Delhi District Court
Shri Daya Nand Sharma vs Municipal Corporation Of Delhi on 25 April, 2018
IN THE COURT OF MS. ASHA MENON: DISTRICT &
SESSIONS JUDGE (SOUTH DISTRICT) SAKET: NEW DELHI
CISCS DJ2088222016
CNRDLST010039012016
Shri Daya Nand Sharma
S/o Late Sh. Rattan Lal
R/o Khasra No.431,
Near YBlock Mandir,
Hauz Khas, New Delhi.
At present 373, Shahpur Jat
New Delhi. ..... Plaintiff.
Versus
1. Municipal Corporation of Delhi
Through its Commissioner,
Town Hall, Chandni Chowk
Delhi.
2. Delhi Development Authority
Through its Chairman,
Vikas Sadan, Near I.N.A Market,
New Delhi.
3. Hauz Khas Welfare Association,
Through its Honourary Secretary,
Y46, Hauz Khas,
New Delhi. ......Defendants.
Date of Institution: 19.05.1999
Judgment reserved on: 23.03.2018
Judgment pronounced on: 25.04.2018
JUDGMENT
The present suit has been filed by Shri Daya Nand Sharma for declaration and possession against the Municipal Corporation of Delhi now South Delhi Municipal Corporation CIS CS DJ2088222016 Page 1 of 59 (SDMC) defendant no.1, the Delhi Development Authority (DDA) defendant no.2 and the Hauz Khas Welfare Association, defendant no.3 before the Hon'ble High Court of Delhi. Pursuant to Notification No. 27187/DHC/Orgl. dated 24.11.2015 as amended on 24.07.2016 as communicated vide letter dated 25.07.2016 received from the Hon'ble High Court of Delhi, the case has been transferred to this Court and is accordingly being disposed off.
PLEADINGS 2 The plaintiff has sought a declaration to the effect that he is the owner of property bearing Khasra No. 431, Hauz Khas, Village Kharera, Tehsil Mehrauli, New Delhi. He has also sought a decree for restitution of possession in his favour alongwith the costs. 3 It is stated in the plaint that the plaintiff has inherited the property bearing Khasra No. 431, Hauz Khas, Village Kharera, Tehsil Mehrauli, New Delhi measuring 16 biswas (about 800 sq.yards) bounded on the East and West parts by two blocks Y and Z, on the North DDA Park and South by the road as marked in the site plan as A, B, C & D. He has claimed that on the basis of his ownership and possession of the said property, the grand father of the plaintiff namely, Shri Richpal, son of Shri Jaggan had filed a Civil Suit for permanent injunction being Suit No.261/1979 against the then Municipal Corporation of Delhi. The injunction that was sought was for restraining the Municipal Corporation of Delhi from demolishing the boundary wall over the property which was raised by the present plaintiff's grand father. The statement supposed to have been made on behalf of Municipal Corporation of Delhi was one by Shri V.K. CIS CS DJ2088222016 Page 2 of 59 Srivastava, G.A that demolition action would be taken only after service of notice in accordance with the provisions of the Delhi Municipal Corporation Act, 1957(hereinafter referred as to the 'DMC Act') and so the suit was disposed off on 26.04.1979 on this statement. It is stated that thereafter another suit was filed by Shri Richpal through the present plaintiff as his attorney in the year 1985 being Civil Suit No. 709/1985. Since the Municipal Corporation of Delhi did not file a written statement, the suit was decreed under Order 8 Rule 10 CPC by the then Ld. Sub Judge Shri R.K. Gauba (as his Lordship then was). Vide his orders dated 13.02.1987, the Municipal Corporation of Delhi was restrained from demolishing the sheds of the plaintiff in the said property without the due process of law. In that suit a Local Commissioner who had been appointed had also submitted a report to the Court that the construction at site was an old one. 4 The further case of the plaintiff was that the property had been in possession of the ancestors of the plaintiff since times immemorial and the same had been duly recorded and reflected in the revenue records maintained by the Government. Thus, it was claimed that in the light of the records in the shape of Jamabandies and Khasra Girdawaries the ownership of the plaintiff's ancestor was lawful and the plaintiff had succeeded to the suit property under the law of succession.
5 It was further submitted that the property in question had never been acquired by the Municipal Corporation of Delhi or the Delhi Development Authority and neither had any compensation been ever paid by any of the authorities to the plaintiff or his ancestors. It is also stated that the property was never sold by the plaintiff or his CIS CS DJ2088222016 Page 3 of 59 ancestors to anybody and they had remained in uninterrupted possession to the exclusion of all others.
6 It was further submitted that the predecessor in interest of the plaintiff had other properties which they had title to, in Khasra Nos. 432, 426, 425, 424 and 422 and only these properties had been sold by the plaintiff's grand father to M/s DLF who developed the area now known as Hauz Khas. However, the land measuring 16 biswas (800 sq.yds.) comprising Khasra No. 431 was never sold and as such remained in the ownership and possession of the ancestors of the plaintiff and now the plaintiff inherited the rights. It is claimed that the DLF had filed an affidavit in the Hon'ble High Court stating that it had never purchased the suit property.
7 It was further stated in the plaint that the persons alleging themselves to be the residents of the 'Y' and 'Z' block of Hauz Khas filed proceedings u/s. 133 Cr.P.C against the plaintiff which was later dismissed for non prosecution. The residents also got an interim order passed in their favour in the said proceedings before the same was dismissed on 31.01.1995. The plaintiff, therefore, claimed to have continued in possession of the property as owner without any hindrance, interruption or interference or objection from any quarter whatsoever.
8 It was further stated that a Civil Writ Petition being CWP No. 1046/95 was filed in the month of March, 1995 against the plaintiff by the Residents of the Hauz Khas Welfare Association under the name and style of Hauz Khas Welfare Association, also against the Municipal Corporation of Delhi and the Delhi Development Authority in which certain directions were issued by the Hon'ble High Court. It CIS CS DJ2088222016 Page 4 of 59 is stated that since the title of the property in question was not decided by the Hon'ble High Court and the same had been left open to be decided by the Competent Court being the Civil Court, the present suit had been instituted. It was also submitted that since in the meantime, the plaintiff had been dispossessed by removal from the said property, the present suit was necessitated. In the light of the averments made therefore, it was prayed that the plaintiff was entitled to be declared as owner of the property in question as well as to the restitution of possession of the property.
9 The Delhi Development Authority, defendant no.2 was proceeded ex parte vide order dated 24.10.2000. Thereafter, the Ld. Counsel for the DDA informed that the DDA had nothing to do with the suit property as all the buildings or amenities had been transferred to the MCD.
10 Written statement was filed by the defendants No.1 and
3. Issues were framed on 24.09.2001 and thereafter, an additional issue was framed on 09.09.2003 regarding the valuation for the purposes of court fee and jurisdiction. This issue no.4 (A) was treated as a preliminary vide the same order.
11 Vide order dated 29.09.2005, the Ld. Civil Judge, Delhi came to the conclusion that the valuation was not proper and answered the Issue No.3 in favour of the defendant, who had raised the objection holding that the suit had been grossly under valued. The Ld. Civil Judge directed the plaintiff to value the suit properly failing which he was to show cause as to why the plaint be not rejected under Order 7 Rule 11(a) of the CPC. Accordingly, the valuation was corrected and the plaint was amended in this respect. The amended plaint has also CIS CS DJ2088222016 Page 5 of 59 been filed on the record.
12 The written statement was filed by the Municipal Corporation of Delhi as well as defendant no.3 Hauz Khas Welfare Association. No written statement was filed by the DDA. After the amended plaint was filed, no amended written statement was filed by the defendants no. 1 & 2. The opportunity to file the amended written statement was closed as far as defendants no.1 and 2 were concerned by the Hon'ble High Court vide order dated 21.11.2008. However, the written statement to the amended plaint was filed by the defendant no.3.
13 In the written statement filed by the Municipal Corporation of Delhi, defendant no.1 preliminary objections were raised that the suit was barred u/s. 447/448 of the DMC Act as no valid notice had been served upon the defendant before instituting the suit. It was also submitted that there was no cause of action that had ever arisen in favour of the plaintiff. It was submitted that the plaintiff had failed to show prima facie any legal right in his favour and had also concealed material facts from the Court that in fact he had no right, title or interest in the property and thus had no locus standi to file the present suit. The Municipal Corporation of Delhi claimed that the site in question was partially Government/MCD land belonging to the primary school which had been running for more than 40 years as per the lay out plan of Hauz Khas Enclave of an area 1.75 acre specifically earmarked and shown as site for primary school.
14 The Municipal Corporation of Delhi further submitted in the year 1970 it had received a request from the residents of the area asking MCD to provide a road and it was in keeping with this request CIS CS DJ2088222016 Page 6 of 59 that the road was constructed through the site of the school and the road had been in existence since 1970. It was also disputed that any such Khasra number as alleged by the plaintiff was in existence. It was submitted that the MCD had rightfully removed encroachment from the site as it fully owned and possessed the same. It was alleged that the plaintiff was in the habit of instituting false and frivolous cases. It vehemently disputed the claim of the plaintiff that he had owned the property in question or was in its possession. Thus, it was prayed that the suit be dismissed.
15 In the written statement filed on behalf of defendant no.3 Hauz Khas Welfare Association (reference being made to the amended written statement) the defendant no.3 raised several preliminary objections. It was submitted that the suit was liable to be rejected summarily and was also not maintainable, as the plaintiff had not raised the true and correct facts and had concealed material facts. It was also submitted that the Khasra no. 431 Hauz Khas, Village Kharera, Tehsil Mehrauli, New Delhi was declared an evacuee property and on 12.02.1958, the Competent Court vide File No.2133 had vested the same with the Custodian Delhi and the suit was liable to be dismissed, as the Custodian was the necessary party to the suit. 16 It was submitted that the plaintiff had no right, title or interest in the property nor was there any Khasra No. 431, Hauz Khas, Village Kharera, Tehsil Mehrauli, New Delhi near Y block Mandir in Hauz Khas or anywhere as claimed by the plaintiff. It was submitted that the plaintiff had filed the suit seeking relief of declaration in respect of Government land and was thus asserting an untenable claim. It was submitted that the plaintiff had illegally and unauthorizedly CIS CS DJ2088222016 Page 7 of 59 trespassed into the suit property and the present suit was an attempt to grab the land in question. The defendant no.3 further disputed that the plaintiff was the only son/heir of late Shri Rattan who was the son of Shri Richpal or that Shri Rattan was the only son/heir of Shri Richpal. The defendant no.3 also disputed that Shri Richpal was the only son/heir of late Shri Jaggan. It was submitted that no equitable relief could be granted by the Court as the plaintiff had not approached the Court with clean hands.
17 According to the defendant no.3 a road was constructed by the MCD between Y and Z blocks of Hauz Khas by cutting across the Primary School leaving the open portion to the North of the road between the school and the DDA Park as submitted by the MCD in Writ Petition 2309/92 which the present plaintiff had filed as an attorney in the name of his dead grand father Shri Richpal and was titled as 'Richpal vs MCD'. The defendant no.3 further alleged that the plaintiff had encroached on this land and the defendant no.3 had asked the MCD to remove him. Further the plaintiff tried to block the road and the MCD did not take any action. The defendant no.3 filed the Writ Petition No. 1046/95 before the Hon'ble High Court to get the plaintiff removed from the encroached land and prevent him from blocking the road. The Hon'ble High Court was pleased to remove the plaintiff as the MCD stated that the plaintiff was an encroacher and the land belonged to the MCD.
