Delhi District Court
Sh. Ram Avtar Tyagi vs Dda Through Its Vice Chairman on 26 February, 2021
IN THE COURT OF DEEPAK KUMAR-I,
COMMERCIAL CIVIL JUDGE (WEST), TIS HAZARI
COURTS, DELHI.
CS No: 608596/2016
CNR No. DLWT03-000101-2005
Sh. Malkhan Singh (since deceased)
Through their legal Heir (sons)
1. Sh. Ram Avtar Tyagi
S/o Late Sh. Malkhan Singh
R/o WZ-106-A(Old 112) Village Budhella,
Vikaspuri, New Delhi.
2. Sh. Rakesh Tyagi
S/o Late Sh. Malkhan Singh
R/o WZ-106-A(Old 112) Village Budhella,
Vikaspuri, New Delhi.
...Plaintiffs
VERSUS
DDA through its Vice Chairman,
I.N.A, New Delhi.
... Defendant
Date of Filing : 02.04.2005
Date of Judgment : 26.02.2021
JUDGMENT
1. Present suit has been filed by the plaintiff praying therein to pass a decree of declaration by the plaintiff. That the plaintiff is the owner of the suit property i.e. built up portion of 9 biswas of khasra no. 21/11/1 of House No. WZ-112, Old Village Budhela, Vikaspuri, New Delhi-18. It is further prayed that a CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 1 / 23 decree for permanent injunction be also passed in favour of the plaintiff against the defendant thereby restraining the defendants, its officials, employees, agents, servants or any other persons acting for and on behalf of the defendant from demolishing or dispossessing the plaintiff from the suit property or any part thereof by putting any obstruction in the peaceful use and enjoyment of the suit property i.e. property measuring 9 Biswa of khasra no.21/11/1 (now H.No. WZ-112, Old and New no. WZ-106-A of Village Budhela, Vikaspuri, New Delhi).
2. It is inter-alia averred by the plaintiff that the defendant is a corporate body incorporated by an Act of Parliament known as Delhi Development Act and hereinafter referred to as an Act. That the Vice Chairman is the Executive Head empowered to discharge all the executive functions of the authority. That the plaintiffs are in joint possession of the property measuring 9 Biswa forming the part of Khasra No.21/11/1, Village Budhela, Vikaspuri, New Delhi. That the plaintiff has been using and residing in the suit property along with his family members comprising two sons namely Sh. Ram Avtar Tyagi and Sh. Rakesh Tyagi. That the plaintiffs are occupying the suit property along with their family members since 1955 without any interruption or interference from any corner. That the plaintiff is in peaceful possession of the suit property and have every right, title or interest to protect their property from the arbitrary and illegal action of the defendant. That the plaintiff spent huge amount over the construction of the said land which was merged with the old lal dora land of village Budhela which was in fact is the initial and actual residence of the plaintiff being ancestral residence and being a head of the family. That the CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 2 / 23 plaintiff is looking after all affairs of the suit property.
