Delhi District Court
Sh. Rajinder Kumar Sharma vs Delhi Development Authority on 19 May, 2014
1
IN THE COURT OF SH RAJESH KUMAR SINGH
ADDITIONAL DISTRICT JUDGE-05, CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
Unique ID No. 02401C5155632004
Suit No. 231/09
Sh. Rajinder Kumar Sharma,
S/o Sh. M.C. Sharma
R/o Tent No. F-4 (New Plot No. 2469)
Hudson Line, Kingsway Camp,
Delhi- 110009
........Plaintiff
Versus
1. Delhi Development Authority
Through its Vice Chairman,
Vikas Sadan, INA, New Delhi
2. Union of India
Through the Secretary
Ministry of Urban Development & Housing
Nirman Bhawan, New Delhi
........Defendants
DATE OF INSTITUTION: 28.08.2003
JUDGMENT RESERVED ON: 01.05.2014
DATE OF JUDGMENT: 19.05.2014
JUDGMENT
1. Plaintiff has filed the suit for declaration and permanent injunction. He has prayed that a decree of declaration be passed in his favour and against the defendant declaring that the plaintiff has become Suit No. 231/09 Page 1 of 16 pages 2 the exclusive owner of tent no. F-4 (new plot no. 2469) consisting of four rooms, kitchen, bathroom, two verandah and passage constructed upon piece of land measuring 160 sq yards situated at Hudson Line, Kingsway Camp, Delhi on the basis of continuous and adverse possession. He has also prayed that the defendants be restrained from dispossessing him from the suit property.
2. In brief the claim of the plaintiff is that his maternal grand father Sh. Sardari Lal migrated to India from Pakistan and he was accommodated in tent no. F-4 Hudson Line, Kingsway Camp, Delhi on 30.01.1948 by the Govt of India, Ministry of Rehabilitation. The area of the tent was 250 sq yards. Sh. Sardari Lal and its family members remained in peaceful possession of the property since 30.01.1948. A portion measuring 90 sq yards was taken away during the process of development. On the remaining 160 sq yards, construction had been raised as per the site plan filed by the plaintiff. DDA threatened to dispossess Sh Sardari lal from the suit property and he filed a suit for injunction. During the pendency of Suit No. 231/09 Page 2 of 16 pages 3 the said suit, Sh Sardari Lal expired. On the basis of a Will executed in his favour, the plaintiff herein was substituted as LR of Late Sh Sardari Lal in the suit for injunction filed by him. The suit was finally dismissed by the Court of Ld Civil Judge, Delhi vide judgment and decree dt 22.10.2002. Plaintiff claims that the land belongs to Union of India (defendant no. 2 herein) and it has never been transferred to Defendant no. 1. He also claims to be in adverse possession of the suit property for more than 30 years.
3. The suit has been contested by defendant no. 1 (DDA). Defendant no. 2 has not contested the suit. In the written statement of defendant no. 1, it is stated that Sh. Sardari Lal was never alloted the tent and he was unauthorized occupant of Government property. DDA had initiated eviction proceedings against Kamleshwati wife of Sh. Sardari Lal under the PP Act and the plaintiff herein was substituted as LR of Late Sh. Sardari Lal in the earlier suit on the basis of unregistered Will. The earlier suit filed by Sh. Sardari Lal was dismissed and the present suit is barred.
Suit No. 231/09 Page 3 of 16 pages 4 Objection has also been taken regarding non-service of notice U/s 53 B DD Act and valuation of the suit. It is further stated that government of India has placed the redevelopment scheme of Kingsway Camp under the control and management of DDA.
4. In the replication, the plaintiff has reiterated the averments made in the plaint. Issues were framed vide order dated 22.08.2006 and the same are:-
Issue No. 1:- Whether the suit has been properly valued for the purposes of Court fee and jurisdiction ? OPP Issue No. 2:- Whether the suit is barred by Section 53 B of the Delhi Development Act 1957 ? OPD Issue No. 3: Whether the plaintiff has no locus standii to file the present suit in view of preliminary objection no. 1 and 2 of the WS ? OPD Issue No. 4: Whether the suit is not maintainable in view of preliminary objection no. 3 of the WS ? OPD Issue No. 5: Whether the plaintiff is entitled to the relief of Suit No. 231/09 Page 4 of 16 pages 5 declaration as prayed for ? OPP Issue No. 6: Whether the plaintiff is entitled for the relief of permanent injunction as prayed for ? OPP Issue No. 7: Relief.
