and AksShizra, which shows the settlement for the year 190809 nowhere shows any road in Lal Dora and he argued that the road which is there on the spot is the privately owned road and the municipal authority or DDA has never acquired any land at any point of time in this area and no compensation has ever been paid to any of the land owners and it being the case, the municipal authority cannot claim any rights over the private land of the individual and argued that for this reason, the open piece of land abutting 2 and ½ storey built up house is part of the property no.166. He further argued that even the document i.e. the proposed development plan relied upon by DW1 which is Ex.DW1/1 is not authenticated and cannot be relied upon as it is a proposed development plan and acquisition of any chunk of land has been denied by the MCD or DDA in pursuance to the CS No.7566/16 Sh. Mahender Kaushik Vs. MCD & Anr. 12/17 said proposed development plan. He further argued that even in the Writ Petition WP (C) No.7968/2003 filed by Sh.Gyan Prakash, a neighbour of the present plaintiff, it was observed by the Hon'ble High Court vide order dated 20.09.2004 which is Ex.DW1/2 that the plan relied upon by the petitioner is a proposed plan. He argued that proposed plan has no legal sanctity and cannot be treated so as to divest the plaintiff of his property owned by him. He further argued that the defendant MCD has failed to prove that the suit land belongs to MCD/DDA.
26. On the other hand, Ld.counsel for defendant has strongly argued that plaintiff has encroached upon the public land meant for the public road. He further argued that in order to get the equitable relief of the permanent injunction, it was for the plaintiff to prove that he is the owner of the open land and none of the document relied upon by the plaintiff prove that fact.
27. In my considered opinion, once the plaintiff has approached this court to seek the relief of permanent injunction, primarily the onus to prove his case was upon the plaintiff. It was for the plaintiff to prove that the open piece of land adjoining to his built up 2 and ½ storey house is part and parcel of the property no.166. None of the documents as discussed above throw any light about this fact. Even the defendant/ MCD is not opposing the plaintiff being the owner of the built up 2 and ½ storey house. The only objection of the defendant is that the open land adjoining the built up house is not part of the house no.166. In this regard, plaintiff has placed CS No.7566/16 Sh. Mahender Kaushik Vs. MCD & Anr. 13/17 on record Lal Dora certificate Ex.PW1/4 which is dated 07.01.1982 issued by SDM which is reproduced as under:
Office of the S.D.M./RA/S.O.(C) Deputy Commissioner's Office, Delhi No.995/SDM/ND/82 Dated:7.1.82 LAL DORA CERTIFICATE Sh.Sushil Kumar S/o Om Parkash Kaushik R/o 166 Vill Khirki has applied for the isue of Lal Dora Certificate in respect of house building No.166 situated in __________ Colony/ Village in the capacity of owner.
As per report of the Patwari Halqa Khirki and Field Kanungo Tehsildar Mehrauli house/ building No.166 falls in Khasra No.78 which had been embarked as 'Lal Dora' during the settlement/ consolidation operation of the village Khirki in the year 190809. The said house/building is surrounded on the four sides as follows:
a) East. Road b) West Open Lawn
c) North House of Bharti d) South House of Inder.
This certificate issued to the applicant on his specific request for cement only. It does not confer right of the ownership/ license on the certificate holder.
Sd/ S.D.M./RA/S.O.(C) SEAL CS No.7566/16 Sh. Mahender Kaushik Vs. MCD & Anr. 14/17 ATTESTED TRUE COPY Superintendent, Law & Judicial Department, Delhi Administration, DELHI
28. Perusal of this Lal Dora Certificate Ex.PW1/4 reflects that the said house/ building is surrounded on the four sides and on the West side, it shows "open lawn". Whenever such a certificate is issued, the description of the 4 sides of a property is given to depict the boundary and to ascertain the description of the property. The very fact that on the West side, it is shown as open lawn, it indicates that the open land is not part of the house No.166. Had the open land been the part of the house No.166, it would have been found the description in the Lal Dora Certificate. Perusal of the site plan Ex.PW1/1 filed by the plaintiff as well as the site plan relied upon by the defendant i.e. Ex.DW1/1 makes it clear that after the open land, there is a road. Had the open area been the part of the property no.166, the description towards the West side should have been shown as road. Contrary to the suggestion by Ld. Counsel for plaintiff, the AksShizra Ex.PW1/7 (Ex.PW6/1) also shows that there is a way towards the West side of the Lal Dora shown in dotted lines. The contention of Ld. Counsel for plaintiff is that there is no public road in village, does not hold good. Even if there are no sanctioned or planned roads in a village, the plaintiff cannot make his claim of any public land.
CS No.7566/16 Sh. Mahender Kaushik Vs. MCD & Anr. 15/17
29. Further, Ex.PW4/1 which is the office note of the DDA reflects that the Khirki Village being urbanized is under the jurisdiction of MCD and this fact has not been disputed by the plaintiff either as PW4 Sh.Kuldeep Singh JD DDA was plaintiff's own witness and therefore since Khirki Village is an urbanized village and the jurisdiction of the same is with MCD, the defendant MCD gets the jurisdiction in respect of all the streets by virtue of Section 298 of the DMC Act 1957 which provides that all streets within the jurisdiction of the Corporation which at any time become public streets and pavements etc. shall vest in such corporation. Therefore, the stand of the plaintiff that defendant has no right over the road or the public streets falls to ground. Therefore, in my considered opinion, plaintiff has miserably failed to prove that the open piece of land adjoining the built up 2 and ½ storey house is part of the house no.166 and therefore, the plaintiff is an encroacher on the public land and is not entitled to the injunction as prayed for. The contention of the plaintiff that the proposed development plan Ex.DW1/1 relied upon by the defendant is a mere proposal does not help the plaintiff in any manner as the onus to prove that the chunk of land is part of his property no.166 and it was not the burden of the defendant to prove that the said land belongs to the MCD. Once the plaintiff has failed to even prima facie show that he has any right, title or interest in the disputed land, the land is the public land and by virtue of Section 298 of DMC Act the land becomes vested in the corporation and even if the proposed development plan Ex.DW1/1 is discarded, it does CS No.7566/16 Sh. Mahender Kaushik Vs. MCD & Anr. 16/17 not help the plaintiff in any manner. Accordingly, issue, no.2 and 4 are decided in favour of the defendant and against the plaintiff. ISSUE No.3 Whether the demolition has been effected by the defendant as per the directions made in Writ Petition (C) No.7968/2003? OPD
30. In view of the findings given in issue no.2 and 4 wherein it has been held that the vacant land in front of house no.166, Khirki Village, New Delhi was the encroachment of public land done by the plaintiff, therefore, the encroachment which was removed by the defendant in pursuance of the aforesaid Writ Petition was valid. Therefore, this issue is decided in favour of the defendant and against the plaintiff. RELIEF:
31. The suit of the plaintiff is dismissed with costs. Decree sheet be prepared.
File be consigned to Record Room.
Announced in the open court
on 28.07.2018
(Munish Markan)
Digitally signed
by MUNISH Additional District Judge01 (South)
MARKAN
MUNISH Date: District Courts, Saket, New Delhi
MARKAN 2018.07.30
17:48:40
+0530
CS No.7566/16 Sh. Mahender Kaushik Vs. MCD & Anr. 17/17