Delhi District Court
Smt. Savitri Devi Sharma vs Union Of India on 29 January, 2014
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No. 1004/2010
IN THE MATTER OF:
Smt. Savitri Devi Sharma
W/o Shri Rajeshwar Paul Bharadwaj
R/o D27, Bhagat Singh Road,
Adrash Nagar, Delhi33. .....Plaintiff
VERSUS
1. Union of India, through the Secretary,
Ministry of Works, Housing and Urban Development
Nirman Bhawan, New Delhi
2. Delhi Development Authority,
through its vice Chairman,
Vikas Sadan, New Delhi.
3. Gaon Sabha Bharola,
Through the Deputy Commissioner,
North District,
5, Sham Nath Marg, Delhi54. ....defendants
Date of Institution: 20.08.2004
Date of Reserving for Judgment: 24.01.14
Date of Judgment : 29.01.14
SUIT FOR DECLARATION OF TITLE AND FOR POSSESSION
JUDGMENT:
1. Vide this Judgment, I shall decide a suit for declaration of title and Suit No. 1004/2010 Page No. 1 of 14 for possession filed by the plaintiff.
2. The brief facts of the case as per the plaintiff is that Khasra No. 262/258/217/4 comprised in 3 different mins measuring 88 Bighas 2 Biswas, 2 Bighas 8 Biswas and 25 Bighas aggregated to 115 Bighas 10 Biswas in the revenue estate of village Bharola, North District, Delhi. It is further submitted that recorded Bhumidars of the said land i.e. Sh. Thakur Das, Shri Shiv Nath Singh, Shri Balbir Singh, Shri Sanjiv and others sold ¼ share of this land to M/s Capital Housing Company, a colonizer Company before coming into force of Delhi land reforms act. This company carved out plots thereupon and sold to many prospective buyers and after getting NOC from competent Authorities. Around this residential colony, thousand of residential houses as part of Adrash Nagar extension have come up. MCD regularized this colony of colonizer know as part of Adrash Nagar extension vide resolution No. 1101 of 1402 1980. It is further submitted that plaintiff purchased a plot of land with superstructure know half portion of Plot No. 1E measuring 50 Sq. Yds in Block C, Acharya Kriplani Road, Adarash Nagar, Delhi on 29032001 for a sum of Rs. 75,000/. It is further submitted that on 19062003, DDA demolished the superstructure on plaintiff's plot by deploying Bulldozer on the plea that the land is a Suit No. 1004/2010 Page No. 2 of 14 Govt. land and construction by plaintiff is encroachment. It is further submitted that DDA claimed the ownership on the basis of one notification dt. 20081974 vesting thereunder all Gaon Sabha lands of village Bharola in Union of India. It is further submitted that aggrieved by demolition, plaintiff filed a for injunction bearing No. 220/2003 before Civil Court. Plaintiff also filed a CWP No. 5614 of 2003, which was dismissed on 03092003 holding that number of disputed facts are involved, which required evidence. It is further submitted that in the mean time the plaintiff also applied for demarcation of his plot in the court of SDM/RA under section 22 of the land revenue Act and on the demarcation on 19042004, it was found that 115 Bighas 2Biswas land in 3 mins of Khasra No. 262/258/217/4 is in private ownership and it falls in Adrash Nagar Colony whereas the DDA carried out the demolition without any revenue demarcation considering the land as a park. It is further submitted that now DDA's employees have started digging trenches on plaintiff's land for plantation of trees with the on set of monsoon, which act is a clear denial of defendant to restore back plaintiff's land. It is further submitted that defendants have no right, title or interest to holds claim and forcibly occupy the plaintiff's land but the defendant being statutory authorities have Suit No. 1004/2010 Page No. 3 of 14 taken possession and demolished the structure in colourable exercise of their power. Hence the present suit is filed by the plaintiff.
