Delhi District Court
Ishmali Devi vs Delhi Development Authority on 17 October, 2017
Page 1 of 66
IN THE COURT OF DR. NEERA BHARIHOKE, ADJ01 (SOUTH),
SAKET COURTS, NEW DELHI
CS No.7446/16
Ishmali Devi
.............Plaintiff
Versus
Delhi Development Authority
............Defendant
O R D E R:
1. Vide this order I shall decide whether the additional issue framed vide
order dated 10.12.2014 is purely a legal issue or is a mixed question of
law and fact as well as decide the issue if it is held to be purely a legal
issue. The said additional issue reads as:
1(a). Whether the suit filed by the plaintiffs is within limitation?
OPP.
2. Vide order dated 10.12.2014, both sides were directed to file brief
synopsis indicating the pleadings and the documents filed by the parties
with page no. to determine on the issue as also on the question whether
the third issue is purely a legal issue or is a mixed question of law and
CS No.7446/16
Ishmali Devi
Vs.
DDA
Page 2 of 66
fact. However the brief synopsis was filed by plaintiff s no. 3 and 4,
plaintiff no. 7 to 9 and defendant no. 1 in September 2017.
Brief facts of the plaintiffs are:
(a) The plaintiffs instituted the present suit in 2000 for declaration,
injunction and damages with respect to the suit property i.e. the land
admeasuring 300 bighas (approximately 65 acres) adjacent to
Safdarjung Hospital and facing the erstwhile Kamal Cinema at
Safdarjung Enclave, New Delhi. The plaintiffs have submitted that their
forefathers were granted the Malgujari rights and the numbardari rights of
the land in question since times immemorial and had thus been enjoying
the suit land owner thereof.
(b) The plaintiff have also submitted that in the Jamabandies/misi
hakiyat available with the plaintiff, the predecessors of the plaintiffs and
the plaintiffs have been shown as owner in possession of the land and
that the suit land had never been acquired. No acquisition proceedings
with respect thereto had been completed and the forefathers of the
plaintiffs or the plaintiffs had never been given any compensation with
respect to the suit land and that the possession of the plaintiff over the
suit land had been uninterrupted, continuous and adverse to the world at
large including the defendant no. 1, DDA and Defendant No. 2, Union of
India.
(c) The plaintiffs have further submitted that the possession of the
plaintiffs have been hostile to any claim of the DDA/Union of India, i.e.
defendant no. 1 and defendant no. 2 respectively and that the suit land
was situated in village Arakhpur Bagh Mochi which had been urbanised
CS No.7446/16
Ishmali Devi
Vs.
DDA
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vide notification of 19 February 1999.
(d) Plaintiffs have submitted that DDA had been threatening to
dispossess the plaintiffs from the suit land on the plea that the suit land
belongs to the state i.e. Sarkar Daulatmadar even though the land had
never been acquired and possession thereof was never taken.
(e) The plaintiffs have submitted that the DDA had in the past also
attempted to dispossess them from the suit land and for which purposes
various legal proceedings as detailed in para 7 of the plaint had to be
instituted and wherein statements were made to the effect that plaintiffs
will not be dispossessed without due process of law.
(f) The plaintiffs have contended that the proceedings under the
Public Premises (Eviction of Unauthorized Occupants) Act, 1972 had
also been initiated even though the land was not public premises. The
plaintiffs have claimed that the entries of Sarkar Daulatmadar in the
ownership column of the revenue records with respect to the suit land
are without any basis in as much as the land was never acquired.
(g) The plaintiffs have submitted that the defendants are clouding the
title of the plaintiffs in respect of the land in suit and therefore the plaintiff
have sought relief of declaration of their ownership over the suit land and
have also sought relief of permanent injunction restraining the DDA and
Union of India from interfering with the peaceful enjoyment and
possession of the plaintiff over the suit land and seeking declaration that
the proceedings before the Estate Officer were null and void and have
also claimed damages from the defendants.
(h) Besides that, the plaintiffs have claimed when mandatory
CS No.7446/16
Ishmali Devi
Vs.
DDA
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injunction for directing the DDA to initiate appropriate action for removal
of illegal and unauthorised encroachment including jhuggi jhopri clusters
from the suit land and directing the DDA to construct boundary wall
around the jhuggi jhopri so as to prevent any further encroachment
thereof.
3. Defendant no. 1, DDA, in its written statement claims the land to have
vested in it under the Nazul Agreement of 1937 between the Secretary of
State for India in Council on the one hand and the erstwhile Delhi
Improvement Trust on the other hand and as Nazul Land. DDA has
claimed that in 1964 and 1979 land admeasuring 7.30 acres out of the
said land was handed over to L&DO for extension of Safdarjung Hospital
and another 3 acres was transferred to MCD for cremation ground.
Defendant no. 1 has denied the claims of the plaintiffs with respect to the
suit land.
4. Union of India i.e. defendant no. 2, in its written statement has submitted
that the suit land had been acquired vide notification no. 775 dated 21 st
December, 1911 and award no. 28 dated 27 November, 1912 had been
made with respect thereto and thus the suit filed in May 2000 is barred
by time. It has also been submitted that the suit is barred by section 15
and 16 of Public Premises (Eviction of Unauthorised Occupants) Act,
CS No.7446/16
Ishmali Devi
Vs.
DDA
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1972.
5. Defendant no. 2 has denied that the plaintiffs have any right to the suit
land or are in possession of the suit land and has submitted that the
plaintiffs were attempting to encroach upon the government land.
Defendant No. 2 has submitted that the plaintiff no. 1, Ismaili Devi, along
the predecessor in interest of plaintiff no. 3 and 4 had earlier filed CW no.
3819/1995 wherein vide order dated 30 th October, 1995, the parties are
directed to maintain status quo and thereafter orders are made for
fencing of the suit land.
6. Defendant No. 2 has averred that under the notification no.775 dated 21 st
December, 1911 and award no. 28 dated 27 November, 1912 and further
under award no. 29 dated 14 February 1913, the entire area of village
Arakhpur Bagh Mochi stood acquired and vested in the government and
possession has been taken and that no revenue was assessed with
respect thereto thereafter and no jamabandi had been prepared after
1911 - 1912 and that as per the revenue records the area in question
was being shown as belonging to Sarkar Daulatmadar.
7. Defendant No.2 has stated that a portion of the land had been
encroached by the jhuggi jhopri dwellers. It is further pleaded that
CS No.7446/16
Ishmali Devi
Vs.
DDA
Page 6 of 66
pursuant to agreement dated 31 st March, 1937 between the Secretary of
State for India in Council on the one hand and the erstwhile Delhi
Improvement Trust on the other hand, the land of entire village of
Arakhpur Bagh Mochi was placed at the disposal of Delhi Improvement
Trust which included the suit land. Defendant No.2 has stated that upon
Constitution of the DDA, the said land vested in the DDA and the claims
of the plaintiff with respect thereto were described as bogus.
8. On 09.08.2000, learned counsels for defendant no.1 and 2 stated that
the proceedings under the Public Premises (Eviction of Unauthorised
Occupants) Act, 1972 were in progress and the plaintiff will not be
dispossessed without the due process of law whereas learned counsel
for plaintiff contended that the proceedings under the said Act were
without jurisdiction. In the circumstances it was directed that final order in
the proceedings under the Public Premises (Eviction of Unauthorised
Occupants) Act, 1972 be not passed through the next date of hearing,
though the proceedings may continue.
9. On the next date i.e. 28 August, 2000, it was ordered that the plaintiffs be
not dispossessed from the suit land till the final disposal of the
application for interim relief and thus the order dated 9 August 2000 was
CS No.7446/16
Ishmali Devi
Vs.
DDA
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modified to that extent.
10. On 7 August 2008, the Hon'ble High Court of Delhi directed maintenance
of status quo qua construction and possession of the suit land.
On 13 March, 2009 the defendants filed in the court the eviction orders
issued under the Public Premises (Eviction of Unauthorised Occupants)
Act, 1972.
11. On 19 August, 2008, defendant no. 1 contended that out of the suit land,
land admeasuring 0.647 acres which had been included within the
boundary of Safdarjung Hospital was required for the purpose of
construction of a Sports Injury Centre for the Commonwealth Games
2010 and as such soil test with respect thereto was permitted to be
carried out.
12. On 16th November, 2008 senior counsel for the plaintiffs, without
prejudice to the rights and contentions of the plaintiffs and without any
special equities being created in favour of the defendants agreed that the
construction of Sports Injury Centre on the said 0.6478 of the land be
carried out subject to the condition that if ultimately the defendants lose
the suit, the defendants will compensate the plaintiffs with the cost of the
said land as per market valuation of the land on the principle that the
CS No.7446/16
Ishmali Devi
Vs.
DDA
Page 8 of 66
land had been acquired as on that date and subject to the defendants
being further bound by any further orders of the court.
13. Vide order dated 24 August 2009, the application of the plaintiff under
Order XXXIX Rules 1 and 2 CPC was dismissed and on 24.08.2009, the
issues were framed. However plaintiff no. 1 expired on 29.10.2009 and
the application for impleadment of her legal heirs was allowed vide order
dated 6 July 2010.
14. Vide order dated 2 August 2010, the amendment application of the
plaintiffs was dismissed as not being pressed for leaving the plaintiffs to
file the affidavit by way of evidence in which the plaintiffs were given the
liberty to explain the averments made in the plaint and vide order dated
24 November 2010, objection was taken by learned counsels for
defendant no. 1/DDA that the entire affidavit of evidence was beyond
pleadings and the Learned Joint Registrar directed her to point out the
exact paragraph numbers of affidavits which she wants to struck for
being beyond pleadings and the similar direction was given by the
Hon'ble High Court on 31.03.2011.
15. However on 26 April, 2011 the application of the plaintiff for letting the
trial of the suit to proceed was allowed with liberty to the defendants that
CS No.7446/16
Ishmali Devi
Vs.