It is further averred by the plaintiff that a writ petition was filed by the Budhela Welfare Association in the Hon'ble High Court Delhi, bearing writ petition no. 5495/97 against one Sh. Aseraj Tyagi and his sons, wherein defendant was impleaded as party. The grievances of the said association was that Aseraj Tyagi and his sons were the encroacher of khasra no.21/11/1 since 1982. That after service of the summons, the defendant had started claiming that the said land belongs to the DDA and threat was extended by defendant to dispossess the said Aseraj Tyagi from encroaching the land which land was adjacent to the land of the plaintiff. That in order to execute threat of dispossession, the defendant had tried to demolish the portion of the suit property of the plaintiff but the same was protected by the order passed by the Hon'ble High Court while directions to the DDA was passed to maintain status quo in writ petition no. 623/99 and only then the suit property was saved. Admittedly the plaintiff was in physical possession of the suit property. That the directions were complied with and the SDM demarcated the suit property and submitted his report dated 13.08.99 on record of said writ petition. Moreover, the said report was filed by the SDM was objected by the DDA. It is pertinent to mention here that the possession, occupation use and enjoyment of the plaintiff in suit property was found in the said report along with the specific averments that the suit property does not belong to DDA and it was specifically clarified that the suit property was not taken over by the DDA i.e. defendant and both the writ petitions bearing no. 5495/97 and 623/99 were disposed of by a common order dated 01.02.2001. That the defendant issued and served upon a letter to the plaintiff dated 24.04.2002 CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 3 / 23 wherein the DDA specifically stated that the land measuring 9 Biswa belonged to the plaintiff i.e. the suit property does not belong to the DDA and also endorsed no objection certificate with respect to the suit property. That in view of the foregoing submissions and reasons made above, it is the admitted case of the plaintiff that he has acquired the ownership right by virtue of adverse possession/settled possessions with respect to the suit property being hostile in openness to its real owner who so ever without any interruption and the same is in use and enjoyment of the plaintiff without any interference since 1955. That defendant extended threat on 30.03.2005 that they will demolish and dispossess the plaintiff and his family members from the suit property, hence there is no immediate efficacious remedy available to the plaintiff hence the present suit. That the cause of action arose to file the present suit as the plaintiff is in occupation and enjoyment of the suit property since 1955. Further cause of action arose on 31.03.2004 when the officials of the defendant came to the suit property and threatened that they will dispossess the plaintiff on 04.04.2005 by hook and crook and the cause of action still continues.
3. Written statement was filed on behalf of defendant/DDA inter-aila submitting that the statutory notice U/S 53-B of the DD Act, 1957 is mandatory and compulsory but the same has not been served upon the answering defendant. That the suit has not been properly valued for the sake of court fee and jurisdiction. That the plaintiff has not come to the court with clean hands. Since the land in question has already been acquired vide award no.2183 and, therefore, the plaintiff has got no right, title or interest over the same. That the plaintiff is an CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 4 / 23 encroacher and trespasser over the Govt. land. Moreover, there is no dispute regarding formation and functioning of the authority through vice chairman. That the suit land forms part of khasra no.21/11/1 (measuring 3 bigha 3 biswa) of village Bodella which is Govt. land acquired vide award no. 2183. That possession of land measuring 2 bigha 14 biswa was taken over by defendant on 24.01.69 through LAC/L&B. This land was acquired along with other khasras for planned development of land now, known as Budhela residential scheme. The possession of remaining land measuring 9 biswa was not handed over to DDA by LAC due to built up. That the various demolition programmes were fixed for removing the unauthorised structures from the govt. land measuring 9 biswa which unfortunately could not be carried out due to some administrative reasons. That after acquisition of land, the ownership rights are vested in the government and no other person including plaintiff has any right, title or interest over the same. Any occupation over Govt. acquired land is unauthorised and liable to be removed. It is absolutely incorrect to state that the land measuring 9 biswa has been merged with the old lal dora land of village Bodella. Neither plaintiff nor any one else has got any right over the land measuring 9 biswa. That after acquisition of land only government is the owner of this land. That the land measuring 9 biswa forms part of khasra no.21/11/1 which is acquired Govt. land and, therefore, the plaintiff has got no right, title or interest over the same. That the litigation referred to in the para under reply needs no specific comments being matter of record and it is for the plaintiff to prove the averments made therein. It is absolutely incorrect to state that the land measuring 9 biswa has not been acquired by CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 5 / 23 the LAC. That the objections were filed to the demarcation report prepared by SDM. That the writ petition bearing no.5495/97 and 623/99 were disposed of by a common order dated 01.02.2001 passed by the Hon'ble High Court of Delhi. That in pursuance of this order, a committee comprising 3 Tehsildars of DDA was formed who carried out the demarcation and prepared demarcation report dated 27.11.2001. As per demarcation, the suit land forms part of khasra no.21/11/1 of village Budhela which has been acquired vide award no. 2183. That there are some unauthorised constructions erected over the Govt. acquired land measuring 9 biswa. After acquisition of the land no other person except Government has any right, title or interest over the same. It is, however, reiterated that land measuring 9 biswa is also a government property and plaintiff has got no right title or interest over the same. That the plaintiff is misleading the Court by making mis-interpretation of letter dated 24.04.02 issued by Tehsildar (West) DDA. Since the possession of land measuring 9 biswa was not handed over to DDA and, therefore, this letter was issued containing that structures bearing municipal no. WZ 112 and WZ 106A, Village Bodella are not in DDA's land. It has no where mentioned in this letter that this land has not been acquired. It is further submitted that the letter has however been withdrawn vide letter dated 04.07.05. That the plaintiff has got no right, title or interest over the same. The possession whatsoever on this Govt. land is unauthorised and liable to be removed. That the Govt. is well within its rights and power to protect its land from unauthorised encorachers and trespassers. That the plaintiff is an unauthorised encroacher of government property and therefore, he is liable to be removed. That the plaintiff has not CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 6 / 23 come to the court with clean hands and, therefore, the present suit is not maintainable.
