Delhi District Court
Rca No.25/18 Om Prakash Tyagi Through ... vs . Om Prakash Panwar Through Lrs. on 18 April, 2022
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IN THE COURT OF MS. POOJA TALWAR
ADDITIONAL DISTRICT JUDGE-01, SOUTH DISTRICT,
SAKET COURTS, NEW Delhi.
RCA No. 25/18
DLST01-006552-2018
In the matter of:
SH. OM PRAKASH TYAGI
THROUGH HIS LEGAL HEIRS
i) Sh. RAJINDER TYAGI
ii) SH. RAJ KUMAR TYAGI
iii) SH. SURINDER TYAGI
(SONS OF LATE O.P. TYAGI)
(iv)SH. DEVENDER TYAGI,
S/O LATE O.P. TYAGI (SINCE DECEASED)
THROUGH LRs.
(a) SMT. USHA (WIFE)
(b) SH. GAURAV, (SON)
v) Mukesh Tyagi S/o Late Sh. O.P. Tyagi
(Since deceased) Through
a) Smt. Lokesh (Wife)
RCA no.25/18 Om Prakash Tyagi Through Lrs. Vs. Om Prakash Panwar Through Lrs.
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b) Sh. Ashis Tyagi (Son)
All Residents of:
Village Chattarpur,
New Delhi
......Appellants
VERSUS
1. SH. OM PRAKASH PAWAR
THROUGH HIS LEGAL HEIRS
(vi) MRS. MAYA DEVI
(vii) SH. PRAVEEN KUMAR PAWAR
(viii) SH. SARVEEN KUMAR PAWAR
(ix) SH. JITENDER KUMAR PAWAR
(x) MS. HEMLATA
2. SH. DEVI RAM,
S/O LATE SH. HIRA LAL,
All R/O H. NO. 23
POST & VILLAGE CHATTARPUR
NEAR DENA BANK,
NEW DELHI-110074
3.SH. OM NARAYAN, (NOW DECEASED)
THROUGH HIS LEGAL HEIRS
(vii) MRS. SHYMA DEVI
RCA no.25/18 Om Prakash Tyagi Through Lrs. Vs. Om Prakash Panwar Through Lrs.
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(viii) SH. LALIT NARAIN
(ix) MS. CHARU
(x) MS. KIRAN
(xi) MS. JYOTI
(xii) SH. DHAN RAJ
ALL ARE RESIDENTS OF:
H. NO. 293,
VILLAGE & POST OFFICE CHATTARPUR,
NEW DELHI
(THROUGH SPECIAL POWER OF ATTORNEY
IN FAVOUR OF SH. PRAVEEN KUMAR PAWAR)
4. SH. DEVENDER SINGH
S/O SH. KARAN SINGH CHAUHAN
M/S. JAGDAMA PRINTERS,
311/28, CHHATTARPUR, NEW DELHI
5. GOVT. OF NCT OF DELHI
THROUGH ITS SECRETARY,
5, SHAM NATH MARG, DELHI
6. TEHSILDAR (MEHRAULI)
MEHRAULI, NEW DELHI
RCA no.25/18 Om Prakash Tyagi Through Lrs. Vs. Om Prakash Panwar Through Lrs.
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7. S.D.M. (MEHRAULI)
TEHSIL (HAUZKHAS), MEHRAULI, NEW DELHI110030
S.H.O. P.S. MEHRAULI,
NEW DELHI110030
8. SHO
PS Mehrauli
New Delhi
9. SH. RAMAN KUMAR JHA
SHARDA COACHING CENTRE,
H. NO. 311/28, Ist FLOOR,
MAIN ROAD CHHATTARPUR,
NEW DELHI
15. Smt. Mukesh
16. Smt. Naresh
17. Smt. Manju Daughters of Late O.P. Tyagi
18. Ms. Khusboo Daughter of Late Mukesh Tyagi
19. Ms. Ruchika daughter of Late Mukesh Tyagi
All Residents of
Village Chattarpur,
New Delhi
.... Respondents
Date of institution : 06.04.2018
Final arguments heard on : 23.03.2022
Date of pronouncement of judgment : 18.04.2022
RCA no.25/18 Om Prakash Tyagi Through Lrs. Vs. Om Prakash Panwar Through Lrs.