DDA
Page 9 of 66
if any extraneous averments are made in the affidavit of evidence which
is beyond the pleadings, the same may be pointed out by learned
counsel for defendants at the time of examination of the witness.
16. Vide order dated 10.10.2012, Hon'ble High Court observed that the
dispute in the present suit relates to public premises and that the plaintiff
is claiming ownership of government land. It was further observed that
the government land being public premises would be subject matter of
action under the Public Premises (Eviction of Unauthorised Occupants)
Act, 1971 and it was held that in terms of section 15 of the said Act, civil
court will have no jurisdiction to entertain the matters which the Estate
Officer can deal with under the said Act. It was also observed that in the
present suit, actions of the Estate Officer are sought to be stayed and
that the present suit is prima facie liable to be dismissed and the plaintiffs
will have to contest the proceedings before the Estate Officer under the
Act. However since learned counsel for plaintiff was not available on the
said date the matter was adjourned to 15 October 2012.
17. On 15 October 2012, vide a detailed order, it was held that the present
suit cannot be tried before the civil court and also that the suits are
barred by res judicata subject to the finality in appeal of the orders of the
CS No.7446/16
Ishmali Devi
Vs.
DDA
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Estate Officer and the suit was accordingly dismissed.
18. The plaintiffs preferred an appeal against the said order and Hon'ble
Division Bench vide order dated 11 April, 2013 passed in RFA (OS)
120/2012 set aside the order dated 15 October 2012 by observing that
Learned Single Judge shall first decide on the basis of the pleadings and
the material on record as well the law on the subject as to whether the
plaintiff, in the facts and circumstances of the case, has been able to
make out that the suit raises the bona fides dispute with regard to title
and also whether the suit was filed within the period of limitation
prescribed in that regard; in the eventuality of these issues being decided
in plaintiffs' favour alone, the matter would be proceeded with for a
decision on the merits on the other issues by the Learned Single Judge.
It was in light of this background that additional issue was framed as:
1(a). Whether the suit filed by the plaintiffs is within limitation?
OPP.
19. However the matter was transferred to District Courts. The matter would
be decided on merits if only plaintiffs establish that the plaintiffs, in the
facts and circumstances of the case, have been able to make out that
the suit raises the bona fides dispute with regard to title and also that the
suit was filed within the period of limitation prescribed in that regard.
CS No.7446/16
Ishmali Devi
Vs.
DDA
Page 11 of 66
20. Both sides have filed written submissions in respect of issue of limitation.
21. Plaintiff no. 3 and 4 have submitted that on the date of filing of the
present suit, two proceedings were pending namely proceedings under
the Public Premises (Eviction of Unauthorised Occupants) Act, 1972,
1971 and Writ Petition No. 3819 of 1995.
22. It has been argued that in the said petition, the Division Bench of the
Hon'ble High Court recorded the statement of the learned Commissioner
of the DDA who was present in the court and who stated that he had
visited the land and that he would fence the vacant land so that no
further unauthorised encroachment takes place. It is submitted that the
said order also records that the DDA will do the fencing work without
prejudice to the right of the petitioners. The work of fencing was
completed by 23.09.1999 and thereafter the defendant no. 1 started
denying access to the plaintiffs to the land in question and that all this
was done in the pretext of proceedings under the Public Premises
(Eviction of Unauthorised Occupants) Act, 1972 whereas the real issue
of the title was not being decided and the title was being assumed on the
basis of the Nazul Agreement of 1937.
23. Plaintiff no. 3 and 4 have submitted that the plaintiff therefore filed the
CS No.7446/16
Ishmali Devi
Vs.
DDA
Page 12 of 66
present suit as the actions during the pendency of the writ petition posed
imminent threat to the rights and title of the plaintiff which gave rise to
cause of action to the plaintiff.
24. It has thus been argued that since the proceedings under the Public
Premises (Eviction of Unauthorised Occupants) Act, 1972 as well as Writ
Petition No. 3819 of 1995 were pending on the date of filing of the suit
therefore the suit of the plaintiff has been filed within limitation.
25. Plaintiff no. 3 and 4 have also referred to two orders of honourable High
Court after filing of the present suit i.e. order dated 4.12.2001 which
reads as:
"Vide order dated 19.5.1999, this court directed the DDA to fence the
vacant land. Ms Geeta Mittal appearing for the DDA states that some
encroachers had broken the fencing, therefore, DDA may be permitted to
do the same with masonry wall. Permission granted. The fencing would
be done by angle iron, barbed wire fencing and masonry wall and area
shall ensure that no encroachment takes place on vacant land and the
fencing is not removed. This order is passed without prejudice to the
rights of the parties."
26. The other order relied upon is dated 14.12.2001 wherein it was
observed:
"The order asking the DDA to fence the land will not affect the merits of
CS No.7446/16
Ishmali Devi
Vs.
DDA
Page 13 of 66
the case of the parties with regard to title and possession."
27. Plaintiff no. 3 and 4 have contended that even in these proceedings by
an order dated 8.8.2002 it was specifically ordered that fencing of the
land by the DDA would not amount to dispossession of the plaintiff from
the suit property. It has also been contended that Defendant No. 1 has
filed written statement in which no objection qua limitation has been
taken.
28. Plaintiffs no. 3 and 4 have submitted that possession of the plaintiffs has
been admitted by the DDA as under:
"That Ram Saran had been cultivating on government land illegally
which was transferred to DDA as per the Nazul Agreement 1937 on
Khasra no. 644/458 Kila no. 3/11, 3/12, 3/13, 3/17, 3/18, 3/19, 3/20,
3/21, 3/10 measuring totally 356 as per Jamabandi. Copy annexed in
Village Arakpurbagh Mochi, adjoining Safdarjang Hospital. Similarly
Shankar has been cultivating on Government land illegally i.e. gair
marushi which was transferred to DDA as per the Nazul Agreement 1937
on Khasra no. 644/458 Kila no. 3/24, 3/23, 3/27, 6/3, 6/4, 6/7, 6/8, 6/13,
6/14 measuring totally 3818 as per Jamabandi. Copy annexed in Village
Arakpurbagh Mochi, adjoining Safdarjang Hospital. Plaintiff no. 3, 4, 5
and 6 are legal heirs of Shankar. Ram Singh had been cultivating on
government land illegally i.e. gair marushi which was transferred to DDA
as per the Nazul Agreement 1937 on Khasra no. 644/458 Kila no. 4/6,
4/7, 4/8, 4/13, 4/14, 4/15, 4/16, 4/17 and 4/18 measuring totally 4114 as
per Jamabandi. Copy annexed in Village Arakpurbagh Mochi, adjoining
CS No.7446/16
Ishmali Devi
Vs.
DDA
Page 14 of 66
Safdarjang Hospital. The above land has been transferred to DDA vide
Nazul Agreement 1937. That plaintiff no. 2, 10, 11, 13, 14, 15, 16 and 17
are legal heirs of Ram Singh who is deceased."
29. Plaintiff no.3 and 4 by relying on this submission of defendant no. 1 has
submitted that the defendant no.1 has admitted that the plaintiffs are in
possession of the aforesaid lands which have been described in para 1
of the written statement.
30. Plaintiff no.3 and 4 have contended that defendant no. 2 in its written
statement claims ownership of the property on the basis that the suit land
was acquired by the government in 1911 and thereafter award was
passed in 1912. The government does not claim any preexisting title but
claims title through acquisition under the Land Acquisition Act. Thus as
per the case of the government prior to the socalled acquisition of 1911,
the land was private land which upon acquisition became government
land.
31. Plaintiff no.3 and 4 have submitted that they claim a decree for
declaration to the effect that they are lawful owners of the land and that
they are in lawful possession of the land. Prayer (b) is for permanent
injunction against interference in the possession of the plaintiff said
CS No.7446/16
Ishmali Devi
Vs.
DDA
Page 15 of 66
prayer (c) is again for declaration that the proceedings initiated the Public
Premises (Eviction of Unauthorised Occupants) Act, 1972 are without
jurisdiction answer to which would depend on the answer to the 1 st
prayer of declaration.
32. Plaintiff no.3 and 4 have stated that since the plaintiffs are in possession
as admitted by the defendant in written statement and is evident from the
initiation of the proceedings under the Public Premises (Eviction of
Unauthorised Occupants) Act, 1972, no issue for limitation could arise.
33. It has been further contended that issue no.1 and 2 have been framed
for the plaintiffs to establish title and possession while issue no.3 have
been framed wherein the defendant has to establish title. The plaintiffs
are in possession of the land and are entitled to retain possession except
against the true owner. Thus where the possession of the plaintiff is
admitted and unless the defendants establish that they have acquired
title to the property through acquisition otherwise, the plaintiffs are even
otherwise entitled to retain possession of the suit property.
34. It has been argued that the plaintiffs are in possession of the property is
an issue of fact which is required to be decided by deciding issue no. 2
and therefore the issue of limitation also becomes a question of fact
CS No.7446/16
Ishmali Devi
Vs.
DDA
Page 16 of 66
which cannot be decided at the preliminary issue.
35. Plaintiff no.3 and 4 have submitted that defendant no. 2 has taken a plea
of limitation by submitting as:
"That the suit is highly belated and is barred by limitation and thus liable
to be dismissed on this ground alone. That vide notification no. 775
dated 21.12.1911, large tract of land including the suit land was acquired
for a public purpose, namely for the formation of New Capital of India at
Delhi and award no. 28 dated 27.11.1912 was passed thereto.
Admittedly the present suit has been filed in May 2010 i.e. after 89 years
and the same is hopelessly barred by limitation."
36. Plaintiffs have therefore submitted that the plea of limitation and the
additional issue that was framed by the Hon'ble High Court was in
relation to the said plea taken by the respondent. The said plea would
depend on the defendant showing that the suit land had in fact been acquired vide notification no. 775 dated 21.12.1911 and award no. 28 dated 27.11.1912 and that the compensation for the land acquired was in fact paid to the landowners after the award dated 27.11.19 12 upon which the land vested in the state. They have submitted that therefore the issue of limitation as pleaded by defendant no. 2 is intertwined with the decision of issue no. 3 that is title of the defendant no. 2. Thus it has CS No.7446/16 Ishmali Devi Vs. DDA Page 17 of 66 been contended that issue of limitation that the arise in the present case can be decided after trial and after the parties have led evidence.