4. Thereafter, replication to the W.S. was filed by the plaintiff and reiterated the stand taken in the plaint.
5. Perusal of the record shows that vide order dated 23.01.2013 passed by Ld. Predecessor of this court, the prayer
(a) of the plaintiff for declaration was deleted in view of the statement made on behalf of the plaintiff and as such the present suit survives only vis-a-vis prayer for decree of permanent injunction.
6. From the pleadings of the parties, following issues were framed:-
1. Whether the plaintiff is entitled to the decree of declaration as prayed for ? (OPP)
2. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for ? (OPP)
3. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction ? (OPD)
4. Whether the suit land has been acquired vide award No. 2183 and plaintiff has not been got any right title or interest over the same ? (OPD)
5. Relief.
7. Thereafter, the matter was fixed for plaintiff's evidence. The plaintiff examined Sh. Ram Avtar Tyagi, S/o Late Sh. Malkhan Singh, R/o WZ-106A (old 112), Village Budhella, Vikas Puri, New Delhi as PW-1. He has relied upon the documents CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 7 / 23 viz. Site plan Ex. PW-1/1, Certified copy of Award No. 2183 dated 11.01.1969 of Village Budhela as Ex. PW-1/2, Certified copy of possession report dated 24.01.1969 as PW-1/3, Certified copy of Civil Writ Petition No. 623 of 1999 Ex. PW-1/4, Certified copy of order passed by the Hon'ble High Court of Delhi dated 01.02.2001 Ex. PW-1/5, Certified copy of Local Commissioner report dated 13.08.1999 (already exhibited as Ex. PW-3/1 {Colly.}) as Ex. PW-1/6, Certified copy of order passed by the Hon'ble High Court dated 09.02.2000 as Ex. PW- 1/7, Certified copy of report of Local Commissioner dated 07.07.2000 (already exhibited as Ex. PW-4/1 {Colly.}), as Ex. PW-1/8, Certified copy of the order passed by the Hon'ble Supreme Court of India dated 16.07.2001 Ex. PW-1/9, Certified copy of the order dated 01.10.2001 passed by the Hon'ble Supreme Court as PW-1/10, Certified copy of report dated 27.11.2001 submitted by three Tehsildars of the DDA as Ex. PW-1/11, letter dated 24.02.2002 addressed to Sh. Malkhan Singh Tyagi by Sh. R.C. Saxena, Tehsildar, West Zone, DDA as Ex. PW-1/12.
Plaintiff also examined Sh. Rajeev Singh Dahiya as PW-2, who relied upon the demarcation report along with letter dated 22.01.2002 Ex. PW-2/1.
Plaintiff also examined Sh. Laxmi Chand as PW-3, who relied upon the demarcation report dated 13.08.1999 along with plan of Khasra No. 22/11/1 of Village Budhela Ex. PW-3/1 (Colly. 06 pages).
Plaintiff also examined Sh. Rati Ram as PW-4, who relied upon Naksha Nazri/report as Ex. PW-4/1 (Colly.).
Thereafter, plaintiff's evidence was closed by the plaintiff.
CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 8 / 238. Defendant examined Sh. Jasbir Singh, Kanoongo, DDA, West Zone, Land Management Department, DDA as DW-1 being the only witness and he was cross examined at length. He has relied upon the documents viz. Certified copy of award No. 2183 (already Ex. PW-1/2), copy of possession proceedings dated 24.01.1969 (already Ex. PW-1/3). Thereafter, the defendant's evidence was closed.
9. Arguments were advanced on behalf of Ld. Counsel for both the parties. I have carefully gone through the record, written submissions, testimonies of the witnesses, documents and the case law relied upon by both the parties.
10. One of the primary contentions/objections of the Ld. Counsel for defendant i.e. DDA was that the statutory notice U/Sec. 53-B of DD Act, 1957 is mandatory and compulsory but the same has not been served upon the answering defendant in the present case and as such, the suit does not survive on this ground alone. The onus to prove this point was upon the defendant. No specific evidence was led by the defendant on this issue. It is relevant to refer the observations of the Hon'ble High Court of Delhi in the case of "Col. A.B. Singh (through LRs) V/s Shri Chunni Lal Sawhney and Others (RFA No.96/2002, decided on 05/10/2011)," which are reproduced hereinafter :-
"In any case, this issue is no longer res integra in as much as, it has been held by division bench judgment of this court in "Yashoda Kumari V/s MCD and Others (AIR 2004 Delhi 225)," that once there is a contest to the suit, the suit cannot be held to be barred for not giving of notice U/S 53B of DDA Act in as much as the basic object of Section 53B, like Section-80 CPC is to prevent the matters from coming to court and once the matter reach the court and are contested the suit should not be dismissed on such technical grounds."CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 9 / 23
11. The present case has been contested on merits and has gone through the rigors of trial and thus, as per the observation of Hon'ble High Court of Delhi as aforementioned, the non- service of notice U/S 53B of DD Act cannot be held to be fatal to justify the dismissal of the suit on the ground of maintainability. In the considered opinion of this court, the defendant/DDA has contested the case at length and the dismissal of the suit which was filed in the year 2005 on this technical non-compliance of Section-53B of DD Act would not be justified.
FINDING ON ISSUE NO. 11. Whether the plaintiff is entitled to the decree of declaration as prayed for ? (OPP)
12. The issue no. 1 does not survive in view of the order dated 23.01.2013 passed by Ld. Predecessor of this court vide which the prayer (a) of the plaintiff for declaration was deleted in view of the statement made on behalf of the plaintiff.
FINDING ON ISSUE NO. 2 and 4 (Both the issues are taken up together as the same are interconnected with each other): -
2. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for ? (OPP)
4. Whether the suit land has been acquired vide award No. 2183 and plaintiff has not been got any right title or interest over the same ? (OPD)
13. Perusal of record shows that in the present suit, the CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 10 / 23 plaintiffs are seeking the injunction against the DDA /defendant restraining it from demolishing the suit property and interfering peaceful possession in suit property on the ground that they are the owner of suit property and have been in peaceful possession of the same for the last many decades.
14. On the other hand, defendant has contended that the suit property has been acquired by the appropriate authority under Land Acquisition Act and has been handed over to the DDA/defendant.
15. The first issue before the court is whether the suit land forms part of Khasra No. 21/11/1 which was acquired and placed at the disposal of the defendant i.e. DDA. The copy of award clearly shows that vide award no. 2183 dated 11.01.1969, land measuring 3 bigha and 3 biswa falling in Khasra No. 21/11/1 village Budhela was acquired.
16. Further, during his cross-examination, PW1- Ram Avtar Tyagi (LR of deceased plaintiff) admitted that the area of Khasra No. 21/11/1 is 3 Bigha 3 Biswa. In response to the question put forth by the Ld. Counsel for defendant, during his cross- examination, PW-1 did not dispute the award no.2183 per se. The relevant portion of cross-examination is being reproduced hereby for ready reference: -
"Q. I put it to you that area of 3 Bigha and 3 Biswa of Khasra No. 21/11/1 has been acquired by Government vide Award No. 2183 A. Only an award has been pronounced but possession of 9 Biswa of land of Khasra No. 21/11/1 has not been taken as it CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 11 / 23 was built up."