5. Plaintiff has examined himself as PW-1. He has also examined PW-2 Sh. Ashok Ramchandani, Branch Incharge, Record Room (Civil), Tis Hazari Courts, Delhi who has produced the record of the earlier suit (CS No. 127/91 titled Sardari Lal vs DDA) and has testified that Ex.PW1/2, PW1/3, PW1/4 and PW1/9 are the certified copies of the original record of the suit. Defendant has examined its Assistant Director, O.S.B Sh. Sube Singh as DW-1 and its Assistant Director (Legal) Sh Kishori Lal as DW-2.
6. I have considered the arguments of ld counsel for the parties. Ld counsel for both parties have also filed written arguments and I have perused the same. Ld counsel for the plaintiff has relied upon AIR 1982 Delhi 520, AIR 1985 Calcutta 248, AIR 1997 Punjab & Suit No. 231/09 Page 5 of 16 pages 6 Haryana 136, 2002 RLR 121, 2001 RLR 219 and (2004) 1 SCC
769. Issues are decided as hereunder.
7. Issue No. 1:- Whether the suit has been properly valued for the purposes of Court fee and jurisdiction ? OPP Plaintiff has valued the suit at Rs. Five Lakhs for the relief of declaration and at Rs. 130/- for the relief of permanent injunction. He is in the possession of the suit property. Under Section 7 (iv) (c), the plaintiff has discretion to value the suit. It is the duty of the defendant to show that the valuation is arbitrary and that it is low. In the cross examination of the plaintiff, suggestion has been given that the market value of the land is between Rs. 10,000/- to 15,000/- per sq yard but the defendant has not led any evidence on the point of valuation. Therefore the valuation put by the plaintiff is to be accepted and the issue is decided in favour of the plaintiff.
8. Issue No. 2:- Whether the suit is barred by Section 53 B of the Delhi Development Act 1957 ? OPD Suit No. 231/09 Page 6 of 16 pages 7 Plaintiff claims that he sent the notice dated 18.01.2003 which is Ex.PW1/10 by registered post as well as by UPC. The receipts of RC are Ex.PW1/11 and Ex.PW1/12. The receipt of UPC is Ex.PW1/13. The notice Ex.PW1/10 was sent to both defendants and it was under Section 53 B DD Act r/w section 80 CPC. These documents were filed along with the plaint. In the written statement, it is simply stated that the notice under Section 53 B DD Act was not served upon defendant no. 1. Defendant no. 1 has not said anything about the receipts of RC and UPC. There is presumption of service in favour of plaintiff under Section 27 of the General Clauses Act. The denial of service of the notice is vague as the correctness of the postal receipts has not been disputed. Therefore it is held that plaintiff had sent the notice Ex.PW1/10 under Section 53 B to defendant no. 1 before filing of the suit. The suit is not barred for want of notice as claimed by defendant no. 1. The issue is decided in favour of the plaintiff.
9. Issue No. 3: Whether the plaintiff has no locus standii to file the present suit in view of preliminary objection no. 1 and 2 of the WS ? OPD Suit No. 231/09 Page 7 of 16 pages 8 Issue No. 4: Whether the suit is not maintainable in view of preliminary objection no. 3 of the WS ? OPD Issue No. 5: Whether the plaintiff is entitled to the relief of declaration as prayed for ? OPP Issue No. 6: Whether the plaintiff is entitled for the relief of permanent injunction as prayed for ? OPP Issues no. 3 to 6 are connected and therefore I shall decide them jointly. Ld counsel for plaintiff has rightly submitted that probate of Will is not required in Delhi. Registration of the Will is also not compulsory. The issue whether the plaintiff should have been allowed to be substituted as LR of Late Sh. Sardari Lal in CS No. 127/91 is not to be considered in this suit. That aspect had to be challenged by the defendant no. 1 (defendant in suit no. 127/91) in the proceedings of that suit. In the present suit, there is no issue framed regarding validity of the Will and therefore I need not go into the question whether the Will executed by Late Sh. Sardari Lal in favour of the plaintiff herein is a valid Will.