18 The defendant no.3 further stated that the plaintiff was falsely claiming to be the owner of Khasra No.431 Hauz Khas, Village Kharera, Tehsil Mehrauli, New Delhi on the basis of revenue records, whereas the revenue records did not show him as owner and his CIS CS DJ2088222016 Page 8 of 59 forefathers were mentioned as 'Marusi'/gair 'Marusi' which means a tenant/cultivator of the said Khasra number, though there was no Khasra no.431 in the entire area in question. The defendant no.3 further submitted that the Hauz Khas colony was developed by the DLF and handed over to MCD and the property in question belonged to and vested in the MCD. It was only on the request of the residents that in 1970 the Resolution No.1277 dated 26.03.1970 was passed by the Standing Committee of the MCD allowing the construction of the connecting road. Since this portion was left out, the plaintiff illegally and unauthorizedly occupied the land left opposite to the Park and to which he had no right, title or interest.
19 The defendant no.3 further submitted that vide sale deed dated 27.03.1955 executed by Shri Roora, son of Shri Jaggan with regard to 5/12 in land measuring 16 biswas bearing Khewat no.4, Khatoni no.22, Khasra no.431 Hauz Khas, Village Kharera, Tehsil Mehrauli, New Delhi was transferred in favour of DLF and this Shri Roora was the brother of Shri Richpal, the grand father of the plaintiff. Therefore, the claim of the plaintiff that he was the owner in possession of the entire Khasra No.431 was absolutely false. It has further stated that the location of the Khasra no.431 was not any way near the suit property over which the plaintiff had encroached. 20 The defendant no.3 further alleged that the plaintiff had been filing false cases on behalf of Shri Richpal to perpetuate his illegal possession of the suit property. It was submitted on 29.03.1979 suit bearing no. 261/1979 titled 'Richpal vs MCD' was filed in the Court of the then Ld. Sub Judge wherein Shri Richpal was claimed to be the owner of the plot and claimed to have constructed boundary CIS CS DJ2088222016 Page 9 of 59 wall of three feet 2025 years ago around the plot. He had alleged in that suit that the staff of the MCD had threatened to demolish this wall and had sought a decree of injunction restraining the MCD from demolishing the wall. That suit was withdrawn on 26.04.1979 in view of the statement made on behalf of the MCD that the demolition would be taken in the suit property after service of notice in accordance with the provisions of DMC Act. It was stated on 05.07.1985 suit no. 709/85 titled 'Shri Richpal Vs MCD' was filed through special attorney Shri Daya Nand Sharma, the present plaintiff in the Court of Shri R.K. Gauba (as his Lordship then was) wherein the plaintiff had asserted his right as Maursi and stated that land bearing Khasra No.431 was under
the plaintiff's cultivation. It is further stated that after sale of certain agricultural land the plaintiff had constructed two pacca tin sheds one measuring 9/9 in October, 1985 to store his agricultural tools and implements and another set to tether bulls. In that suit he had prayed for permanent injunction restraining MCD from demolishing these pacca sheds.
21 The defendant no.3 in the written statement pointed out to various discrepancies in the site plans filed in both the suit. It was also submitted that Shri Richpal had died on 31.08.1986. The factum of the death of Shri Richpal was concealed from the Ld. Trial Court and the order dated 13.02.1987 passed against the MCD was in collusion with the MCD. It was submitted that as Shri Richpal was dead on that date the decree was clearly obtained by fraudulent means. The defendant no.3 further alleged that the plaintiff again fraudulently filed a WP 2093/92 titled 'Shri Richpal vs MCD', in the Delhi High Court claiming to be the attorney of Shri Richpal a dead person.
CIS CS DJ2088222016 Page 10 of 59Thereafter, the plaintiff, who never himself claimed possession or title before any of the Courts even upto March, 1992 or thereafter, as such the present suit was barred under Order 2 Rule 2 CPC. It was submitted that in that writ petition the MCD clearly claimed on the basis of its records that the land in question belonged to it. The plaintiff made a false statement on 24.11.1993 that the plaintiff had since expired and the counsel instructed to withdraw the petition. Accordingly, the writ petition was dismissed as withdrawn on 24.11.1993. Thus, the defendant no.3 submitted that the plaintiff had no right whatsoever in respect of the property in question and he was a rank trespasser, who was never in possession of the property in question and was now seeking to perpetuate an encroachment on public land.
22 It is further submitted that in WP 1046/95 the plaintiff claimed that his grand father Shri Richpal was in possession of Khasra No.431 since 1887 and that since the death certificate of Shri Richpal showed he was 95 at the time of his death, his year of birth would be 1891 and therefore, the revenue records were palpably false when it showed possession of Shri Richpal in 1887. The contentions of the plaintiff have been disputed by the defendant no.3 on merits. It is submitted that Hon'ble High Court had rightly considered the case and directed the removal of the encroachment committed by the plaintiff and that he had been rightly removed from the property which pertained to the MCD. Thus, the defendant no.3 prayed that the suit be dismissed.
23 Replications were filed in respect of these written statements reiterating the claim in the plaint and disputing the CIS CS DJ2088222016 Page 11 of 59 averments made by the defendants. The plaintiff in the replication in respect to the written statement of the defendant no.3 denied that the suit was bad for nonjoinder of necessary parties and it was submitted that the property remained in possession of the predecessor in interest of the plaintiff who had never been dispossessed or thrown out of the physical possession by anybody or by the Custodian General Delhi. 24 Further, it was claimed that any order of vesting had never been admitted by the plaintiff and was therefore, illegal, null and void. It was further submitted that the predecessor in interest of the plaintiff had been occupancy tenant ('Marusi') u/s. 6 of the Punjab Tenancy Act, 1887 and as per the entire revenue record and letter dated 15.07.1979 written by the Managing Officer (Rent) Government of India, Ministry of Supplies and Rehabilitation Settlement Wing. Hence, it was submitted that the Custodian Delhi was not the party to the suit. The plaintiff reiterated that Khasra no. 431 was located near Y block Mandir in Hauz Khas and was very much in existence between Y block and Z block Hauz Khas. He denied that he had played any fraud or had litigated in the name of a dead person. 25 It was further claimed that Shri Rattan was the only son of late Shri Richpal who was also the only son of late Shri Jaggan and therefore, since 1989 the entire property was exclusively in the name of the plaintiff. It was also submitted that there was a Will of late Shri Richpal which has been probated, which related to the entire property. 26 It was claimed that the revenue records were correct and proper which established and proved the rights of the plaintiff in the property in question. The plaintiff reiterated that Khasra No.431 was neither purchased by the DLF nor taken possession of and the DLF CIS CS DJ2088222016 Page 12 of 59 had filed such an affidavit that it had not purchased any property from Shri Richpal. However, he admitted that Shri Richpal has sold his un divided share to DLF though it was claimed that the property in question had never been taken possession by the DLF.
ISSUES 27 The following Issues were framed on 24.09.2001:
(1) Whether the land in question belongs to the MCD & MCD is the owner thereof? OPD (2) Whether the effect of the withdrawal of the Writ Petition No. 2309/92 on the present suit and whether the plaintiff is estopped from seeking the present reliefs? OPD3 (3) Whether the plaintiff is entitled to the declaration as prayed for ?OPP (4) Whether the plaintiff is entitled to the restitution of possession as claimed?OPP (5) Relief.
Thereafter, Issue No.4A was framed vide order dated 24.01.2004 as follows:
4(A)Whether suit has not been properly valued for the purpose of court fees and jurisdiction? OPD 3 28 The said preliminary issues was already answered on the enhancement of the valuation of the suit property. The file was placed before the Hon'ble High Court on 03.03.2011 and the following Issues were framed by the Hon'ble High Court:
1. Whether the suit against MCD is barred under CIS CS DJ2088222016 Page 13 of 59 Section 477 and 478 under DMC Act? OPP
2. Whether the suit against defendant No.2DDA is barred under Section 53B of Delhi Development Act? OPD
3. Whether the plaintiff is the owner of the suit property? OPP
4.Whether the plaintiff is entitled to the declaration and possession sought by him?OPP
5.Relief.
29 Issues No.1 & 2 were treated as preliminary issues.
However, vide order dated 24.08.2011, it was directed that these issues were to be decided on evidence and were not treated as preliminary issues.
30 Now, the issues that will be answered will be as framed on 03.03.2011 by the Hon'ble High Court.
31 Before proceeding further it may also be mentioned that an application for impleadment had been filed under Order 1 Rule 10 CPC by Smt. Vimla Devi on the ground that she was a cosharer/co owner of the property. The same was declined vide order dated 07.12.2012 observing that the applicant was raising the title dispute inter se the plaintiff and the applicant which was beyond the scope of the present suit.
32 After partial examination of the plaintiff as PW1, the case was transferred to the District Courts on enhancement of the pecuniary jurisdiction.
PLAINTIFF'S EVIDENCE 33 PW1 Shri Daya Nand Sharma, the plaintiff, has brought CIS CS DJ2088222016 Page 14 of 59 on record his affidavit Ex.PW1/A and relied on Ex.PW1/1 site plan of the suit property, Ex.PW1/2 sale deed dated 30.09.1941, Ex.PW1/3 certified copy of Khasra Girdwari in respect of the suit property from 1969 to 2002. He also relied on Ex.PW1/4 being the translated copy dated 04.10.1955. Ex.PW1/5 to Ex.PW1/7 are the certified copies of the statement of Shri. S.K. Shrivastava and Shri S.K. Goal, advocate of Shri Richpal and order dated 26.04.1979. Ex.PW1/8 is the certified copy of the order dated 13.02.1987 along with its true typed copies. Ex.PW1/9 and Ex.PW1/10 are the certified copies of the statements dated 25.01.1989 of Shri Jawahar Patwari and Sri Bhagwat Swaroop along with typed copies. Ex. PW1/11 is the certified copy of order dated 16.10.1990 passed by the then Ld. ASJ, New Delhi along with its true copy. He relied on Ex.PW1/12 being the certified copy of the order dated 19.01.1995, Ex.PW1/13 being the certified copy of the order dated 01.08.1992, Ex.PW1/14 to Ex.PW1/16 being the certified copies of the orders in WP (C)No. 1046/95 dated 14.05.1997, 27.10.1997 and 03.02.1997. Ex.PW1/17 to Ex.PW1/23 are the copies of the complaints dated 19.10.88, 07.08.1990, 19.06.1991, 05.02.1995, 01.07.2010, 27.06.1996 and 01.07.2010 along with true English translation. Ex.PW1/24 and Ex.PW1/25 are letter dated 15.02.1979 and reply dated 27.09.1979. Ex.PW1/26 to Ex.PW1/30 are copies of the legal notice dated 13.11.1998, postal receipts and AD Card. Ex.PW1/31 is the amended plaint dated 25.01.2006. 34 In the crossexamination by the Ld. Counsel for the defendant no.3, the plaintiff as witness stated that he had been residing for the last five years at Gali No.9, House No.288, Chattarpur Pahari, CIS CS DJ2088222016 Page 15 of 59 New Delhi and before which he was residing at 373, Shahpur Jat. He claimed to have inherited the suit property from his grand father on the basis of a sale deed which he had placed on the record when asked as to on what document has he claimed inheritance of the suit property from his grand father. In his crossexamination he admitted that though the name of his grand father was mentioned as cultivator in the Jamabandi and Khasra Girdwari Mark P1 to Mark P14 and Ex.PW1/DX31 in respect of Khasra No.431 but he claimed that 'Marusi' meant that he was the owner as per the Punjab Land Revenue Act.
