Delhi District Court
Kirpal Singh vs S. B. Chaudhary Etc on 19 August, 2023
IN THE COURT OF SH. AJAY NAGAR,
SENIOR CIVIL JUDGE: WEST DISTRICT
TIS HAZARI COURTS, DELHI.
Case No. 8006/16
CNR No. DLWT03-000012-1990
Sh. Kirpal Singh
(Through LRs)
(A) Smt. Attar Kaur (Wife)
Wife of Late Sh. Kirpal Singh
R/o 18/545, DDA Flats, Kalkaji,
New Delhi-110019.
(B) Sh. Swarn Singh (Son)
S/o Late Sh. Kirpal Singh
R/o 18/545-546, DDA Flats, Kalkaji,
New Delhi-110019.
(C) Smt. Sukhvinder Kaur (Daughter)
Wife of Sh. Balkar Singh
D/o Late Sh. Kirpal Singh
R/o BL-60, Anand Vihar,
Jail Road, New Delhi.
(D) Sh. Harvinder Singh (Son)
S/o Late Sh. Kirpal Singh
R/o H.No. 62-1, First Floor,
Erose Garden, Suraj Kund Road,
Faridabad, Haryana.
(E) Sh. Gurmeet Singh (Son)
S/o Late Sh. Kirpal Singh
R/o F-58, First Floor, Kalkaji,
Delhi-110019. .... Plaintiff
VS
1. Sh. S.B Chaudhary
2. Sh. B.B. Chaudhary
Both R/o G-54, DDA Self Financing Digitally
Scheme Flats, Saket, New Delhi-110017. AJAY
signed by
AJAY NAGAR
Date:
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14:54:04
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CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.1 of 32
3. M.C.D.
(Through its Commissioner),
Town Hall, Chandni Chowk,
Delhi-110006.
4. D.D.A
(Through its Vice Chairman)
Vikas Sadan, New Delhi. ... Defendants
Date of filing: 23.11.1990
Date of judgment: 19.08.2023.
JUDGMENT
1. PRAYER BY PLAINTIFF IN PLAINT:
1.1 The plaintiff has, by way of present suit, prayed for passing the decree of permanent injunction restraining the defendants, their agents, employees, servants etc. from dispossessing the plaintiff from the property No. 1043/D-7, Ward No.8, Mehrauli, New Delhi as shown in red in the site plan attached with the plaint except in due course of law and the plaintiff has also prayed for restraining them from demolishing/damaging the property in dispute. Plaintiff has also prayed for the costs in favour of the plaintiff.
2. AVERMENTS BY THE PLAINTIFF IN PLAINT
2.1 It is averred by the plaintiff in the plaint that plaintiff is the owner and in possession of House No. 1043/D-7, Ward No.8, Mehrauli, New Delhi and he was in possession prior to the year 1964 and he used to pay electricity and water charges also; in the year 1968, plaintiff filed an appeal against the M.C.D. against the order of Zonal Engineer (Building) wherein the then Digitally signed by AJAY AJAY NAGAR CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.2 of 32 NAGAR Date:
2023.08.19 14:54:39 +0530 Ld. District Judge i.e. Sh. M.L Jain accepted the plea of the plaintiff and set aside the order passed by Zonal Engineer; defendant No.1 and 2 Sh. S.B. Chaudhary and Sh. B.B Chaudhary are property dealers; plaintiff was residing in the property in dispute but unfortunately in the riots of 1984, his property was damaged and demolished and plaintiff was forced to leave that place and now he wants to make the property habitable and for that purpose he is restoring his necessary amenities but the defendant is unnecessarily intending to harass the plaintiff and wants to forcibly occupy the possession of the property in dispute which is shown in red in the site plan filed; defendant No.1 and 2 in connivance with the staff of defendant No.3 and 4 are harassing the plaintiff and are threatening the plaintiff to dispossess him from the premises in question as the defendant No.1 and 2 intend to raise building activities there; on 14.11.1990 defendant's agents attempted to dispossess the plaintiff from the premises in question and the matter was reported to the police; cause of action arose on 14.11.1990 when the threats were extended by the defendants to the plaintiff;
valuation of the suit for the purposes of court fee and jurisdiction is Rs.130/- for which required court fee is also affixed; this court has jurisdiction to entertain the present suit.
3. PRAYER BY THE DEFENDANT NO.1 AND 2 IN W.S. 3.1 Defendant No.1 and 2 Sh. S.B Chaudhary and Sh. B.B Chaudhary have filed the written statement jointly in the present case praying dismissal of the suit or to stay the proceedings in the present suit. Digitally signed by AJAY AJAY NAGAR Date:
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4. AVERMENTS MADE BY DEFENDANT NO.1 AND 2.