37. Plaintiff no. 2 and 3 have relied on law laid down in Surjit Kaur Gill versus Adarsh Kaur Gill, (2014) 16 SCC 125 where it has been observed that plea of limitation cannot be decided as an abstract principle of law as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. Plaintiff no. 3 and 4 have also relied on the law laid down in the Ramesh B. Desai vs. Bipin Vadilal Mehta, (2006) 5 SCC 638 (para 19).
38. The plaintiff no.7 to 9 have also filed written synopsis on issue of limitation. They have submitted that they have filed suit for declaration to the effect that they are owners in possession of the suit land situated in village PIllanji which is not acquired and no award has ever been passed in respect thereto and acquisition proceedings had elapsed. They have also questioned the proceedings before the Estate Officer by submitting that the summary jurisdiction of Public Premises (Eviction of Unauthorised Occupants) Act, 1972, he cannot decide question of title which are in issue in the present suit and also that public premises proceedings already in progress during the pendency of the proceedings CS No.7446/16 Ishmali Devi Vs. DDA Page 18 of 66 of the present suit do not pertain to suit land.
39. The other plaintiffs have also stated that the DDA has admitted the possession of the plaintiff of the suit land but has stated that the possession of the plaintiff is unauthorised as the suit land situated in village Arakpur Bagh Mochi whereas the plaintiffs have denied that the suit property is situated in village Arakpur Bagh Mochi and have also denied that it is an acquired land and have reiterated that the suit land is situated in village PIllanji and is not acquired. It has been further submitted that the award and the Public Premises (Eviction of Unauthorised Occupants) Act, 1972 relied upon by DDA is only with respect to land admeasuring 1100 square i.e. 3 bighas 3 biswas situated in the village Mujahidpur which is of no consequence as the present suit proceedings have not been filed in relation to village Mujahidpur.
40. The plaintiffs no.7 to 9 have submitted that the foremost question which needs determination in the present suit is whether the suit land is situated in village Pillanji as plaintiffs say or is it situated in village Arakpur Bagh Mochi as DDA says. They have reproduced the issues and have submitted that there are triable issues of title and can be decided by trial.
CS No.7446/16 Ishmali Devi Vs. DDA Page 19 of 66
41. They have also submitted that the question of limitation is always a mixed question of fact and law because law of limitation is applied to the factual matrix and situation of each case which are finally approved and trimmings only after trial. They have submitted that the period of limitation has not even begun to run inasmuch as DDA has already admitted possession of the plaintiffs in its written statement and the plaintiffs have already filed their affidavit in evidence as also have exhibited documents to prove not only the possession but also its title to the suit land.
42. The plaintiffs no.7 to 9 have also submitted that mere assertion that the land belongs to the government does not make it the land of the government and had that been so the issues would not have been framed and the suit would have been dismissed at the outset without trial. But the issues of title have already been framed and both the plaintiffs and the defendant have been asked to prove their title to the suit land in trial because it is settled position of law that mutation neither confers nor extinguishes title and hence the selfseeking unilateral pleas of government in its favour are of no legal consequence in law for deciding question of title. It has been further argued that title and CS No.7446/16 Ishmali Devi Vs. DDA Page 20 of 66 possession of the vacant land goes with the owner and the ownership of the title has to be established by the defendants in trial. The plaintiffs no.7 to 9 have submitted that they proved through oral and documentary evidence that they are in long settled possession of suit land for more than 150 years and thus the onus shifts on the defendants to show that the plaintiffs are not the owners which the defendants can only show by proving in trial. They have also stated that question of limitation is the mixed question of fact and law and suit cannot be decided without framing of the issue and taking evidence and have relied on law laid down in Balasari Constructions (P) Ltd. versus Hanuman Sewa Trust and others (2006) 5 SCC 658,Satti Paradesi Samadhi & Philliar Temple versus M Sakuntla (D) Tr. LRs and others, Civil Appeal no. 5954 /2014 before Hon'ble Supreme Court of India in Civil Appellate Jurisdiction.
43. The plaintiff has submitted that there are various facts which are required to be proved in trial by both plaintiffs and defendants most important being the identity of the land and issue of limitation and the same therefore cannot be decided before trial of the suit. CS No.7446/16 Ishmali Devi Vs. DDA Page 21 of 66
44. Defendant No.1 has filed a written synopsis. Defendant No.1 has submitted that suit land relates to Nazul land of defendant no.1 and 2.
45. Defendant No.1 has relied on the documents contemporaneously executed by the plaintiffs to their own notice and knowledge which are inconsistent with the claim of ownership and has submitted that the suit is barred by limitation when period is computed from the execution of those documents and/or knowledge of plaintiff of these documents i.e. lease deed. Defendant No. 1 has relied on pleadings of the plaintiffs/their predecessors made in the 2 suits of injunction admittedly filed by them namely:
1. Suit no. 229 of 1962 titled Ram Saran versus DDA
2. Suit no. 230 of 1962 titled Moti versus DDA (filed in CCP 156 of 2008 by DDA)
45. Defendant No.2 has submitted that in both these suits the plaintiffs claimed themselves to be tenant of DDA and claimed continuous occupation for last 9 years under the lease between the plaintiff and DDA. The 2 suits were filed for injunction against eviction after expiry of lease of 5 years and not a declaration of title. It has been further submitted that during pendency of the suits, the plaintiffs vide letter dated 13 June 1962 in response to notice of eviction dated 8 February 1962, CS No.7446/16 Ishmali Devi Vs. DDA Page 22 of 66 because lease expired by efflux of time on 4 June 1961, requested DDA to grant 10 days time to vacate the premises due to marriage of daughter of Shanker, predecessor of plaintiff no. 3 and 4. It is further submitted that on 27 September 1962 stay was vacated by learned judge and consequently possession was taken by DDA and handed over to L&DO for expansion of the Safdarjang Hospital. It was notified later on in 1964.
On 12.3.1963, suits were dismissed.
46. The Defendant No.1 has argued that plaintiffs admittedly filed suit for injunction in the capacity of a tenant in the suit property and therefore present suit for declaration and injunction after about 40 years is barred by limitation as well as under order II rule 2 CPC.
47. Defendant No.1 has also contended that in 1962, the plaintiff had filed suit of injunction claiming leasehold rights/tenant for the limited period of 5 years pursuant to the lease deed executed inter se the plaintiffs and defendant DDA and now has filed the present suit claiming ownership which is barred by limitation because in 1962 itself plaintiff ought to have filed the present suit.
48. Defendant No.1 has also submitted that limitation would run against the plaintiffs also from the date on which the defendants took effective CS No.7446/16 Ishmali Devi Vs. DDA Page 23 of 66 possession over the property and simultaneously making entry in Khasra Girdawari and Jamabandi.
49. Defendant no.1 has submitted that pursuant to an agreement dated 31 March 1937 between the Secretary of State for India in Council i.e. the then government on one hand and the Delhi Improvement Trust constituted under the provisions of United Provinces Town Improvement Act, 1919 as extended to the province of Delhi on the one hand, the land of entire village of Arakpur Bagh Mochi was placed at the disposal of the Delhi Improvement Trust which includes the suit land. In 1964 and 1979 land measuring 7.30 acres was handed over to L&DO for extension of Safdarjang Hospital. Land measuring 3 acres also stood transferred to MCD for cremation ground.
50. Defendant no. 1 has submitted that vide notification, large tracts of land including suit land was acquired for a public purpose, namely for the formation of New Capital of India at Delhi. Award in respect of the suit land was passed on 27 November 1912 and the land vested in government. One revenue estate Imperial Delhi was formed and being in the ownership of the government, no revenue was assessed for those villages which were duly acquired under Imperial Delhi. After 19081909 CS No.7446/16 Ishmali Devi Vs. DDA Page 24 of 66 no jamabandi was prepared for Alipur, Hasanpur, Pallanji and similarly after 1911 - 1912, no jamabandi was prepared for Arakpur Bagh Mochi. After 1 May 1925, separate estate was formed as Arakpur Bagh Mochi.
51. It was recorded that area measuring 3033 acres vested in government and as per revenue record area in question is shown as "Sarkar Daulat Madar".
52. The Defendant No.1 has the submitted that the present suit is time barred and that there is no dispute of title in respect of suit property and the suit land belongs to DDA and has prayed for disposal of the present suit with heavy cost.
53. Detailed arguments were advanced by learned counsels for the parties.
Arguments heard. Record perused carefully.
54. First of all it needs to be found out as to whether the plaintiffs, in the facts and circumstances of the case, have been able to make out that the suit raises the bona fides dispute with regard to title.
55. Perusal of the plaint reveals that the plaintiffs have themselves given different description to the suit property in different paras of the plaint. It is relevant to mention that the plaint herein referred to is the amended plaint dated 17.4.02 and not the plaint dated 26.05.2004 and in the CS No.7446/16 Ishmali Devi Vs. DDA Page 25 of 66 amended plaint dated 17.04.02, the plaintiffs have sought relief of declaration that they are the lawful owners and in lawful possession of the suit land, relief of permanent injunction for restraining the defendants from interfering with the peaceful enjoyment in possession of the suit land and declaration that proceedings before the Estate officer i.e. Defendant No. 3 are null and void and without jurisdiction.
56. In para 1 of the amended plaint, the plaintiff has given the description of the suit property as land forming part of khasra no.644/458 in kila no.7 in Village Pilanji, Hasanpur, revenue estate of village Arakhpur Bagh Mochi, adjoining Safdarjang Hospital, facing Kamal Cinema, New Delhi while giving their own address as residents of Village Old Pilanji, Hasanpur, Sarojini Nagar.