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JUDGMENT
Appeal under Section 96 r/w Order 41 Rule 1 CPC against the judgment/decree dated 22.01.2018 passed by Ld. SCJ (South), New Delhi.
JUDGMENT
1. The appellant has filed the present appeal assailing the judgment and decree dated 22.01.2018 passed by Ld. Trial Court whereby the suit of the plaintiff was decreed. For the sake of convenience appellants are referred as defendants and respondents as plaintiffs.
2. Brief facts of the case as mentioned in the plaint are as follows:
Plaintiffs are the recorded bhumidars/owners having possession over the land measuring (03 biswas) in khasra no. 311/29, situated in Revenue Estate of Village Chhattarpur and defendant no.1 is owner of adjacent land i.e. khasra no. 311/28, Village Chhatarpur, Mehrauli. It is stated that said land was alloted to their father, Late Sh. Hira Lal by Delhi Government in year 195455 and after death of Sh. Hira Lal in year 1960, Revenue Authority recorded plaintiffs as bhumidars in respect of the said land.
3. Plaintiffs have further stated that their mother Smt. Chandro Devi filed an application dated 11.10.1979 with Tehsildar RCA no.25/18 Om Prakash Tyagi Through Lrs. Vs. Om Prakash Panwar Through Lrs.
Page 6 of 23for demarcation of land as same highly influential person of the village was trying to encroach over her land, but the same was not done. Plaintiff no.1 Sh. Om Prakash Panwar had also filed an application before SDM, Hauz Khas dated 27.10.2005 for demarcation of land and also deposited the fees. The Revenue Authorities issued notice to plaintiff no.1 dated 12.12.2005 and 04.01.2006 for the purpose of demarcation of the land, but demarcation was never done.
4. Thereafter plaintiff no.1 filed a suit for mandatory injunction for issuance of directions to defendant no.3 to 5 to demarcate the land falling in khasra no. 311/29 measuring (03 biswas) i.e. 150 sq. yards wherein Ld. SCJ directed the defendants no.3 to 5 to demarcate the suit land within three months from the date of judgment. Thereafter, defendants no. 3 to 5 completed the demarcation proceedings on the spot on 29.01.2010 and prepared preliminary report on 15.02.2010 and found that owners of the land/house bearing no. 23 in khasra no. 311/28 had occupied some portion of land out of khasra no. 311/29, which was 3 gathe (25 foot 3 inch) as per the Field Book, whereas on the spot, the land was found to be 23 feet, and the Site Plan was also prepared accordingly.
5. Plaintiffs served legal notice dated 23.02.2010 upon defendants no.1 to 6 and asked defendant no.1 and 2 to hand over possession of the encroached land to plaintiff but defendant no.1 RCA no.25/18 Om Prakash Tyagi Through Lrs. Vs. Om Prakash Panwar Through Lrs.
Page 7 of 23sent a frivolous reply, and refused to hand over the possession of the encroached land to plaintiff. He inducted defendant no.7 as a tenant on the first floor of the suit property with malafide intention to frustrate the claim of plaintiffs. Hence suit was filed against the defendants.
6. Defendant no.1 filed written statement wherein he took the objection that the suit is barred by Section 185 of Delhi Land Reforms Act 1954. Defendant no.1 has also raised plea of limitation and stated that plaintiffs have themselves alleged that the encroachment was made at the time of construction before 1978/79, therefore, suit is highly time barred. He further submitted that when measurement at the spot was done on 29.01.2010, he was not present at the spot and he was not served any notice of demarcation, therefore, demarcation is bad in law. He further stated that he was not party to previous suit filed by plaintiff, therefore, judgment is not binding upon him.
7. Defendant no.1 denied that he had threatened or caused any harassment or inconvenience to plaintiff or that he had encroached upon any portion of land of plaintiff or that he is under any obligation to remove encroachment upon any portion of the property of plaintiff.
8. Replication was filed by plaintiffs reiterating the facts mentioned in the plaint and denying the averments in written RCA no.25/18 Om Prakash Tyagi Through Lrs. Vs. Om Prakash Panwar Through Lrs.
Page 8 of 23statement.
