Delhi District Court
Khalid Rizavi Ors vs Dda on 31 July, 2024
IN THE COURT OF MS. NEETI SURI MISHRA,
SCJ CUM RC (NORTH), ROHINI COURTS, DELHI
In the matter of :-
1. Khalid Rizvi
S/o Umed Ali
R/o Kailash Vihar Pensali, Gali No. 1,
House No. 1-B, Kali Mata Mandir,
Delhi- 110042.
2. Uzair Rizvi
S/o Mr. Zahid Ali
R/o Kailash Vihar Pensali, Gali No. 1,
House No. 4/1, Kali Mata Mandir,
Delhi- 110042.
3. Shashi Shukla
W/o Sh. Ganesh Kumar Shukla
R/o Kailash Vihar Pensali, Gali No. 1,
House No. 56A, Kali Mata Mandir,
Delhi- 110042.
4. Ganesh Kumar Shukla
S/o Sh. Byas Shukla
R/o Kailash Vihar Pensali, Gali No. 1,
House No. 56A, Kali Mata Mandir,
Delhi- 110042.
.....Plaintiffs
VERSUS
Delhi Development Authority (DDA)
Vikas Sadan,
Delhi - 110001.
.....Defendant
CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 1 of 26
JUDGMENT
CNR No. DLNT 0300 0511 2014
Case No. 35615/16
Suit for Permanent & Mandatory
Under Section
Injunction
Date of Institution 25/09/2014
Date of reserving for orders 27/05/2024
Date of Final Order 15/07/2024
Final Order Suit Dismissed
1. The brief facts of the case are that the present suit has been filed by four Plaintiffs namely Plaintiff No. 1 - Khalid Rizvi, Plaintiff No. 2 - Uzair Rizvi, Plaintiff No. 3 - Shashi Shukla and Plaintiff No. 4 - Ganesh Kumar Shukla alleging that they had purchased small parcels of land in the area of village - Pansali, Delhi but they were dispossessed by the Defendant/DDA unauthorizedly and illegally.
2. Plaintiff No. 1 has submitted that he was the absolute owner of property bearing no. 1-B out of Khasra No. 18/6, situated in the area of village - Pansali, colony known as Gali No. 1, Block - B, Kailash Vihar, Delhi - 110042, ad measuring 25 Sq. Yards (which shall be referred to as Suit Property No. 1) and has been residing at the same place from the date of its purchase. Plaintiff No. 1 has further submitted that suit property no. 1 was purchased by him from Sh. Ganesh Kumar Shukla, S/o Sh. Viyas Shukla through notarized documents like General Power of Attorney, Sale and Purchase Agreement, Affidavit, Receipt and Will on 21/02/2013. The vendor Sh. Ganesh Kumar Shukla had purchased suit property no. 1 from Smt. Manjeet Kaur, W/o Sh. Daljeet Singh on 01/01/2013 CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 2 of 26 also by way of notarized property documents like General Power of Attorney, Sale and Purchase Agreement, Affidavit, Receipt and Will. That Smt. Manjeet Kaur had purchased the aforesaid suit property no. 1 from Sh. Ram Kumar Verma, S/o Sh. Jhuri Verma through Notarized property documents like General Power of Attorney, Sale and Purchase Agreement, Affidavit, Receipt and Will, all dated 15/09/2008. That Sh. Ram Kumar Verma had purchased the said property from Sh. Rajender Prasad S/o Sh. Ram Bhruch Prasad through notarized property documents on 15/09/2008 and Sh. Rajender Prasad had in turn purchased the same from Sh. Devender Singh S/o Sh. Bhori Singh by way of a registered document. It is further submitted that the suit property no. 1 was purchased by one Devender Singh from Sh. Suresh on 05/07/1994.
3. Plaintiff No. 1 has alleged that he has been in uninterrupted and peaceful possession of suit property no. 1 from the date of its ownership and no encumbrances have been created on the said property. He has further submitted that the property was purchased from the funds generated from his relatives and friends and from the savings of several years. It is alleged that the Defendant has acquired in the year 2002-03, some portion of the village - Pansali, but suit property no. 1 does not fall in the acquired portion and instead is located in the unacquired portion of village - Pansali and the property of Plaintiff no. 1 is a freehold property due to which no hindrance can be created by the Defendant regarding raising of any construction thereon.