4.1 It is averred by the defendant No.1 and 2 that the plaintiff is trying to pick up a controversy with regard to the proprietary assessory rights of the answering defendants in respect of a plot of land measuring 4 bighas situated in Khasra No. 166 (min) at Village Ladha Sarai, Teshil Mehrauli, New Delhi which is in the joint ownership of the answering defendants along with M/s Cama Builders (Pvt.) Ltd. in equal shares; in the month of October, 1990, plaintiff had tried to take forcible possession of a portion of the above said plot of land and had tried to forcibly raise unauthorised construction thereon; answering defendants herein had filed a suit for permanent injunction on 23.10.1990 against the plaintiff herein and defendant No.1 therein which was assigned to the court of Ms. Bimla Maken, the then Ld. Sub Judge, Delhi and was registered as Suit No. 756/90 and is pending; in that case the Ld. Court concerned passed order dated 29.10.1990 against the answering defendants herein and plaintiff therein against which appeal is pending in the court of Sh. B.L Garg/Sh. Kuldeep Singh; on 05.11.1990, Ld. Appellate Court in that case, passed an interim order to the effect that both the parties shall maintain status quo regarding possession of suit property; that case is pending for adjudication; land measuring 4 bighas in Khasra No. 166, (min) Village Ladha Sarai, Teshil Mehrauli, New Delhi was purchased by the answering defendants along with one Sh. Vipin Kumar S/o Sh. Satpal from its previous owner Sh. Abdul Gaffar S/o Sh. Mohd. Bux, R/o Matia Mahal, Delhi vide sale deed dated 15.10.1987 duly registered with Sub Registrar Office; one third undivided share belonging to Sh. Vipin Kumar was sold by him Digitally signed AJAY by AJAY NAGAR Date:
NAGAR 2023.08.19 14:55:23 +0530 CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.4 of 32 in favour of M/s Cama Builders (Pvt.) Ltd. in 1988 and now the answering defendants along with M/s Cama Builders (Pvt.) Ltd. are joint owners of this land; N.O.C dated 14.10.1987 was obtained by the vender from the competent authority, i.e. Teshildar notification, Delhi to the effect that land in question had neither been acquired by the Government nor was under the process of acquisition and the vendor was competent to pass on any marketable title in respect of said land; earlier when the answering defendants wanted to raise a boundary wall upon the said land, DDA had objected to the same and against the action of DDA, SLP No. 10041/1989 was filed before the Hon'ble Supreme Court of India against the order of Hon'ble High Court of Delhi in the Writ Petition filed by the defendant No.1 in this case; Hon'ble Supreme Court of India vide order dated 13.09.1989 restrained the DDA, J.E of DDA and SHO Mehrauli Police Station from interfering with the possession of defendant No.1 in respect of said land except with due process of law;
answering defendants along with M/s Cama Builders were the owners and in possession of the said land; plaintiff has tried to confuse the issue and is trying to take undue advantage and also trying to forcibly occupy and encroach upon the land of the answering defendants alleging that his house existed on this land; plaintiff has produced some forged house tax receipts to substantiate his plaint; even in the plaint, plaintiff has stated that he is the owner and in possession of House No. 1043/B-7, Ward No.8, Mehrauli, New Delhi; the suit land is part and parcel of Village Ladha Sarai in Teshil Mehrauli whereas according to this plaintiff, his house is situated in Mehrauli itself; these are two separate and distinct areas; there is no house whatsoever and the land is virtually lying vacant and answering defendants are in Digitally signed by AJAY AJAY NAGAR NAGAR Date:
CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.5 of 32 2023.08.19 14:55:40 +0530 possession thereof; defendant No.2 is Charted Accountant by profession but defendant No.1 is Property Dealer.
4.2 It is further averred by the defendant No.1 and 2 that the claim of the plaintiff has not been substantiated with any documents as none has been referred to in the plaint; there is no question of defendants forcibly trying to occupy the possession as alleged by the plaintiff in the plaint; plaintiff has no right to take possession of the land or to build any construction thereon;
there is no question of plaintiff being dispossessed as plaintiff is not in possession of the land in question; possession of the land in question is with answering defendants as confirmed by Hon'ble Supreme Court of India also; although, answering defendants have right to raise construction on the land but due to the status quo order passed by Sh. Kuldeep Singh, Ld. Sr. Sub Judge, no activities are under way.
4.3 It is averred by the defendant No.1 and 2 that it was the plaintiff who had tried to forcibly encroach upon and occupy a part of the land belonging to the answering defendants and answering defendants had to report to the police on 15.10.1990, thereafter on 21.10.1990; thereafter, filed the suit for permanent injunction on 23.10.1990 before the Ld. Sub Judge, Delhi; answering defendants are already in possession of land in dispute and the question of dispossession of plaintiff is wholly irrelevant.
4.4 It is further averred by the defendant No.1 and 2 that it is the plaintiff who wants to grab the property answering defendants by obtaining some orders from the court by Digitally signed by AJAY NAGAR AJAY Date:
NAGAR 2023.08.19 14:56:00 CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.6 of 32 +0530 suppressing the material facts.
4.5 It is averred by the defendant No.1 and 2 that since the plaintiff is not in possession, valuation of the suit for the purposes of court fee and jurisdiction is wholly incorrect; suit is under valued for the purposes of court fee and jurisdiction.
4.6 It is averred by the defendant No.1 and 2 that since the plaintiff is not in possession of suit land, no relief with regard to injunction can be granted to the plaintiff against the defendants; relief with regard to restrain against the demolition/damaging of the property is totally infructuous as no structure worth the name exist at the site much less a house as stated by the plaintiff.
4.7 It is also averred by the defendant No.1 and 2 that the suit deserves the dismissal; the matter in controversy in this particular suit as also in the earlier instituted suit by the answering defendants which is pending as stated above, is identical and litigating parties are virtually the same and common question of facts and law are involved in both the cases; the present suit being a subsequently instituted suit can not be proceeded with and is liable to be stayed.
5. PRAYER BY DEFENDANT No.4/DDA
5.1 Defendant No.4 i.e. DDA has prayed that the suit of the plaintiff may be dismissed with costs.
6. AVERMENTS MADE BY DEFENDANT NO.4/DDA Digitally signed by AJAY AJAY NAGAR Date:
NAGAR 2023.08.19 14:56:18 +0530 CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.7 of 32 6.1 It is inter-alia averred by defendant No.4/DDA in the written statement that plaintiff has not disclosed that he has filed a suit in respect of the present land which is pending in the court of Sh. D.S Pawaria, the then Ld. Sub Judge; plaintiff is not in possession of any portion of the land and attempting to obtain stay or forcibly occupying the land belonging to answering defendant i.e. DDA; land concerned is not having any house as alleged by the plaintiff; said land forms part of Khasra No. 166, Village Ladha Sarai which is the land vested in DDA vide notification No. SO2190 dated 20.08.1974 and since then DDA is in the management and control of said land; plaintiff tried to encroach upon the said land but DDA did not allow it; there is no water or electric connection in the land in dispute; plaintiff has already filed a suit in respect of this land as stated earlier; the land in question is not within the management and control of defendant No. 3 because it is the land of Gaon Sabha, Ladha Sarai forming part of Khasra No. 166 vested in the Central Government on account of declaration of Village Ladha Sarai as Urban area and thereafter, Central Government transferred it to DDA U/S 22 of D.D Act; neither the plaintiff, nor any other defendants have got any right over the said land; H.No. 1043/B-7 never existed on the land in dispute and therefore, the question of plaintiff residing in the alleged house never arose; plaintiff has not disclosed in the plaint specifically the name of the defendant who attempted to dispossess the plaintiff from premises in question; since plaintiff is not in possession, question of dispossession never arose; suit has not been properly valued for the purposes of court fee and jurisdiction; no cause of action has arisen in favour of plaintiff.