35 Further crossexamination of this witness was conducted by Dr. Suman Kaushik on behalf of defendant no.3. PW1/Plaintiff denied the suggestion that he was not the owner of the Khasra no. 431, as the name of the PW1 had been written in the column of 'Marusi' which was added in 1982. He denied the suggestion that Kayeed Mohd., Ali Anwar and other names were recorded in the column of owner. The witness claimed that Kayeed Mohd. had executed a sale deed in favour of his grand father Shri Richpal, son of Shri Jaggan. The said sale deed was brought on the record as Ex.PW1/DX1. He denied the suggestion that this document was not a sale deed. 36 In further crossexamination, the witness being the plaintiff stated that he had filed an application as required under the Punjab Land Act to the Court of Shri Cheema, SDM for conversion of 'Marusi' into owner and it was processed and the land was transferred in his name in the revenue records since 1989. The witness was further shown some documents from the Custodian of evacuee property and was asked that in 1948 the Khasra No.431 had become CIS CS DJ2088222016 Page 16 of 59 evacuee property and both the ''Marusi'' namely Shri Roora and Shri Richpal were given the right to buy ownership rights which neither of them exercised and that the property was sold as evacuee property. To this the plaintiff's reply was that in 1959 his grand father Shri Richpal had stated that his share in Khasra No.431 be sold by auction and the amount be paid to him but the Custodian could not auction the property and no amount was paid to the grand father and therefore, the ownership continued to vest in him, the plaintiff. 37 In further crossexamination, the witness plaintiff further replied that he had received the Khasra Girdwari from the office of the Tehsildar showing him as owner and the 'Marusi' of Khasra No. 431, Village Kharera, Hauz Khas Mark P2 and the sale deed Ex.PW1/2. However, when asked to show the point in the sale deed which showed that the Khasra No.431 was sold to the plaintiff's grand father, the witness replied that at Page No.101 of the document Mark PW1/DX1 he was shown in the laagan receipt of the 'Marusi' as permanent cultivator. He however, admitted that no order of Shri Cheema was there on the record directing the transfer of the property in the name of the plaintiff.
38 The witness further admitted that on the documents Mark A and B (subsequently marked as Ex.D3W5/A (Colly)) it was recorded that his grand father was not interested in buying the property and has relinquished his 'Marusi' share in the property and had also agreed that the property could be auctioned. According to the witness the 'Marusi' share could not be considered by the Custodian and further his grand father agreed that the property can be auctioned but the money be paid to him. He denied the suggestion that therefore, his CIS CS DJ2088222016 Page 17 of 59 grand father had not purchased the Khasra in question in the year 1942. The witness claimed that the grand father had purchased the property on 30.09.1941 but he had not filed any litigation in respect of Khasra No.431, however his grand father had filed cases against the Corporation. The witness was questioned in regard to the previous litigations and the site plans filed therein i.e. PW1/A, Ex.D3, Ex.PW1/DX3, Ex.PW1/DX9.
39 He admitted that he had filed the Writ Petition bearing no. 2309 of 1992 in the name of Shri Richpal against the MCD when his grand father was already dead. He claimed that it was by mistake that instead of Dayanand the name of Shri Richpal was mentioned and that therefore, he had withdrawn the petition. When the witness was shown the site plan issued by the Custodian and pointed out that Khasra No.431 is shown separated by several other khasras from the boundary of village Masjid Moth, the witness/plaintiff claimed that there was a Jamabandi every three years for the last three hundred years and there have been several changes. He also claimed that his land was not located in village Masjid Moth but in village Kharera. The witness also claimed that his grand father had died before the judgment Ex.PW1/DX5 was delivered and claimed that his grand father left a registered Will in his favour. He also claimed that since no one was following up that case he had no occasion to implead the legal heirs. With regard to the existence of the Well, the plaintiff claimed that there was no Well in his property and he denied the suggestion that he had moved an application in Suit No. 709/85 submitting that he had converted a Well into a hand pump. 40 He further admitted that Shri Roora had sold his share in CIS CS DJ2088222016 Page 18 of 59 Khasra No. 431 to DLF but claimed that it was not a part of the 16 biswas falling in Khasra No. 431 belonging to the plaintiff. While admitting that Shri Roora had five parts in Khasra No. 431, he denied the suggestion that Shri Roora had transferred the said five parts to DLF. He admitted that Shri Richpal had seven 'Bhag' in the Khasra No.431 and the witness claimed that was the share of the entire property the two brothers owned. The sale deed executed by Shri Roora has been brought on record as Ex.PW1/DX7. According to the witness his grand father had given a response to the notice of the evacuee department and denied in 1959 his grand father had informed the evacuee property that he had has no objection to his share being sold. He denied that he or his grand father have been illegally occupying the remaining land after the road connecting Block Y & Z of Hauz Khas was carved out pursuant to a Committee Resolution of 1970, from land belonging to the primary school. He also stated that there was no Well in Khasra No.431 and denied the suggestion that in the Aksh Shizra the Well was shown located in the Southern side and not towards the North.
41 In the crossexamination by Ms. Promila Kapoor, Ld. Counsel for MCD/Defendant No.1, the plaintiff as PW1 has stated that the Khasra Girdwari and Jamabandi were being maintained upto 25.05.1997 in his name in respect of Khasra No.431. He stated that he had got the mutation done in 1989. He stated that he had submitted an application without supporting documents for the mutation. He stated that his name had been struck off for one year after the mutation in his favour in the year 1989 on the objection of the defendant and that since no hearing had been held he had requested the Patwari to rectify CIS CS DJ2088222016 Page 19 of 59 it. The plaintiff as PW1 denied the suggestion that Ex.PW1/2 related to revenue assessment with regard to Khasra No.431. He admitted as correct that he had not filed any copy of Jamabandi on the record. He also stated that he had not applied for demarcation of Khasra No.431 nor he had applied for the copy of the Filed Book.
42 He admitted that he had not disclosed the names and details of all the successors in interest of Shri Jaggan and Shri Richpal and claimed that everything is as per the revenue records. He further claimed that the road connecting Y & Z blocks Hauz Khas was laid after demolition of his property in 1997. He denied that the road was constructed in 1970. He claimed that his Writ Petition No.2309/92 had been filed when the road was under construction. He denied that the civil suit filed by his grand father in 1979 and 1985 related to some other property and not the suit property. He admitted as correct that the MCD had removed him from the land pursuant to the directions of the Hon'ble High Court passed in Writ Petition No. 1046/95 yet he claimed that the address in the order passed in 1998 did not relate to him as that land related to a DDA Park whereas his land was located between Y & Z blocks. The witness marked on the site plan Ex.PW1/DX9 the area between X & Y block to depict the land in respect of which Hon'ble High Court passed the order with a single line. He marked the road marked between Y and Z block which he claimed was his land by two red lines.
43 He admitted that he has not challenged the layout plan as the primary school was not on his land and claimed that the MCD School had been running earlier adjacent to the land belonging to him. He denied the suggestion that the road was carved out of the land CIS CS DJ2088222016 Page 20 of 59 belonging to the MCD primary school or that he had encroached upon the remaining land so taken from the MCD primary school. He claimed that he came to know of the layout plan only on that day but he admitted that he had summoned Shri Bhagwat Swaroop, Town Planner in his previous suit and in his statement Ex.PW1/DX10 has mentioned about a layout plan. He also denied that he had come to know the layout plan in the year 1989. He denied the other suggestions of the Ld. Counsel that the property was actually MCD property and suit property did not fall in Khasra No.431. He stated that he did not know whether the MCD has passed the Resolution in 1970 for the construction of the road to connect the two blocks.
DEFENDANT'S NO.1 EVIDENCE 44 The Municipal Corporation of Delhi, the defendant No.1 examined D1W1 Ms. Manju Khatri, Assistant Directorate (Education) South Zone, SDMC, New Delhi. She tendered her affidavit in evidence Ex.D1W1/1 and relied upon six photographs Ex.D1W1/A (Colly). She also relied upon the lay out plan of Hauz Khas Enclave Ex.D3W9/A, resolution no. 1227 Ex.D3W11/2 and the documents of ownership of MCD qua suit land Ex.D3W10/A (Colly). She also relied upon the records of CWP No. 1046/1995 Ex.D3W1/A. 45 Ms. Manju Khatri in her affidavit Ex.D1W1/1 deposed that the suit property belonged to the SDMC Primary School admeasuring 1.75 acres of land. The school had been running on the suit property for more than 55 years on Government/MCD land. She stated that this land had been vested with the MCD at the time when the Hauz Khas Enclave developed and in the layout plan of Hauz Khas CIS CS DJ2088222016 Page 21 of 59 Enclave an area of 1.75 acres had been earmarked and has been shown as site for primary school. She further stated in 1970, a request was received from the residents of the area for a link road through this site for connecting Y and Z blocks and accordingly, Resolution No. 1227 dated 26.03.1970 was passed by the Standing Committee as "Item No.124, Provision of 10 feet wide link between blocks Y & Z, Hauz Khas, New Delhi". This witness further stated in the affidavit that thereafter a connecting road/link road was laid by the MCD passing through the primary school leaving an open plot to the left hand side of the link road between the school and the DDA Park. She stated that the plaintiff encroached on that piece of land which was left towards left side of the link road which was constructed by the MCD. 46 She deposed that the Writ Petition bearing No. CWP 1046/95 was filed by the defendant no.3 for removal of the encroachment done by the plaintiff wherein Hon'ble High Court had directed the removal of the plaintiff from the property in question and accordingly, the plaintiff was removed from the suit property and thereafter, the area was converted into children park by MCD and since then was being used as such and is in possession of the MCD. She further stated that the plaintiff has no right, title or interest in the suit property. She further stated that M/s DLF Universal Limited and its predecessor had sponsored and developed 16 residential colonies in Delhi, the layout plans of which were approved by the erstwhile Delhi Improvement Trust/erstwhile Municipal Committee/Delhi Development Provisional Authority except those of GK2 and Dilshad ExtensionI which were approved by the Standing Committee of MCD. Some disputes arose between M/s DLF Universal Limited and CIS CS DJ2088222016 Page 22 of 59 MCD with regard to public buildings/schools site. Later on the disputes were settled by the settlements duly registered on 24.07.1989 between the MCD and M/s DLF Universal Limited where it was decided that 75 sites earmarked as public sites in the sanctioned layout plans of 16 colonies shall be handed over to MCD for public buildings on 'as is where is basis' free of cost and in respect of which M/s DLF shall have no right, title or claim and further the land/sites would vest in MCD as owner in respect of these 75 sites. The suit property has been shown as Site No.1 in Hauz Khas Enclave in the list of properties forming part of settlement deed. The witness further stated that the Site No.1 was handed over to the MCD on 25.09.1989 by DLF for public building /school site. This was also entered into the register of immovable property maintained by the MCD.