4. Further, Plaintiff no. 2 namely Uzair Rizvi has submitted that he is the absolute owner of a parcel of land CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 3 of 26 admeasuring 40 Sq. Yards out of a total of 50 Sq Yards out of Khasra No. 18/6, situated in the area of village - Pansal, abadi known as Kailash Vihar, Delhi - 110042, with its new address at Gali No. 1, House No. 4/1, Near Kali Mata Mandir, Delhi - 110042 (which shall be referred to as Suit Property No. 2). Plaintiff No. 2 has alleged that he has been residing at the same place from the date of its purchase from Smt. Geeta, W/o Sh. Vijender. He has alleged that suit property no. 2 was purchased through notarized property documents like General Power of Attorney, Sale and Purchase Agreement, Affidavit, Receipt and Will on 21/06/2013. Smt. Geeta had purchased the said property from Sh. Suresh on 14/02/1996 through notarized property documents like General Power of Attorney, Sale and Purchase Agreement, Affidavit, Receipt and Will. Sh. Suresh had purchased the aforesaid suit property no. 2 from Sh. Devender Singh, S/o Sh. Bhori Singh on 05/07/1994 through notarized property documents like General Power of Attorney, Sale and Purchase Agreement, Affidavit, Receipt and Will.
5. Plaintiff No. 2 has alleged that he has been in uninterrupted and peaceful possession of suit property no. 2 from the date of its ownership and no encumbrances have been created on the said property. He has further submitted that the property was purchased from the funds generated from his relatives and friends and from the savings of several years. It is alleged that the Defendant has acquired in the year 2002-03, some portion of the village - Pansali, but suit property no. 2 does not fall in the acquired portion and instead is located in the unacquired portion of village - Pansali.
CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 4 of 266. Plaintiff No. 3 - Smt. Shashi Shukla, W/o Sh. Ganesh Kumar Shukla has submitted that she is the absolute owner of the property bearing no. 56A, area measuring 40 Sq. Yards out of total land of 80 Sq. Yards out of Khasra No. 18/12/1, situated in the area of Village - Pansal, abadi known as Kailash Vihar, Delhi - 110042 (which shall be referred to as Suit Property No. 3). Plaintiff no. 3 has submitted that suit property no. 3 had been purchased by her from Sh. Ram Sanjeevan Patel, S/o Sh. Ram Nath Patel on 12/04/2013 through notarized documents like General Power of Attorney, Sale and Purchase Agreement, Affidavit, Receipt and Will. Sh. Ram Sanjeevan Patel had purchased the afoesaid suit property no. 3 from Smt. Manju Devi on 02/04/2013 through notarized documents like General Power of Attorney, Sale and Purchase Agreement, Affidavit, Receipt and Will. Smt. Manju Devi had purchased the suit property from Sh. Bake Lal, S/o Sh. Babu Ram on 01/10/2012 and Sh. Bake Lal had purchased the said property from Smt. Vatika W/o Sh. Abdul Gaffar on 05/01/2001 through notarized documents like General Power of Attorney, Sale and Purchase Agreement, Affidavit, Receipt and Will. Plaintiff no. 3 submits that she had also purchased 10 Sq. Yards of property adjacent to suit property no. 3, which was purchased by Plaintiff No. 3 from Smt. Pinky W/o Sh. Sunil Kumar on 08/04/2013 through notarized documents like General Power of Attorney, Sale and Purchase Agreement, Affidavit, Receipt and Will.
7. Plaintiff No. 3 has alleged that she has been in uninterrupted and peaceful possession of suit property no. 3 from the date of its ownership and no encumbrances have been created on the said property. She has further submitted that the property CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 5 of 26 was purchased from the funds generated from her relatives and friends and from the savings of several years. It is alleged that the Defendant has acquired in the year 2002-03, some portion of the village - Pansali, but suit property no. 3 does not fall in the acquired portion and instead is located in the unacquired portion of village - Pansali.