The witness further admitted that the aforesaid award bearing no. 2183 was never challenged. He further testified to have not applied to any government authority to get the 9 Biswa land of Khasra No. 21/11/1 denotified. Moreover, plaintiffs have themselves averred in the plaint that they are in the joint settled possession of the property measuring 9 Biswa forming the part of khasra No. 21/11/1. It gets further fortified in view of the question put forth by Ld. Counsel for defendant to DW1 during his cross-examination which is being reproduced below:-
"Q. I put it you that suit property falls in Khasra No. 21/11/1 on land measuring 9 Biswa only, the possession of which was never transferred to DDA."
17. In view of the aforesaid, it is undisputed that the suit land forms part of Khasra No. 21/11/1 which was acquired vide award no 2183. Now the limited dispute remains to be decided is whether the suit land has been placed at the disposal of the defendant i.e. DDA and possession of the which has not yet been taken by the defendant.
18. Perusal of record shows that it is undisputed fact that suit property was notified to be acquired by government under the Land Acquisition Act. The same also stands established in view of the discussions as held above. From perusal of pleadings and the depositions of witnesses, it is also undisputed that possession of 2 bigha 14 Biswa was taken over and placed at the disposal of defendant i.e. DDA and possession of remaining of 9 Biswa was not taken over due to built up area. It has been CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 12 / 23 the stand of the plaintiff that possession of remaining 9 Biswa was neither taken by the Ld. Acquisition Collector nor by any authority and as such the plaintiff has been peacefully and uninterruptedly managing the same.
19. The further claim of the plaintiff is that it is the settled law that in a proceeding under the Land Acquisition Act, title of the land does not pass on to the State until physical possession of the property sought to be acquired is taken. Therefore, as per Plaintiff, neither the title nor the possession passed on to the DDA till date and accordingly as per plaintiff, the defendant has no right, title or interest to interfere in the possession of the plaintiff in respect of the suit property.
20. On the other hand, the claim of the defendant i.e DDA is that the suit land in Khasra No. 21/11/1 measuring 3 Bigha 3 Biswa has been acquired by Award No. 2183 dated 11.01.1969 of Village Budhela. That the physical possession of the land measuring 2 Bigha and 14 Biswa has been handed over to the defendant/ DDA on 24.01.1969 by the LAC/L&B. That the said land has been placed at the disposal of answering defendant by virtue of notification issued U/Sec. 22(1) of Delhi Development Act, 1957. That the physical possession of the remaining land measuring 9 Biswa has not been handed over to the answering defendant/DDA due to built up area. That the said land has been transferred to the Budhela residential scheme. That the plaintiff has illegally and unlawfully encroached upon the Govt. acquired land measuring 9 Biswa . That a demolition programme to remove the encroachment made by the plaintiff over the Khasra No. 21/11/1 was carried out in the year 1999 by CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 13 / 23 defendant/DDA and part of the encroachment was removed. That the plaintiff has no right or title over the said encroached land and is liable to be evicted. That the plaintiff has, therefore, no cause of action and is not entitled for the relief claimed in the suit. That the plaintiff is a trespasser and encroacher on the govt. land and has no locus standi to file the present suit and the relief claimed.
21. It is pertinent to mention that the present suit is merely for permanent injunction as prayer for declaration was already deleted in view of the statement made by the plaintiff.
22. Perusal of plaint shows that although the plaintiff has claimed to be owner of suit property but he has not mentioned how did he become owner of the suit property. The only ground on the basis of which he is claiming to be in lawful possession is that the physical possession of suit property was never taken by the DDA due to built up area.