47 In the crossexamination by Shri Jeewan Chandra, Ld. Counsel for the plaintiff she stated that she had no personal knowledge about the case. She did not bring the request letter which formed the basis of the resolution Ex.D3W11/2. She stated that the engineering department would be able to tell when the road was constructed subsequent to the resolution Ex.D3W11/2 and neither affirmed nor denied the suggestion that this road was constructed after 1989. She was not able to testify with regard to the previous litigation between MCD and the plaintiff. However, she denied that the plaintiff was the owner of the suit property.
48 During crossexamination by Dr. Suman Kaushik for defendant no.3, the witness testified that the MCD school was running since 1959. She brought the admission register of the school to show its existence since 1959 and the copy of the first page of the register CIS CS DJ2088222016 Page 23 of 59 was brought on record as Ex.D1W1/D3A. She stated that the school was earlier known as MCD Primary School, Hauz Khas Enclave and was now known as SDMC Primary School, Hauz Khas Enclave. 49 The defendant no.3 has examined D3W1 Sh. Umesh Verma, JJA, RKD, Appellate Branch, Hon'ble High Court. He brought on record the CD of Writ Petition (C)2309/1992 and Writ Petition(C)1046/1995 as Ex.D3W1A. This witness was not cross examined.
50 Shri Ashok Kumar, Kanoongo, Record Keeper, Record Room, District South, M.B. Road Saket, New Delhi examined as D3W2 has brought the Khasra Girdwari of the year 1963 till 2002 in respect of Khasra No.431, Village Kharera, Tehsil Mehrauli and placed the certified copies as Ex.D3W2/A (12 pages). He further stated that the Khasra Girdwari is prepared on the basis of Khatoni/Jamabandi and the Jamabandi was with the Patwari. This witness was not crossexamined.
51 Shri Rajender Singh, Record Attendant, Department of Delhi Archives examined as D3W3 has brought the summoned record as Book No.1, Vol. No.319, Page 97100 dated 27.05.1955 and placed on record the photocopy Ex.D3W3/A (4 pages). In response to a Court query, the witness stated that he could read what was written on these pages as he did not know 'Urdu'. This witness was not cross examined.
52 Shri Anil Kumar, Assistant Section Officer, Ministry of Home Affairs examined as D3W4 deposed that all the records pertaining to Evacuee Properties have been transferred to the Assistant Settlement Commissioner, Evacuee Property Cell, Land & Building CIS CS DJ2088222016 Page 24 of 59 Department, Vikas Bhawan, New Delhi, Govt. of NCT of Delhi vide orders of transfer Ex.D3W4/A. He stated that the records were transferred in the year 1989. This witness was not crossexamined. 53 Shri Arvind Kumar, Assistant Section Officer, E.P Cell (L&B) department examined as D3W5 has brought the record in respect of case No.2133, Khasra No.431, Khevat No. 4/22 of village Kharera, Tehsil Mehrauli. The date of decision is recorded as 12.02.1958. He has placed the copy of the complete record of evacuee property as transferred to them by Ministry of Rehabilitation comprising of 18 pages as Ex.D3W5/A. 54 In crossexamination by the ld. Counsel for the plaintiff he stated that he had no knowledge about the records of the Custodian. 55 Shri Subhash Chaudhary Senior Manager, DLF Limited examined as D3W6 has brought on record the document/registry no. 1466 dated 10.10.1955, copy of which was placed on record as Ex.D3W6/A (4 pages). He was not able to testify to the contents of the documents as he did not know 'Urdu' language and could not say whether the signatures on the documents of the representative of the DLF. However, he has stated that this document has been traced by him from the old records kept in the record room of DLF. 56 In crossexamination by Shri Jeewan Chandra, ld. Counsel for the plaintiff, the witness stated that he did not know the nature of the document that he had produced since he could not read the 'Urdu' language.
57 Shri Jitender Kumar JJA, Record Room (Civil), Tis Hazari Courts, examined as D3W7 stated that the records of Suit No.261/1979, titled 'Shri Richpal Vs MCD' bearing Goshwara No. 184 CIS CS DJ2088222016 Page 25 of 59 City, date of decision 26.04.1979 and Suit No.709/1985, titled 'Shri Richpal Vs MCD' bearing Goshwara No.301 City, date of decision 13.02.1987. had been destroyed on 10.06.2003 and placed the copies of the relevant entries are Ex.D3W7/A and Ex.D3W7/B. He was unable to produce any orders directing destruction of these records as he could not trace the same. This witness was not crossexamined by the plaintiff.
58 Shri Ved Prakash Patwari examined as D3W8 has brought on record copy of Part Aksh Sizra, village Kharera Ex.D3W8/1, copy of Field Book Ex.D3W8/2, copy of Khasra Girdwari Ex.D3W8/3 and copy of Jamabandi which is a translated copy from Urdu Ex.D3W8/4. He further stated that in Ex.D3W8/2 different measurements had been given to reflect the dimensions of the Khasra No. 431. The East side measures 18 ghattas, West side measures 18 ghattas, North side measures 04 ghattas and South side measures 08 ghattas. He further stated that one ghatta is equal to quarter to three feet, so east side 45.26 ft, West side 45.26 ft, North side is 10.06 ft and South side is 20.12 ft. He also stated that the stagnant water body (Chaha) is in the North. He stated that the measurements of Khasra No.431 remained the same as has been entered in the Field Book. He also stated that there were many Khasras between Khasra No.431, village Kharera and boundary wall of village Masjid Moth as shown in Aks Sizra Ex.D3W8/1. He further stated that he has no knowledge as to on what basis the name of Shri Dayanand was incorporated in the Khasra Girdwari that he did not have any document in that regard. He further stated that since the DM had issued directions that in urbanised villages Khasra Girdwari was CIS CS DJ2088222016 Page 26 of 59 not to be maintained, he did not make any visit nor updated the Khasra Girdwari in Sept. 2017. He stated that this order was issued in August, 2017.
59 In crossexamination by Shri Jeewan Chandra, ld. Counsel for the plaintiff he stated that as per the Khasra Girdwari recorded on 23.09.2016 Ex.D3W8/3 the name of the plaintiff Shri Dayanand was mentioned under the head of 'Kashtgar'. He stated that these entries were made on the basis of the field visit of the Patwari and updated every year.
60 During crossexamination by Ms. Promila Kapoor, ld. Counsel for defendant no.1 he stated that since he joined the department five months ago, he could neither affirm nor deny that after 1995 the entries in the Khasra Girdwari have been made without field visits. He stated that he was not aware that the plaintiff had been removed by the MCD in 1995 from the spot/khasra. He denied that all entries after 1995 in the Khasra Girdwari were wrong entries in respect of khasra no.431.
61 Shri Rama Shankar, Planning Assistant, Town Planning Department, Civic Centre, SDMC examined as D3W9 brought on record the layout plan of Hauz Khas and placed on record copy of the same as Ex.D3W9/A. He deposed that in the Plan at Point A it was recorded "Provisions of 10 ft. wide link between Blocks Y and Z, approved by Standing Committee vide Resolution No.1227 dated 26.03.1970".
62 During crossexamination by Shri Jeevan Chandra, Counsel for Plaintiff, this witness stated that he had only produced the layout plan but did not know the location of Khasra number 431 or of CIS CS DJ2088222016 Page 27 of 59 any road connecting Y and Z blocks. He stated that he had only read out what is written in the layout plan Ex.D3W9/A. 63 Shri A.K. Mittal, Assistant Engineer, SDMC, examined as D3W10 has placed on record the documents which had been received from the Land & Estate pertaining to the transfer of the property from DLF to MCD as Ex.D3W10/A collectively (36 pages). 64 In crossexamination by Shri Jeevan Chandra, Counsel for the plaintiff, the witness stated that the documents related to the transfer of the property in 1989 from the DLF to MCD. There was no Khasra number but the property was for a primary school. He stated that he was aware that the present case relates to the property which was primary school and which was transferred to the MCD from where the school was still running. He stated that he could identify the suit property on the plan at page 36 of the documents, he had filed and pointed out to the primary school marked in red on the said DLF Housing and Construction Plan of Hauz Khas Enclave. He did not know when the primary school was established.
65 The last witness examined on behalf of defendant no.3 is D3W11 Dr. Suman Kaushik, AR of defendant no.3. She has placed on record her affidavit Ex.D3W11/B and relied on the documents:
(a)The death certificate of Shri Richpal Ex.D3W11/1.
(b)The copy of layout plan which is part of Ex.D3W10/A (Colly).
(c)The copy of settlement deed and orders of the Hon'ble Supreme Court in Civil Appeal No. 1298/1970 which is also part of Ex.D3W10/A (Colly).
(d)The Resolution No. 1227 dated 26.03.1970 of CIS CS DJ2088222016 Page 28 of 59 Standing Committee of MCD which is Ex.D3W11/2.
(e)The records of WPC No.2309/1992 which is already part of Ex.D3W1/A which is in the form of CD.
(f)The records of WPC No.1046/1995 which is already part of Ex.D3W1/A which is in the form of CD.
(g)Comparative site plan of the four cases as Mark A.
(h)The letter from the Ministry of Rehabilitation and the reply thereto being Ex.D3W11/3 and Ex.D3W11/4 respectively.
(i)The reply received through RTI from SDM regarding Khasra No. 431 as Ex.D3W11/5.
(j)Copy of plaint in CS No.261/1979 as Ex.D3W11/6 and the site plan of that suit already exhibited as Ex.D4 and the copy of the order Ex.D3W11/7.
(k)Copy of plaint in CS No.709/1985 Ex.D3W11/8 and the site plan of that suit already exhibited as Ex.D3 and the copy of the order Ex.D3W11/9.
(l) Comparative plan showing the dimensions as Ex.D3W11/10.
(m)copy of Site plan filed by the plaintiff in WPC No.2309 of 1992 as Ex.D3W11/11.
(n) Copy of the site plan filed by the MCD in WPC No.2309 of 1992 as Ex.D3W11/12.
(o) Certified copy of Gaz. Notification dated 03.06.1996 as Ex.D3W11/13.
She also relied upon the documents:
Copy of laagan receipt as Ex.PW1/DX1.CIS CS DJ2088222016 Page 29 of 59
Certified copy of order dated 24.12.1993 Ex.PW1/DX2. Copy of site plan of village Kharea as Ex. Ex.PW1/DX3. Copy of the order dated 13.11.86 as Ex.PW1/DX5. Copy of Jamabandi for the year 19501951 as Ex.PW1/DX8 Copy of statement of Shri Bhagwat Swaroop as Ex.PW1/DX10.
The layout plan of Hauz Khas as Ex.D3W9/A Copy of Aksh Shizra Ex.D3W8/1 Ex.D3W8/2 is the different measurement to reflect the dimensions of Khasra No.431 Copy of Book No.1, Vol.No.319, Pages 97100 dated 27.05.1955 as Ex.D3W3/A Copy of the complete record of Khasra No.431, as Ex.D3W5/A.