Digitally signed by AJAY NAGAR AJAY Date:
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7. NO WRITTEN STATEMENT FILED ON BEHALF OF DEFENDANT NO.3/MCD 7.1 Record shows that although defendant No.3/MCD was served but no written statement was filed on behalf of defendant No.3/MCD despite opportunity given by the court. Moreover, in between defendant No.3 was proceeded ex-parte as it gave up the appearance before the court but at the time of final arguments Ld. Counsel for defendant No.3/MCD joined the proceedings before the court.
7.2 No replication was filed by the plaintiff to the written statement of defendant No.1, 2 and defendant No.4/DDA.
8 ISSUES FRAMED 8.1 On the basis of pleadings, submissions and material on record, following issues were framed by the Court:-
i) Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendants from dispossessing the plaintiff from suit property i.e. Property No. 1043/D-7, Ward No.8, Mahrauli, New Delhi without due process of law?OPP
ii) Whether the plaintiff is entitled for a decree of permanent injunction restraining the defendant from demolishing/damaging the property in dispute?OPP Digitally signed by AJAY AJAY NAGAR Date:
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9. PLAINTIFF EVIDENCE 9.1 PW1 Sh. Swaran Singh tendered his evidence by way of affidavit and he relied upon the following documents:-
(1) Ex.PW1/1 site plan. (2) Ex. PW1/2 certified copy of the order dated 19.09.1969
passed by Sh. M.L Jain, the then District Judge, Delhi in MCA No. 731 of 28.11.1968 titled as "Sardar Kirpal Singh Vs. MCD". (consisting 04 pages)(OSR) (3) Ex.PW1/3 copy of ration card bearing No.24724 (consisting of 04 pages)(OSR).
(4) Ex.PW1/4 electricity bill dated 30.06.1971 (02 pages, front and back)(OSR).
(5) Ex.PW1/5 post card dated 31.07.1972 (02 pages front and back)(OSR).
(6) Ex.PW1/6 house tax bills dated 20.07.1968, 25.08.1972, 18.12.1987 and 08.10.1990 (colly)(consisting of 10 pages, 05 front and back)(OSR).
(7) Ex.PW1/7 house tax payment receipt dated 08.10.1990 (OSR).
(8) Ex.PW1/8 Khatoni of the year 1969-70. (OSR). (9) Ex.PW1/9 water meter purchase receipt dated 24.06.1971. (OSR).
(10) Ex.PW1/10 estimate issued by Mr. Giridhari Lal Prakash Chand licensed plumber dated 01.07.1971 which bears the name of Kirpal Singh, House No. 1043, D7, Ward No.8, Mehrauli, New Delhi-110030(OSR).
(11) Ex.PW1/11 photo copy of receipt dated 28.06.1971 of Delhi Water Sewerage disposal board, MCD, (OSR). (12) Ex.PW1/12 photo copy of receipt dated 28.06.1971 of Digitally signed by AJAY AJAY NAGAR Date:
NAGAR 2023.08.19 14:56:59 CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.10 of 32 +0530 MCD regarding water connection. (OSR) (13) Ex.PW1/13 photo copy of receipt dated 10.08.1972 regarding water charges. (OSR).
(14) Ex.PW1/14 photo copy of water bill dated 16.08.1972 (04 pages front and back).(OSR) (15) Ex.PW1/15 photo copy of water bill dated 27.02.1985(02 pages front and back)(OSR) (16) Ex.PW1/16 photo copy of water bill dated 24.12.1987 (OSR) It was observed at the time of evidence as under:-
(Documents Ex.PW1/1 site plan is original on file however the documents Ex.PW1/2 to Ex.PW1/16 in originals are in the file received from Hon'ble High Court of Delhi from the record of RFA No. 304/12 titled as "DDA Vs S.B Chaudhary & Ors.") (17) Ex.PW1/17 the copy of the relinquishment deed dated 20.01.2011.
(18) Ex.PW1/18 the death certificate of Late Sh. Kirpal Singh dated 28.05.2017.
(19) Ex.PW1/19 the copy of registered Will dated 14.03.2013.
It was observed by the Court that these documents Ex.PW1/17, Ex.PW1/18 and Ex.PW1/19 shall not be read in evidence since application of the plaintiff for placing these documents on record was dismissed by the Court on 09.10.2017.
It was further observed that the exhibition of the documents was objected to by the opposite party being mode of proof and beyond pleadings.
On 23.04.2018, plaintiff filed additional affidavit of evidence Ex.PW1/B and he relied upon the following documents:-
Digitally signedAJAY by AJAY NAGAR Date:
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(i) Photo copy of house tax receipt dated 02.01.2017 for the year 2004-05 to 2016-17 Ex.PW1/20 (objected to with regard to mode of proof and original not placed)
(ii) Photocopy of tax payment challan dated 15.05.2017 for the year 2017-19 Ex.PW1/21. (objected to with regard to mode of proof and original not placed)
(iii) Computer generated five water bills dated 18.07.2017, 17.03.2017, 26.10.2017, 17.09.2016 and 28.11.2016 of Delhi Jal Board for the year 2016-17 Ex.PW1/22. (objected to with regard to mode of proof, original not placed and no certificate under the information and technology Act was filed).
Thereafter, defendant No.4/DDA cross examined the PW1 Sh. Swaran Singh who is the son of the plaintiff Sh. Kirpal Singh.