23. I have carefully gone through testimonies of all the witnesses.
24. Perusal of testimony of PW-1 Sh. Ram Avtar Tyagi (son/LR of deceased plaintiff Malkhan Singh) shows that during his cross examination he has not denied the factum of land ad- measuring 3 bigha 3 biswa of Khasra No. 21/11/1, being acquired vide Award No. 2183. It is relevant to note that plaintiff himself produced and relied on the Certified copy of Award No. 2183 dated 11.01.1969 of Village Budhela as Ex. PW-1/2. PW1 further testified to have not challenged the Award before any CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 14 / 23 authority. It is further admitted case of the plaintiff that the suit land falls in Khasra No. 21/11/1. During his cross-examination, he further conceded that Khasra No. 21/11 was never in the name of his father or grandfather or in his name. The witness further deposed to have not filed any document to show that they are the owners of Khasra No. 21/11/1. He further admitted to have no revenue records in their favour in respect of Khasra No. 21/11/2. The witness went on to concede that they have not applied to any government authority to get the 9 Biswa land of khasra No. 21/11/1 de-notified. No documents having force of law has been filed on behalf of plaintiff against the proof of ownership of disputed land.
25. Now the legal point to be considered is whether the claim in a proceeding under the Land Acquisition Act, title of the land does not pass on to the State until physical possession of the property sought to be acquired is taken.
26. Perusal of testimony of DW1 shows that during the cross examination, he has admitted that the physical possession of land ad-measuring 9 Biswa in the khasra number 21/11/1 has not been handed over to the defendant due to built up. It is pertinent to mention that even in the written statement, it has been averred by the defendant that the plaintiff has illegally and unlawfully encroached upon the Govt. acquired land measuring 9 Biswa. As such, it is clear from pleadings, testimony of witnesses and documents that actual physical possession of land ad-measuring 9 Biswa of Khasra number 21/11/1 was not taken by the defendant.
CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 15 / 2327. The contention of the plaintiff is that in the present case admittedly no physical possession of suit property has been taken till date, therefore suit property never vested in favour of acquiring authority. Ld. Counsel for defendant has also stressed to place reliance upon various demarcation proceedings/reports of suit land. It has been stated that the possession, occupation, use and enjoyment of the plaintiff in suit property finds specific mentioning in the said reports. It has been further submitted that while disposing off the Writ Petition bearing No. 5495/97 and 623/99 vide a common order dated 01.02.2001, Hon'ble High Court of Delhi had directed the parties to maintain status quo and directed the DDA to take a decision into the matter within reasonable time preferably within 3 months. It has been further argued that in pursuance of the said order DDA constituted a committee of 3 Tehsildars to ascertain how much land is in possession of the plaintiff and its status. That the committee in its report held that suit land is not a DDA's land and a letter to that effect dated 02.04/2002/24.04.2002 i.e. Ex. PW-1/12 was also sent to the plaintiff. That the said letter was withdrawn after more than 3 years without assigning any reason. Ld. Counsel for plaintiff further placed his reliance upon following judgments:
(a). AIR 1987 SC 2421 titled as Special Land Officer, Bombay & Others Vs. Godrej & Boyeed.
(b). MANU/ DE/1160/2012 titled as O.P. Aggarwal & Another Vs. Sh. Akshay Lal & Ors.
(c). MANU/DE/1336/2009 titled as Tilak Raj Aggarwal & Anr. Vs. DDA & Ors.
(d). MANU/DE/2138/2008 titled as Rohtas Kumar Gupta Vs. Govt. of NCT of Delhi DDA & Ors.
(e). AIR 1989 SC 2097 titled as Krishna Ram CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 16 / 23 Mahale, Through LRs Vs. Shobha Venkat Rao.
(f). MANU/DE/0001/2011 titled as Rajedera Nath Gupta Vs. Ravindera Nath Gupta.
(g). K.Purushothaman Vs. Poovalappil Lakshmanan decided by Hon'ble High Court of Kerala in January 2011.
(h). K. Padmavathy Vs. K. Suresh Kumar decided by Hon'ble High Court of Madras on 19.03.2013.