3. On the other hand the defendant No. 2 in its written statement has contended that plaintiff has no locusstandi and cause of action for filling the present suit. Also the plaintiff has not come to the court with clean hands and suppressed the material facts. It is further submitted that Khasra No. 262/258/217/4 of village Bharola has been placed at the disposal of DDA vide notification No. SO 2190 dt. 20081974 and is further transferred to horticulture department of DDA. The defendant No. 2 has denied that Sh. Thakur Dass, Sh. Shiv Nath Singh etc were the recorded bhoomidars or they sold 1/4th share to M/s Capital Housing. Defendant No. 2 further denied that this company carved out plots in the shape of residential colony and sold to various prospective buyers. It is further submitted that the suit land has been placed in revenue record as Gaon Sabha land and as such question of selling the land to M/s Capital Housing does not arise. MCD has no right to regularize the colony vide resolution No. 1101 dt. 14021980. Further the defendant denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff Suit No. 1004/2010 Page No. 4 of 14 be dismissed.
4. The plaintiff has filed replication to the written statement filed by the defendant. In his replication the plaintiff has reaffirmed the contents in the plaint and denied all the allegation made by the defendant in his written statement and further submitted that the suit of the plaintiff be decreed.
5. Vide order dt. 31032006 following issues were framed which are as under:
i) Whether plaintiff is entitled for the relief of declaration as asked for? OPP
ii) Whether plaintiff is entitled for the relief of possession, as asked for? OPP
iii) Whether the suit has not been properly valued for the purposes of court fees and jurisdiction? OPD
iv) Whether the suit is barred by order 1 rule 8 CPC? OPD
v) Reliefs
6. To prove his case plaintiff has examined herself as PW1. PW1 has filed her evidence by way of affidavit Ex. PA. In her affidavit the PW1 has reiterated the facts mentioned in the plaint and relied upon the following documents:
i) Copy of Khatauni dt. 15051997 is Ex. PW1/A. Suit No. 1004/2010 Page No. 5 of 14
ii) Document of title is Ex. PW1/B colly.
iii) Site plan of the suit property is Ex. PW1/C.
iv) Order dt. 03092003 passed by the Hon'ble Delhi High Court is Ex. PW1/D.
v) The legal notice dt. 10032004 and AD card of the same is Ex. PW1/E colly.
vi) Copy of demarcation proceedings dt. 25062004 and Khatoni in respect of Khasra No. 262/258/217/4 dt. 24112004 are Ex. PW1/F colly.
7. Further the plaintiff has examined Sh. Arvind Kumar Patwari, Model Town, Delhi as PW2, who has brought the document Ex. PW1/A. Further the plaintiff has examined Sh. Trilok Chand, Field Kanoongo, Sub Division , Model Town, Delhi as PW3 who deposed that the demarcation proceeding Ex. PW1/F was conducted in his presence. The plaintiff has also examined Sh. Prem Singh, Retired Kanoongo, Model Town, Sub Division, North West, Distt. Delhi as PW4 who deposed that the document Ex. PW1/F was conducted by him.
All the plaintiff witnesses were crossexamined by the Ld. counsel for the DDA.
8. On the other hand the defendant No. 2 ( DDA) has examined Sh. Suit No. 1004/2010 Page No. 6 of 14 Mahender Singh, Kanoongo, LM/ North Zone, DDA, New Delhi as D2W1. The D2W1 has filed his evidence by way of affidavit Ex. D2W1/A. In his evidence the D2W1 has reiterated the facts in their written statement and relied upon the following document:
i) Copy of notification dt. 20081974 is Ex. D2W1/1.
ii) Copy of order dt. 10072003 passed by the honb'le Supreme Court is Ex. D2W1/2.
iii) Copy of affidavit of Shri Dharmendera, Commissioner ( LM) filed in SLP Re: Pushpa Sharma Vs. DDA is is Ex. D2W1/3.
iv) Copy of transfer documents to Horticulture Deptt. of DDA is Ex. D2W1/4 colly.
v) Copy of Khatauni and part Akshizra of village Bharolla is Ex. is Ex. D2W1/5 Colly.
vi) Kabja Karyawahi of schedule of land which is transferred to Hort. Deptt. is is Ex. D2W1/6.
vii) Copy of resolution No. 1101 dt. 14021980 of the standing committee of MCD is Ex. is Ex. D2W1/7
viii) Layout plan of Adrash Nagar is Ex. is Ex. D2W1/8.