8. It is submitted by Plaintiff no. 4 - Sh. Ganesh Kumar Shukla that he is the absolute owner of property admeasuring 10 Sq. Yards out of a total of 50 sq. yards, situated in Kasra No. 18/6, situated in the area of village - Pansali, abasi known as Kailash Vihar, Delhi - 110042 (which shall be referred to as Suit Property No. 4). It is submitted that Plaintiff No. 4 had purchased the aforesaid property from Smt. Geeta, W/o Sh. Vijender Singh on 24/06/2013 through notarized documents like General Power of Attorney, Sale and Purchase Agreement, Affidavit, Receipt and Will. It is further submitted that both Plaintiffs No. 3 and 4 are living in suit property no. 3 and suit property no. 4 from the date of the ownership and without any hindrance from any corner.
9. Plaintiffs have further submitted that they did not receive any notice regarding any action from Defendant and were living in their respective suit properties peacefully without any hindrance. They also raised construction as per their needs and requirements on the vacant plots purchased by them and even at the time of construction, no official from the Department of Defendant raised any objection. However, on 15/09/2014, at around 11:30 a.m., few persons from the Defendant Department alongwith the Police Officials arrived at the house of Plaintiffs CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 6 of 26 and without any notice or the order of the Court, warned the entire family of Plaintiffs to evacuate the house instantaneously. They also started forcefully removing all people from the suit properties besides throwing the furniture articles out of the houses. Thereafter, the construction / houses of Plaintiffs were demolished and the entire debris of the houses was also taken away by the officials of Defendant so that Plaintiffs could also not demonstrate any proof of prior existence of their houses.
10. Plaintiffs called the Police at 100 Number during the demolition activity but they failed to restrain the officials of Defendant from demolishing the Plaintiffs' house. Subsequently, a day after demolition of the Plaintiffs' house, Defendant began constructing a boundary wall around the plots which action of the Defendant construes an intention to grab the properties of Plaintiffs. Plaintiffs also visited the nearest Police Station but Police officials did not take any action on the Plaintiffs' complaint.
11. Thereafter on 17/09/2014, Plaintiffs alongwith few persons of the same locality went to the office of the LG at Raj Niwas and met the Secretary of the Lieutenant Governor, narrating the incident to him. On 18/09/2014, DCP Office was also visited by the Plaintiffs but to no avail. Plaintiffs have alleged that the suit properties had not been acquired by the Defendant, hence the act of the officials of Defendant demolishing the Plaintiffs' house without any prior notice and cause is absolutely arbitrary, illegal and without any jurisdiction. Plaintiffs thus submitted that as the Defendant had illegally occupied the suit properties, they were left with no other recourse CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 7 of 26 but to institute the present suit against the Defendant, praying for the following reliefs against them:-
"PRAYER:
(a) Pass a decree for permanent injunction restraining the defendant to make any construction on the Plaintiffs's(sic) plot which was demolished by defendant.
(b) Pass a decree for permanent injunction to restraining(sic) the respondent to create third party interest of afore said property of Plaintiffs in Colony known as Kailash Vihar, Pansali, Delhi.
(c) Pass a decree for mandatory injunction against the respondent to restrain the Defendant to installed(sic) any machinery, vehicle and other in the property of plaintiffs.
Any other order/reliefs which this Hon'ble court deems fit and proper be passed in favour of plaintiffs and against the Defendant in the interest of justice."
12. On institution of the suit, summons of the suit were issued to the Defendant. The Defendant Department entered appearance and filed written statement. In the written statement it raised several preliminary objections challenging the maintainability of Plaintiffs' suit on the grounds of failure of plaintiffs to serve the mandatory statutory notice under Section 53B of the Delhi Development Act, 1957 (henceforth "DD Act"), the Plaintiffs' suit having become time barred, etc. It was additionally averred by the defendant that the entire land comprised in Khasra No. 18//6 (4-14) of Village Pansali has already been notified under Sections 4, 6, 17(i) vide Notification No. F10(29)/96/L&B/LA dated 27/10/1999 and 03/04/2000, respectively. Even the physical possession of the entire land abovesaid according to defendant has also been handed over to CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 8 of 26 the Defendant by the Land Acquisition Collector, L&B, Government of NCT of Delhi on 12/05/2000, which has further been transferred to the Engineering Wing of DDA for further development. It was further alleged by defendant that the suit property in question, being a vacant site, defendant has already constructed a boundary wall bounding the same and the Plaintiffs have no right, title or interest on the land in question. Defendant has also questioned the locus standi of Plaintiffs to institute the present suit on the grounds that the documents of transfer relied on by Plaintiffs lack legal sanctity as they are not documents of ownership in the eyes of law, hence the Plaintiffs do not have the locus standi to institute the present suit as they are neither the owner nor in possession of the suit land. It has additionally been asserted that after declaration of the notification for acquisition of a particular land by the Government, any encumbrance created on the land lacks legal sanctity and hence it is a void transaction. Defendant thus prayed for dismissal of plaintiffs' suit. In Replication, the Plaintiffs reiterated the contents of the plaint.