57. In para 3 of the amended plaint, Plaintiff has submitted that Sh. Jagdev, their alleged predecessor in title, was appointed as Nambardar of Village Alipur, Pilanji Pargana now known as Arakhpur Bagh Mochi as well as has submitted that the forefathers of plaintiffs were the Nambardars and had malguzari rights in respect of the land in question.
58. In para 1 of the suit, the plaintiffs have claimed to be the owners and in possession of the suit land. In para 2 they have submitted that their CS No.7446/16 Ishmali Devi Vs. DDA Page 26 of 66 forefathers were granted malguzari rights and Nambardari rights of the land in question since the time immemorial and have submitted that proof is available from 1865 onwards.
59. In para 4 and para 6 of the amended plaint, the plaintiff has submitted that no acquisition proceedings have been completed in respect of the land of the plaintiff and in sub para 2 of para 12, the plaintiff has submitted that revenue estate of Village Arakhpur Bagh Mochi had not been transferred to DDA. Thus in sub para 2 of para 12 read with para 4 of the amended plaint, the suit property has been stated to be part of revenue estate of Village Arakhpur Bagh Mochi.
60. In para 5 of the amended plaint, the plaintiffs have specifically submitted that the name of their village is Village Arakhpur Bagh Mochi.
70. In the prayer clause, the description of the suit property has been changed and mentioned as khasra no.644/458 in kila no.1 to 8 in Village Pilanji Hasanpur, revenue estate of Village Arakhpur Bagh Mochi. It is to be noted that in first para of the plaint, the extent of the suit property is mentioned as kila no.7 and in the prayer clause, the extent of the suit property has been mentioned as kila number 1 to 8.
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71. Plaintiff no. 1 had filed an affidavit on 25 May 2011 to elaborate as to which part of the suit property is in possession of which of the plaintiffs. There are description of the suit land is Village Arakhpur Bagh Mochi, Pilanji.
72. In support of their claim for being in possession of the suit land, plaintiffs have relied on khasra girdwaris of Village Mujahidpur to contend that defendant no. 1 has admitted their possession in the suit property.
73. Thus, it is noticed that the description of suit property in affidavit of plaintiff number 1 and in various paragraphs of plaint are different i.e. kila no.7 in Village Pilanji, Hasanpur, revenue estate of village Arakhpur Bagh Mochi, adjoining Safdarjang Hospital, facing Kamal Cinema, New Delhi in khasra no.644/458 Village Alipur, Pilanji Pargana now known as Arakhpur Bagh Mochi revenue estate of Village Arakhpur Bagh Mochi Village Arakhpur Bagh Mochi.
khasra no.644/458 in kila no.1 to 8 in Village Pilanji Hasanpur, revenue estate of Village Arakhpur Bagh Mochi Village Arakhpur Bagh Mochi, Pilanji Village Mujahidpur
74. Thus it is apparent that the plaintiffs have deliberately given different descriptions to the same suit land to create the impression that there is a CS No.7446/16 Ishmali Devi Vs. DDA Page 28 of 66 bona fide dispute in respect of the title of the suit property. But it is to be noticed that in para no.7 of the plaint, the plaintiffs have submitted that defendant no.1 had made several attempts to dispossess the plaintiffs and has referred to various proceedings initiated by the plaintiffs or their predecessors against the defendant in relation to the suit property and in para 9, the plaintiffs have submitted about one of the litigations in respect of the suit property by stating that the defendants have initiated proceedings under P. P. Act against the plaintiffs in relation to the suit property before the Estate Officer and has specifically prayed for a declaration that the proceedings before him are null & void and without jurisdiction.
75. Defendant no.1 in its written statement claims ownership of the property on the basis that the suit land was acquired by the government in 1911 and thereafter award was passed in 1912. The plaintiffs have argued that the government does not claim any preexisting title but claims title through acquisition under the Land Acquisition Act. Thus as per the case of the government prior to the socalled acquisition of 1911, the land was private land which upon acquisition became government land. Even if this submission is taken to be correct, that does not prove that the CS No.7446/16 Ishmali Devi Vs. DDA Page 29 of 66 plaintiffs or their forefathers are erstwhile owners of the suit property.
76. It is further important to note that defendant no.1 specifically submitted that suit land was transferred to DDA as per the Nazul Agreement 1937 but the plaintiffs have denied the same and has submitted that the entries in the Nazul Agreement 1937 are selfserving statements of the defendants and cannot be taken to be correct.
77. Plaintiffs have submitted that possession of the plaintiffs has been admitted by the DDA, i.e. defendant no.1, as under:
"That Ram Saran had been cultivating on government land illegally which was transferred to DDA as per the Nazul Agreement 1937 on Khasra no. 644/458 Kila no. 3/11, 3/12, 3/13, 3/17, 3/18, 3/19, 3/20, 3/21, 3/10 measuring totally 356 as per Jamabandi. Copy annexed in Village Arakpurbagh Mochi, adjoining Safdarjang Hospital. Similarly Shankar has been cultivating on Government land illegally i.e. gair marushi which was transferred to DDA as per the Nazul Agreement 1937 on Khasra no. 644/458 Kila no. 3/24, 3/23, 3/27, 6/3, 6/4, 6/7, 6/8, 6/13, 6/14 measuring totally 3818 as per Jamabandi. Copy annexed in Village Arakpurbagh Mochi, adjoining Safdarjang Hospital. Plaintiff no. 3, 4, 5 and 6 are legal heirs of Shankar. Ram Singh had been cultivating on government land illegally i.e. gair marushi which was transferred to DDA as per the Nazul Agreement 1937 on Khasra no. 644/458 Kila no. 4/6, 4/7, 4/8, 4/13, 4/14, 4/15, 4/16, 4/17 and 4/18 measuring totally 41 CS No.7446/16 Ishmali Devi Vs. DDA Page 30 of 66 14 as per Jamabandi. Copy annexed in Village Arakpurbagh Mochi, adjoining Safdarjang Hospital. The above land has been transferred to DDA vide Nazul Agreement 1937. That plaintiff no. 2, 10, 11, 13, 14, 15, 16 and 17 are legal heirs of Ram Singh who is deceased."
78. Plaintiff no. 3 and 4 by relying on this submission of defendant no. 1 has submitted that the defendant no. 1 has admitted that the plaintiffs are in possession of the aforesaid lands which have been described in para 1 of the written statement. It is pertinent to note that defendant no. 1 has made these submissions in respect of land situated at Village Arakpurbagh Mochi and thus the plaintiffs have themselves admitted that the suit property is the land situated at Village Arakpurbagh Mochi, more so when these written permissions have been filed by the plaintiffs for deciding the issue of limitation on 14 October 2017.
79. This submission made on behalf of plaintiff no.3 and 4 has also been reiterated and adopted by other plaintiffs in their written submissions. It is pertinent to note that in sub para 2 of para 6, the plaintiffs have submitted as: The possession of the plaintiffs has been recorded in the Khasra Girdawari. This submission goes to show that the plaintiffs rely on Khasra Girdawari of Village Mujahidpur to show that they are in CS No.7446/16 Ishmali Devi Vs. DDA Page 31 of 66 possession of the suit property. It is equally significant to note that Khasra Girdwari records defendant no.1 as the owner of the suit property as it records under the column of owner SARKAR DAULATMADAR. However the plaintiffs conveniently deny the said entry in favour of defendant no.1 in the column of owner as the same goes against their interest.
80. Further it cannot be lost sight of that defendant no. 1 has stated the possession of the plaintiff in the land described in the paragraph quoted above to be illegal possession i.e. Gair marushi and has relied on the Jamabandi of Village Arakpurbagh Mochi. Thus the plaintiffs rely on the submissions of the defendant to prove their possession over the suit property, which is Village Arakpurbagh Mochi, as apparent from written submissions of plaintiffs thereby admitting that the suit property is situated in Village Arakpurbagh Mochi.
81. However despite the afore quoted pleadings in various paragraphs of the plaint in respect of the suit property and the fact that plaintiffs rely on the Khasra Girdawari of Village Mujahidpur and Jamabandi of Village Arakpur Bagh Mochi, the plaintiffs have argued that the suit property is not situated in Village Arakpurbagh Mochi and is situated in village Pilanji CS No.7446/16 Ishmali Devi Vs. DDA Page 32 of 66 and have argued that Village Pillanji is a part of Revenue Estate of Village Arakpurbagh Mochi but is separate from Village Arakpurbagh Mochi.
82. Further, it is relevant to note that in the plaint, the plaintiffs have submitted that Village Alipur Pilanji has been acquired, however, revenue estate of Arakhpur Bagh Mochi was not acquired This submission shows that the case of the plaintiffs is that revenue estate of Village Arakhpur Bagh Mochi had not been transferred to DDA and the suit property lies there. In para 5 of the plaint, the plaintiff have specifically submitted that on 19.02.1999, the defendant had taken out a list of urban villages and which were declared urban by notification. It is submitted that the name of the village of the plaintiffs i.e. Village Arakhpur Bagh Mochi finds mention in the said list and the consequences of the Village been declared urban also follow.
83. However since 2004, the stand of the plaintiffs is diametrically opposite and it has been argued that Pilanji had not been acquired and the Village Arakhpur Bagh Mochi in the revenue estate of Arakhpur Bagh Mochi had been acquired. When the plaintiffs filed the suit the plaintiffs filed copy of Jamabandi of Village Mujahidpur, however, in 200405, the plaintiffs CS No.7446/16 Ishmali Devi Vs. DDA Page 33 of 66 have filed revenue documents and Jamabandi of Village Pilanji. It is significant to note that the plaintiffs have filed copy of order of Sh. R. P. Gupta, Ld. ADJ in RCA No.203/82 referred in para 9 of the suit titled as Ishmali Vs. Union of India giving address of Ishmali Devi as resident of Village Arakhpur (old Pilanji). This submission of the plaintiffs have already been dismissed by Hon'ble Justice Rajiv Sahai Endlaw vide order dated 24 August 2009 by terming it as a bogey and the said observation has been upheld by Hon'ble Division Bench vide order dated 20.10.2011. Thus it is apparent that the plaintiffs keep on changing their instance to create an illusory dispute of title of the suit property without any reason or basis and even at this stage despite knowing that the said dispute has been put to rest by Hon'ble Bench vide order dated 20.10.2011.