9.2 Thereafter, PW2 Sh. T.P Singh, Officer from the Office of Zonal Revenue Office of Delhi Jal Board, South-I, Saket, Delhi was summoned who brought the copy of the bill in the name of Sh. Kirpal Singh Ex.PW2/A. 9.3 Thereafter, PW3 Sh. M.K Verma, Zonal Inspector, A& C Department (House Tax Department), SDMC, South Zone, R.K Puram, Sector-9, New Delhi was summoned who brought two documents collectively Ex. PW3/A. 9.4 Thereafter, PW4 Nilesh Kumar, S/o Sh. Maha Nand Jha, Lineman Associate, BSES, Rajdhani Power Ltd., Vasant Kunj, New Delhi was summoned who brought the letter dated 05.10.2018 written by Sh. Gunjesh Singh AM(PS) Ex.PW4/1. Digitally signed AJAY by AJAY NAGAR Date:
NAGAR 2023.08.19 14:57:25 +0530 CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.12 of 32 9.5 Thereafter, PW5 Sh. Neelesh Kumar, S/o Sh. Maha Nand Jha, Lineman Associate, BSES Rajdhani Power Ltd. Vasant Kunj, New Delhi was summoned who brought the summoned record which is as under:-
1. Ex.PW5/1 the house service line account dated 15.01.1971 for AIS No.211/LD/4582.(OSR)
2. Ex.PW5/2 the service connection progress sheet dated 04.05.1970 (OSR).
3. Ex.PW5/3 form no.C dated 21.12.1970 of DESU(OSR).
4. Ex.PW5/4 Stores issue docket dated 21.12.1970(OSR).
5. Ex.PW5/5 demand dated 04.05.1970 issued by DESU(OSR).
6. Ex.PW5/6 Form No.3 dated 25.05.1970 of DESU(OSR).
7. Ex.PW5/7 Letter No.75901 dated 13.05.1970 issued by DESU(OSR).
8. Ex.PW5/8 application-cum-affidavit dated 25.05.1970 of Sh. Kirpal Singh for grant of Electricity connection (OSR).
9. Ex.PW5/9 Form No. G & A dated 24.03.1970 issued in the name of Sh. Kirpal Singh, PPO by MCD(OSR).
10. Ex.PW5/10 Demand dated 25.05.1970 issued by DESU (OSR).
11. Ex.PW5/11 is a No Objection Certificate in Urdu (OSR).
12. Ex.PW5/12 letter No.75901 dated 13.05.1970 issued by DESU in the name of Sh. Kirpal Singh (OSR).
(Objected to the exhibiting all the documents by the Ld. Counsel for DDA as to mode of proof) 9.6 Thereafter, plaintiff evidence was closed.
Digitally signed by AJAY AJAY NAGAR NAGA Date:
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10. DEFENDANT No.4/DDA EVIDENCE
10.1 Defendant No.4/DDA examined D2W1 Sh. Amit
Kumar Yadav, Kanoongo, District Record Room Saket, DM Office (South) Delhi who brought the summoned record which is as under:-
(i) Rapat Rojnamcha no. 91 dated 19.09.1983, certified copy of same Ex.D2W1/1 (running into two pages).
(ii) Khatoni for year 1981-82, Village Ladha Sarai, certified copy of same Ex.D2W1/2 (running into three pages).
(iii) Khatoni for year 1985-86, Village Ladha Sarai, certified copy of same Ex.D2W1/3 (running into seven pages).
(iv) Khasra Girdawari for year 1985-86, Village Ladha Sarai, certified copy of same Ex.D2W1/4 (running into three pages).
(v) Khasra Girdawari for year 1993-94, Village Ladha Sarai, certified copy of same Ex.D2W1/5 (running into two pages).
(vi) Khasra Girdawari for year 1994-95, Village Ladha Sarai, certified copy of same Ex.D2W1/6 (running into two pages).
(vii) Khasra Girdawari for year 1996-97, Village Ladha Sarai, certified copy of same Ex.D2W1/7 (running into three pages).
(viii) Khasra Girdawari for year 2001-02, Village Ladha Sarai, certified copy of same Ex.D2W1/8 (running into three pages).
(ix) Khasra Girdawari for year 2003-04, Village Ladha Sarai, certified copy of same Ex.D2W1/9 (running into three Digitally pages).
signed by AJAY AJAY NAGAR Date:
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(x) Khasra Girdawari for year 2014-15, Village Ladha Sarai, certified copy of same Ex.D2W1/10 (running into two pages).
He also brought original registers containing the documents Ex.D2W1/1 to Ex. D2W1/10(OSR).
Objected to by Ld. Counsel for plaintiff that the Rojnamcha register having Ex.D2W1/1 is in torn condition and is lying loose. The khatoni file having Ex. D2W1/2 is not tagged and all pages are loose. The khatoni/Jamabandhi tagged file having Ex. D2W1/3 has many blank unfilled forms in between. The Girdawri Register having Ex. D2W1/4 has blank unfilled forms in between which are duly stamped and signed on right top most column. The Girdawri Register having Ex. D2W1/5 is having the first page as blank with stamp on the right top most corner and unfilled forms in between which are fuly stamped on right top most column. The Girdawri Register having Ex. D2W1/6 is having the first two pages as blank with stamp on the right top most corner and unfilled forms in between which are duly stamped on right top most column. The Girdawri Register having Ex. D2W1/7 has the first page as blank with stamp and sign on the right top most corner and unfilled forms in between which are duly stamped and signed on right top most column. The Girdawri Register having Ex.D2W1/8 is having the top half of first and second page as blank with stamp and sign on the right top most corner and unfilled forms in between which are duly stamped on right top most column. The Girdawri Register having Ex. D2W1/9 is having unfilled forms in between which are duly stamped and signed on right top most column. The Girdawri Register having Ex. D2W1/10 is having the first page as blank with stamp and sign on the right top most corner and Digitally signed AJAY by AJAY NAGAR Date:
NAGAR 2023.08.19 14:58:10 +0530 CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.15 of 32 unfilled forms in between which are duly stamped on right top most column.
Cross examination was declined U/S 139 of Indian Evidence Act.