28. Per contra, Ld. Counsel for defendant has contended that the plaintiff is mis-interpreting the sum and substance of letter dated 24.04.02 issued by Tehsildar (West) D.D.A. It has been argued that the letter, mentioning that structures bearing municipal No. WZ-112 and WZ-106-A Village Budhela are not in D.D. A's land, was issued as the possession of land measuring 9 Biswa was not handed over to Delhi Development Authority. That it has nowhere been mentioned in this letter that this land has not been acquired. It is further argued that the said letter has however been withdrawn vide letter dated 4.7.2005. The other contentions of the Ld. Counsel for the plaintiff was also opposed by Ld. Counsel for defendant by emphasizing that plaintiff is encroacher upon government land which was acquired and placed at the disposal of the answering defendant. It has been further contended that the plaintiff has failed to produce any document against the proof of his ownership over suit land and an encroacher can not maintain the suit for injunction against the true owner. Reliance has been placed upon following judgements: -
CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 17 / 23(i). Premji Ratansey Shah & Ors. V/S Union of India & Ors. Cited at JT 1994 (6) SC, 585,
(ii). 1994 IAD (Delhi) 432 Rajinder Kakkar & Ors. V/S D.D.A:
(iii). 1995 PLJ Mohan Lal V/S Mohan Singh.
29. I have carefully heard the arguments at length advanced by both the ld. Counsels and also perused the written arguments and case law relied upon.
30. In Indore Development Authority Vs. Manoharlal S.L.P. (C ) Nos. 9036-9038 OF 2016) & others; decided on 6th March, 2020, Hon'ble Supreme Court of India has observed that "7. The mode of taking possession under the Act of 1894 and as contemplated under Section 24(2) is by drawing of inquest report/ memorandum. Once award has been passed on taking possession under Section 16 of the Act of 1894, the land vests in State there is no divesting provided under Section 24(2) of the Act of 2013, as once possession has been taken there is no lapse under Section 24(2)."
31. Perusal of record shows that in the present suit, the plaintiff has not disputed the demolition proceedings carried out by the defendant in the year 1999. During his cross-examination PW-1 has admitted that the "Demolition of a part of our property was carried out in the year 1999. Drawing room and part of bed room of built up portion of my younger brother and two rooms and one bath room of my premises were demolished." Thus, it CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 18 / 23 is clear that officials of the defendant came to the suit property to demolish it and to take the possession thereof. The parties have been contesting the matter since then. As such, the demolition proceedings carried out by the government officials is not disputed at all which clearly proves the intent and action of the answering defendant in definitive laying over the claim on the possession of the suit property. Moreover, the factum of status quo in the suit land has also been invoked on behalf of plaintiffs which indicates the continued claim of DDA over suit land. In view of the above attending circumstances, the claim of peaceful and undisturbed possession of suit property by the plaintiff stands dented and preponderance of probabilities gets tilted in favour of the defendant.
32. After the judgment in Indore Development Authority Vs. Manoharlal (supra), it is now settled law that deemed lapse of the land in acquisition proceedings applies only when authorities have failed due to their inaction to take possession. Considering the facts and circumstances of the case, in the considered opinion of the court there is no inaction on the part of DDA to take possession of the suit property. There was no inaction on the part of defendant to demolish the property and take the physical possession thereof. As such, the plaintiff cannot take the advantage of his own wrong.
33. Further in view of the observations made by the Hon'ble Supreme Court in Indore Development Authority Vs. Manoharlal and Hon'ble High Court of Delhi in Hoshiyar Singh Vs. DDA RSA No. 25/2002 & CM No. 79/2002, it does not matter whether the suit property was demolished by DDA or not in relevant CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 19 / 23 year. As the Hon'ble High Court has held in Hoshiyar Singh Vs. DDA that:
"the plea that the built up areas cannot be acquired was repelled by the Division Bench of this Court in the judgment reported as M/s Prem Chand Ramesh Chand Vs. Delhi Development Authority & another 66 (1997) Delhi Law Times 110. The operative portion in paragraphs 6 and 7 read as follows:
"6. The contention that there is any policy to regularise unauthorised colonies or there is a policy decision not to acquire built up area, are concluded against the petitioner by a Division Bench decision of this Court in the case of Atter Singh Vs. D.D.A. (CW No. 3110 of 1991) decided on 10th August, 1992. In Atter Singh's case also it was alleged that the petitioner had a godown built up on an area situate in village Haiderpur on private land and no action can be taken by the respondents against the petitioner. In that case too, the Bench referred in the judgment to the same Award No. 50/80-81 made on 18th July, 1980. The contention that there was a policy of Government to regularise the unauthorised colonies and also not to acquire built up area was rejected and it was observed that:
"It was further contended that unauthorised colonies on Government land are sought to be regularised. It is possible that a political decision to this effect may be taken with regard to some of the colonies but as far as this land is concerned, there have been valid proceedings for acquisition under the provisions of the Land Acquisition Act. If there was any built up area on the date when Section 4 Notification was issued, the claimants would be entitled to receive compensation in accordance with law. As far as the petitioner is concerned, we do not find that the petitioner is entitled to any compensation and in fact it is one Udai Singh who had already received the compensation. Be that as it may, merely because some of the colonies are going to be regularised cannot be of any assistance to the petitioner specially when, in the writ petition, there is no challenge to the acquisition proceedings. The proposal of excluding the land from the award which was therein 1968 has apparently been given a go bye and this has resulted in, first Notification under Section 6 being issued on 2nd January, 1969, followed by the award in 1980.
