Delhi District Court
Sh. K.K. Sharma vs Bismillah Khatoon on 4 October, 2008
IN THE COURT OF SMT. PINKI
ADDITIONAL DISTRICT JUDGE DELHI
SUIT NO. 314/05
IN THE MATTER OF:
SH. K.K. SHARMA, PRESIDENT,
EXPORT SURPLUS CLOTH MERCHANTS ASSOCIATION
GANDHI NAGAR,
DELHI-110031
R/O 88, SHANKER NAGAR EXTENSION,
DELHI-110031 .....PLAINTIFF
VERSUS
1.BISMILLAH KHATOON, WIDOW OF LATE MEHMOOD ALI KHAN,
2. ZAHID S/O LATE MEHMOOD ALI KHAN, BOTH RESIDENTS OF IX/4931-A, OLD SEELAMPUR, GANDHI NAGAR, DELHI-31 PRIVATELY NUMBERED
3. DELHI DEVELOPMENT AUTHORITY, THROUGH ITS VICE CHAIRMAN, VIKAS MINAR, DELHI.
4. MUNICIPAL CORPORATION OF DELHI, THROUGH ITS COMMISSIONER, TOWN HALL, CHANDNI CHOWK, DELHI-110006.
Contd..........
5. DEPUTY COMMISSIONER OF POLICE (EAST), SHALIMAR PARK, SHAHDARA, DELHI.
.....DEFENDANTS
DATE OF INSTITUTION: 05.11.2005
DATE OF RESERVING THE ORDER: 03.10.2008
DATE OF ORDER: 04.10.2008
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1. The present suit has been filed by Sh. K.K. Sharma, President, Export Surplus Cloth Merchants Association, Gandhi Nagar, Delhi on 05.11.2005 praying for the following relief: -
"It is, therefore, prayed that this Hon'ble Court may kindly be pleased to pass a Decree of permanent Injunction with cost in favour of the Plaintiff and against the Defendants Nos. 1 and 2 restraining the defendants, their agents, servants, etc., to raise any construction on the suit property, in Contd..........
their illegal occupation i.e. Property No.IX/4931A, Old Seelampur, Delhi-110 031, as shown in RED in the Site Plan attached and also from selling the same to any third person.
It is further prayed that a Decree for Mandatory Injunction with cost may also be passed directing the Defendants to demolish the construction already raised on the suit property as shown in RED in the Site Plan attached."
PLAINTIFF'S CASE
2. Briefly stating the facts as per the case of plaintiff are that plaintiff K.K. Sharma is President of Export Surplus Cloth Merchants Association, Gandhi Nagar, Delhi which is duly registered with the Registrar of Societies. Plaintiff is interested in welfare of the members of the locality of Gandhi Nagar and Seelampur. The members of Association have requested the plaintiff to file the present suit.
3. It has further been submitted that DDA land at Old Seelampur out of Khasra No. 587/1/2 and 5 of Contd..........
Village Ghondli, illaqa Shahdara, Delhi is acquired land. It has been given by government to the DDA for the purpose of park and school. Defendant no. 1 & 2 have illegally encroached upon the portion of this land a few years ago. Besides this encroached portion there is another portion of DDA land which is under illegal encroachment of other persons, namely, Sham Lal, Dharam Singh, Munshi Khushnud, Mehfooz and Zafar Ali against whom plaintiff has filed similar suit which is pending before the court of Sh. P.K. Saxena, Ld. Additional District Judge. Despite objections from members of the Association of the plaintiff, defendant no. 1 & 2 have raised certain construction on DDA land illegally encroached by them. The construction is semi pucca on area measuring about 700 Sq. yards as shown in the site plan.
4. The members of the Association of the plaintiff as well as local residents have been approaching all the authorities i.e. defendant no. 4, 5 & 6 for demolition of encroachment and unauthorised construction raised by defendant no. 1 & 2. This Contd..........
construction is without any sanction from the MCD. Defendant no. 1 & 2 are threatening to raise further construction and also to sell the portion of the land in their occupation to third party. The plaintiff is the capacity of the residents of the association has approached defendant no. 4, 5 & 6(it should have been 4 & 5) for removal of unauthorised construction and encroachment. The authorities failed to perform their legal duty. Plaintiff had also met defendant no. 1 & 2 on 31.10.2005 requesting them to clear the encroachment on the DDA land.