66 In her crossexamination by Shri Jeewan Chandra, Counsel for Plaintiff she stated that she started residing in A66, Hauz Khas, New Delhi16 after her marriage in 1975. Thereafter, she had shifted after two months of the marriage and had returned back in 1981. She stated that the RWA had been in existence for the last more than 50 years. She stated that she had been appointed to pursue the case since the time the case was in Tis Hazari and thereafter, she was also authorized to follow up the case in the Hon'ble High Court. She placed on record the resolution in her favour asEx.D3W11/PA and Ex.D3W11/PB. She denied that she is pursuing this case for her personal interest and not on behalf of RWA. She further stated that the Mandir was outside the site plan and was not part of the suit property CIS CS DJ2088222016 Page 30 of 59 and had been in existence for a long time under the Peepal tree. She did not remember the year when it was built but it was long before the colony came into existence/was developed.
67 She further stated that she did not know Shri Richpal, the grand father of the plaintiff. She stated that it was correct that the property no. 373 Shahpurjat and khasra no.431 village Kharera are separate properties. She denied the suggestion that the Khasra No.431, Vill. Kharera was allotted to Shri Richpal or to his father Shri Jaggan. She admitted as correct that the name of Shri Jaggan was mentioned against Khasra No.431 in the document Ex.PW1/2. However, she claimed that it related to the clearance of laagan. She admitted as correct that the document mentioned several other Khasra numbers. She denied the suggestion that the purchase by DLF was also mentioned in Ex.PW1/2. She further stated that the property bearing khasra no. 431 was 16 biswas (800 sq.yds).
68 In further crossexamination she admitted as correct that under the Punjab Land Revenue Act a 'Marusi' could become an owner through a Court order. She stated that she did not have the request letter submitted by the RWA for the resolution Ex.D3W11/2. She stated the road had been made in the year 1970 itself but had no documentary proof of the same. The witness further stated as correct that in Ex.DX10, the SDM had recorded the statement of the Town Planner on 25.01.1989 to the effect "there is no road connecting Y & Z block as per the plan". She admitted as correct that the writ petition had been filed for directions to the plaintiff restraining him from blocking the road and encroaching upon the road. She admitted as correct that at that time the plaintiff was residing in that property but CIS CS DJ2088222016 Page 31 of 59 denied as incorrect that the said property number was Khasra no. 431. 69 She further stated that as she had no sale deed in respect of the suit property therefore, she had not filed any such document in the writ petition. She denied the suggestion that the suit property was governed by the provisions of Section 6 of Punjab Land Revenue Act, 1887. She admitted as correct that the record relating to the suit property was maintained in the SDM office. However, it was claimed that it was done so till it became evacuee property. She further deposed that they have challenged the order of the SDM in writ petition no. 1046/1995. She admitted that the name of the plaintiff was recorded in the Khasra Girdawari till date. She admitted that the RWA had not filed any application to the SDM for the removal of the name of the plaintiff as 'Marusi' as the suit property was not relating to khasra no. 431. She claimed that the suit property was not in Khasra No.431 as shown by Ex.D3W11/10. She admitted as correct that Custodian lands have their own Fard and the Custodian lands have nothing to do with revenue Patwaries. She admitted as correct that no such custodian records had been filed. She further admitted that in reply to the letter of Ministry of Supply & Rehabilitation Ex.D3W11/3 being Ex.D3W11/4 the plaintiff had stated that the land in question was his ancestral and inherited property and the land had never been evacuee property and that the office had no concern with the property in question. She further denied the suggestion that the Notification Ex.D3W11/13 was not applicable to the lands belonging to the plaintiff being the suit property or that the suit property is governed by the Punjab Land Revenue Act, 1887.
CIS CS DJ2088222016 Page 32 of 59ARGUMENTS 70 Turning to the arguments that have been advanced, the Ld. Counsel Shri Jeewan Chandra for the plaintiff submitted that the plaintiff had discharged the burden on him to prove his right for declaration and possession. Ld. Counsel submitted that in 1941 the ancestor of the plaintiff purchased the property from one Syed Ahmad vide sale deed Ex.PW1/2. According to the Ld. Counsel for the plaintiff Shri Rattan Lal, father of the plaintiff and Shri Richpal were the recorded owners of Khasra No.431 and all lands except the land in Khasra No.431 was sold by the father of the plaintiff to the DLF. It was claimed that the DLF had filed such an affidavit in the Hon'ble High Court that it had not purchased Khasra No.431. Ld. Counsel argued that the revenue records also showed that the land belonged to the plaintiff. The land was neither belonging to the Government nor the Custodian as no compensation had ever been paid. Further, the Government had never claimed its possession. The Ld. Counsel submitted that the land was covered by the Punjab Land Revenue Act. It was submitted that in response to the letter of the Custodian Ex.PW1/24 (also as Mark A and as Ex.D3W5/A, Colly)Shri Richpal has sent a reply Ex.PW1/25(also as Mark B and as Ex.D3W5/A, Colly) which clearly show that the Custodian had nothing to do with the land in question. The Ld. Counsel submitted that there were several rounds of litigation between the parties. It was submitted that the Suit No.261/79 had been disposed of restraining the MCD from demolishing the boundary wall. This judgment is dated 26.04.1979. Similarly, the Suit No.709/85 was decreed ex parte in favour of the CIS CS DJ2088222016 Page 33 of 59 grand father of the plaintiff against the MCD restraining the MCD from demolishing the tin sheds without due process of law. There were several Kalandaras and the appeal against the Kalandaras were also decided in favour of the plaintiff. Reliance has been placed on the judgment of the revisionary Court in this regard. Similarly, Patwari had made statements brought on record as Ex.PW1/9 and Ex.PW1/10 which showed the possession of Shri Richpal and not the possession of the primary school establishing the right of the plaintiff. Finally, the Ld. Counsel relied on the judgment in case of 'Jit Singh Vs Sardara Singh', CR No.1666/99, decided on 21.7.2000 to submit that since the defendants have not been able to place on record any document of their title, therefore, the plaintiff having had a better title was entitled for the declaration sought. Thus, the plaintiff has prayed that the suit be decreed.
71 Ld. Counsel Ms. Promila Kapoor for the defendant no.1/SDMC submitted that the plaintiff claimed to be the owner having inherited the property from his grand father by means of a Will but no Will was placed nor proved on the record. It was submitted by the Ld. Counsel that the grand father of the plaintiff namely Shri Richpal had only 'Marusi' rights to the extent of seven parts. The other five parts were owned by Shri Roora who had sold his rights to DLF. It was submitted that no other legal heirs have been impleaded nor have been named and particulars of the legal heirs disclosed and, therefore, the suit was defective. It was also submitted that despite knowledge of the layout plan which had earmarked the site of primary school, the layout plan had never been challenged. Further the DLF had entered into a settlement with MCD with regard to such public CIS CS DJ2088222016 Page 34 of 59 sites and thus MCD claimed its title through the DLF. It was submitted that vide orders passed by the Hon'ble High Court in Writ Petition No.1046/95 the encroachment had been removed. 72 Further Ex.PW1/14 clearly showed how the road had been carved out through the land of the school and a small piece of land was left open after the construction of the road connecting the two blocks i.e. Y & Z blocks, Hauz Khas and it was on that portion that the plaintiff had encroached. It was submitted that the revenue records were not reliable as admittedly since 1995 the plaintiff has not been in possession of the site in question and yet his name was recorded in the Khasra Girdwari which clearly indicated falsification of records. The Ld. Counsel raised a question of the identity of the Khasra No.431 and the only way out was to get the demarcation done by the revenue authority but the plaintiff had failed to do so and thus the identity of the suit property was completely in doubt. The Ld. Counsel further argued that when once the area had ceased to be agricultural and cultivation had ceased, the 'Marusi' rights had also extinguished and therefore, there were no rights vested in Shri Richpal and Shri Roora which could have been inherited by the plaintiff. It is submitted that the statement of Shri Bhagwat Swaroop Ex.PW1/10 was incorrect as the layout plan itself mentioned creation of a 10 feet wide road. Moreover, vide Ex.PW1/DX8, the right of the Custodian was mentioned which would also indicate that whatever rights that Shri Richpal or Shri Roora had in Khasra No. 431 stood transferred to the Custodian evacuee property.
73 Ld. Counsel pointed out to the orders of the Assistant Custodian Ex.D3W5/A dated 29.06.59 referring to 12/2/58 when non CIS CS DJ2088222016 Page 35 of 59 evacuee rights vested in Custodian in Khasra No.431 in entirety without saving any part or share. The Ld. Counsel pointed out that Ex.PW1/2 relied upon by the plaintiff to claim ownership was not a document transferring title but only referred to laagan that was not to be levied being unjust. Ld. Counsel submitted that the judgment Ex. PW1/4 was decree in nullity in as much as the judgment had been obtained in the name of a dead person as Shri Richpal had expired on 31.08.1986. The Ld. Counsel also submitted that the site plans filed in the different litigations showed discrepancies thus, casting a doubt on the identity of the property in respect of which the plaintiff had sought a declaration and possession. It was submitted that the previous two suits showed the shape of the plot and the location of the Well and the surrounding blocks at variance from the site plan filed in this suit. Ld. Counsel therefore, argued that whatever relief that had been obtained in the previous suit did not relate to the suit property. It was also submitted that the plaintiff marked on Ex.PW1/DX1 the road through DDA land but it was a matter of sheer logic as to why and how the MCD would have ever passed a resolution in respect of a DDA land. Therefore, ld. Counsel submitted that the plaintiff had whimsically marked the road on the site plan just to mislead the Court. 74 It is further submitted that the plaintiff's inability to show the location of the Well showed his lack of familiarity with the land which he claimed was Khasra No.431. It is submitted that in any case the field book Ex.D3W5/2 gave dimensions of Khasra No.431 and also mention the 'Chaha' and since there was no Well or Kuan in the primary school therefore, the lands were different. With reference to the ownership of the MCD of the site in question, the Ld. Counsel CIS CS DJ2088222016 Page 36 of 59 relied on Ex.D3W10/A filed by the Land & Estate Department. A settlement had taken place with the DLF on 25.09.1989 whereby the ownership of public land sites were transferred by the DLF to the MCD and Site No.1 referred to the primary school from which the land was taken for building the road leaving a triangular piece of land over which the plaintiff encroached. This settlement was pursuant to the orders of the Hon'ble Court dated 04.12.1975. The Ld. Counsel referred to the records Ex.D1W1/D3A being the school records from 1957. On the other hand, ld. Counsel argued, the plaintiff has not been able to place on record a single document to substantiate his claim for ownership of Khasra No.431 even assuming that the primary school was located on that land though there was no such thing at all, since the land revenue record showed that the Custodian had been transferred all rights. Thus, the ld. Counsel submitted that since the plaintiff had failed to discharge the burden of proof placed on him to establish his claim of his ownership and the identity of the site in question to be of Khasra No.431, Village Kharera, Hauz Khas, New Delhi the suit was liable to be dismissed.