"7. The contention in respect of the policy of leaving out from the acquisition built up area has also been repelled in another Division Bench decision of this Court in Shri Bhagwan and another Vs. Union of India & ors., 1991 (2) Delhi Lawyer 59 (DB). This decision has been affirmed by a Full Bench of this Court in Roshanara Begum Vs. Union of India, 1996 (1) AD (Delhi) 6. We may also notice that the CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 20 / 23 appeal filed against Full Bench has been dismissed by the Supreme Court (see: Murari and other Vs. Union of India and others, )."
34. Furthermore, it appears relevant to refer the judgment of Premji Ratansey Shah & Ors. V/S Union of India & Ors. (Supra) passed by Hon'ble Supreme Court of India wherein it was held that:-
"It is equally settled law that injunction would not be issued against tile true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner."
35. So far as contention of the Ld. Counsel for the plaintiff regarding letter 02.04/2002/24.04.2002 i.e. Ex. PW-1/12 informing them that the suit land is not DDA's Land is concerned, I find no force into them for the reason that it is admitted case of the plaintiff that the said letter was withdrawn later on and further that in no way the said letter assigns the plaintiff the ownership over the suit land. The case of the plaintiff has to stand on its own legs. Moreover, with all respect at my command, in my considered opinion, the case law relied upon by the Ld. Counsel for the plaintiff does not apply to the facts and circumstances of the present case.
36. In view of exhaustive discussion as above, issue No. 2 and Issue No. 4 are decided in favour of defendant and against the Plaintiff.
CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 21 / 23 FINDING ON ISSUE NO. 33. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? (OPD)
37. The onus to prove this issue was on the defendant, however, no specific evidence has been led by them to corroborate their claim. Mere claim can not displace the necessity of producing evidence of probative value. As such the issue no. 3 is decided in favour of the plaintiff and against the defendant.
FINDING ON ISSUE NO. 5 :-
5. The relief.
38. It is pertinent to mention that the present suit is merely for permanent injunction and not for declaration and possession. In the present suit, plaintiff is seeking a decree of permanent injunction against the defendant restraining defendant from demolishing the suit property built up and to restrain from interfering in the peaceful possession and enjoyment of the plaintiff in suit property. Perusal of record and discussion as earlier and findings on the issue no.2 & 4 manifestly shows that the plaintiff is not entitled to relief as claimed by them in the present suit as an injunction cannot be passed against the true owner.
39. In view of finding and reasoning given in Issue No.2 and 4 and material on record, present issue is also decided in favour of defendant and against the plaintiff.
CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 22 / 23RELIEF:-
40. In view of findings on the issues and reasons as given earlier, present suit is dismissed.
41. Decree sheet be prepared accordingly.
Digitally signedAnnounced in the open court DEEPAK by DEEPAK
KUMAR
on 26th February, 2021. KUMAR Date: 2021.02.26
17:02:04 +0530
(This judgment contains 23 pages)
DEEPAK KUMAR-I
Commercial Civil Judge,
West District, Delhi.
CS 608596/16 Sh. Malkhan Singh through LRs Vs. DDA Page 23 / 23