5. Plaintiff has filed replication to written statement of defendant no. 1 & 2 reaffirming and reasserting the averments made in the plaint and denying the allegations raised in the written statements of defendant no. 1 & 2. Replication to written statement of defendant no. 3/DDA and written statement of defendant no. 4/MCD has not been filed.
Contd..........
CASE OF DEFENDANT NO. 1 & 2
6. Defendant no. 1 Bismillah Khatoon and her son defendant no. 2 Zahid have filed separate written statements contesting the suit inter alia on the grounds that suit has not been filed by duly competent and authorised person and the suit is without cause of action. Plaintiff has not approached the court with clean hands. Suit has been preferred to harass the defendant no. 1 & 2 to fulfill his own vested interest. Two suits are pending before the court of Sh. Rakesh Kumar, Ld. Civil Judge, Karkardooma, Delhi pertaining to same property titled Munshi Qumurruddin Vs. DDA and Sudhar Samiti Vs. Munshi Qumurruddin & Others. In these two suits stats quo order dated 29.11.1982 and 21.09.1988 are in operation. In view of status quo orders question of construction over the suit property does not arise. Plaintiff has failed to disclose his locus standi.
7. In reply to para-3 on merits in their written statement it has been submitted that existence of land measuring 4 bighas 4 biswas forming part of Khasra No. Contd..........
5 of village Gondli, Shahdara is not disputed. It has further been submitted by defendant no. 1 & 2 that out of total land physical possession of land measuring 3 bighas 14 biswas was only taken by the LAC and rest 10 biswas was left out due to built up one under the possession of father of husband of defendant no. 1. It has further been submitted that area of land required for school and park has already been handed over to the Municipal Corporation of Delhi by the Delhi Development Authority. In fact primary school is being run from the portion of the land earmarked for the authority for the benefit of the locality. There is all around boundary wall in existence outside the school as well as park. There is service road measuring 20 feet in existence between the house of defendant no. 1 & 2 and the primary school as well as park. Therefore, question of encroachment does not arise.
8. Late Sh. Munshi Qumurruddin father-in-law of defendant no. 1 remained in occupation of the suit property, until his death he continued to live there. After his death, his family members including defendant no. 1 Contd..........
& 2 residing in the house constructed by Munshi Qumurruddin during his life time. The house in possession of defendant no. 1 & 2 has been regularised by the Standing Committee of the MCD on the recommendation of the Technical Committee under the Chairmanship of the Vice President of the DDA vide Resolution No. 1199/STG dated 30.09.1991. Munshi Qumurruddin had preferred suit titled Munshi Qumurruddin Vs. DDA in the year 1982 which is pending in the court of Sh. Rakesh Kumar, Ld. Civil Judge, Karkardooma, Delhi. Defendant no. 1 is 70 years old and after few years of her marriage she has been staying in the same house. The property has been assessed for the property tax for the first time in the year 1976-77 and organisation of plaintiff has not seen light of the day. The suit in the year 1982 was filed by Munshi Qumurruddin on the ground of threat advanced by Delhi Development Authority on 26.11.1982. No new construction has been raised for the last more than 24 years in the suit properly except minor repairs and renovation. At no point of time defendant no. 1 & 2 or any member of their family has ever sold any portion of Contd..........
suit property under their possession neither there is any such plan. They have not threatened as alleged. They have also denied that the suit property is meant for development of park and for construction of school. Plaintiff has never approached defendant no. 1 & 2. CASE OF DEFENDANT NO. 3/DDA
9. Defendant no. 3/DDA has also filed written statement contesting the suit inter alia on the grounds that plaintiff has not come to the court with clean hands. Plaintiff has not served statutory notice under Section 53B of the Delhi Development Act. It has further been submitted that suit land falls in Khasra No. 587/5 in village Ghondli, Shahdara, Delhi it has been acquired vide Award No. 2237 and measures about 4 bighas 4 biswas of village Ghondli, Shahdara, Delhi out of this possession of 3 bighas 14 biswas was taken over by defendant no. 3 through LAC on 07.04.1969. It was placed at the disposal of DDA vide notification under Section 22(1) of the Delhi Development Act 1957, No. F8(49)63/L&H dated 16.02.1972 and out of this land 2 Contd..........
bighas 5 biswas has been transferred to MCD for school on 24.11.1982. 1 bighas was transferred to Horticulture Department of DDA on 01.11.1982 and 3 biswas was also transferred to Horticulture Department DDA on 29.01.1987. Remaining land measuring 6 biswas has been utilised for road etc. It has further been submitted that suit land belongs to DDA and construction made by defendant no. 1 & 2 is very old. The possession of remaining area of 10 biswas could not been taken over due to built up at site. Copy of possession proceedings have also been annexed with the written statement of DDA as Annexure-A. CASE OF DEFENDANT NO. 4/MCD
10. Defendant no. 4/MCD has also filed written statement contesting the suit inter alia on the grounds that the suit is barred for want of notice under Section 477, 478 of the DMC Act, 1957. There is no cause of action against the defendant no. 4. It is bad for mis- joinder of parties. It has further been submitted that suit land i.e. property no. IX/4931-A, Old Seelampur, Delhi Contd..........