9. Written statement was also filed by defendant no.2 stating that he is running a screen printing press on the ground floor of property by name M/s. Jagdamba Printers and his mother Mrs. Jarrav Devi, is the actual proprietor of the firm but she has not been impleaded as party, therefore, the suit is bad for mis- joinder/ nonjoinder of parties. He also took objection that suit is barred U/s 42 Specific Relief Act.
10. Defendants no.3,4,5 and 7 were proceeded exparte vide order dated 11.05.2010. Defendant no.6 is SHO: PS Mehrauli, who did not file any written statement.
11. On the basis of pleadings of the parties, following issues were framed on 27.05.2011:
1. Whether the plaintiffs are not the owners of the suit property and the simplicitor sut filed by the plaintiffs is not maintainable, as alleged? OPD1
2. Whether the suit of the plaintiffs is barred by limitation, if so, how? OPD1
3. Whether the jurisdiction of this Court is barred in view of Section 185 of the DLR Act, 1954? OPD1
4. Whether the suit filed by the plaintiffs is barred in view of Section 42 of the Specific Relief Act? OPD2
5. Whether the suit of the plaintiffs is bad for misjoinder of necessary parties, if so, how? OPD2 RCA no.25/18 Om Prakash Tyagi Through Lrs. Vs. Om Prakash Panwar Through Lrs.Page 9 of 23
6. Whether the plaintiffs are entitled for a decree of mandatory injunction, as prayed in the suit? OPP
7. Whether the plaintiffs are entitled for a decree of permanent injunction, as prayed for? OPP
8. Relief.
12. During pendency of suit, plaintiff Sh. Om Prakash Panwar expired and his LRs were impleaded as parties in the suit.
13. In plaintiffs' evidence, LR Sh. Praveen Kumar Pawar, S/o Late Sh. Om Prakash Pawar, examined himself as PW1 and tendered his affidavit as Ex. PW1/A and exhibited following documents:
1. Special Power of Attorney as Ex. PW1/1.
2. Amended Memo of Parties as Ex. PW1/1A.
3.Death Certificate of Sh. Om Prakash Pawar Ex. PW1/2 (OSR).
4. Original SPA in favour of Late Sh. Om Prakash Pawar Ex. PW1/3.
5. Certified copy of Khatoni for the period 1964-65 Ex. PW1/4.
6. Certified copy of Farmer Land Distribution Book Ex. PW1/5. (with translated copy).
7.Certified copy of Khasra Girdwari for the year 1998-99 Ex. PW1/6.
8. Certified copy of Masavi in respect of khasra no. 311/29 Ex. PW1/7.
9. Certified copy of Field Book Ex. PW1/8.
RCA no.25/18 Om Prakash Tyagi Through Lrs. Vs. Om Prakash Panwar Through Lrs.
Page 10 of 2310.Electricity Bill and Water Bill since 1984 till date Ex. PW1/9 (colly.)
11. Application dated 20.03.2012 and affidavit made to Revenue Estate Officer Ex. PW1/10 and Ex. PW1/11 (OSR).
12. Amended Memo of Parties Ex. PW1/12.
13.Schedule Caste Certificate of the plaintiffs Ex. PW1/13 (OSR).
14. Certified copy of the map Ex. PW1/14.
15.Certified copy of the letter dated 11.10.1979 Ex. PW1/15.
16. Certified copy of application dated 27.10.2005 Ex. PW1/16.
17. Certified copy of Treasury Challan of Rs. 50/- Ex. PW1/17.
18.Certified copy of Notice dated 12.12.2005 Ex. PW1/18.
19. Certified copy of the notice dated 04.01.2006 Ex. PW1/19.
20. Certified copy of the Request Letter dated 13.02.2006 Ex. PW1/20.
21. Site Plan Ex.PW1/21.
22. Certified copy of Legal Notice dated 28.02.2006 Ex. PW1/22.
23. Registry Slips Ex. PW1/23.
24. Certified copy of judgment dated 29.10.2009 Ex. PW1/24.
25. Certified copy of decree Ex. PW1/25.
26. Reports dated 29.01.2010 and 15.02.2010 containing the site plan Ex. PW1/26 (colly.)
27. True copy of the legal notice dated 23.02.2010 Ex. PW1/27.
28. Registry receipts Ex. PW1/28 to Ex. PW1/33.
29. UPC Ex. PW1/34 to Ex. PW1/35.
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Page 11 of 2330. Reply dated 03.03.2010 Ex. PW1/36.