10.2 D2W2 Sh. Rajiv Sharma, Kanoongo, Sadar Kanoongo Branch, Tis Hazari, Delhi brought the summoned record i.e. Register of Jamabandi and Khatoni for the year 1964-
65. Certified copy of Khasra No.166 Ex.D2W2/1 (running into three pages) Cross examination was declined U/S 139 Indian Evidence Act.
10.3 D2W3 Sh. Om Prakash working as Tehsildar, (LM) S.W Zone, DDA, Vikas Sadan, INA, New Delhi tendered his affidavit Ex.D2W3/X. He relied upon documents already Ex.D2W1/1 to Ex.D2W1/10 and Ex.D2W2/1 etc. and also relied upon the following documents:-
(i) Copy of gazette notification dated 23.05.1963 Ex.D2W3/1 (running into one page). Objected to by Ld. Proxy Counsel for the plaintiff on the ground of mode of proof as it is not original.
(ii) Copy of gazette notification dated 24.08.1974 Ex.D2W3/2 (running into three pages). Objected to by Ld. Proxy Counsel for the plaintiff on the ground of mode of proof as it is not original.
(iii) Copy of status report on behalf of DDA submitted in the Court of Ms. Tyagita Singh, Ld. SCJ (South), Saket Court Ex.
D2W3/3 (running into 50 pages). Objected to by Ld. Proxy Counsel for the plaintiff on the ground of mode of proof as it is not original.
(iv) Copy of order dated 01.11.1954 passed by Dy. Digitally signed AJAY by AJAY NAGAR Date:
NAGAR 2023.08.19 CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.16 of 32 14:58:21 +0530 Commission Ex.D2W3/4 (referred to in my affidavit as mar D2/1 (running into two pages). Objected to by Ld. Proxy Counsel for the plaintiff on the ground of mode of proof as it is not original.
(v) Copy of report of Local Commissioner (C.B. Verma) dated 05.02.1991 (referred to in my affidavit is mark D2/2) is Ex.D2W3/5 (running into 8 pages). Objected to by Ld. Proxy Counsel for the plaintiff on the ground of mode of proof as it is not original. The annexures mentioned in the LC report are also not annexed with the report. Thereafter, witness was cross examined at length.
10.4 D2W4 Sh. Ram Dayal Meena, UDC Department of Publication, Civil Lines, Delhi-110054 brought the original Gazette notification dated 23.05.1963 and 24.08.1974. The certified copy Ex.D2W3/1 and Ex. D2W3/2 were issued from his office. (OSR).
Cross examination was declined in view of Section 139 of Indian Evidence Act.
10.5 D2W5 Sh. S. Thang Nun Sang, Judicial Assistant, Hon'ble High Court of Delhi, Sher Shah Road, New Delhi was summoned who brought the title case bearing CS No.516/1991 titled as Delhi Development Authority Vs S.B. Chaudhary. The said suit was transferred to Delhi District Court and the said suit was subsequently numbered as CS No.715/11/91. The Local Commissioner was appointed in this case and the report of the Local Commissioner Sh. C.B Verma is Ex.D2W5/1(OSR). The copy of the report is already on record. (Objected to by the Ld. Counsel for the plaintiff on the ground that the annexures referred to in the report were not on the judicial file and the Digitally signed AJAY by AJAY NAGAR Date:
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14:58:32 +0530 Page No.17 of 32 defendant/DDA can not be permitted to file the same at this stage).
Cross examination was declined in view of Section 139 of Indian Evidence Act.
10.6 D2W6 Sh. Dinesh Kumar, JJA/Assistant Ahlmad in the Court of Ms. Tyagita Singh, Ld. SCJ/RC, South, Saket Courts, Delhi brought the summoned record of case bearing no. CS SCJ 82450/16 titled as Shamsher Singh & Anr. Vs O.P Saini & Ors. The file brought by him contained the order dated 14.11.2018 and the same is Ex.D2W6/1(OSR). The status report filed by the DDA in terms of order dated 14.11.2018 had already been Ex.D2W3/3 (50 pages)(OSR).
Cross examination was declined in terms of Section 139 of the Indian Evidence Act.
10.7 Thereafter D.E was closed in view of order dated 18.03.2019. It is pertinent to mention here that no evidence has been led on behalf of defendant No.1 nd 2 i.e. Sh. S.B Chaudhary and Sh. B.B. Chaudhary and defendant No.3/MCD in the present matter despite ample opportunity given by the Court.
11. FINAL ARGUMENTS 11.1 This court has heard the final arguments advanced by Ld. Counsels for all the parties and this court has also gone through the entire pleadings, documents filed, testimonies on record, case law relied upon, written arguments and the material Digitally on record.
signed by AJAY AJAY NAGAR NAGAR Date:
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12. ANALYSIS 12.1 Perusal of plaint shows that in the plaint, plaintiff has claimed that he is the owner and in possession of House No. 1043/D-7, Ward 8, Mehrauli, New Delhi and he has further stated that he was in possession prior to the year 1964. He has also stated in the paragraph No.4 that he was residing in the aforementioned property but unfortunately in the riots occurred in the year 1984, this property got damaged and demolished and the plaintiff was forced to leave that place and now he wants to make the property habitable and he has also claimed that he is restoring the basic amenities but the defendant is unnecessarily trying to occupy the property in question. He has further specifically mentioned in paragraph No.5 that defendant No.1 and 2 in connivance with the staff of defendant No.3 and 4 are threatening the plaintiff to dispossess him from the premises in question as the defendant No.1 and 2 intend to raise building activities thereon. It is specifically alleged that on 14.11.1990 defendant's agents attempted to dispossess the plaintiff from premises in question and matter was reported to the police. On the other hand, respondent No.1 and 2 have specifically and categorically disputed the ownership and the possession of the plaintiff and have claimed that they are the actual owner of the premises in question and the plaintiff is not in possession of the premises in question. Defendant No.1 and 2 have claimed there ownership on the basis of documents executed by previous owner of the premises in question and he has also relied upon the order of Hon'ble Supreme Court of India whereby DDA was directed to give possession of the property in question to the defendant Digitally signed by AJAY NAGAR AJAY Date:
NAGAR 2023.08.19 14:58:58 CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.19 of 32 +0530 No.1 and 2.