84. In view of the plaintiffs relying on Khasra Girdawari of Village Mujahidpur and Jamabandi of Village Arakpur Bagh Mochi to plead their possession over the suit property, what is required to be seen is whether the suit property is Village Mujahidpur or Village Arakpur Bagh Mochi.
85. The suit property can very well be identified by one thing i.e. all the CS No.7446/16 Ishmali Devi Vs. DDA Page 34 of 66 previous litigations between the plaintiff and the defendants in respect of the suit property as clearly mentioned in para number 7 and 9 of the plaint. The reason for the change in description or giving different descriptions to the same property can be inferred and demonstrated from the various documents filed by both sides. The plaintiffs have cleverly and clandestinely filed the orders passed in various litigations which are referred to in para no.7 of the plaint i.e. suit no. 229/1962, suit no.230/1972, suit no.267/70, suit no.246/77, three suits filed for injunction by the plaintiffs in 1980, suit no. 628/81, appeal filed by the DDA against the order passed in the said suit bearing appeal no.177/83, civil writ no.2260/1981, suit no.208/1979 a complaint filed under section 447/448 of IPC but have deliberately not filed the copies of the pleadings of the parties but have filed the whole set of pleadings, orders, documents of the matter titled Bhagmal and others Vs. UOI bearing suit no.256/4/68 for reasons best known to them as the plaintiffs are not parties to the said litigation.
86. On being asked as to why the pleadings of these proceedings have not been filed, plaintiffs stated that they do not have the copy of the same and that they are trying to trace certified copies (They have even filed the CS No.7446/16 Ishmali Devi Vs. DDA Page 35 of 66 affidavit to this effect and in the said affidavit they have also submitted that they cannot admit or deny the copies of the litigations/proceedings filed by defendant no. 1 referred in para 7 of the plaint.) The said submission does not inspire confidence that the suit land in respect of which the plaintiffs have filed litigations but have not retained the copies of the pleadings but have filed the whole set of pleadings, orders, documents of the matter titled Bhagmal Vs. UOI bearing suit no.256/4/68 in which none of the plaintiffs is a party.
87. Plaintiffs have filed certified copy of judgment dated 12.3.1963 in the suit titled Ram Saran versus DDA, suit no. 229/1962. The said suit finds specific mention in para 7 (i) of the suit where details of those matters is given which plaintiffs filed whenever defendant no.1 attempted to dispossess the plaintiff from the suit property.
88. Plaintiff no.1 is widow of Ram Saran and plaintiff no. 8 and 9 are his sons. However the plaintiffs have not filed the pleadings/notice in respect of which that suit was filed. However the defendant no.1 has filed the copy of the notice which was issued to Ram Saran and perusal of the same reveals that Ram Saran was given notice that he had been in unauthorized occupation of land bearing Khasra/killa no. 3/13 measuring CS No.7446/16 Ishmali Devi Vs. DDA Page 36 of 66 5 bighas 6 biswas, Arakhpur Bagh Mochi, Nazul Estate, Mujahadpur, New Delhi without any valid permission from the Authority as he did not vacate the suit land which was given to him on lease for five years w.e.f. 15.06.1956 to 14.06.1961 which stood expired w.e.f. 15.06.1961 and he was directed to surrender vacant possession of the suit land and notice was given that in case he does not do so, the vacant possession would be taken over by Girdawari/Kanoongo of office of DDA and Ram Saran in the suit for permanent injunction had himself pleaded that he is tenant under the defendant in respect of suit land situated at Arakhpur Bagh Mochi, Nazul Estate, Mujahadpur, New Delhi.
89. The plaintiffs have not filed the copy of these proceedings as that would have disclosed that they were only in very small portion of the suit property and that too in the capacity of the tenant and that description of the suit property is Arakhpur Bagh Mochi, Nazul Estate, Mujahadpur, New Delhi. The said description does not suit the plaintiffs in view of their specific denial that the suit property is not part of Nazul Land under the Nazul Agreement of 1937.
90. Similarly, the plaintiffs have filed certified copies of judgment of 28.02.1974 passed in the suit titled Shanker versus DDA bearing suit CS No.7446/16 Ishmali Devi Vs. DDA Page 37 of 66 no. 246/77 which again finds mention in para 7 (iv) of the plaint and it is pertinent to note that this is also in relation to part of suit property stated to be in occupation of Shanker and whose sons are plaintiff no.3 & 4. Plaintiff no. 3 was deleted vide order dated 17.07.2012. Thus father of plaintiff no. 3 and 4 was in possession of 5 bighas 6 biswas, Arakhpur Bagh Mochi, Nazul Estate, Mujahadpur, New Delhi and not in possession of 38 bighas and 8 biswas as stated by plaintiff no. 1 in her affidavit dated 25.05.2000.
91. It is pertinent to note that in the suit filed by Shanker against defendant no.1 against the said notice, he described himself as a tenant in the land admeasuring 5 bighas 6 biswas and not that of 38 bighas and 18 biswas as stated by plaintiff no. 1 in her affidavit in respect of suit land on 25.05.2000 and sought relief of restraining the defendant no. 1 from forcibly evicting him from the suit property. Thus it was nowhere pleaded that he is the owner of the suit property and therefore defendant no. 1 cannot evict him. The nonfiling of the pleadings in respect of injunction suit filed by the plaintiffs or their predecessors in interest reflects their intentions to not to produce the pleadings before this court in view of the plaintiff having admitted that they were in possession of the suit property CS No.7446/16 Ishmali Devi Vs. DDA Page 38 of 66 in the capacity of tenant of no. 1 and that the tenancy had come to an end and had sought protection from for civil eviction from the suit property by defendant no.1.
92. Defendant no.1 has also filed copy of eviction notice issued to Sh. Moti, predecessor of plaintiff in respect of 32 bighas 6 Biswas of the suit land which is similarly worded as the eviction notice issued to Shankar and Ram Saran and Moti had also filed similar suit against the said notice describing himself as a tenant in the suit property and praying for restraining the defendant no. 1 from forcibly evicting him from the suit property.
93. All the suits praying for injunction find mention in para 7(i) to (iv) of the plaint. It is pertinent to note that all these notices are dated 8 June 1962 and the suits have been filed on 12 June 1962 bearing suit no. 229 of 1962, suit no. 246/77, suit no. 208/79. Not only that defendant no. 1 has also placed on record a letter dated 12 June 1962 written by Ram Saran to DDA where he has specifically requested that Moti and he are engaged in the marriage of daughter of Ram Saran and do not find themselves in a position to comply with the eviction orders and prayed for extending the date of notice.
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94. Similarly the plaintiffs have filed order dated 20.01.1979. In the said order also it is recorded that in view of statement of counsels for the parties the suit is dismissed as withdrawn but the plaintiffs have not filed the copy of the impugned notice or the copy of the suit no.246/77 which finds mention in para 7(iv) of the plaint. However, the defendant has filed the copy of the notice of eviction issued against plaintiff no.4 Prakash i.e. son of Shankar, contents of which are similar to the contents of notice sent to Ram Saran and it describes Shankar as 'tenant' in the suit property.
95. The defendant no.1 has filed copy of suit titled Moti Vs. DDA where description of Moti is Moti S/o Bhura R/o Arakhpur Bagh Mochi, Nazul Estate, Mujahadpur, New Delhi which has been filed on 12.06.1962 in view of him being given notice dated 08.06.1962 in respect of part of suit property as given to Ram Saran as his tenancy also come to an end on 14.06.1961 and Moti specifically pleaded that he is a tenant in respect of part of the suit property under his possession and had prayed for perpetual injunction against DDA from ejecting him. It is relevant to note that vide letter dated 11.06.1962, Moti had begged the DDA to extend the date for vacation in view of receiving notice dated 08.02.1962 as he CS No.7446/16 Ishmali Devi Vs. DDA Page 40 of 66 stated that he was engaged in marriage of his daughter and therefore, not in possession to comply with eviction order.
96. The observations made in respect of previous litigations between the plaintiffs and defendant number 1 demonstrate that the suit property is situated in Arakhpur Bagh Mochi, Nazul Estate, Mujahadpur, New Delhi and that Khasra Girdawari of Village Mujahidpur and Jamabandi of Arakhpur Bagh Mochi has been relied upon by the plaintiffs to show their possession over the suit property.
97. In view of these observations, it is held that in the facts and the circumstances of the case the plaintiff failed to establish the existence of any bona fide dispute in respect of title of the suit land as the plaintiffs were well aware that the name of the owner in respect of the suit property in the column of Khasra Girdawari is Sarkar Daulatemadar but the plaintiffs never challenged the concerned Girdawari or jamabandi in question ever since the filing of the 1 st suit by the plaintiffs against defendant number 1 or defendant number 2. Rather no such prayer has been sought even in the present suit.