9. Further the defendant No. 2 has examined Sh. Deepak, PS Kamla Market, Delhi as D2W3 who also brought the summoned record Ex. D2W3/1 & D2W3/2. The defendant has further examined Sh. Suit No. 1004/2010 Page No. 7 of 14 Abhay Singh, record Incharge, Municipal Secretary, Office, South Delhi Municipal Corporation & North Delhi Municipal Corporation as D2W4, who brought the resolution No. 1101 dt. 14021980 Ex. D2W4/1.
All the defendant witnesses were also crossexamined by the Ld. counsel for the plaintiff.
10.I have heard the counsel for both the parties and have gone through the record carefully.
11. My issue wise finding is as under:
12. Issue No. 1 Whether plaintiff is entitled for the relief of declaration as asked for? OPP Issue No. 2 Whether plaintiff is entitled for the relief of possession, as asked for? OPP The case of the plaintiff is that he purchased a plot no. 1E of land with superstructure measuring 50 Sq. Yds., In Block C Acharya Kriplani Road, Adarsh Nagar, Delhi on 29/3/2001 out of khasra no. 262/258/217/4/3. As per plaintiff the M/s. Capital Housing Company, a coloniser company, which had 1/4 share in khasra no. 262/258/217/4/3 of Village Bharola, Delhi, before coming into force of Delhi Land Reform Act carved out plots after getting NOC from the competent authority, Delhi, under the Delhi Land (restriction on transfer) Act, 1972 and sold it to many people. Suit No. 1004/2010 Page No. 8 of 14
13.To show that M/s. Capital Housing Company, a coloniser company, had 1/4 share in khasra no. 262/258/217/4/3 of Village Bharola, Delhi the plaintiff proved the Khatoni of the year 198889 of Village Bharola, Delhi as Ex. PW1/A according to which Sh Thakurdas and Sh Shiv Nath S/o Sh. Inderjit Singh having 3/16 share each; Sh Balbir Singh s/o sh Ram Singh having 1/5 share; Sh Rajiv, Sh. Sanjiv & Sh. Pawan all s/o Tara Chand having 1/5 share each; Sh Jaswant Singh, Sh. Basant Singh & Sh. Jai Prakash all s/o Sh nain Singh having 3/5 share each; Sh Ramswaroop s/o Sh Govind having 3/32 share; Sh Fakirchand & Sh. brijnandan s/o Sh Ram Swaroop having 9/32 share and Capital Housing Company having 1/4 share were joint khatedaars in respect of land comprising in khasra no. 262/258/217/4/3 measuring 88 bighas & 2 biswas ; khasra no. 262/258/217/4/3 measuring 2 bhighas and 8 biswas & khasra no. 262/258/217/4/3 measuring 25 bhighas of Village Bharola, Delhi.
14.From the aforesaid clearly, M/s. Capital Housing Company had 1/4 share jointly with other Khatedaars in the land forming part of khasra no. 262/258/217/4/3 of Village Bharola, Delhi. It has not been mentioned or even proved by the plaintiff that the joint khatedaars had ever partitioned the land and identified there share Suit No. 1004/2010 Page No. 9 of 14 before M/s. Capital Housing Company sold of the properties by cutting plots. Also, the other Khatedaars were a necessary party in the present suit since apparently no partition between the joint khatedaar had taken place.
15.Also, although the plaintiff has filed salepurchase documents in the form of GPA/agreement to sell/receipt/will/affidavit executed by SK Mittal in favour of Amrit Kumar who sold it to Satish Kumar who sold it to Inder Mohan who sold it to Jagmohan. Indermohan Anand & Jagmohan Anand sold it to Ravinder Kumar who sold it to Savitri Devi/plaintiff, but the plaintiff has not placed on record the salepurchase documents executed by the M/s. Capital Housing Company in favour of SH. SK Mittal.