13. Thereafter, upon completion of the pleadings of the parties, following issues were framed by the Ld. Predecessor vide order dated 30/06/2015:-
ISSUES
1. Whether the Plaintiff is entitled to a relief of mandatory injunction, as prayed for? OPP
2. Whether the Plaintiff is entitled to a relief of permanent injunction, as prayed for? OPP CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 9 of 26
3. Whether the suit of the Plaintiff is without any cause of action? OPD
4. Whether the suit of the Plaintiff is barred by the reasons stated in Para No. 1 of the preliminary objections of the Written Statement filed by the DDA? OPD
5. Relief PLAINTIFF'S EVIDENCE
14. Consequent to the framing of issues, plaintiffs evidence commenced and the plaintiffs in support of their case examined 05 witnesses. The Plaintiffs first and foremost examined Khalid Rizvi/Plaintiff No.1 as PW1. He tendered his evidence by way of affidavit Ex. P1 and relied on the following documents:-
S. No. Description of documents Exhibit Nos.
1 Documents of the property Ex. PW1/1
in the nature of General
Power of Attorney,
Agreement to Sell and
Purchase, Affidavit, Receipt,
Possession Letter, Will, all
dated 21/02/2013 executed
by Ganesh Kumar Shukla in
favour of Khalid Rizvi.
Photocopy of documents of
the property in the nature of
General Power of Attorney,
Agreement to Sell and
Purchase, Affidavit, Receipt,
Possession Letter, Will, all
dated 01/01/2013 executed
by Manjeet Kaur in favour
CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 10 of 26
of Ganesh Kumar Shukla.
Photocopy of documents of
the property in the nature of
General Power of Attorney,
Agreement to Sell and
Purchase, Affidavit, Receipt,
Possession Letter, Will, all
dated 15/09/2008 executed
by Ram Kumar Verma in
favour of Manjeet Kaur.
Photocopy of documents of
the property in the nature of
General Power of Attorney,
Agreement to Sell and
Purchase, Affidavit, Receipt,
Possession Letter, Will, all
dated 15/09/2008 executed
by Rajender Prasad in
favour of Ram Kumar
Verma.
Photocopy of General
Power of Attorney and Will
in respect of the property
executed by Devender Singh
in favour of Rajender Prasad
on 14/10/1999.
Shri Devender Singh had
purchased the property from
Suresh on 05/07/1994
through registered
documents.
2 Photocopy of Layout Plan Ex. PW1/3
by town planner
3 Provisional Certificate of Mark B
Regularization
CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 11 of 26
4 Map of area of Kailash Ex. PW1/5
Vihar, Pansali showing
different Khasra and the
area occupied by the persons
5 Photocopy of complaint Ex. PW1/6 (incorrectly
before Lt. Governor of exhibited as Ex.
Delhi PW1/3)
6 Grievance and application to Ex. PW1/7 (incorrectly
Police exhibited as Ex.
PW1/4)
7 Copy of the complaint to Ex. PW1/8 (incorrectly
DCP exhibited as Ex.
PW1/5)
8 Copy of complaint to Lt. Ex. PW1/9 (incorrectly
Governor exhibited as Ex.
PW1/8)
9 Copy of complaint to Ex. PW1/10
Chairman, DDA (incorrectly exhibited
as Ex. PW1/5)
10 Copy of complaint to Chief Ex. PW1/11
Justice of Hon'ble High (incorrectly exhibited
Court of Delhi as Ex. PW1/6)
11 Copy of complaint to Ex. PW1/12
Vigilance Department
12 Copy of complaint to SHO, Ex. PW1/11
PS - Shahbad Dairy (incorrectly exhibited
as Ex. PW1/10)
PW2 - Sh. Ganesh Kumar Shukla was a public witness. He tendered his evidence by way of affidavit Ex.PW2/A and placed reliance on the following documents:
S. No. Description of documents Exhibit Nos.
1. Documents of the property Ex.PW2/1 (OSR) in the nature of General Power of Attorney, Agreement to Sell and Purchase, Affidavit, CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 12 of 26 Receipt, Possession Letter, Will, all dated 24/06/2013 executed by Geeta in favour of Ganesh Kumar Shukla.