31. Representation dated 17.03.2010 Ex. PW1/37.
14. Sh. Vishal Singh Tanwar, LDC, Record Room (Civil) Tis Hazari Courts, was examined as PW-2 who brought summoned record of Civil Suit No. 42/07 from Court of Senior Civil Judge cum Rent Controller (Central), Tis Hazari titled as "Om Prakash Pawar Vs. Govt. of NCT of Delhi & Ors.". He exhibited following documents:
1. Photocopy of plaint in suit no. 42/07 Ex. PW2/1 (running into 12 pages) (OSR).
2. List of documents alongwith documents Ex. PW2/2 (colly.) (running into 40 pages)
3. Documents of plaintiffs Ex. PW2/3.
15. Sh. Brijesh Kumar, Public Relations Inspector, Saraswati Vihar, Post Office, New Delhi was examined as PW-3, who was examined to prove service of legal notice, Registry Slips were already exhibited as Ex. PW1/28 to Ex. PW1/33. He brought all the records, delivery proofs, booking list, in respect of receipts bearing no. RLADA6356, RLADA6357, RLADA6358, RLADA6359, RLADA6360, RLADA6361. He relied on following documents:
1. The document vide Receipt No. RLADA Receipt No. 6356 was not served and returned to the sender dated 25.02.2010 with remarks "address not found". Same was addressed to Govt. of RCA no.25/18 Om Prakash Tyagi Through Lrs. Vs. Om Prakash Panwar Through Lrs.Page 12 of 23
NCT of Delhi Ex. PW3/1 (running into two pages).
2. The document vide Postal Receipt No. RLADA6357 was served upon Late Sh. Om Prakash Tyagi on 25.02.2010. The delivery report/ service Ex.PW3/2 (colly.) (Contains two pages).
3. Delivery Slip of Registration Department Ex. PW3/3.
4. The document vide Postal Receipt No. RLADA6358 was served upon SHO PS Mehrauli on 25.02.2010. The Service/ Delivery Report Ex. PW3/4 (colly.) (contains two pages).
5. Delivery Slip Ex. PW3/5.
6. The document vide Postal Receipt No.RLADA6359 was served upon SDM Mehrauli Tehsil Hauz Khas, Mehrauli, New Delhi, on 25.02.2010. The Service/Delivery Report Ex. PW3/6 (colly. contains two pages).
7. Delivery Slip of Registration Department, Mehrauli Ex.PW3/7.
8. The document vide Receipt No. RLADA6360 was served upon Tehsildar Mehrauli, Tehsil Hauz Khas, Mehrauli, New Delhi on 25.02.2010. The service/ Delivery Report Ex. PW3/8 (colly. Contains two pages).
9. The document vide Receipt No.RLADA6361 was served upon Devender Singh S/o Sh. Karan Singh Chauhan M/s. Jagdamba Printers H. No. 311/28, Chattarpur Road near Dena Bank, New Delhi. The Service/ Delivery Report Ex. PW3/9.
10. Booking List of the abovesaid articles Ex. PW3/10.
RCA no.25/18 Om Prakash Tyagi Through Lrs. Vs. Om Prakash Panwar Through Lrs.
Page 13 of 2311. The Dispatched List of the articles vide Receipt No. 6358, 6359, 6360, 6356, 6357, 6361 Ex. PW3/11 and Ex.PW3/12.
16. SI Gajraj Singh, PCR, SouthEast Zone, was examined as PW-4 who was summoned with record of legal notice served upon SHO PS Mehrauli. He exhibited the legal notice dated 23.02.2010 as Ex. PW4/1 and reply to legal notice was seen and found correct, which was already Ex. PW1/37.
17. Sh. Pawan Kumar, Patwari, Village Chhatarpur, SDM, Saket, Delhi, was examined as PW-5 who brought Revenue Records in respect of property no. 311/29 and exhibited copy of khasra record as Ex.PW5/A (OSR).