75 Dr. Suman Kaushik, the authorized representative submitted arguments on behalf of defendant no.3. The case of the defendant no.3 was not that they were the owners of the property in question but that the plaintiff was an encroacher having initially come as a gardener. She pointed out to the discrepancies in the site plan that in the several suits and the writ petitions filed by the plaintiff/Richpal Y61 was shown to be located on the East and in the present suit he has shown Y67 on the East side. It was submitted that in fact there was no Y61 in the area of Hauz Khas. Therefore, the site in question CIS CS DJ2088222016 Page 37 of 59 was not Khasra No.431. It was submitted that the plaintiff was only creating a confusion to reap some benefits. It was submitted that vide Notification Ex.D3W12/22 of urbanisation in 1996 no revenue records could be maintained therefore, all revenue records relied upon by the plaintiff were obtained fraudulently. The authorized representative of the defendant no.3 further argued that Ex.D3W11/18 provided the dimensions of Khasra No.431 and also the Aksh Shizra showed the location of Khasra No.431 was not where the suit property was located and therefore, even if the plaintiff claimed to be the owner of Khasra No.431 that was not the suit property. Further, it was submitted that even Khasra No.431 had been vested in the Custodian of the evacuee property the plaintiff had accepted in his crossexamination that his grand father had expressed his disinclination to buy the rights in Khasra No.431 from the Custodian and therefore, the Custodian had become the owner of Khasra No.431 w.e.f. 12.02.1958 vide Ex.D3W5/A. She also submitted that the Ex.PW1/2 was not a sale deed it related to payment of revenue.
76 It was also submitted that the DLF was a necessary party to the suit as also all the siblings and even the mother of the plaintiff, as no Will had been filed by the plaintiff and the legal heirs of Shri Richpal were to be impleaded. Accordingly, it was submitted that the suit failed on account of non impleadment of necessary parties. It was also submitted that the judgments in the civil suit did not vest the plaintiff with any ownership rights. Further, she submitted that even as per the statements Ex.PW1/9 and PW1/10 there was nothing in between the school and the DDA Park and the plaintiff himself accepted that the suit property was part of the school.
CIS CS DJ2088222016 Page 38 of 5977 In the written arguments filed on behalf of the plaintiff, it has been submitted that the need to approach the civil court arose after the removal of the plaintiff from the suit property in the year 1995 when the writ petition no. 1046/1995 was disposed of while allowing the plaintiff to seek relief from the civil court for declaration of his title and reentering the property.
78 It is further stated that the suit property was purchased by Shri Jaggan in the year 1941 and after the death of Shri Jaggan his legal heirs Shri Richpal and Shri Roora became the joint owners of property bearing Khasra Nos.431,443,426,425,424 and 422 (Ex.PW1/1). Shri Roora allegedly sold the Khasra Nos., 432, 426, 425, 424 and 422 without obtaining no objection certificate from his brother Shri Richpal (Ex.PW1/4). The plaintiff submitted that the Khasra No.431 was never sold by the grand father of the plaintiff and therefore, till date the plaintiff was the owner of the said Khasra number even as per the SDM Courts record. It is also stated that the DLF had also filed an affidavit before the Court that it had not purchased the property bearing Khasra No.431.
79 It is further submitted that till 1979 there were no Court proceedings but thereafter, the dispute has arisen between the plaintiff and the defendants when the defendants tried to trespass into his property falsely with conspiracy and collusion with one another. Thus, the first suit no. 261/1979 for permanent injunction was filed by the grand father of the plaintiff against the defendants for restraining the MCD from demolishing boundary wall over the suit property. In that case the general attorney of the MCD had given his statement that demolition action would be taken only after service of notice in CIS CS DJ2088222016 Page 39 of 59 accordance with the provisions of the DMC Act. Accordingly, the suit was disposed of in the light of this statement (Ex.PW1/5, Ex.PW1/6 & Ex.PW1/7).
80 It is further submitted that Suit No.709/1985 was filed before the Ld. Senior Civil Judge; only MCD appeared but did not file written statement for 15 months; as a result of which the suit was decreed in favour of the plaintiff. Further, the local commissioner had been appointed in that case which recorded that the construction was an old construction (Ex.PW1/8). The plaintiff further submitted that the case u/s. 133 Cr.P.C was filed against the plaintiff by the defendants before the SDM Court. That case was also dismissed but the order was never challenged by the defendants. It is further submitted in that case Shri Jawahar Patwari made a statement on 25.01.1994 (Ex.PW1/9) wherein he stated that as per the record during the period 1985 to 1988 Khasra No.431 was in possession of Shri Richpal, the grand father of the plaintiff and the area was 16 biswas. In the same proceedings Shri Bhagwan Swaroop, UDC, Town Planning department also made a statement Ex.PW1/10 stating that according to the layout plan between Y & Z block site for primary school is shown and the North side of the primary school is shown DDA Park. He further stated that on the North side of the school between Y & Z blocks there is no road connecting the two blocks. The plaintiff has also referred to proceedings before the Court of SEM in Kalandara u/s. 106/157 Cr.P.C. The order of the SEM was challanged in criminal appeal no. 352/91 (Ex.PW1/13) and vide judgment of the Ld. ASJ, the judgment of the SEM dated 06.11.1989 was set aside.
CIS CS DJ2088222016 Page 40 of 5981 The further case submitted in the written arguments by the plaintiff is that the dispute between the plaintiff and the defendants is that the plaintiff was in illegal and unauthorized possession of the suit property but these allegations were false and frivolous. The plaintiff pointed out to the entire revenue record that is Jamabandi, Khasra Girdwari, mutation and entire SDM Court Record showing the ownership of the plaintiff in the suit property. It was submitted that there was no complaint or written request or objection made by the defendant to assail their title. The Khasra Girdwari Ex.PW1/3 for the period 19692006 showed the ownership of the plaintiff and his ancestors. It was submitted that this land was not Government land or evacuee property. It was further submitted that the plaintiff had never been given any compensation from the Government of India or the evacuee department which had also not claimed possession of the suit property in any Court. It was submitted that the defendant no.3 had no concern with the suit property. According to the plaintiff the defendants were frustrated with the reversal in the proceedings before the SEM and trespassed into the property of the plaintiff. In regard to this plaintiff had made several police complaints namely Ex.PW1/22, Ex.PW1/23 and Ex.PW1/24.
82 The plaintiff further stated that another conspiracy had come to his knowledge in the year 2015 when a false case bearing case file no.7039/2015 titled as 'Shiv Sabha (Regd) Vs Dr. Ashok Kaushik & Others ' was filed by the Sabha with the motive to grab the suit property including the temple. This case was also filed by the defendants to show themselves as owner of the temple which had been constructed by the grand father of the plaintiff in the suit property from CIS CS DJ2088222016 Page 41 of 59 very beginning and the parties to that suit wanted to grab the suit property of the plaintiff. However, due to the intervention of the plaintiff the suit was withdrawn on 03.03.15.
83 It may be noted here that these submissions are beyond pleadings and the scope of this case. It was further submitted that the MCD officials were hand in gloves with the defendant no.3 and that neither of them had any claim to the suit property. It was also submitted that the defendants had produced manipulated documents at the time of crossexamination of the witnesses produced on behalf of defendant no.3 which were not at all admissible. It is submitted that the defendants have not been able to produce any evidence to show that the plaintiff was an illegal and unauthorized occupant. It was submitted that the Aksh Shizra was not relevant in this case. The property was an old one occupied from 1941 till date. It is submitted that forged documents had been filed by the defendant no.3 which ought to be rejected. It was further submitted that there is no khasra girdwari of the custodian department to show its entitlement. Further the defendant no.3 had not brought on record any evidence to prove that the land was evacuee property in the year 1959. It was submitted that the letter of the custodian department received in the year 1979 had been duly replied which clearly showed that the land was not the custodian land till 1979. Thus, the plaintiff claimed that the property stood in his name and he was entitled to the relief he has sought. 84 In the written arguments submitted on behalf of the defendant no.3 it is submitted that in the Hauz Khas colony two blocks Y & Z were developed on land of Village Kharera, Distt. Mehrauli by DLF. The North of the Village Kharera was marked by village Masjid CIS CS DJ2088222016 Page 42 of 59 Moth, Gulmohar Park and Hauz Khas was developed on the land adjacent to the boundary of village Kharera. It is submitted that this was depicted in the Aksh Shizra and layout plan of evacuee property, revenue department and MCD authorities. It is submitted that the suit property was MCD property and was part of primary school Hauz Khas between Y67 and Z1 was fully established. It is submitted that the DLF had been asked to leave certain open spaces for development of social activities like school, park etc. and the school site had been accordingly earmarked in Y block (Ex.D3W10/A). The site is marked as 1. The same lay out plan was produced by the Town Planning department as Ex. D3W9/A (Colly). This was the same layout plan submitted by the association in writ petition no. 1046/1995 and is also the same layout plan filed by the plaintiff as one of his documents. 85 While referring to the statement of Shri Bhagwan Swaroop (Ex.PW1/DX 10) / Ex.PW1/10 in which case, layout plan showed the presence of the primary school site with DDA Park/Village Masjid Moth as the North side of the school. There is no open area between the school and DDA Park. Therefore, the plaintiff's suit property was part of the school and not a separate plot. It is further submitted that in 1969 the Yblock colony members requested the Mayor to create a road from Y67 to Z1 so that they could approach the Mehrauli Road easily. The MCD Standing Committee Resolution No. 1226/1969 directed the construction of the road alongwith boundary wall of the school without disturbing the school (Ex.D3W11/2). In 1970 the Public Works Department laid a straight road from Y67 to Z1 of Hauz Khas leaving a tract of land to the North of the road. This is as per the reply of the MCD given in CIS CS DJ2088222016 Page 43 of 59 'Richpal Vs MCD' in writ petition no. 2309/92 (Ex.D3W1/A). It was pointed out that when this petition was filed by the plaintiff as his grand father's attorney, the grand father had already expired six years earlier. It is further submitted that the plaintiff got his name added in Khasra Girdwari in 1989, removed it in 1991 and then got it added in 1992 reflecting his malafides.
86 It is further submitted in the written arguments filed by the defendant no.3 that a temple had been built upon this tract of land which was renovated by the colony leaving an open area to the west of the temple as a play area and this entire open area was part of the school layout plan prior to the construction of the road 1970. The records of the school established that the school had been running there since 1959. It was alleged that the play area was encroached upon by the plaintiff claiming to be a Mali of the MCD and repeated objections to his encroachment by the association did not make the MCD take any action. In 1995 when the plaintiff tried to block the road, the association filed a writ petition no. 1046/95 (Ex.D3W11/A). It is then that the plaintiff started relying on false documents to assert and protect his illegal encroachment by filing various suits including the present one. It is submitted that the plaintiff had been removed from the land in action taken by the MCD by due process of law. It was submitted that none of the civil suits had recognized the ownership rights of the plaintiff in the suit property and there were discrepancies in the site plan which cast doubt on its identity being the same in the earlier suit and the present suit. Thus, those decrees were not applicable to the present suit property.