Photocopy of documents of the property in the nature of General Power of Attorney, Agreement to Sell and Purchase, Affidavit, Receipt, Possession Letter, Will, all dated 14/02/1996 executed by Suresh in favour of Geeta.
2. Electricity Bill dated Ex.PW2/2 exhibited in affidavit as Ex.PW2/2 11/06/2014 was de-exhibited and marked as Mark A
3. Provisional Certificate of Ex.PW2/4 exhibited in affidavit as Ex.PW2/2 Regularization was de-exhibited and marked as Mark B
4. Documents on plaintiff Ex.PW1/3-Ex.PW1/13.
No. 1Witness further deposed that there is no Ex.PW2/3 because the same is already exhibited as Ex.PW1/3 in the evidence of PW1. There is no exhibit from Ex.PW2/5 to Ex.PW2/13 because the same are already exhibited as Ex.PW1/5 to Ex.PW1/13.
PW3 -Smt. Shashi Shukla w/o Sh. Ganesh Shukla tendered her evidence by way of affidavit Ex.PW3/A and placed reliance on the documents already exhibited by PW1 and PW2 in their evidence. She additionally placed reliance on the following documents:
CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 13 of 26S. No. Description of documents Exhibit Nos.
1. Documents of the property in Ex.PW3/1 (OSR) the nature of General Power of Attorney, Agreement to Sell and Purchase, Affidavit, Receipt, Possession Letter, Will, all dated 12/04/2013 executed by Ram Sanjeevan Patel in favour of Shashi Shukla.
Photocopy of documents of the property in the nature of General Power of Attorney, Agreement to Sell and Purchase, Affidavit, Receipt, Possession Letter, Will, all dated 08/05/2013 executed by Pinki in favour of Shashi Shukla.
Photocopy of documents of the property in the nature of General Power of Attorney, Agreement to Sell and Purchase, Affidavit, Receipt, Possession Letter, Will, all dated 02/04/2013 executed by Manju Devi in favour of Ram Sanjeevan Patel.
Photocopy of documents of the property in the nature of General Power of Attorney, Agreement to Sell and Purchase, Affidavit, Receipt, Possession Letter, Will, all dated 01/10/2012 executed by Bake Lal in favour of Manju Devi.
CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 14 of 26Photocopy of documents of the property in the nature of General Power of Attorney, Agreement to Sell and Purchase, Affidavit, Receipt, Possession Letter, Will, all dated 05/01/2001 executed by Vakila in favour of Bake Lal.
2. Electricity Bill in the name of Ex.PW3/2 Manju Devi exhibited in affidavit was de-
exhibited and
marked as Mark A
3. Electricity Bill Ex.PW3/3
exhibited in
affidavit was de-
exhibited and
marked as Mark B
PW4- Ram Kumar Verma was a summoned witness and he tendered his evidence by way of affidavit as Ex.PW4/A. Witness relied on property documents already exhibited as Ex.PW1/1.
PW5- Sameer, Data Entry Operator, Record Room from the office of Sub-Registrar-VIA, Pitampura, Delhi deposed that he is a summoned witness and has produced registered documents i.e. General Power of Attorney in respect of property admeasuring 125 sq. yards out of Khasra No.18/6, situated in the area of Village Pansali, abadi known as Kailash Vihar, Delhi. He deposed that photocopy of GPA and Will both dated 14/10/1999 copy of which was brought by him. He deposed that said documents were executed by Shri Devender Singh in favour of Shri Rajender Prashad having registration no. 54936 in additional book no. 4, Volume No. 2636 on pages 103-105 and the same CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 15 of 26 were exhibited as Ex.PW5/1 and copy of Will registered as document no. 49396, additional book no. 3, Volume No.1101 on page 24 and the same has been exhibited as Ex.PW5/2.