18. Sh. Chhatar Pal Singh, Kanoongo, Record Room, Tehsil Mehrauli, Delhi, was examined as PW-6 who brought demarcation proceedings in respect of khasra no. 311/29 (03) of Village Chhatarpur and compared it with copy of demarcation proceedings which were already exhibited as Ex. PW1/26 and the same was found as correct. Field proceedings of demarcation dated 29.01.2010 were also compared with copy of proceedings of demarcation dated 29.01.2010 and office proceedings were exhibited as Ex. PW6/A and Ex. PW6/B respectively (Original Seen and Returned). He was duly crossexamined and discharged.
RCA no.25/18 Om Prakash Tyagi Through Lrs. Vs. Om Prakash Panwar Through Lrs.
Page 14 of 2319. Sh. Ajit Singh, Tehsildar, Saket, New Delhi was examined as PW7. He brought certified copy of demarcation report dated 29.01.2010 and 03.02.2010 prepared by the then kanoongo, Tehsil Hauz Khas, which was exhibited as Ex. PW7/1 and Ex. PW7/2. Demarcation proceedings received from Record Room, Mehrauli were also exhibited as Ex. PW7/3 (colly.). He also brought Form No.4 and P 6 in respect of khasra no. 311/29 and khasra no. 311/28 Ex. PW7/4 and Ex. PW7/5.
20. Sh. G.S. Meena, Office Kanoongo, Record Room, Mehrauli was examined as PW-8 who brought demarcation report dated 03.02.2010, certified copy of which were already exhibited as Ex. PW7/2.
21. During pendency of the suit, defendant no.1 Sh. Om Prakash Tyagi also expired and his LRs were impleaded. Grounds of Appeal are:
(a) That the Ld. Trial court passed the impugned order against law and facts of the case and erred gravely in placing reliance upon documents which were not proved in accordance with law and could not have read in evidence.
(b) That the Ld. Trial Court has failed to consider that the site plan has not been proved in accordance with law.
(c) That the Ld. Trial Court has erred in not taking into consideration the fact disclosed in para 25 of the plaint and para no.23 of the statement of plaintiff by way of affidavit.
RCA no.25/18 Om Prakash Tyagi Through Lrs. Vs. Om Prakash Panwar Through Lrs.
Page 15 of 23(d)That the Ld. Trail Court erred gravely in not taking into consideration the fact that alleged encroachment was done in 1954-55 and the suit was filed in 2010 hence barred by time.
(e) That the Ld. Trial Court failed to consider that it the suit property is situated in the revenue estate of Villagge Chattarpur and is governed by the Provisions of DLR Act and as thus is barred by Schedule I of the Section 185of DLR Act.
(f) That the Ld. Trial Court erred in placing reliance on the demarcation report which had been challgenged by the defendant by way of document Ex.PW7/D1 and that the said demarcation was not carried out in accordance with Chapter I, Part M of the Delhi High Court Rules.
(g) That the Ld. Trial Court has failed to place reliance on demarcation report as the same was carried out by unauthorised official without adopting the due procedure as laid down in the rules and was also in the absence of defendant no.1.
(h) That the Ld. Trial Court failed to consider that defendant no.2 who is a tenant in the property built on Khasra no.311/28 could not be made a party to the suit.
(i) That the Ld. Trial Court has erred both in facts and law and also directing eviction of defendant no.1 by way of mandatory injunction is a gross abuse of the process of law.
22. Arguments advanced by all concerned heard. Records have been perused carefully. I proceed to decide all the issues again through finding has been given by the Ld. Trial Court.
RCA no.25/18 Om Prakash Tyagi Through Lrs. Vs. Om Prakash Panwar Through Lrs.
Page 16 of 23Issue no.2. Whether the suit of the plaintiffs is barred by limitation, if so, how? OPD1
23. The onus to prove this issue was on the defendant no.1. It is claimed by the defendant no.1 in the written statement that the property at Khasra no.311/28 was constructed in the year 1978 so the alleged encroachment if any by the defendant was in the year 1978 and the present suit has been filed only in the year 2010. Accordingly suit is barred by limitation. The plaintiffs have claimed that they came to know about the encroachment in the year1979. The plaintiffs have placed on record various communications by them as well as by their predecessor in interest with the competent authorities beginning from the year 1979 itself. The Predecessor in interest of the plaintiffs also instituted a suit in the year 2007 thereby calling upon the authorities to demarcate the property of the plaintiff. The said suit was filed after exploring the possibility of contacting the competent authorities requesting them to demarcate the property, when the plaintiffs failed in the said effort they were constrained to file the suit which was ultimately decreed in their favour and subsequently the demarcation was done. The cause of action in the present suit arose only after the demarcation of the property of the plaintiff. Hence the issue raised by the defendant is of no consequence and the suit is well within time. This issue is accordingly decided in favour of the plaintiff.