98. In para 6 of the plaint, the plaintiffs have specifically submitted that defendant no.1 had been threatening to dispossess the plaintiffs from the CS No.7446/16 Ishmali Devi Vs. DDA Page 41 of 66 land in question on several occasions in the past on the plea and false excuse that the land in question belongs to the state i.e. Sarkar Daulatmadar. The earliest litigation between the plaintiffs and the defendants it is admittedly suit no.229/1962 filed by the plaintiff against the defendant number 1 for permanent injunction restraining the DDA from dispossessing them from the land in dispute. The defendants have filed an affidavit that they neither admit nor deny the pleadings filed by the defendant no. 1. However it is pertinent to note that Hon'ble Division Bench vide order dated 11 April, 2013 passed in RFA (OS) 120/2012 directed that "Learned Single Judge shall first decide on the basis of the pleadings and the material on record as well the law on the subject as to whether the plaintiff, in the facts and circumstances of the case, has been able to make out that the suit raises the bona fides dispute with regard to title and also whether the suit was filed within the period of limitation prescribed in that regard; in the eventuality of these issues being decided in plaintiffs' favour alone, the matter would be proceeded with for a decision on the merits on the other issues by the Learned Single Judge." However since the matter was transferred from Hon'ble High Court to the district court i.e. the court of the undersigned, the same CS No.7446/16 Ishmali Devi Vs. DDA Page 42 of 66 directions invariably apply to the court of the undersigned and therefore the court can take into consideration not only the pleadings and documents filed by the plaintiffs but also those documents which have been filed by the defendant no. 1 to decide as per directions of the Hon'ble Division Bench.
99. In para 12 of the plaint, the plaintiffs have specifically submitted that the proceedings initiated for eviction before Estate Officer against the plaintiffs by the defendant no.1 on the premise that government is the owner of the land and the land has been placed at the disposal of DDA by the government is totally fallacious and without any basis. But still did not file any suit of declaration that the plaintiffs be declared owner of the suit property despite the cloud raised by defendant no.1 over the alleged ownership of the plaintiffs in respect of suit property.
100. It is further relevant to notice that all along ever since the time of filing of the suit, the proceedings before the Estate Officer were stated to be in relation to the suit property, however, on last date of hearing, i.e. 07.10.2017, when the final arguments on issue of limitation and the issue whether the plaintiffs in the facts and circumstances of the case, have been able to make out that the suit raises the bona fides dispute with CS No.7446/16 Ishmali Devi Vs. DDA Page 43 of 66 regard to title, the plaintiffs on being asked as to why the order dated 22.11.2011 of Learned District and Sessions Judge passed against the order of the Estate Officer will not operate as res judicata, the plaintiffs changed their stance which they were maintaining for last 17 years and stated that the land in question before the Estate Officer is not part of the suit property despite there being a specific prayer in the present suit for mandatory injunction against the Estate Officer's that the proceedings before him null and void and without jurisdiction. The plaintiffs have changed their stance in view of the order passed by the learned District and Sessions Judge by holding the possession of the plaintiffs in the suit land to be unauthorised and affirming the order 27.02.2009 of the Estate officer.
101. Further it is to be noticed that in the order dated 22.11.2011, Learned District and Sessions Judge sitting in appeal against the order dated 27.02.2009 of Estate officer has specifically observed that the respondents therein/the plaintiffs herein have admitted that DDA was the owner of the suit property and that the plaintiffs are the tenants of DDA in continued occupation for 9 years prior to filing of the said suit under the lease granted by DDA i.e 229 of 1952 and 230 of 1952. The said finding CS No.7446/16 Ishmali Devi Vs. DDA Page 44 of 66 of the Learned District and Sessions Judge as well as the order of eviction against the plaintiffs in respect of suit property passed by him has achieved finality wherein it has been reiterated that the present suit has been filed by the plaintiff in respect of the same property which is subject matter of the proceedings before the Estate Officer and then before Learned District and Sessions Judge in the appeal against the order of Estate Officer. The said findings have not been challenged by the plaintiffs in the present suit by amending the plaint or by filing a separate suit for the same. Learned District and Sessions Judge have also recorded that the eviction proceedings initiated in 1984 were withdrawn in view of the report of Halqa Patwari that the land mentioned in the previous notices whereby proceedings had been initiated and the section 4 of Public Premises Act was lying vacant and not under the occupation of notice these i.e. plaintiff herein who instead were in occupation of much smaller area and therefore fresh action was initiated through notices issued under section 4 of Public Premises Act in 2002.
102. The preceding as well as following paragraphs demonstrate as to how the plaintiffs in the initial litigations admitted to be in possession of the suit property in the capacity of tenants whose tenancy had expired by CS No.7446/16 Ishmali Devi Vs. DDA Page 45 of 66 efflux of the time/period of tenancy and how in the subsequent proceedings, the plaintiff changed their stance by claiming to be in possession of the suit property to be cultivatory possession for more than 30 years and then claiming ownership on the basis of being in adverse possession and now and in the present suit have claimed that their forefathers were granted the Malgujari rights and the numbardari rights of the land in question since times immemorial and had thus been enjoying the suit land as owner thereof.
103. The area of the suit property in respect of which the litigations referred in para 7 and 9 of the plaint were filed was only a small portion of the suit property but with each litigation, the plaintiffs not only kept on changing the description of the suit property but also the extent/expanse of the suit property.
104. Taking into consideration that the plaintiffs have filed an affidavit to the effect that they can neither admit nor deny the documents/notices/pleadings/proceedings filed by the defendant no. 1 in respect of the proceedings referred herein before, reference is made hereinafter to the documents of the plaintiff which unerringly show/demonstrate that the plaintiffs were in knowledge of the claim of CS No.7446/16 Ishmali Devi Vs. DDA Page 46 of 66 the defendant no. 1 to be owner of the suit property much prior to the present suit filed by the plaintiff for declaration i.e. the present suit. Plaintiff has placed on record:
Certified copy of judgment dated 12.03.1963, passed in suit no.229/1962 titled Sh. Ram Saran Vs. DDA. Ram Saran was husband of plaintiff no. 1 and his address is resident of Arakpur Bagh Mochi, Nazul Estate, Mujahadpur, New Delhi.
Certified copy of judgment dated 28.11.1973 passed by Sh. Balbir Singh, Judicial Magistrate, 1st Class, New Delhi in case titled State Vs. Shankar, FIR no. 501/70.
Certified copy of judgment dated 20.01.1979 passed by Sh. R.N. Jindal, Sub Judge, 1st Class, New Delhi in case titled Shankar Vs. DDA, suit no. 246/77.
Certified copy of judgment dated 11.11.1985 passed by Sh. Bhola Dutt, Sub Judge, Delhi in case titled as Ismaili Devi Vs. Union of India, Suit No.208/1979.
Certified copy of judgment dated 12.07.1984 passed by Sh. P. S. Sharma, Additional District Judge, Delhi in case titled DDA Vs. Shankar, R.C.A. No.173/1982.
Certified copy of judgment dated 21.01.1982 passed by Mr. Dilip K. Kapur & Mr. Yogeshwar Dayal, J J, High Court of Delhi in case titled Sh. Shankar Vs. DDA, Civil Writ No.2260/1981 Certified copy of judgment dated 18.01.1983 passed by Sh. R.P. Gupta, Additional District Judge, Delhi in case titled Ismaili Devi Vs. Union of India, R.C.A. No. 203/1982.
Certified copy of judgment dated 04.05.1984 passed by Sh. P.K. Bahri, Additional District Judge, Delhi in case titled Shanker Lal Vs. Estate CS No.7446/16 Ishmali Devi Vs. DDA Page 47 of 66 Officer, PPA. No. 165/1984.
True copy of WPC No. 2260/1981 titled Shanker and others versus DDA as well as application under section 151 CPC and daily orders passed in the said writ.
Proceedings and pleadings of the suit titled Partap Singh and others versus UOI and others.
105. The plaintiffs have themselves filed certified copy of judgment dated 28.11.1973 which finds mention in para 7 of the plaint. There is one thing which cannot be lost sight of that in second last para of the said judgment dated 28.11.1973, it is recorded that the witness from DDA had brought Khasra Girdawari and Jamabandi registered and proved before the said court and specifically stated in his crossexamination that Shankar is in unlawful possession of land as the suit land belongs to DDA. Thus plaintiffs were put to notice at least on 28.11.1973 that defendant no.1 is claiming ownership of the suit land on the basis of Khasra Girdawari and Jamabandi. However the plaintiff did not file any suit against the defendant no.1 claiming relief of declaration against defendant no.1 within the period of limitation commencing from 28.11.1963 when the new Limitation Act, 1963 had already come into force.
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106. Similarly the plaintiffs have filed certified copies of orders passed in Civil Suit No.2260/1981 filed by Shankar i.e. father of plaintiff no.3 & 4 against DDA as well as the orders passed in the appeal preferred by DDA. In the said appeal bearing RCA no.173/82, learned counsel for DDA made statement on 12.7.1984 that DDA will not evict him from suit property except by due process of law for which proceedings before Estate Officer are going on separately. Thus the plaintiffs were again put to notice that the proceedings before the Estate Officer in respect of suit property were going on in view of their leasehold rights in the suit property having come to an end. But even then, the plaintiffs did not file any suit for claiming that they are not tenants in the suit property and Khasra Girdawari and Jamabandi describing defendant no. 1 as owner of the suit property should be cancelled or declared null and void nor the plaintiff filed any suit for declaration in respect of suit property that they are the owners of the suit property.
107. It is pertinent to note that in the judgment dated 18.01.1983 passed in the matter titled Ismaili Devi vs. UOI and others, the certified copy of which has been filed by the plaintiffs, it is observed in para 3 that Plaintiff in the said suit (plaintiff no.1 in the present suit ) has submitted CS No.7446/16 Ishmali Devi Vs. DDA Page 49 of 66 that her husband had been in continuous, open and adverse possession of suit land i.e. 644/658 khatauni no.9 measuring 20 bigha and 18 biswas situated in Village Arakhpur Bagh Mochi in Union Territory of Delhi and that defendants are threatening to remove and demolish the structure of defendant i.e. plaintiff no.1 herein. Thus the area of the suit property under the possession of the plaintiff no.1 is stated to be 20 bigha and 18 biswas whereas in the earlier suit of injunction, plaintiff no. 1 had claimed to be in possession of 5 bighas 6 biswas and in her affidavit filed in the present suit to be in possession of 40 bighas and 20 biswas and thus plaintiff no. 1 changed the expanse of area under her possession interestingly from 5 bighas 6 biswas to 20 bigha and 18 biswas and then to 40 bighas and 20 biswas in the present suit. It is relevant to note that in her affidavit dated 25 May 2000 where she has given details of the area under possession of different plaintiffs, the suit land is described to be situated in Khasra no. 64/458, village Arakhpur Bagh Mochi, Pillangi, Delhi and not Khasra no. 64/458, revenue estate of village Arakhpur Bagh Mochi, Pillangi, Delhi or Khasra no. 64/458, Pillangi, Delhi.