15. Plaintiffs thereafter closed evidence on 14/11/2022. Defendant commenced evidence. In support of its case, the certified copy of testimony of DW1 in connected case Sanjee Begum vs. DDA, CS SCJ No. 35626/16 was taken on record.
16. On conclusion of defendant's evidence, final arguments from the counsel for both parties were heard at length and I perused the entire record of the case. My issue-wise findings are as under:
17. Issue no. 2: Whether the plaintiff is entitled to a relief of permanent injunction, as prayed for? OPP
(a) The onus to prove this issue was on the plaintiffs. Plaintiffs have filed the suit for permanent and mandatory injunction and in the prayer clause they have prayed for the relief of permanent injunction to restrain the defendant from carrying out any demolition activity on the suit prop- erty and to also restrain the defendant from raising any construction thereon. The relief of permanent injunction is governed by Section 38 of the Specific Relief Act, 1963. Section 38 of the Specific Relief Act is reproduced as un- der for the sake of convenience and ready reference:
"38. Perpetual injunction when granted--
(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 16 of 26 granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:--
(a)where the defendant is trustee of the property for the plaintiff;
(b)where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c)where the invasion is such that compensation in money would not afford adequate relief;
(d)where the injunction is necessary to prevent a multiplicity of judicial proceedings."
(b) A careful reading of Section 38, Specific Relief Act shows that there are twin aspects of the relief of permanent injunction. The foremost aspect is that the relief of permanent injunction can be granted for prevention of breach of an obligation existing in favour of the plaintiff either expressly or by implication. The second aspect is that relief of permanent injunction can be awarded only if the defendant has invaded or has threatened to invade the plaintiff's right to enjoyment of a property and if such injunction is not granted then the loss or damage occasioned on account of the invasion would be such that it cannot be compensated in monetary terms or would result in multiplicity of proceedings.
CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 17 of 26(c) On these settled principles, it needs to be ascertained whether any rights in the suit properties existed in favour of the plaintiffs, the breach or violation of which makes them entitled to the relief of permanent injunction.
(d) Plaintiff no. 1 has claimed himself to be the owner of the suit property no. 1 which was purportedly purchased by him from Sh. Ganesh Kumar Shukla, S/o Sh. Viyas Shukla through notarized documents like General Power of Attorney, Sale and Purchase Agreement, Affidavit, Receipt and Will on 21/02/2013. Plaintiff has proved the customary documents above-stated as Ex.PW1/1 and in addition to these documents he has also placed reliance on the previous chain of documents in respect of suit property no. 1 exhibited collectively as PW1/1.
(e) Further Plaintiff no. 2 Ganesh Kumar Shukla has also placed reliance on General Power of Attorney, Agreement to Sell and Purchase, Affidavit, Receipt, Possession Letter, Will, all dated 24/06/2013 executed by Geeta in favour of plaintiff no. 2 to claim his ownership over suit property no. 2. Plaintiff no. 2 has also relied on photocopy of documents of suit property no. 2 in the nature of General Power of Attorney, Agreement to Sell and Purchase, Affidavit, Receipt, Possession Letter, Will, all dated 14/02/1996 executed by Suresh in favour of Geeta to show the previous chain of title documents. All these documents executed in favour of plaintiff no. 2 are notarized documents. Not even a single document is registered document.
CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 18 of 26(f) Further, the other documents relied on by remaining plaintiffs are also notarized documents. Not even a single document executed in favour of the remaining plaintiffs are registered documents.