RCA no.25/18 Om Prakash Tyagi Through Lrs. Vs. Om Prakash Panwar Through Lrs.
Page 17 of 23Issue no.3. Whether the jurisdiction of this Court is barred in view of Section 185 of the DLR Act, 1954? OPD1
24. The onus to prove this issue was on defendant no.1. It is claimed by the defendant No. 1 that the suit land is governed by the provisions of Delhi Land Reforms Act 1954 and Schedule I of Section 185 bars jurisdiction of any civil court except the one mentioned in the Act therein.
25. Ld. Trial Court has rightly held that the land in question is not an agricultural land as it is claimed by the defendant himself while objecting to the demarcation report that the area is thickly inhabited and same is being used by both the parties for residential purposes. Accordingly suit land cannot be termed as an agricultural land. Moreover, the discretionary relief in the form of injunction can only be sought by approaching the civil court and not by way of proceedings before the competent authorities as mentioned in the DLR Act.
26. Perusal of Section 185 would show that suit for injunction is well maintainable before the civil courts and the jurisdiction of civil courts is not barred under the said Act. The objection raised by the defendant is accordingly not tenable and hence the issue is decided in favour of the plaintiffs.
Issue no.4. Whether the suit filed by the plaintiffs is barred in view of Section 42 of the Specific Relief Act? OPD2 RCA no.25/18 Om Prakash Tyagi Through Lrs. Vs. Om Prakash Panwar Through Lrs.
Page 18 of 23Issue no.5. Whether the suit of the plaintiffs is bad for misjoinder of necessary parties, if so, how? OPD2
27. Issues no.4 and 5 are taken up together being interconnected. The onus to prove both these issues was upon defendant no.2. Defendant no.2 has only raised these bald objections in the written statement but neither led any evidence nor pressed the said issues at the time of final arguments. No documentary proof has been filed by defendant no.2 to prove that his mother is the proprietor of the business run from the shop in question. Only making bald averments would not suffice, defendant no.2 was required to prove the same by leading evidence.
28. In so far as Section 42 is concerned, the said contention is ill founded as the said section talks about the injunction to perform negative agreements. The Section is reproduced here under for perusal:
"Section 42. Injunction to perform negative agreement. Notwithstanding anything contained in clause (e) of section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstances that the court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement:
RCA no.25/18 Om Prakash Tyagi Through Lrs. Vs. Om Prakash Panwar Through Lrs.Page 19 of 23
Provided that the plaintiff has not failed to perform the contract so far as it is binding on him".
29. It is not understood that how the said objection has been raised by the defendant no.2 when there is no agreement between him and the plaintiffs. In the absence of any substantial evidence led on these issues by defendant no.2 the suit of the plaintiff cannot be said to be barred. Accordingly these issues are decided in favour of the plaintiffs.
Issue no.1. Whether the plaintiffs are not the owners of the suit property and the simplicitor suit filed by the plaintiffs is not maintainable, as alleged? OPD1 Issue no.6. Whether the plaintiffs are entitled for a decree of mandatory injunction, as prayed in the suit? OPP Issue no.7. Whether the plaintiffs are entitled for a decree of permanent injunction, as prayed for? OPP
30. Issues no.1, 6 and 7 are taken up together being interconnected. It is claimed by the defendants that plaintiffs are not the owners of the suit property, hence simplicitor suit for injunction is not maintainable. In order to decide the said issue, written statement of defendant no.1 would be of relevance. It is categorically stated in para no.2 of parawise reply on merits that "However, it is not denied that the plaintiffs are Bhumidar in possession of Khasra no.311/29 village Chattarpur, New Delhi".