10. The earlier suit for permanent injunction filed by Late Sh. Sardari lal (CS No. 127/91) was dismissed by the Court of Ld Civil Judge Delhi vide judgment dated 22.10.2002. The plaintiff herein was Suit No. 231/09 Page 8 of 16 pages 9 substituted as LR of Late Sh Sardari lal in CS no. 127/91 and in the said suit also, he examined himself as PW-1. The suit was dismissed by the Ld Civil Judge holding that the plaintiff had failed to prove his right, title or interest over the land in dispute. The Ld Civil Judge also observed that it was settled law that injunction can not be granted against the true owner. Plaintiff was held to be encroacher upon government land. Ld counsel for the plaintiff has submitted that in the earlier suit, Union of India was not a party. The cause of action for filing the two suits is not the same. Therefore the present suit which is a suit for declaration of title and injunction is not barred by the dismissal of the earlier suit which was a simple suit for injunction against DDA only. Defendant no. 1 has not mentioned any particular provision under which the present suit is barred. Ld counsel for the plaintiff submitted that from the substance of the objection, it is under Order 2 Rule 2 CPC. Ld counsel for the plaintiff further submitted that Late Sh. Sardari Lal and after him the plaintiff has remained in continuous peaceful possession of the suit property. Defendant no. 1 claimed that Suit No. 231/09 Page 9 of 16 pages 10 eviction proceedings were initiated against the wife of late Sh Sardari Lal under the PP Act, however perusal of the documents Ex.DW2/2 and Ex.DW2/3 shows that these were mere requests for initiating the eviction proceedings and no proceeding was actually initiated. According to ld counsel for the plaintiff, the plaintiff has perfected his title by way of adverse possession and in this regard, reliance is specially placed on the judgment by the Hon'ble Supreme Court in the matter of Rame Gowda Vs. M. Varadappa Naidu (2004) 1 SCC 769. Ld counsel for the plaintiff also argued that there is no proof that the land has been placed at the disposal of defendant no. 1 and therefore defendant no. 1 has no right to disturb the possession of the plaintiff.
11. In the earlier suit (CS no. 127/91) also, defendant no. 1 who was the sole defendant in that suit, claimed that the work of redevelopment had been assigned to it by Govt of India. In that suit, plaintiff had examined PW-3 Sh. B.L. Nirwan, LDC, L&DO, Nirman Bhawan, Delhi. He stated that the summoned record was Suit No. 231/09 Page 10 of 16 pages 11 not available in his office as the site had already been transferred under the jurisdiction of DDA. The Ld Civil Judge also held in judgment dt 22.10.2002 that the site had been transferred to DDA. In the present suit, defendant no. 1 has produced Ex.DW2/1 which is G.O.I. M/O Works and Housing Letter No. J-20019/2/1981-LD dt 04.09.1982 regarding redevelopment of Kingsway Camp Colony. This letter was sent to the Vice Chairman, DDA. By this letter, DDA was informed about the administrative approval of govt of India to transfer the redevelopment work of Hudson and Outram Lines of Kingsway Camp with development of second phase of Dr Mukherjee Nagar from MCD to DDA. Ld counsel for the plaintiff submitted that there is no gazette notification and therefore DDA has no right to take any action for removal of encroachment. This argument has no force. DDA has proved in this suit as well as in the earlier suit that the work of redevelopment has been assigned to it. DDA is competent to take all actions on behalf of Govt of India for redevelopment of the area assigned to it and it will also include the removal of unauthorized occupants.
Suit No. 231/09 Page 11 of 16 pages 12
12. In the earlier suit, it was stated that on 09.03.1991, the officials of DDA came to the suit property and asked the plaintiff to vacate the suit land. They told that DDA wanted to carry out the redevelopment of the area. On refusal of the plaintiff, he was threatened with dire consequences. This was the cause of action for the plaintiff to file the suit for injunction (CS No. 127/91). In the present suit also, the cause of action is same. Impleading Union of India as a defendant in the suit does not change the cause of action for the two suits. In the earlier suit no prayer for declaration or title was made. Order 2 Rule 2 (1) and (3) bar the plaintiff from claiming the relief of declaration in the present suit. Whether the cause of action for filing the subsequent suit is different, depends upon the facts of each case. The judgments relied upon by ld counsel for the plaintiff are on different facts and therefore not applicable to the present case.