(g) For the purpose of adjudicating the legal sanctity of all of these documents, its essential to bifurcate the documents executed in favour of the plaintiffs herein from the documents comprising the previous chain of documents executed in favour of the erstwhile owners of all the suit properties which are subject matter of this suit. Insofar as the documents executed in favour of the plaintiffs are concerned, they are all in the nature of General Power of Attorney, Sale and Purchase Agreement, Affidavit, Receipt and Will and all of them are evidently notarized documents. Not even a single document is registered. In this regard, it is pertinent to note that it is the settled position of law and no more res integra that simplicitor notarized documents without having any document duly registered before the Sub-Registrar are bereft of any legal sanctity and do not confer any ownership rights or rights of possession in respect of an immovable property. In the absence of any Sale Deed to contend that ownership rights in the property vested with plaintiff no.1 is without any substance. It is the settled legal position that all documents of sale-purchase of immovable property have to be routed through the sub-registrar. Hence, these documents on which the plaintiffs have placed reliance to claim ownership of suit property, cannot be construed as title documents conferring ownership rights on them qua the suit properties. Further, with regard to the previous chain that the plaintiffs have shown and exhibited in their evidence, it evident that none of these CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 19 of 26 documents have been proved by the plaintiffs by summoning the executants of these documents. Hence, they cannot be deemed to have been proved in terms of the settled principles of the Evidence Act. Further, there is no legal sanctity attached to the transactions and straight away the judgement of Suraj Lamps Industries Private Limited vs. State of Haryana, (2009) 7 SCC 363 is applicable in the given set of facts and circumstances. Thus, these documents cannot be taken as one which vest title unto the plaintiffs in respect of the suit properties. Moreover, the stamp duty mandated to be paid on an instrument of transfer of an immovable property mandated by Section 35 of the Indian Stamp Act, has not been paid by plaintiffs. It leads to the most irrefutable conclusion that the documents on which the plaintiffs have placed reliance never conferred ownership rights on them.
(h) It also needs no reiteration that with effect from 24/09/2001, even for the purposes of availing the plea of part performance under Section 53A Transfer of Property Act, the agreement to sell has to be a registered one. This being the situation, plaintiffs are without any legal right in the suit properties. On the contrary DDA defendant has proved on record certified copies of award and the copy of the possession proceedings in respect of the suit properties. Further as per plaintiffs' deposition the physical possession of the property has also been taken by defendant on 15/09/2014. Plaintiffs have admitted in the plaint that on 15/09/2014 the officials of DDA arrived at the suit property at about 11:30 a.m. alongwith the police and carried out demolition drive after vacating plaintiff no.1 and his family members from the suit property. It has also admitted that the entire debris was immediately removed and CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 20 of 26 within a few hours and the defendant constructed a boundary wall around the suit property. In the wake of the clear and cogent admission by plaintiffs that they were dispossessed from the suit property on 15/09/2014 itself in the presence of the police officials, a simpliciter suit for permanent injunction is not maintainable. Plaintiffs have evidently filed the suit on 25/09/2014 on which date they had been already removed from the suit property. Plaintiffs should have thus, prayed for the relief of possession after paying the ad valorem Court fees on the relief of possession. But since they have not claimed the same, they cannot be granted the relief of possession through the present suit of permanent injunction. Even otherwise, the suit of plaintiffs is not maintainable in light of the decision of Honorable Apex Court in Anathula Sudhakar Vs. P. Buchi Reddy, (2008) 4 SCC
594. The relevant portion of the said judgment is reproduced as under:
"11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 21 of 26 have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."
(i) A bare reading of the above quoted paragraph reveals that when plaintiff claims to be in possession of the suit property and has filed a simplicitor suit for permanent injunction but the defendant on the other hand raises a cloud on the title of the plaintiff, then the plaintiff ought to claim the relief of declaration and in addition to declaration can claim the consequential relief of permanent injunction. Honorable Apex Court has clarified that in such circumstances a simplicitor suit for permanent injunction is not maintainable and the plaintiff will have to seek declaration of his title over the suit property. In the present case plaintiffs have failed to seek the declaration of their title especially in view of the fact that the defendant has proved the copy of award passed by the land acquisition collector, genuineness of which has not been challenged by plaintiff, thereby raising a cloud over the title of plaintiffs. Therefore, even on this count the suit of plaintiffs is not maintainable.
(j) Returning to the reliefs claimed in the prayer clause of plaint. The relief in prayer clause (b) seeks to restrain the defendant from demolishing the suit properties falling in Khasra no. 18/6 and 18/12/1. But this relief is apparently not maintainable as before the instant suit was filed the construction on the suit plot had already been demolished CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 22 of 26 and officials of defendant department had officially taken possession of the suit land. Thus the particular relief had become infructuous on the date of institution of the suit, itself. Secondly, plaintiffs sought that defendant ought to be restrained from making any construction on the suit plot. But in view of the discussion recorded in the foregoing paragraphs, as plaintiffs have failed to establish their ownership rights on the suit plot, they are not entitled to the relief of restraining defendant from raising any construction on the suit land. Hence both reliefs claimed by them stand declined. This issue thus stands decided in favour of defendant and against the plaintiffs.