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Page 20 of 23The ownership of plaintiff is not denied by defendant. Moreover, the plaintiffs in order to justify their claim over the disputed land have relied upon documents Ex.PW7/2 which is the demarcation report. The said demarcation report is denied by the defendant no.1 claiming to have filed objections to the said demarcation report before the competent authority.
31. It is argued on behalf of defendant no.1 that the demarcation report was prepared in the absence of defendant no.1 and the method adopted while preparing the said report is contrary to the laid procedure and that the demarcation report has not been proved as per law. These grounds have been raised in the appeal while assailing the judgment passed by the Ld. Trial Court. I proceed to decide these objections.
32. In so far as the first argument of defendant is concerned, it is incorrect for the reason that perusal of demarcation report Ex.PW7/2 would clearly mention the name of defendant at the time when the demarcation proceedings were carried out. The demarcation proceedings cannot be disputed also for the reason that the same were carried out pursuant to the orders of the competent civil Court where the suit for mandatory injunction was instituted by the plaintiffs. The defendant has relied upon objections filed to the said report, however has failed to prove the same. Only the copy of alleged objections are placed on record without exhibiting the same. The objections raised by the RCA no.25/18 Om Prakash Tyagi Through Lrs. Vs. Om Prakash Panwar Through Lrs.
Page 21 of 23defendant to the demarcation report have not been proved as per law and cannot be read in evidence. The recourse available to the defendant was to challenge the same before the competent authority during the relevant time.
33. Interestingly on one hand it is stated by the defendant that he was not present at the time of demarcation. Subsequently the alleged objections relied upon by the defendant would show that the same are dated immediately after the demarcation report was made. The defendant has not explained as to how he came to know about the said demarcation, in case he was not present during the time of demarcation proceedings. No receiving or stamp of the competent authority before whom the objections were raised is present on the alleged document relied upon by the defendant. Once the document has not been proved as per law, the same is insignificant.
34. In so far as the proof of demarcation report is concerned, the plaintiff had called the official records maintained by the competent authority who produced the same in the court and hence is proved as per law. The only resort available to the defendant for disputing the demarcation report was to challenge it before the competent authority but having failed to do so, the defendant cannot dispute the said report now.
35. Perusal of report would reveal that Khasra no.311/29 RCA no.25/18 Om Prakash Tyagi Through Lrs. Vs. Om Prakash Panwar Through Lrs.
Page 22 of 23admeasures 3 gathe (25 feet 3 inches), however upon physical verification the measurement of the area was found to 23 feet. Hence it stands proved that 2 feet 3 inches has been encroached by the defendant who is the occupier/owner of Khasra no.311/28. The present appeal has primarily been filed assailing the judgment passed by the Ld. Trial Court placing reliance upon demarcation report. The main contention of the defendant is with respect to reliance placed by the Ld. Trial Court on the said document which according to him is not proved as per law.
36. As has been discussed in the preceding paragraphs that the plaintiffs by calling the officers of the competent authority by whom the demarcation was done has succeeded in proving the demarcation report as per law. The defendant has not objected to the said demarcation report before the competent authority at the relevant time hence cannot raise any objection to the same now. The demarcation report has now attained finality and can be relied upon while deciding the case of the plaintiff. Ld. Trial Court rightly held that as per the demarcation report a small chunk of land admeasuring 2feet 3 inches is encroached by the defendant which falls within the share of plaintiffs. Having so held a direction is issued to the defendant to demolish the said portion and handover the peaceful possession of the said chunk of land to the plaintiffs. All the issues are accordingly decided in favour of the plaintiffs and against the defendants.
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Page 23 of 2337. Ld. Trial Court has rightly decided all the issues in favour of plaintiffs and there is no infirmity or illegality observed in the decision of the Ld. Trial Court. The objections raised by the defendant/appellants are not tenable, hence rejected. Appeal is accordingly dismissed. TCR be sent back to the Ld. Trial Court. Appeal file be consigned to Record Room.
Digitally
signed by
Announced in the POOJA
POOJA
TALWAR
open court on 18.04.2022 TALWAR Date:
2022.04.20
16:21:18
+0530
(Pooja Talwar)
Additional District Judge 01,
(South) Saket District Courts,
New Delhi
RCA no.25/18 Om Prakash Tyagi Through Lrs. Vs. Om Prakash Panwar Through Lrs.