13. Even if it is presumed that the suit is not barred by Order 2 Rule 2 CPC, plaintiff can not get the declaration of title by adverse Suit No. 231/09 Page 12 of 16 pages 13 possession. Ld counsel for the plaintiff has submitted that article 112 of the Limitation Act applies to the present case. Sh. Sardari Lal remained in peaceful possession of the property since 1948 and therefore acquired title by adverse possession as he remained in possession of the property for more than 30 years. Ld counsel also argued that non-action on part of the defendants supports the plea of the plaintiff of adverse possession. According to ld counsel for the plaintiff, EX.DW2/2 and Ex.DW2/3 are not proceedings under the PP Act.
14. Article 112 of the Limitation Act provides the period of limitation for filing of suits by or on behalf of the Central or the State government. The period of limitation is 30 years from the date when the period of limitation would begin to run under the Act against a like suit by a private person. The period of limitation for filing of a suit for possession by a private person on the basis of title or any interest in the property, is provided under Article 65 and it is 12 years from the date when the possession of the defendant Suit No. 231/09 Page 13 of 16 pages 14 becomes adverse to the plaintiff. It is important to note that the period of limitation will begin to run from the date when the possession becomes adverse. Sh Sardari Lal never denied the title of state. In Suit no. 127/97, he claimed in paragraph 8 of the plaint that he acquired right over the suit land by way of easement. Easement can be attached to license. The case of Sh. Sardari Lal was that on his migration from Pakistan, he was accommodated in tent no. F-4. In substance his case was that he was granted license in respect of tent no. F-4. A Licensee remains a licensee. The ingredients of adverse possession were not fulfilled even in the plaint of CS No. 127/1991 which was instituted on 12.03.1991. In the present suit which was instituted on 28.08.2003 , the plaintiff claimed adverse possession. If at all the plea of adverse possession arises, it starts from 28.08.2003 and not before that. Ex.DW2/2 and DW2/3 do not show that proceedings under PP Act were actually initiated against the wife of Sh. Sardari Lal. However this does not help the plaintiff as he has himself raised the plea of adverse possession for the first time by filing the present suit. It has Suit No. 231/09 Page 14 of 16 pages 15 been held by the Hon'ble Supreme Court in the matter of "P. T. Munichikkanna Reddy v. Revamma" AIR 2007 SUPREME COURT 1753" that length of possession is not sufficient to raise the presumption of adverse possession. Plaintiff must show that he possessed the intention to dispossess the true owner. In the earlier suit the right of DDA to take action against the plaintiff was challenged but the title of UOI was not challenged. Therefore plaintiff has not acquired title of the suit property by adverse possession. The judgment relied upon by ld counsel for the plaintiff in the matter of Rame Gowda Vs. M. Varadappa Naidu (2004) 1 SCC 769 does not help the plaintiff. This judgment is on the aspect of grant of injunction to the plaintiff where both the parties have failed to establish their title over the suit property. In the present case title of Union of India is admitted.
15.In view of above discussion, it is held that plaintiff has failed to prove that he has acquired title over the suit property by adverse possession. No declaration can be granted to him as prayed. The Suit No. 231/09 Page 15 of 16 pages 16 prayer for declaration or title by adverse possession is also barred by Order 2 Rule 2 CPC. The relief of injunction can also not be granted as plaintiff has failed to establish that defendant no. 1 wants to dispossess him without following the process of law. The issues no. 3 to 6 are decided against the plaintiff.
16. Issue no. 7:- Relief In view of the decision on issue no. 3 to 6, no relief can be granted to the plaintiff and the suit is liable to be dismissed.
17. The suit is dismissed with cost. Decree sheet be prepared. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 19.05.2014 (RAJESH KUMAR SINGH) Additional District Judge -05/Central Tis Hazari Courts/ Delhi Suit No. 231/09 Page 16 of 16 pages