18. Issue no. 1: Whether the plaintiff is entitled to a relief of mandatory injunction, as prayed for? OPP
(a) The onus to prove this issue was on the plaintiffs. Plaintiffs claimed that the defendant be restrained from installing any machinery or vehicle on the suit plot. Plaintiffs have not led any evidence to prove that the defendant was planning to install any machinery or vehicle on the suit plot or had even threatened to do so to the plaintiffs. Even otherwise, plaintiffs have failed to establish their ownership rights on the suit property, which implies that plaintiffs evidently had zero rights to interfere in any decisions regarding the use of suit land that the defendant department may decide to make. As plaintiffs are not the owner of the suit property, they cannot be granted the desired relief as it would majorly prejudice the defendant department, which is already in possession of the suit property since long by virtue CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 23 of 26 of the Award bearing no. 04/2002-03 Ex.DW1/1. Hence this issue also stands decided in favour of defendant and against the plaintiffs.
19. Issue no. 3: Whether the suit of the plaintiff is without any cause of action? OPD
(a) The onus to prove this issue was on the defendant. The defendant has alleged that suit of plaintiff was without any cause of action. The meaning of the term 'cause of action' has been explained by the Hon'ble Apex Court in Liverpool & London S.P. & I Asson. Ltd vs M.V. Sea Success I & Anr., 2004(9) SCC 512. It had observed:
"A cause of action is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit. For the aforementioned purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence."
Mulla on the Code of Civil Procedure while commenting on Section 20 of the Civil Procedure Code defined cause of action in following words:-
"The expression 'cause of action' has acquired a judicially settled meaning. In the restricted sense 'cause of action' means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact by which it would be necessary CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 24 of 26 for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court..."
(b) Thus, cause of action is every fact which it is necessary for the plaintiff to plead and prove, if traversed, in order to support his suit in the court. In the present case, it has surfaced in the discussion recorded in response to Issue no. 2 that the plaintiffs herein have neither been able to establish any right, title or interest in the suit property nor have they been able to demonstrate their possession of the suit property. Hence, no cause of action can be said to have arisen in their favour for instituting the present suit for permanent injunction. Thus issue no. 3 too, stands decided in favour of defendant and against the plaintiffs.
20. Issue no. 4: Whether the suit of plaintiff is barred by the reasons stated in para no. 1 of preliminary objections of the WS filed by the DDA? OPD
a) The onus to prove this issue was on the defendant.
Paragraph 1 of the preliminary objections of the written statement is, "That the suit of the Plaintiff is not maintainable on facts and in law and as such the plaint is liable to be rejected, as required under order 7 rule 11 of the Code of Civil Procedure."
b) It has been decided in response to Issue no. 2 that suit of plaintiffs filed for the relief of permanent injunction simpliciter is not maintainable. The issue has been discussed at length with discussion related to the settled position of law and has been decided on the merits of the CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 25 of 26 case. Thus, at this stage though it can be held that suit of plaintiffs is not maintainable, but the suit cannot be rejected under Order VII Rule 11 CPC, as the suit has been decided on its merits and in view of the settled position of law. Thus, this issue too stands decided in favour of defendant and against the plaintiffs.
RELIEF
21. In view of the facts and circumstances, evidence led by parties and the reasons above-mentioned, the suit of the plaintiff for permanent and mandatory injunction is dismissed.
22. Decree sheet be prepared after the Plaintiff pays the requisite Court fees, if any. File be consigned to Record-Room, after due compliance. Digitally signed NEETI by NEETI SURI MISHRA Announced in the open Court SURI Date:
on this 31st day of July, 2024 MISHRA 2024.07.31 16:45:35 +0530 (NEETI SURI MISHRA) SCJ-CUM-RC NORTH DISTRICT, ROHINI COURT, DELHI It is certified that this judgment contains 26 pages Digitally signed by NEETI and every page is signed by me. SURI NEETI SURI MISHRA Date: 2024.07.31 MISHRA 16:45:43 +0530 (NEETI SURI MISHRA) SCJ-CUM-RC NORTH DISTRICT, ROHINI COURT, DELHIs CS SCJ No. 35615/16 Khalid Rizvi Vs. DDA Page 26 of 26