! has never been handed over to the MCD by any agency. No park is maintained by MCD on the suit land. On local enquiry it has been revealed that the suit land is a government land and there is unauthorised encroachment on the suit land. Plaintiff has not come to the court with clean hands. The defendant no. 4 & 5 have no role to play in the suit land. COURT PROCEEDINGS
11. Vide order dated 25.07.2007 passed by this court two separate orders were passed. The application under Section 5 of the Limitation Act read with Section 151 CPC dated 10.10.2006 filed by defendant no. 1 Bismillah Khatoon and application under Order VIII Rule I read with Section 148 and 151 CPC without date moved on behalf of defendant no. 3/DDA on 11.10.2006 seeking condonation of delay in filing the written statement have been allowed. Even though interim injunction application was moved alongwith the plaint but it has not been pressed when issues were framed.
Contd..........
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12. Vide order dated 23.11.2007 the following issues were framed: -
ISSUES
1. Whether the suit has not been signed, filed and verified by duly competent and authorised person? OPD 1 & 2
2. Whether the suit is without cause of action?
OPD 1 & 2
3. Whether the plaintiff has not approached the court with clean hands? OPD 1 to 4
4. Whether the suit is not maintainable in view of preliminary objection no. 4 of the WS of defendant no. 1 & 2? OPD 1 & 2
5. Whether the plaintiff hsa no locus standi to file the present suit? OPD 1 & 2
6. Whether the defendant no. 1 & 2 have not encroached the public land? OPD 1 & 2
7. Whether the suit is not maintainable for want of notice u/s 53B of the Delhi Development Act? OPD 3
8. Whether the suit is not maintainable for want of notice u/s 477, 478 of the DMC Act? OPD 4
9. Whether the suit is bad for misjoinder of parties?
OPD 4
10. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP Contd..........
& ')( &
11. Relief.
13. The case was adjourned for PE on 11.02.2008. On 11.02.2008 no PW was present. Adjournment was sought by Sh. Sanjay Huda, Advocate proxy counsel for Sh. B.S. Sharma, Advocate Ld. Counsel for plaintiff as one of the relatives of plaintiff had met with an accident and he had gone there. Case was adjourned for PE as last and final opportunity on 10.07.2008 and 11.07.2008. On 10.07.2008 Sh. B.S. Sharma, Advocate Ld. Counsel for plaintiff appeared and sought adjournment. He had submitted that inadvertently he had not called the plaintiff for 10.07.2008. On 11.07.2008 PW 1 Sh. K.K. Sharma, the plaintiff appeared. His examination in chief was recorded. His cross examination was deferred on the request of Ld. Counsel for plaintiff as due to some personal difficulty he had to leave the court. Sh. B.S. Sharma, Advocate Ld. Counsel for plaintiff had also submitted on 11.07.2008 that on 10.07.2008 he had submitted before the court to examine only plaintiff but since objection regarding exhibiting of notification Ex. PW-1/2 has been taken by the Ld. Counsel for Contd..........
* +-, * defendant no. 1 & 2, therefore, he wish to examine official witness in order to prove the same. He had further submitted that he had filed list of witnesses. It was ordered that plaintiff is at liberty to take steps as per law in this regard. Case was adjourned for cross examination of PW 1 Sh. K.K. Sharma and for remaining PE as last and final opportunity on 03.10.2008 failing which PE shall be deemed to be closed. On 03.10.2008 Sh. B.S. Sharma, Advocate Ld. counsel for plaintiff appeared. Plaintiff PW 1 Sh. K.K. Sharma preferred not to appear despite specific orders. Ld. counsel for plaintiff has submitted that he had informed the plaintiff by sending the message but he do not know the reason why the plaintiff has not turned up. As per record it has been observed that no steps have been taken for examination of any other witness. No PW was present on 03.10.2008. In these circumstances vide detailed order PE was closed on 03.10.2008.