12.2 On the other hand, defendant No.4/DDA has also claimed the ownership over the premises in question on the basis of Notification passed in the year 1974 by the Central Government in favour of DDA under D.D. Act.
12.3 As such, plaintiff as well as defendant No.1 and 2 and also defendant No.4 are claiming the ownership in respect of premises in question.
12.4 It is relevant to reproduce the relevant portion of the case law. In the case titled as Anathula Sudhakar Vs P. Buchi Reddy (Dead) by LRs and Ors. decided on 25.03.2008 in appeal (Civil) 6191 of 2001, the Hon'ble Supreme Court of India inter-alia held as under:-
"...11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief are well settled. We may refer to them briefly... 11.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simplictor will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction but a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2 Where the title of the suit property is not disputed but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession can not seek the relief of injunction simplictor, without claiming the relief of possession. 11.3 Where the plaintiff was in possession, but his title to the property is in dispute, or under a cloud or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue or AJAY Digitally signed by AJAY NAGAR Date:
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declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
12.We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is set to raise over the person's title, when some apprehent defect in his title to a property, or when some prima facie right of a third party over here, is made out or shown. An action for declaration, is remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a tress passers without any claim to title or an interloper without any apprent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will be not necessary for the plaintiff to suit for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a tress passer or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him which raises a serious dispute or cloud over plaintiff's title, then there is a need of the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit or declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
13. In a suit for permanent injunction to restrain the defendant from interfearing with plaintiff's possession. The plaintiff will have to establish as on the date of suit he was in lawful possession of the suit property and defendant try to interfere or disturbed such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structure, as for exemple an agricultural land, possession may be established with reference to the Digitally signed AJAY by AJAY NAGAR Date:
NAGAR 2023.08.19 14:59:24 +0530 CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.21 of 32 actual use and cultivation. The question of title is not an issue in such a suit, though it may arise incidentally or collaterally.
14.But what if the property is a vacant side, which is not physically possess used or enjoy? In such cases the principle is that possession follows title. If two persons claimed to be in possession of a vacant side, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant side is or a mere injunction and the issue is one of the possession, it will be necessary to be examined and determine the title as a prelued for deciding the dejure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of dejure possession even though the suit is for a mere injunction. But where the issue of a title involves complicated or complex questions of fact and law, or where the court fee is that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to remedy of a fulfledged suit for declaration and consequential reliefs.
17.... To summaries, the position in regard to the suit for prohibitory injunction relating to immovable property is as under:
a. Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with consequential injunction. Where there is merely an interferance with plaintiff's lawful possession or fact of possession, it is sufficient to sue or an injunction simplictor.
b. As a suit for injunction simplicitor is concerned only with possession, normally the issue of title will not be directly and substantially an issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where dejure possession has to be establish on the basis of the title to the property as in the case of vacant sides, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
c. But a finding on the title can not be recorded in a suit for injunction, unless there are necessary Digitally signed by AJAY AJAY NAGAR Date:
NAGAR 2023.08.19 14:59:36 CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.22 of 32 +0530 pleadings and appropriate issue regarding title either specific or implied as noticed in Annaimuthu Thevar (Supra.). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves completed question of fact and law relating to title the court will relegate the parties to the remedy by way of comprehensive suit for declaration of a title, instead of deciding the issue in a suit for mere injunction.
d. Where there are necessary pleadings regarding title, and appropriate issue relating to title on which party lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal role that question of title will not be decided in suit for injunction. But persons having clear title and possession suing for injunction should not driven to the costlier and more cumbersome remedy of a suit for declaration merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discreation carefully to identify cases where it will enquire into title and cases where it will referred to plaintiff to a more comprehensive declaratory suit depending upon the facts of the case......
27.... We are therefore of the view that the High Court exceeded its jurisdiction U/S 100 CPC, firstly in re-examining question of facts, secondly by going into the questions which were not pleaded and which were not the subject matter of issue, thirdly by formulating questions of law which did not arise in the second appeal, and lastly, by interfering with the well reason judgment of the First Appellate Court which held that plaintiffs ought to have filed a suit for declaration.
28.... We are conscious of the fact that suit was filed in the year 1978 and driving the plaintiffs to a fresh round of litigation after three decades would caused hardship to them. But the scope of civil cases are circumscribed by the limitations placed by the rules of pleadings, nature of relief claimed and the court fee paid. The predicament of plaintiffs, was brought upon themselves, by failing to convert the suit to one for declaration even when the written statement was filed, and not by seeking amendment of issues to include an issue on the question of title. Digitally signed AJAY by AJAY NAGAR Date:
NAGAR 2023.08.19 14:59:48 +0530 CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.23 of 32 In the absence of a prayer of declaration of title and an issue regarding title, let alone the pleadings required for declaration of title, the parties can not be said to have an opportunity to have a full fledge adjudication regarding title......"