108. In para 3 of the same judgment dated 18.01.1983, there is a specific submission by DDA that the said land was handed over to Safdarjung CS No.7446/16 Ishmali Devi Vs. DDA Page 50 of 66 Hospital for development by L&DO on 13.06.1979 and all the allegations of the plaintiff regarding her possession for over 30 years by herself and through her predecessor in interest was tatally denied. Thus, in view of this submission, it is clear that cause of action for filing suit arose on 18.01.1983 if not earlier, (i.e. on the date defendants filed written statement in the said suit) and also that here the plaintiff no.1 claimed ownership in view of open possession for last 30 years of the date of filing of the suit titled Ishmali Devi Vs. Union of India against order dated 05.10.1982.
109. Thus in the above proceedings, the stand of the plaintiffs in respect of the suit property was that they are owners of the suit property because of continuous open and adverse possession and not on the basis of their forefathers being the holders of numberdar rights or malgujari rights.
110. Plaintiff has also filed the certified copy of order dated 04.05.1984 titled as Shankar Lal Vs. Estate Officer passed by Sh. P.K. Bahri Ld. ADJ at the relevant time, in PPA no. 165 of 1984, which finds mention in para 9 of the plaint which has been passed against eviction order dated 20.03.1984 passed by Estate Officer in respect of land measuring 20 bigha, 5 biswas. Shankar Lal was father of plaintiff no.3 and plaintiff no.4. CS No.7446/16 Ishmali Devi Vs. DDA Page 51 of 66 However in her affidavit dated 22.5. 2000, plaintiff no.1 has submitted that the area in possession of plaintiff no. 3 and 4 is 38 bighas18 Biswas.
111. Plaintiffs have themselves filed copy of application under section 151 CPC filed by the plaintiffs in CW No.2260/1981 which finds mention in para 7(vii) and titled Shankar & Ors. Vs. DDA has described the suit property to the land falling in kila no.1 to 7 of land situated in Village Mujahad Pur and known as Arakhpur Bagh Mochi in khasra no.654/658 which is the exact description of the suit property in the present case.
112. In para 5 of the said application, it has been specifically pleaded that the plaintiffs are not unauthorized occupants and are in occupation in disputed land legally and have been paying lease money as per rules. What more could be required to establish that the plaintiffs were in possession of their respective portions in the suit property in the capacity of tenant when the said submission has been made by the plaintiffs themselves on 28.09.1981. Not only that, the plaintiffs have themselves stated in para 3 of the said application that suit land was given to plaintiffs for 99 years on lease at Rs.2.25 per bigha and also that the respondents threatened to evict the applicants and their forefathers in the year 1962 and as such the elders of the applicant/petitioner is i.e. Ram Saran and CS No.7446/16 Ishmali Devi Vs. DDA Page 52 of 66 Moti filed civil suit bearing no. 229/62 and 230/62 against the respondents for restraining them to evict the petitioners from the demised lands. The applicants are the plaintiffs in the present suit and the respondent is defendant no. 1 in the present suit. (Emphasis added)
113. In the said application filed in writ petition bearing no. 2260/1981, the petitioners i.e. plaintiffs herein have also referred to suit no. 267/70 filed by Shri Moti and have stated that in suit no. 267/70, 229/62 and 230/62, the respondents/defendant no.1 in the present suit, had given undertaking that the respondent would not evict the plaintiffs from the suit property without due process of law.
114. In para 9 of the said application, petitioners have specifically pleaded in the said application filed under the said petition that they had filed these suits against the respondents i.e. DDA, in view of respondent threatening to uproot them or their forefathers.
115. It is pertinent to note that these are same suits which find mention in para 7(i) & 7(ii) of the present suit.
116. In para 11 it had been pleaded that DDA had issued notices under PP Act to the plaintiffs and have forcibly started fencing the field occupied by the plaintiffs and it is pertinent to note that in the prayer clause, the CS No.7446/16 Ishmali Devi Vs. DDA Page 53 of 66 plaintiff had prayed for directing the plaintiffs to stay the proceedings of eviction till the disposal of the writ petition.
117. The plaintiffs have filed copy of Civil Writ Petition no.2260/1981 as well.
The writ was filed by Shankar Singh, Ram Saran and Sohamal, and their address as per memo of parties was mentioned as all residents of Arakhpur Bagh Mochi village, Mujahadpur, behind Safdarjung Hospital and had made a vague submission in para 1 of the writ that each of the plaintiffs has been in occupation of a piece of land in the village behind Safdarjung hospital known Mujahadpur, facing Kamal Cinema through their forefathers since over 100 years and have been cultivating the said land.
118. In para 3 of the said writ, the petitioners/plaintiffs in the present suit, had pleaded that they and their forefathers had been in exclusive possession of the land the village Mujahadpur New Delhi and have been in cultivation for over 60 years and that they had been in exclusive and undisturbed possession of the suit property of the petitioner and before them their forefathers and they had been cultivating the same. Thus the plaintiffs herein had claimed that they were in cultivatory possession of the suit property and also in para no. 4 that their possession and possession of CS No.7446/16 Ishmali Devi Vs. DDA Page 54 of 66 their forefathers has been overt and adverse to the world at large including the government and the DDA. It was also stated that they had become owner of the suit land by adverse possession and prescription. Thus, it is pertinent to note that even on 28.09.1981, the plaintiffs did not allege that they are the owners of the suit property because of their forefathers being granted malgujari rights and lambardari rights in the suit property and that therefore they cannot be evicted. It is further relevant to note that in the said writ filed in 1981, plaintiff had stated that they and their forefathers are in open possession of the suit property since last 60 years and in the present suit, the plaintiffs have submitted that they and their forefathers are in possession of the suit land for more than 150 years as on date of filing of the suit i.e 2000. It is not understandable as to how in period of 9 years, the alleged possession of 60 years as mentioned in para no. 3 of the writ or hundred years as mentioned in para no. 1 got converted to more than 150 years. There is reference to 3 suits for permanent injunction filed by the petitioners/plaintiffs herein against respondent no. 3/defendant no. 1 in June 1980.
119. In para 10 of the said writ, the petitioners/plaintiffs herein claimed to be in possession of the suit land for over 60 years and have made mention of CS No.7446/16 Ishmali Devi Vs. DDA Page 55 of 66 the 3 suits i.e.suit no. 267/70, 229/62 and 230/62 and how these 3 suits are withdrawn in view of statement of learner cause of respondent no. 3/defendant no. 1 that they would not be dispossessed without due course of law.
120. In para 14 of the said writ, the petitioners/plaintiff herein have stated that the preceding the time of filing of the writ, the petitioners had been served with notice under 7(4) and section 7(3) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1972 of 1971 in October and December 1980 and proceedings under the said notice were pending and fixed for hearing for 29.9.1981 and 12.10.1981.
121. In para 15 of the said writ, petitioners/plaintiffs herein submitted that despite the said facts, respondents/defendant no.1 and 2 herein through their agents came to the demised lands on 26.9.1981 and started cutting trees near the fields of the petitioners with a view to restrain the movement of the petitioner and further threatened to evict the petitioner and destroy the standing crops if the petitioners did not vacate in a day or two.
122. It is pertinent to note that the reliefs sought in the said writ were to issue a writ of certiorari or any other writ, order or direction restraining the CS No.7446/16 Ishmali Devi Vs. DDA Page 56 of 66 respondent and its officers, employees and agents restraining them from demolishing the structures belonging to the respondents or evicting them and destroying the standing crops in the fields and particularly from kila no. 1 to 18 and 5/14 and situated in village Mujahadpur of Arakhpur Bagh Mochi, New Delhi and situated near Safdarjang Hospital and opposite Kamal Cinema New Delhi or in any interfering with the possession of the petitioners.
123. The plaintiffs have themselves filed copy of Civil Writ Petition no.2260/1981 as well as copy of application under section 151 CPC filed by the plaintiffs in the said writ. The description of the suit property in the writ supports the finding of this court that the suit property falls in Village Mujahad Pur and known as Arakhpur Bagh Mochi as stated by the plaintiffs in the said writ in para 1. Further the submissions made in the said writ establish that all the litigations between the parties as well as the litigation before the Estate Officer as well as appeal before Learned District and Sessions Judge were filed in respect of suit property.
124. In the said writ, in the prayer clause, the suit property is described as kila no.1 to 18 and 5/14 and situated in village Mujahadpur of Arakhpur Bagh Mochi, New Delhi and situated near Safdarjang Hospital and opposite CS No.7446/16 Ishmali Devi Vs. DDA Page 57 of 66 Kamal Cinema New Delhi without referring to any khasra no. However Khasra no. is specifically written in para 3 of the application under section 151 CPC for grant of stay filed with the writ, the contents of which have already been referred to herein before.
125. All these observations clearly demonstrate as to why in the present suit the plaintiffs have given different description to the suit property in 34 different places in same plaint so as to deliberately create confusion to retain their illegal possession over the suit property under the pretext/protection of one or the other court order.