16.Further, The No objection certificate received from the ompetent authorities under the provisions of The Delhi Land (restriction on transfer) Act, 1972 has also not been placed on record.
17.Furthermore, the plaintiff has not placed on record any demarcation report or any other document to prove as to which area forms part of khasra no. 262/258/217/4/3, which is alleged to be plot no. 1E of land with superstructure measuring 50 Sq. Yds., In Block C Acharya Kriplani Road, Adarsh Nagar, Delhi on 29/3/2001 purchased by him. Clearly, the discription of the said Suit No. 1004/2010 Page No. 10 of 14 suit property is vague and unidentified.
18.Also, the salepurchase documents placed on record by the plaintiff are in the nature of GPA/Affidavit/will/Agreement to sell/receipt etc. some are registered and some unregistered. At this juncture it would be worthwhile to discuss the decision in Suraj Lamp & Industries Pvt. Ltd vs. State of Haryana & Anr. SLP (C) No. 13917 of 2009 dated 11.10.2011. In the aforesaid decision, the Hon'ble Supreme Court has clearly laid down that such documents do not create any ownership right in immovable property. The Hon'ble Supreme Court held as under:
"Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank - 94(2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some king of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property"Suit No. 1004/2010 Page No. 11 of 14
Now from the aforesaid it is clear that the plaintiff is claiming ownership on the basis of the GPA, agreement to sell, affidavit, will etc. but in view of the aforesaid decision in Suraj Lamp's case (supra), the plaintiff cannot be declared an owner as there is no valid transfer of property vide the aforesaid documents.
19.It is well settled that the relief of decleration is a discretionary relief and the court exercises in discreation of that party which approaches the court with clean hands. Equity does not demand that its suitors shall have led blameless lives. The maxim withholds assistance of Court where the wrongdoer is trying to enjoy the fruits of his own wrong. It is a selfimposed ordinance that closes the door of a Court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief. A party who seeks equity must bring on record the entire facts of his case supported by documentary proof.
20.It has been held in Executive Committee of Vaish Degree College, Shamli v. Lakshmi NarainAIR 1976 SUPREME COURT 888 that the relief of declaration and injunction under the provisions of the Specific Relief Act is purely discretionary and the plaintiff cannot claim it as right. The relief has to be granted by the Court according to sound legal principles and ex debito justitiae. Suit No. 1004/2010 Page No. 12 of 14 The Court has to administer justice between the parties and cannot convert itself into an instrument of injustice or an engine of oppression. In these circumstances, while exercising its discretionary powers the Court must keep in mind the well settled principles of justice and fair play and should exercise the discretion only if the ends of justice require it, for justice is not an object which can be administered in vacuum. Clearly, if a party supresses material facts from the court then the relief of injunction and declaration cannot be granted to that party.
In view of the foregoing discussion, clearly, the plaintiff has failed to prove her case and is not entitled to the relief of declaration as prayed for and thus is also not entitled to the relief of possession as prayed for.
Accordingly, these issues are decide in favour of the defendants and against the plaintiff.
21. Issue No. 3 Whether the suit has not been properly valued for the purposes of court fees and jurisdiction? OPD The burden to prove this issue was on the defendants but the defendants have neither led any evidence in this regard nor otherwise proved this issue. Accordingly, this issue is decided in favour of the plaintiff and against the defendants. Suit No. 1004/2010 Page No. 13 of 14
22.Issue No. 4 Whether the suit is barred by order 1 rule 8 CPC? OPD The burden to prove this issue was on the defendants but the defendants have neither led any evidence in this regard nor otherwise proved this issue. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
23. Relief:
In view of the foregoing discussion, the plaintiff has failed to prove his case and thus the suit is hereby dismissed. There are no orders as to costs. Decree sheet be prepared accordingly. File be consigned to the record room after necessary compliance.
Announced & signed in the ( Snigdha Sarvaria) open court on 29012014. Civil Judge/Central05 Delhi Suit No. 1004/2010 Page No. 14 of 14