12.5 Admittedly, the present suit is for permanent injunction only and not for declaration. It is also clear from written statements and record that the ownership of the plaintiff herein is vehemently and categorically disputed by defendant No.1 and 2 i.e. Sh. S.B Chaudhary and Sh. B.B. Chaudhary and also by defendant No.4 i.e. DDA. Defendant No.1 and 2 as above have categorically claimed the ownership on the basis of the documents i.e. registered sale deed dated 15.10.1987 executed by Sh. Abdul Gaffar S/o Mr. Mohd. Bux , R/o Matia Mahal, Delhi. Moreover, defendant No.4 i.e. DDA has claimed the ownership on the basis of Notification No. SO2190 dated 20.08.1974 whereby as per the averments made in the written statement, the suit property was transferred to DDA U/S 22(1) of DD Act. Defendant No.1 and 2 have also placed on record the copy of the order dated 05.11.1990 passed by Hon'ble Supreme Court of India whereby the possession of the suit property was directed to be handed over by the DDA to defendant No.1 and 2 and this order is undisputed one. The relevant portion of such an order is as under:-
"...Appellant has filed several documents and copies of judgments to establish his title. The respondents have also filed some documents. After examining the aforesaid documents, hearing counsel and purusing the affidavit, filed, we are of the prima facie view that at the relevant time the appellant was in possession of the land in question. As far as, the question of title is concerned it can be determined only after examining the evidence, documentary as well as oral. That question will have to be decided in appropriate proceeding before a competent court or other competent authority. Both the parties AJAY Digitally signed by AJAY NAGAR claimed to be in possession at present of the land in Date:
NAGAR 2023.08.19 15:00:00 +0530 CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.24 of 32 question. In these circumstances, we direct that appellant shall put in possession of the said land if he is not already in possession. The respondents, their servants and agents are restrained from interfering with the appellant's possession, save and except in due course of law, that is, pursuant to any orders of a competent court or other competent authority. It will be open to the Delhi Development Authority to file appropriate legal proceedings before a court of law or other competent authority to have their rights determined within a period of three months from today. The appellant, his servants and his agents are restrained from creating any third party right in the said land or from parting with possession thereof or inducting any outsider into the possession of the said land. The respondent will not make any application for interim relief in any legal proceeding which they take in connection with the said land except after four days' notice to the present Advocate on record of the appellant.
We clarify that court or the competent authority before whom the proceedings have taken to determine the question of title to the said land and all incidental matters including the possession, will decide these questions on merits and without being impugned by what we have observed in this judgment. The appeal is allowed and disposed of as afore-stated. There will be no order as to costs..."
12.6 Perusal of record shows that such an order was passed between Sh. S.B. Chaudhary as appellant and L.G of Delhi & Ors. in the Civil Appeal No. 1252/1990 arising out of SLP (c) No. 10041 of 1989.
12.7 On the other hand, defendant No. 4 i.e. DDA has also placed on record several documents claiming the ownership over the suit property/land in question on the basis of Notifications and several documents and DDA has also led the evidence to prove its ownership over such suit property/land in question. Digitally signed by AJAY NAGAR AJAY Date:
NAGAR 2023.08.19 15:00:11 +0530 CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.25 of 32 12.8 As held in Annathula Sudhakar Vs P. Buchi (Supra.), where a plaintiff is lawful and peaceful possession of the property and such a possession is interfered by the defendant, a suit for an injunction simplictor may lie. But it was also held that a person has a right to protection against any person who does not prove a better title. However, it was cautioned by the Hon'ble Supreme Court of India that a person in a wrongful possession is not entitled to any injunction against the rightful owner.
12.9 Moreover, it was also guided by the Hon'ble Supreme Court of India where the title of the plaintiff is not disputed but he is not in possession, and a person without possession can not seek the relief of injunction simplicitor without claiming the relief of possession.
12.10 It was also held by the Hon'ble Supreme Court that where the plaintiff is in possession, but his title to property is in dispute or under a cloud and defendant asserts title thereto and there is also a fact of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. It was further observed that where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
12.11 Perusal of record in the present suit manifestly shows that in the present suit, the title of the plaintiff is vehemently disputed not only by defendant No.1 and 2 but also Digitally signed by AJAY AJAY NAGAR Date:
NAGAR 2023.08.19 CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.26 of 32 15:00:23 +0530 by the defendant No.4. There is serious cloud over the title of the plaintiff in respect of suit property/land in question. Moreover, as mentioned above, even when the plaintiff is not able to establish his possession, necessarily he has to file suit for declaration, possession and injunction. In the present matter, plaint itself shows that plaintiff has not disclosed how he became the owner of the suit property/land in question. He has merely stated that he is the owner thereof and he has been in possession prior to the year 1964. In the paragraph No.4 of the plaint, he himself has averred that in the year 1984 during the riots, his property got damaged and demolished and he was forced to leave that place and now he wants to make the property habitable. As such, he has specifically not claimed that he is in physical possession of suit property/land in question. No details have been given by the plaintiff in the plaint how he became the owner of the suit property/the land in question and the plaint is absolutely silent on this aspect.
12.12 It is well settled proposition of law that a civil court is not supposed to decide the title of the suit property/land in question in a suit for permanent injunction. If the plaintiff wants such relief, he must file suit for declaration of title and consequential relief. Undoubtedly, the present suit is only for permanent injunction and not a suit for declaration of title.
12.13 As noted above, Hon'ble Supreme Court of India held in Annatulla Sudhakar Vs P. Buchi Reddy (Supra.) that if a property is vacant site i.e. not physically possessed, use, or enjoy in such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is Digitally signed AJAY by AJAY NAGAR Date:
NAGAR 2023.08.19 15:00:35 +0530 CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.27 of 32 able to establish title thereto, will be considered to be in possession as against the person who is not able to establish title. It was further held that even though a suit relating to a vacant site is for a mere injunction and the issue is one of the possession it will be necessary to examine the title as a prelude for deciding the de jure possession.
12.14 However, it was further held by the Hon'ble Supreme Court of India, where the title is clear and simple, court may give a decision on the issue of title to decide the question of possession in a suit for injunction but where the issue is complicated question of law and fact or where court feels that parties had not proceeded on the basis that title was at issue, court should not decide the issue of title in a suit for injunction and the proper recourse is to file the full fledged suit for declaration and consequential relief.
12.15 As such, the Hon'ble Supreme Court of India has specifically directed that ordinarily 'title' should not be decided in the suit for injunction and the party should be relegated to file the full-fledged suit for declaration of title. However, the Hon'ble Supreme Court of India gave the discretion to the court concerned when it will enquire into the title and when it will refer the matter to be decided in the suit for declaration.
12.16 In the considered view of this court, keeping in view all the facts, documents on record, case law, well settled proposition of law, as above, the present suit is not maintainable in view of the guidelines made by Hon'ble Supreme Court of India in Annatulla Sudhakar Vs P. Buchi Reddy (Supra.) as Digitally signed AJAY by AJAY NAGAR Date:
NAGAR 2023.08.19 15:00:48 +0530 CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.28 of 32 above.