87 It is further contended in the written arguments that CIS CS DJ2088222016 Page 44 of 59 Khasra No.431 was declared an evacuee property by the E.P. Cell Ministry of Rehabilitation as the plaintiff had himself replied a letter of this department. Reliance has been placed on Ex.D3W11/3 & Ex.D3W11/4. Thus, it was contended that the Ministry of Rehabilitation/E.P Cell was a necessary party to the present suit. It is further submitted that the DLF Private Limited had developed the area and had also got the share of Roora in Khasra No.431, Village Kharera despite being aware of this stand of the DLF, the DLF has not been made a party to the suit. Further the other legal heirs of Shri Richpal who are also essential parties have not been impleaded. Accordingly, it has been submitted that the necessary parties to the suit have not been impleaded and the suit was liable to be dismissed on this ground. 88 It is further submitted that the plaintiff had failed to prove that he had any title to Khasra No. 431, Village Kharera. It is submitted that there was no proof that the property was ancestral property or that the 'Marusi' rights were for the family. It is submitted that the plaintiff has not been able to show how had he had got the share of Shri Roora, the coMarusi with 5/12 share in Khasra No.431. It was further submitted that the plaintiff could not show when any sale had been effected. It is submitted that the translation of the document relied upon by the plaintiff showed that this related only to the illegal assessment/compensation of laagan/land revenue on various khasra numbers. Thus, there was no sale vide the said documents. 89 It is further submitted that the plaintiff presented Khasra Girdwari and Jamabandi as proof of ownership but in all the documents, the grand father was referred to as 'Marusi' which meant 'tenant' not owner. Moreover, the Jamabandi filed by the plaintiff CIS CS DJ2088222016 Page 45 of 59 Ex.PW1/DX81 recorded that the Khasra was evacuee property and Shri Richpal was one of the Marusi' in 1958. It was further submitted that the document of the GP Cell showed that Richpal and Roora had refused to buy the khasra no.431 at reserve price and had given up their 'Marusi' right so that the khasra could be auctioned and they could be compensated by the Marusi' rules. It was submitted that through all these documents it was clear that the plaintiff and his grand father were not owner of the khasra no.431. Moreover, they were not Marusi' either after 08.10.1959 when they were given notice to appear before the Custodian Court. Thus according to the defendant no.3 neither Shri Richpal nor Shri Rooa had any right to khasra no.431. 90 It is further submitted that the plaintiff claimed that his land was in an urbanised area and he had not violated any building policy. It was clear that the land was not agricultural land and neither Punjab Land Act nor the Delhi Revenue Act applied to the land. It is also pointed out that the site plan had been filed in the different suits according to the plaintiff to suit his case which resulted in the wrong position of the Well and the surrounding properties in the various site plans . Therefore, the plaintiff had wrongly claimed the suit property as Khasra No.431, Village Kharera. The defendant no.3 submitted that as per the Aksh Shizra Ex.D2W8/1 & Ex.D2W8/2 the khasra no. 431 was located no where near the suit property. Since no Chakbandi had happened as deposed to by D3W8 since 1950 there had been no change in the location of Khasra No.431 and therefore, the suit property was not Khasra No.431. With regard to the revenue record it was submitted that once the village was urbanised no khasra girdwari record could be maintained.
CIS CS DJ2088222016 Page 46 of 5991 It is submitted that these revenue records were fake and created with the help of revenue officials with the purpose of grabbing the suit property. It is submitted that if the plaintiff was already in possession there was no need to seek a declaration and repossession of the suit property as Khasra No.431, by means of the present suit. It is submitted that the plaintiff had been removed by the orders of the Court in 1996 but if the entry of girdawari shows he was in possession of khasra no.431, the present suit was not at all required. Thus, this showed the falsity of the document relied upon by the plaintiff. In any case the status was recorded only as 'Marusi' in these revenue records. In the light of all these submissions the defendant no.3 prayed that the suit be dismissed with heavy costs.
FINDINGS 92 I have considered the entire evidence that has come on the record both oral and documentary. I have also considered the arguments advanced on behalf of the parties, both oral as well as written.
93 The findings on each Issues are as follows:
1. Whether the suit against MCD is barred under Section 477 and 478 under DMC Act? OPP &
2. Whether the suit against defendant No.2DDA is barred under Section 53B of Delhi Development Act? OPD Both these issues are answered together as they relate to technical requirement of law. The plaintiff has stated that the notice u/s. 477 and 478 DMC Act and u/s. 53B of the Delhi Development Act had been served upon the defendants.
CIS CS DJ2088222016 Page 47 of 5994 The legal notice Ex.PW1/26 is one titled as under
Section 477 and 478 under DMC Act and under Section 53B of Delhi Development Act. The notice had been served under these provisions vide AD Cards Ex.PW1/29 and Ex.PW1/30. Moreover in the light of the facts that while disposing of the Writ Petition No. 1046/1995 in the presence of the present defendant no.1 the plaintiff had been granted the opportunity to assert and prove his rights before the Civil Court, the defendant no.1 was clearly aware of the claims of the plaintiff against it. Therefore, the litigation is not something that has come as a surprise to the MCD and in any case it is a follow up and consequence of the dispossession of the plaintiff from the property that the MCD claimed belonged to it. The purpose of an advance notice to the Government body is only to ensure that the litigation that is avoidable is in fact avoided. Ex.PW1/26 to Ex.PW1/30 being the legal notice dated 13.11.1998 and the postal receipts and AD card duly endorsed prove service of the requisite notice.
95 In these circumstances, the suit is held not barred Section 477 and 478 under DMC Act or when Section 53B of Delhi Development Act and accordingly, the Issue Nos.1 and 2 are answered in favour of the plaintiff and against the defendants.
96 Issue No.3: Whether the plaintiff is the owner of the suit property? OPP This is the most crucial issue. It is only if the plaintiff proved that he was the owner of the suit property that he would be entitled to the declaration and the possession that he has prayed for.
CIS CS DJ2088222016 Page 48 of 59The plaintiff has sought to prove his title with reference to several documents and previous litigations. The plaintiff has relied on what he has referred to as sale deed Ex.PW1/2. He also relied on the revenue records placed on the record as Ex.PW14 as well as Ex.D3W2/A (Colly) and Ex.D3W8/3. He has also relied on orders in the previous litigations along with the submissions made therein to submit that the possession of the plaintiff was since long and because of the ownership rights of the plaintiff and his forefather. The defendants have questioned the revenue records. They have relied on the records of the Rehabilitation department to submit that the Khasra No.431 had vested in the Custodian of evacuee properties. The answer of the plaintiff is that the Custodian was to auction the property and pay to the grand father of the plaintiff compensation in cash and since no such compensation had been paid, therefore, the title of the plaintiff was established in Khasra No.431.
97 Before proceeding further, one aspect of this matter is to be considered. The plaintiff was dispossessed from a parcel of land located next to the road adjacent to the MCD Primary School between Y & Z blocks of Hauz Khas. That location is certainly not in dispute between the parties and it is clear to the plaintiff and the defendants the site from where pursuant to the directions of the Hon'ble High Court, the plaintiff was removed. The plaintiff describes that parcel of land as falling in Khasra No.431 whereas the defendant no.3 has sought to establish that Khasara No.431 was not located in the colony of Hauz Khas. Reliance was placed on the Aksh Shizra to substantiate this claim. The Aksh Shizra was placed on the record by the witness D3W8 Shri Ved Prakash, Patwari as Ex.D3W8/1. The Aksh Shizra CIS CS DJ2088222016 Page 49 of 59 has been produced from proper custody and the mere allegation of the plaintiff that these documents were forged documents holds no water. The witness D3W8 deposed from the Aksh Shizra that there were several khasras between the Khasra No.431 and the boundary of village Masjid Moth to the North. The plaintiff claimed that Jamabandi had taken place every three years due to which the location of Khasra No.431 had changed. There is no document whatsoever on record to support this claim of the plaintiff. Despite witnesses coming from the revenue department, the plaintiff did not seek the production of any document which could prove that during consolidation the location of Khasra No.431 had shifted in the last decades. Therefore, this evidence casts doubt on the actual location of Khasra No.431. 98 The testimony of Shri Bhagwat Swaroop on which the plaintiff has placed reliance would also negate the claim of the plaintiff that there existed a parcel of land between the Primary School and the DDA Park, i.e. the place from which he was dispossessed when the layout plan was drawn up in respect of Hauz Khas developed by the DLF. In this statement Ex.PW1/10 (as also Ex.DX10) Shri Bhagwat Swaroop had referred to a layout plan while being examined on 25.01.1989. Though the plaintiff relied on this statement to try to establish that in the year 1989 there was no road shown to have been in existence between Y & Z blocks of Hauz Khas near the Primary School, it also shows that as per the layout plan the site for the Primary School was duly marked and beyond the Primary School was the DDA Park. This is important as it is the case of the defendant no.1 that when the request of the residents of Hauz Khas was made to the MCD for a connecting road between Y & Z blocks to enable them to access CIS CS DJ2088222016 Page 50 of 59 the Mehrauli road, land belonging to the Primary School was taken to make the road. According to the layout plan the resolution for constructing the road was recorded in the layout plan referred to by this witness Shri Bhagwat Swaroop in the statement Ex.PW1/10 as also Ex.DX10.
99 The witness D1W1 Ms. Manju Khatri, Assistant Directorate (Education), South Zone, SDMC has brought the records before this Court to show that the Primary School had been running since the year 1959. Whether the road was constructed in the year 1970 itself or later would not prove the case of the plaintiff that the site in question belonged to him as ancestral property. The witness D3W10 has brought on record the documents relating to the transfer of the land as Ex.D3W10/A. These include a settlement pursuant to Court proceedings which were pending before the Hon'ble Supreme Court of India in the course of which DLF agreed to transfer to the MCD free of costs and compensation all lands that were earmarked for roads and public utility. Though initially, the settlement had been for the vesting of rights in parks and other sites, subsequently even the sites earmarked for school and public purposes were also similarly vested in the MCD by the DLF.
100 Reading these documents together, it is clear that when the Hauz Khas colony was developed by the DLF, a site had been earmarked for a primary school and adjacent to the primary school was a DDA Park. A Resolution of the MCD approved the construction of a road between Y & Z blocks of Hauz Khas and this road was carved out of the Primary School land. That Primary School land vested with the MCD pursuant to the agreement between the DLF and the MCD.
CIS CS DJ2088222016 Page 51 of 59The Ld. Counsel for the MCD has explained that initially the idea was to draw the road along the school wall but since that was not feasible a parcel of land was taken from the school and the road constructed there upon. This left some vacant land near the road and the plaintiff had encroached on that vacant portion of the land initially as a Mali. 101 From these facts, it is clear that the land/site from which the plaintiff was dispossessed belonged to the MCD through the DLF. The plaintiff has not been able to show his title to this parcel of land or his entitlement to remain in possession of this parcel of land. No doubt, the old litigation brought on record by the plaintiff would show that he had been in possession for some time before the MCD removed him pursuant to the directions of the Hon'ble High Court of Delhi, but this suit is seeking declaration of title and restitution of possession on the basis of such title.