126. The plaintiffs have repeatedly taken a stand that there is a bona fide dispute in respect of the title to the suit property and have relied on the same submissions and the same case law on which they relied while advancing arguments on application under order XXXIX Rule 1 and 2 CPC and Hon'ble Justice Rajiv Sahai Endlaw vide order dated 24 August 2009 rejected their submissions as well as the reliance of the plaintiffs on the same case law and dismissed the said application. The plaintiffs preferred an appeal bearing FAO OS (358) of 2009 against the said order however Hon'ble Division Bench of the High Court vide order dated 26.10.2011 declined to set aside the impugned order. CS No.7446/16 Ishmali Devi Vs. DDA Page 58 of 66
127. Further, in view of all these litigations referred to herein before, it is clear that the suit property is the same which has been subject matter of previous litigations as is otherwise clear also from the submissions made in para no. 7 and para no. 9 of the plaint and in respect of the same, the plaintiffs have been indulging in various litigations by earlier alleging their status to be tenant in the suit property and later alleging that they are in cultivatory possession for 30 years continuously and openly and thus claiming title on basis of adverse possession and in the writ, claiming to be in cultivatory possession for more than 60/100 years. It is a settled law that once a tenant always a tenant and that the tenant cannot claim title on the best of adverse possession as well as the claim of being the owner and the claim of being owner by virtue of adverse possession are unsustainable. Thus it is established and therefore held that in the facts and circumstances of the case, the plaintiffs have been unable to raise a bona fide dispute with regard to title of the suit property.
128. Coming to the issue of limitation, in view of observations made above and in reference to all the material placed on record, I find issue of limitation to be a pure question of law and not a mixed question of law and fact. Plaintiffs have themselves admitted that each of the suit filed by the CS No.7446/16 Ishmali Devi Vs. DDA Page 59 of 66 plaintiffs separately or jointly against the defendants were withdrawn by them on the defendant giving an undertaking to the respective court that the defendant what not dispossess them from the suit land without due process of law. Thus in none of the suits, the plaintiffs took any objection that the suit property is owned by them and that they could not be dispossessed as they are owners of the suit property.
129. It is further important to note that despite being in knowledge of the stand of defendant no. 1 in the previous litigations filed by the plaintiffs against the defendant no. 1 and also that in all the previous litigations starting as early as in 1962, the stand of the defendant no.1 has always been that the suit property belongs to the DDA i.e. defendant no.1 but the plaintiffs filed so many litigations subsequent to that but in none of the litigations, defendant no. 1 sought the relief of declaration. The plaintiffs have relied on Article 120 of the schedule to Limitation Act of 1908 provided for period of limitation to be 6 years and the time from which the period begins to run as when the right to sue accrues and have therefore argued that they are entitled to file the suit claiming relief of declaration as in when the right to sue accrued to them again. There is no merit in the said submission in view of observations of Hon'ble Supreme Court in the CS No.7446/16 Ishmali Devi Vs. DDA Page 60 of 66 matter titled Khatri Hotels Private Limited and another versus Union of India and another, (2011) 9 SCC 126.
130. It is further to be noticed that the petitioner did not claim any relief of declaration that they are owners of the suit property in the said writ bearing no.2260/1981 or by filing any separate suit for the same within period of limitation. Rather the contents of the writ demonstrate at writ large that even on the date of filing of CWP no.2260 of 1981, the petitioners are only seeking protection of their structures and standing crops in the suit property.
131. Even if deeming that period of limitation did not arise against the plaintiffs by issuance of the notices of eviction issued by defendant no. 1 against them or that they could avail the period of limitation as given under Article 120 of the Limitation act, 1908, in 1963, new Limitation Act came into force and the period of limitation under Article 58 of the new Limitation Act 1963 began operative against the plaintiffs after the said Act came into force under which the period of limitation begins to run when the cause of action 1st accrues against the plaintiffs which in the present case is 18.1.1983 when Learned Additional District Judge Shri RP Gupta observed in para 3 of the judgement dated 18.01.1983 that respondent CS No.7446/16 Ishmali Devi Vs. DDA Page 61 of 66 no. 1 and 3 in the said appeal bearing RCA no. 203/82 submitted that the suit land was handed over to the Safdarjang Hospital for development by L&DO on 13.6.79. Thus the present suit filed in 2000 by plaintiffs claiming the title of the suit land on the basis of their forefathers being Nambardars and Malguzari rights in the suit property is clearly time barred as the cloud over the title of the plaintiffs over the suit property was raised much prior to year 2000 whether the period of limitation is computed from 1937 when the suit land stated to have vested in defendant number 1 under the Nazul Agreement of 1937 between the Secretary of State for India in Council on the one hand and the erstwhile Delhi Improvement Trust on the other hand and as Nazul Land or from 1964 and 1979 when land admeasuring 7.30 acres out of the said land was handed over to L&DO for extension of Safdarjung Hospital and another 3 acres was transferred to MCD for cremation ground as alleged by defendant number 1 the proceedings of which remain unchallenged even till date by the plaintiffs despite being in knowledge of the same as early as the 1962 and thereby defendant no. 1 denied the ownership claims of the plaintiffs with respect to the suit land. The present suit is time barred even when period is computed on the basis of submissions made by Union of India i.e. CS No.7446/16 Ishmali Devi Vs. DDA Page 62 of 66 defendant no. 2, in its written statement that the suit land had been acquired vide notification no. 775 dated 21 st December, 1911 and award no. 28 dated 27 November, 1912.
132. The plaintiffs have submitted in the present suit that the cause of action arose when the defendants threatened the title of the plaintiffs which means the cause of action firstly arose on 8 th June 1962 i.e. the date on which the eviction notices were issued against the plaintiffs by defendant no.1 and if submissions of the plaintiffs are taken to be correct that under the old Limitation Act, the cause of action arose against the plaintiffs for the 1st time under Limitation Act 1963 in 13.06.1979 as stated in the preceding para. Since the plaintiffs have filed affidavits that they neither admit nor deny the copies of proceedings filed by the defendant no. 1 in relation to the suit property, this court has relied on the document filed by the plaintiffs i.e. copy of the judgment passed in RCA no. 203/82 titled Smt. Ismaili vs. Union of India and others wherein defendant no.1 and defendant no.2 herein were parties/respondents.
133. And if the plaintiffs still persists to plead that cause of action did not arise on the said date, the cause of action definitely arose on each date when they felt threatened that their possession would be taken away by the CS No.7446/16 Ishmali Devi Vs. DDA Page 63 of 66 defendant no. 1 leading to the plaintiffs filing suits for injunction to restrain defendant no. 1 from doing so and definitely on 26.09.1981 in view of submissions made by the plaintiffs in CWP no. 2260 of 1981 that on 26.9.1981, DDA through its agents, claiming to the owner of the suit property, came to the suit property and started cutting trees near the fields of the petitioner with a view to restrain their movement and further threatened to evict the petitioners/plaintiff herein and destroy their standing crops if they did not vacate in a day or two. However the present suit has been filed in 2000 i.e. much after the expiry of period of limitation i.e. 3 years when the cause of action 1 st accrued (although it is not correct that cause of action 1st arose on 26.09.1981.
134. The plaintiffs have specifically pleaded in the plaint that the DDA had in the past also attempted to dispossess them from the suit land and for which purposes various legal proceedings as detailed in para 7 of the plaint had to be instituted and wherein statements were made to the effect that plaintiffs will not be dispossessed without due process of law. The present suit has been filed in 2000 and the period of limitation expired much earlier. Further the plaintiffs came to know about their title, if any to the suit property, to have fallen into cloud as early as in 1962 CS No.7446/16 Ishmali Devi Vs. DDA Page 64 of 66 under the old Limitation Act as well as in 1980, when the Limitation Act 1963 had already come into force but they filed simple suit for injunction without seeking any relief of declaration and thus the present suit is besides being barred by limitation is also barred by order II rule 2 CPC in view of law laid down in Anathula Sudhakar vs. Buchi Reddy(Dead) by LRs and others, AIR 2008 SC 2033. In view of these observations, it is held that the additional issue framed vide order dated 10.12.2014 which reads as: Whether the suit filed by the plaintiffs is within limitation? is purely a legal issue and is decided against the plaintiffs and in favour of defendants.
135. In view of this issue having been decided against the plaintiffs, the question as to whether the plaintiffs have been able to raise a bona fide dispute in respect of title loses significance. However in view of observations made herein before, it has already been recorded that the plaintiffs have been unable to raise a bona fide dispute in respect of title much less bona fide dispute in respect of title of the property. Accordingly in view of aforequoted additional issue having been decided against the plaintiffs and also in view of the finding that the plaintiffs have been unable to raise any bona fide dispute in respect of title, the matter is not CS No.7446/16 Ishmali Devi Vs. DDA Page 65 of 66 to be proceeded for a decision on the merits on the other issues framed in the present suit in view of order of Hon'ble Division Bench dated 11 April 2013.
136. In the matter of Udai chand vs. Shankar Lal and others 1978 SC 765, Hon'ble Supreme Court has observed in para no. 12 as:
"The tendency of the litigant to approach different courts to somehow or the other obtain interim orders without full disclosure of the earlier judicial proceedings and without full disclosure of all the material facts is on constant increase and it is necessary for due administration of justice to reiterate the legal proposition that such a person may be refused a hearing on merits."
137. It was also observed that:
"The courts of law are meant for imparting justice between the parties. One who comes to the court must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property grabbers, tax evaders, bank loan Dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."
138. The present case is a glaring example of how the plaintiffs made a CS No.7446/16 Ishmali Devi Vs. DDA Page 66 of 66 mockery of the law, courts and judicial system by changing their stand in respect of description of the suit property, extent of the suit property under their possession, nature of their possession over the suit property as well as the reliefs claimed as the case progressed and the adverse orders were passed or observations were made against the plaintiffs. Court is not an idle, docile and mindless spectator which is powerless to bring frivolous litigation to an early end and the Court is not a slave of proceeding. The plaintiffs have wasted precious court hours as well as have caused the defendants to bear the brunt of frivolous litigation and the plaintiffs must recompense the court as well as defendants. Accordingly, the suit is dismissed with cost of ₹30,000 to be paid by each plaintiff to defendants jointly to be shared between them equally as well as cost of ₹ 30,000 to be deposited with DLSA (South). File be consigned to record room.
(Announced in open
Court on 17.10.2017) (Dr. Neera Bharihoke)
ADJ01, South District
Saket Courts, New Delhi
CS No.7446/16
Ishmali Devi
Vs.
DDA