14. Ld. counsel for defendants have also submitted that since the plaintiff has not adduced any evidence, only the examination in chief of plaintiff was Contd..........
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recorded and as onus to prove the main issue was on the plaintiff, therefore, they do not wish to lead their evidence. In these circumstances DE was closed.
15. I have heard Sh. B.S. Sharma, Advocate Ld. counsel for plaintiff, Sh. K.K. Malviya, Advocate Ld. counsel for defendant no. 1 & 2, Sh. Rohit Jain, Advocate Ld. counsel for defendant no. 3/DDA and Sh. K.K. Puri, Advocate Ld. counsel for defendant no. 4/MCD and carefully perused the record. I have also given my considerable thought to the submissions putforth by learned counsel for parties. No one has turned up on behalf of defendant no. 5/Deputy Commissioner of Police, East.
FINDINGS
16. Admittedly, the testimony of PW 1 Sh. K.K. Sharma, the plaintiff was recorded on 11.07.2008. The affidavit of Sh. K. K. Sharma was tendered in evidence.
Contd..........
1 2 3 1 The testimony of PW 1 Sh. K.K. Sharma was partly recorded. Examination in chief was recorded, however, his cross examination was deferred on the request of Ld. counsel for plaintiff as due to some personal difficulty he had to leave the court. Since the testimony of Sh. K.K. Sharma was partly recorded, in view of the well settled proposition of law it cannot be looked into. The evidence of plaintiff as well as of defendants have been closed on 03.10.2008. I proceed under Order XVII Rule 2 & 3 CPC.
17. The main issue in the instant case is issue no.
10. In view of the fact that plaintiff preferred not to appear, his evidence was partly recorded and thereafter he failed to appear, his evidence was closed. Therefore, defendants have also preferred not to adduce evidence. Onus to prove issue no. 1 to 9 is on different defendants. In this background in my considered view there is no need to give separate finding on issue nos. 1 to 9.
Contd..........
4 576 4 ISSUE NO. 10 Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP
18. Onus to prove this issue is on the plaintiff. Testimony of PW 1 Sh. K.K. Sharma, the plaintiff was partly recorded which cannot be read in evidence as has already been mentioned. The defendants have filed their written statements. Nothing has been accepted except that Khasra No. 587/5, 4 bighas 4 biswas of village Ghondli has been acquired vide Award No. 2237 out of this the possession of 3 bighas and 14 biswas was taken over by defendant no. 3/DDA through LAC on 07.04.1969. It was placed at the disposal of DDA vide Notification under Section 22(1) of DD Act, 1957 no. F8(49)63/L&H dated 16.02.1972 and out of this land 2 bighas 5 biswas has been transferred to MCD for school on 24.11.1982. one bighas transferred to Horticulture Department DDA on 1.11.1982. 3 biswas was transferred to Horticulture Department DDA on 29.01.1987 remaining land of 6 biswas has been utilised for road etc. The possession of remaining area of 10 Contd..........
8 9%: 8 biswas could not be taken over due to built up site. In reply to para- 6 to 18 on merits in the written statement of defendant no. 3/Delhi Development Authority it has been submitted that suit land belongs to Delhi Development Authority and construction raised by defendant no. 1 & 2 is very old. In view of provisions of Section 101 of Indian Evidence Act, I am of the considered view that in these circumstances plaintiff has failed to discharge onus to prove this issue in his favour. Accordingly, this issue is decided against the plaintiff.
ISSUE NO. 11 Relief
19. In view of my findings on issue no. 10 plaintiff is not entitled for any relief. Accordingly, the present suit stands dismissed. Parties shall bear their own cost. It is further clarified that defendant no. 3 & 4 Delhi Development Authority and Municipal Corporation of Contd..........
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Delhi are always at liberty to take necessary steps as per law in case of any encroachment / unauthorised construction. Decree Sheet be prepared accordingly.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 4th OCTOBER, 2008 (PINKI) ADDITIONAL DISTRICT JUDGE DELHI Contd..........
> ?A@ > Suit No. 314/05 04.10.2008 Present: Proxy counsel for parties.
Vide my separate judgement announced today in the open court the suit stands stands dismissed. Parties shall bear their own cost. Decree Sheet be prepared accordingly.
File be consigned to Record Room.
(PINKI) ADDITIONAL DISTRICT JUDGE DELHI/04.10.2008 Contd..........