102 The citation relied upon by the plaintiff on 'Jit Singh Vs Sardara Singh' case (supra)is not applicable to the present case in as much as that case was relating to the grant of interim protection under Order 39 Rules 1 & 2 CPC by grant of an injunction against the possession being disturbed. It is in that context that it was held that where the plaintiff could show a better title or right to remain in possession, the protection ought to be granted. The present matter is entirely different. The plaintiff has claimed a declaration to the effect that he is the owner of the property bearing Khasra No.431, Village Kharera, Hauz Khas and has prayed for a decree of restitution of possession of the property from which he was dispossessed, pursuant to the directions of the Hon'ble High Court of Delhi. The plaintiff was therefore, required to prove his title to Khasra No.431 and thereby an CIS CS DJ2088222016 Page 52 of 59 entitlement to the restitution of possession. In any case, the plaintiff has not been able to establish a better title by merely claiming to have been in possession for many years.
103 There is no material on the basis of which a conclusion could be drawn that the parcel of land in question was Khasra no.431, Village Kharera, Hauz Khas in these circumstances. However, even if the claim to the ownership of Khasra No.431 as made by the plaintiff, was to be considered, once again the documentary evidence brought on the record do not support his claim. The plaintiff has relied on revenue records particularly the Khasra Girdawari. Once the area had been urbanised there was no occasion for the maintenance of Khasra Girdwarai. Be that as it may, it has to be noticed that in each one of these Khasra Girdwaries, the name of the owner is mentioned as 'Syed Mohd. Ali Mudraja and Mohd. Suleman Khan'. The names of Shri Roora and Shri Richpal have been mentioned as 'Marusian'. This is mentioned in Ex.P1, P2, PW3 to P14 placed on the record by the plaintiff. These records have also been separately numbered as Ex.D3W8/3, Ex.PW1/3 (Colly) and also Ex.D3W2/A. The period covered is from 196768 to 10.03.1997 / 2006.
104 Thus in respect of Khasra No.431 Shri Roora and Shri Richpal were only 'Marusian' i.e. cultivators . They were not the owners. The plaintiff has claimed that he had inherited the rights in Khasra No.431 also through a Will. No Will has been produced and proved on the record. Moreover, the plaintiff had also to prove the existence of rights that he could have inherited. A Marusi exists so long as there is cultivation and the land is agrarian. Admittedly, the DLF layout plan was approved by Standing Committee in 1959. The CIS CS DJ2088222016 Page 53 of 59 area was urbanized in 1966. Thus without anything more, the only conclusion that is to be drawn is that while title rights could have continued cultivatory rights would have ceased with the stoppage of cultivation. This is clear from the admission of the plaintiff that 'Marusi' rights could be converted into ownership rights by applying to the Revenue Court and the orders of the Revenue Court. His admission that Roora and Richpal did not want to purchase the ownership rights but preferred selling cultivatory rights is also significant. Both these facts establish that ownership is distinct 'Marusi' rights.
105 Vide the documents produced and relied upon by the plaintiff himself and also brought on record by the witness D3W8 Shri Ved Prakash Patwari from the Custodian department namely, Jamabandi as Ex.D3W8/4 dated 14.09.1958, the land vested in the Custodian and the Custodian had asked the 'Marusi' Shri Roora and Shri Richpal whether they were agreeable to purchase the ownership rights in the land comprised in Khasra No.431, measuring 16 biswas. They had declined the offer. The plaintiff claimed that vide documents Mark A & B (also as Ex.D3W5/A (Colly)) his ancestors had demanded cash payment as compensation after auction of the property. Even if the claim of the plaintiff was to be accepted without question that the Custodian had not auctioned the property, it can in no way lead to the conclusion that the plaintiff had become the owner of Khasra No.431.
106 The land vested in Custodian through the owners 'Syed Mohd. Ali Mudraja and Mohd. Suleman Khan'. The Custodian thereafter, started proceedings for the separation of evacuee rights but CIS CS DJ2088222016 Page 54 of 59 in respect of Khasra No.431 there was no separation in as much as an offer was made to the 'Marusi' who in any case had no ownership rights to the land to purchase the same at the price determined by the Government and thus become owners. When Shri Roora and Shri Richpal declined to purchase the land, what they sought was payment for their 'Marusi' Rights and not compensation as owners for Government acquisition of their land. These are very different situations. The plaintiff if at all had inherited any right it could be nothing more than 'Marusi' rights which in any case had ceased once the Custodian took charge of the land and the area stood urbanised. 107 In all the revenue records Ex.P1 to P14 the description of the land is non agricultural though entries have been made for the Rabi Crop & kharif Crop. In the year 196869/19691970 the 16 biswas is referred to as plot. In 1971 there was a reference to Well, in 16 biswas of land. In the year 19751978 it is described as 'Gair Mumkin Khali Abadi' and in 198081 it is shown as 'Abadi road' upto 1993. The very documents of the plaintiff establishes that there was no cultivation since 196869 in Khasra No.431 and the Khasra Girdawari records do not reflect the possession of Shri Roora and Shri Richpal who had 'Marusi' rights in the said Khasra, what to talk of the possession of the plaintiff. It may be mentioned here that in Mark P10 and P11 the name of the plaintiff is recorded as on 29.09.1989. While the plaintiff has claimed that this record would show that his ownership rights were recognised by the revenue department, he has not been able to place on record any order that allowed such mutation in his name. The witness D3W8 Sh.Ved Prakash Patwari from revenue department when examined by the defendant no.3 was unable to state the documents on CIS CS DJ2088222016 Page 55 of 59 the basis of which the name of Shri Daya Nand Sharma, the plaintiff was incorporated in Mark P10 and P11. In any case Mutation in the revenue records is possible only through an order, of the Revenue Court and in the absence of such an order, a mere introduction of the name of the plaintiff in two documents purported to be the Khasra Girdawaries for the year 1989 will not suffice as documents of title vesting ownership rights upon the plaintiff in respect of Khasra No.431, Village Kharera, Hauz Khas.
108 The plaintiff has also admitted that in the year 1995 in Ex.P13 his name was not mentioned. He claimed that it was reintroduced. However, in the absence of any document recording an order of Mutation by the Revenue Court such mentioning and re mentioning of the name of the plaintiff in the Khasra Girdawari does not entitle him to claim ownership rights in Khasra No.431. It may also be noted here that the plaintiff admitted that under the Punjab Land Act a 'Marusi' could claim ownership if the SDM allowed such an application. He admitted that he did not have any such order of the SDM in his favour.
109 On 28.09.1979 vide Ex.D3W11/3 damages/laagan were claimed by the settlement wing Rehabilitation Department and Khasra No.431 is found mentioned therein. Yet no declaration was sought by the plaintiff or his grand father against the Custodian claiming title to the property and disputing the claim of the Custodian. 110 The records produced by the witness from the Rehabilitation department namely D3W4 Shri Anil Kumar, Assistant Officer may be referred to at this juncture. Ex.D3W4/A is a record of a decision dated 20.04.1989 for the transfer of all evacuee properties in CIS CS DJ2088222016 Page 56 of 59 Delhi to the Delhi Administration/Delhi Government. On 12.02.1958 all non evacuee rights vested in the Custodian and this decision of 1989 was intended to follow up any pending disputes. Admittedly, the plaintiff has never raised any dispute with the Rehabilitation department/Custodian/Delhi Administration/Delhi Government with respect to the 'Marusi' rights nor was any claim for separation of the non evacuee rights vested in the Custodian made before him. On 27.08.1959 the Custodian office sent a letter to Shri Roora and Shri Richpal to come to their office for availing of an opportunity of giving up 'Marusi' right on receipt of payment. It may be noted that this was not recognising any ownership right. On 06.10.1959 Shri Roora and Shri Richpal had attended the office to relinquish the Marusi' rights. Ex.PW1/DX3 has been signed by Shri BrhamSwaroop Patwari of the Custodian and is dated 03.10.1959. All this reflects that the Khasra No.431 had come into the management and ownership of the Custodian.
111 The plaintiff relied on Ex.PW1/DX7 which is dated 27.05.1955 but till October, 1959 neither Shri Roora nor Shri Richpal were recognised by the Custodian as owners nor was any such title vested in either of them. On 19.06.1959 when the Custodian had asked them to buy the ownership rights they seem to have proposed that they be given cash in lieu of the Marusi' rights. In a noting dated 28.05.1959 such a proposal has been noted but when orders were sought on that proposal that proposal does not seem to have been accepted as the communication dated 19.06.1959 to Shri Roora and Shri Richpal was to buy the ownership rights and to submit appropriate applications in this regard on 02.09.59. However, no such CIS CS DJ2088222016 Page 57 of 59 application was placed on the record. This would mean that the offer of the ancestors of the plaintiff that in lieu of purchase of ownership rights by them, they be paid an amount for their Marusi' rights was not accepted by the Government. In other words the Government did not choose to buy or compensate Shri Roora and Shri Richpal for their cultivatory rights ('Marusi' rights). In fact the note dated 03.06.1959 would show that was actually declined. Thus it is clear from the records brought by D3W4 including Ex.PW1/DX8 that Khasra No.431 vested in the Custodian and the Custodian never transferred any ownership rights to the predecessor in interest of the plaintiff namely, Shri Roora and Shri Richpal.
112 The plaintiff has relied on another document Ex.PW1/2 to claim that the original owners had sold the Khasra No.431 in favour of Shri Roora and Shri Richpal. However, a reading of this document (translated version) would show that these relate to certain land revenue proceedings before the Revenue Court. The Khasra No.431 is not mentioned in respect of any of the proceedings between the cultivating tenants and the owners and their liability. It is only in the last page and paragraph of this document that there is a reference to Khasra No. 431. However, the document is not a sale deed and in any case reference to Khasra No.431 is also limited to the levy of land revenue improperly in respect of Khasra No.431 which was accordingly settled. This document in no way helps the plaintiff to prove his ownership in respect of Khasra No.431.
113 In respect of Ex.PW1/4 which was a sale deed of Shri Roora in favour of the DLF dated 02.07.1956 the non mentioning of Khasra No.431 in the said document does not ipso facto prove the CIS CS DJ2088222016 Page 58 of 59 titles of the plaintiff to the suit property or even Khasra No.431. He had to first establish the ownership rights of his ancestors in the suit property or Khasra No.431 which could have been transferred or inherited by him.
114 Thus, from any angle the plaintiff has failed to prove that he was the owner of either of the site in question or Khasra No.431 in case the site from which he was dispossessed was Khasra No.431. This issue is answered against the plaintiff and in favour of the plaintiffs.
Issue No.4:Whether the plaintiff is entitled to the declaration and possession sought by him?OPP 115 When the plaintiff has failed to establish his title to the property in question, the plaintiff is clearly not entitled to a declaration as prayed for by him. He is clearly not entitled to restitution of possession of property to which he has no right as he has not been wrongfully dispossessed. This Issue is also accordingly, answered against the plaintiff and in favour of the defendants.
Relief.
116 No relief can thus be granted. The suit is dismissed. No order as costs. The decree sheet be prepared.
The file be consigned to the Record room.
Announced in open Court
today i.e 25.04.2018 (ASHA MENON)
District & Sessions Judge (South)
Digitally signed
by ASHA Saket/New Delhi.
ASHA MENON
MENON Date:
2018.04.28
16:24:53 +0530
CIS CS DJ2088222016 Page 59 of 59