12.17 It is pertinent to mention here that plaintiff himself has stated during the final argument that he has already filed the suit for declaration with permanent injunction before the court of competent jurisdiction in the year 2019 and the same is pending.
12.18 As such, undoubtedly, the present suit is not maintainable. As far as evidence led by the plaintiff and defendant No.4 in the present case is concerned, there is no use to delve into such evidence as the maintainability of the present suit itself has been questioned by this court and has ruled against the plaintiff. Moreover, in view of the guidelines made by the Hon'ble Supreme Court of India, this court is not supposed the title of the suit property/land in question as it is complex and complicated question of facts and law. In the considered view of the court, parties must be referred to get their respective 'title' decided in a suit for declaration which has already been filed by the plaintiff.
12.19 As far as, issues framed in the present case are concerned, no issue in respect of title of suit property has been framed by the court in the present case. Moreover, as directed by the Hon'ble Supreme Court of India, even when the issue has been framed in respect of title court concerned is not mandatorily supposed to decide the 'title', of the suit property in the suit for permanent injunction.
12.20 The Hon'ble Supreme Court of India, in case titled as State of Rajasthan vs Harphool Singh (Dead) Digitally signed AJAY by AJAY NAGAR Date:
NAGAR 2023.08.19 15:01:00 +0530 CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.29 of 32 Through His ... on 4 May, 2000 held as under:-
"In the case on hand, a citizen is asserting a claim of acquisition of title by adverse possession in derogation of the rights and interests of the State in the property in question. In our view, determination of such claims are not only outside the purview of Section 22 which only provide for a summary mode of eviction but in respect of such disputes relating to title to immovable property the jurisdiction of ordinary civil courts to adjudicate them cannot be said to have been ousted. The powers and procedure under Section 22 of the Act, in our view, is no substitute for the civil courts jurisdiction and powers to try and adjudicate disputes of title relating to immovable property.
So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involve destruction of right/title of the State to immovable property and conferring upon a third party encroacher title where, he had none. The decision in P. Lakshmi Reddy vs L. Lakshmi Reddy [AIR 1957 SC 314], adverted to the ordinary classical requirement that it should be nec vi nec clam nec precario that is the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus. In the decision reported in Secretary of State for India in Council vs Debendra Lal Khan (1933) LR (LXI) I.A. 78 (PC), strongly relied for the respondents, the Court laid down further that it is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running, ought if he exercises due vigilance, to be aware of what is happening and if the rights of the crown have been openly usurped it cannot be heard to plead that the fact was not brought to its notice. In Annasaheb Bapusaheb Patil & Others vs Balwant alias Balasaheb Babusaheb Patil (dead) by Lrs etc. [AIR 1995 SC 895], it was observed that a claim of adverse possession being a Digitally signed by AJAY AJAY NAGAR Date:
NAGAR 2023.08.19 15:01:11 CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.30 of 32 +0530 hostile assertion involving expressly or impliedly in denial of title of the true owner, the burden is always on the person who asserts such a claim to prove by clear and unequivocal evidence that his possession was hostile to the real owner and in deciding such claim, the Courts must have regard to the animus of the person doing those acts.
The High Court without even a cursory scrutiny of the legality and propriety of the findings in order to ascertain at least as to whether they are based upon any legally acceptable evidence and the necessary legal ingredients of `adverse possession stood substantiated, mechanically seem to have accorded its approval to the claim of title made by the plaintiff merely on the basis that both the courts below have found the plaintiff to be the owner of the property. Indisputably the State was the owner and the question is as to whether its title has been extinguished and the plaintiff had acquired and perfected title to the same by adverse possession. In order to substantiate such a claim of adverse possession the ingredients of open, hostile and continuous possession with the required animus, as laid down by Courts should be proved for a continuous period of 30 years. Admittedly, the plaintiff claims to have put up the construction in 1955 and absolutely there is no concrete and independent material to prove the same, except an oral assertion. The story of his father having been there even earlier to 1955 was not projected either before the A.D.M. when the plaintiff submitted his defence, or in the plaint when the suit was filed but for the first time introduced only at the stage of trial when examined as PW1. When the property was a vacant land before the alleged construction was put up, to show open and hostile possession which could alone in law constitute adverse to the State, in this case, some concrete details of the nature of occupation with proper proof thereof would be absolutely necessary and mere vague assertions cannot by themselves be a substitute for such concrete proof required of open and hostile possession. Even if the plaintiffs allegations and claims, as projected in the plaint, are accepted in toto, the period of so-called adverse possession would fall short by 5 years of the required period. There is no scrap of paper or concrete material to prove any such possession of the plaintiffs father nor was there any specific finding supported by any evidence, in this regard. The father of the plaintiff was also an employee of the Telephone Department. Digitally signed AJAY by AJAY NAGAR Date:
NAGAR 2023.08.19 CS SCJ 8006/16 Sh. Kirpal Singh Vs Sh. S. B Chaudhary & Ors. Page No.31 of 32 15:01:21 +0530 Plaintiff could not beheld to have substantiated his claim of perfection of title by adverse possession to the public property....."
12.21 Perusal of record shows that although plaintiff has not disclosed in the suit, the source of his ownership yet he has filed the copy of the suit for declaration and permanent injunction filed in the year 2019 which shows that plaintiff is claiming the ownership through adverse possession. In view of case law, as above also, this Court is not supposed to decide the title of the suit property/land in question.
13. CONCLUSION:-
13.1 In view of the discussion, as above and well settled proposition of law as discussed earlier, both the issues are decided against the plaintiff.
13.2 In view thereof, suit is dismissed. Interim stay, if any, granted in the present matter, is vacated.
13.3 File be consigned to Record Room, after due compliance.
Announced in the open court
on 19th August, 2023 Digitally
signed by
(This judgment contains 32 pages)
AJAY NAGAR
AJAY Date:
NAGAR 2023.08.19
15:01:31
+0530
(Ajay Nagar)
Senior Civil Judge, West District
Tis Hazari Courts, Delhi.
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