Delhi District Court
Kunwar Pal Singh vs Delhi Development Authority on 15 February, 2023
IN THE COURT OF SH. SHRIYA AGRAWAL
JSCC cum ASCJ cum GJ, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
(Delegated Appellate Jurisdiction)
Regular Civil Appeal SCJ 09/2019
CNR No. DLSE03-002651-2019
KUNWAR PAL SINGH
S/O LATE SHRI LIKKHI SINGH
PROPERTY NO. 179, KHASRA No. 273,
VILLAGE JASOLA, TEHSIL MEHRAULI,
NEW DELHI ...... Appellant
Versus
DELHI DEVELOPMENT AUTHORITY
THROUGH ITS VICE CHAIRMAN
VIKAS SADAN, I.N.A,
NEW DELHI ..... Respondent
APPEAL UNDER SECTION 96 OF CIVIL PROCEDURE CODE
Date of Institution: 14.11.2019
Date of reserving for Judgment : 06.02.2023
Date of Decision : 15.02.2023
JUDGMENT
1. The present appeal has been filed by the Appellant (Plaintiff in the suit bearing CS No. 9853 of 2016 titled 'Kunwar Pal Singh Vs. Delhi Development Authority'), seeking setting aside of the Judgment and Decree dated 30.09.2019 passed by the Ld. Trial Court, Ld. Civil Judge-04 (West), Tis Hazari Courts, Delhi (hereinafter referred to as the 'Impugned Judgment') whereby the said suit had been dismissed. The Notice of the Appeal had been issued to the Respondent which was duly RCA SCJ 9/2019 KUNWAR PAL SINGH VS. DELHI DEVELOPMENT AUTHORITY Page 1 of 15 served. The Trial Court record has been summoned and perused and submissions in the present appeal have been heard threadbare from both sides.
2. Briefly, the facts leading to the filing of the suit are discussed hereafter. The Appellant/ Plaintiff had instituted the suit claiming to be the owner, in line of succession to his father Late Mr. Likkhi Ram, who had purchased the suit property i.e. Property No. 179 (200 Sq. meters) stated to be located in Khasra No. 273, Village Jasola, Tehsil Mehrauli, New Delhi from one Mr. Hari Ram for a sum of Rs. 40,000/- on the basis of Agreement to Sell, General Power of Attorney, Affidavit, Receipt and Will dated 02.11.1989. After the death of his father, the Appellant claimed to have become the absolute owner of the suit property, where he has been residing with his wife Ms. Pushpa, his two sons viz. Mr. Vipin Bharti and Mr. Sachin Bharti, along- with his daughter Ms. Poonam and grand-daughters. It has been averred that in November 2006, some officials of the Delhi Development Authority (for short "DDA") had visited the suit property and had partially demolished it, without service of any prior notice or notification for acquisition of Khasra No. 273 having been issued by DDA. It has been the case of the Appellant that DDA had no concern with the suit property, which has been in the same condition as it was at the time of purchase and no unauthorized construction has been raised over the property. The Appellant has relied upon certain documents such as Ration Card, LIC documents, Electricity connection and Caste Certificate of his son et al having been issued for the same address as that of the suit property. It has been the claim of the Appellant that the suit property is duly protected by Delhi Laws (Special Provisions) Act, 2006. It is also averred that the officials RCA SCJ 9/2019 KUNWAR PAL SINGH VS. DELHI DEVELOPMENT AUTHORITY Page 2 of 15 of DDA had visited the suit property on 22.01.2007 threatening to demolish the same. Hence, the said suit bearing CS no. 9853 of 2016 (27 of 2007) was instituted against the DDA/ Respondent by the Appellant for the following reliefs:
(a) Decree of permanent injunction in favour of the Plaintiff against the Defendant, its employees, servants, representatives, agents etc. to restrain them from permanently demolishing the suit property and from taking possession of the suit property or any part thereof and from interfering in the peaceful enjoyment of the same by the Plaintiff.
(b) Cost.
(c) Any other relief.
3. Per contra, the Respondent in the Written Statement has controverted the averments in the plaint stating that the suit property instead falls in Khasra No. 274 (two bigha, 17 viswa) as opposed to Khasra No. 273 and that the same had been acquired vide Award No. 6D-Supplementary 87-88, with possession taken over by DDA from LAC/L&B on 22.09.1986, with the property placed at the disposal of DDA by notification no. F-9 (4) 86/L&B/LA under Section 22 (1) of the Delhi Development Act dated 10.10.1986. After taking control, the same was transferred to JE/SED-02 for the purpose of Sarita Vihar Residential Scheme on 20.06.1989. It is also mentioned that the notifications under Section 4 and Section 6 of the Land Acquisition Act dated 06.04.1964 and 07.12.1964 were made and the land under Khasra No. 273 was also acquired vide Award No. 6 B/Supplementary 81-82. The Respondent denied the allegation of demolition at Khasra No. 273, stating that it had removed the unauthorized encroachment over Khasra No. 274, Village Jasola, which land after demolition is lying vacant and is under the jurisdiction of RCA SCJ 9/2019 KUNWAR PAL SINGH VS. DELHI DEVELOPMENT AUTHORITY Page 3 of 15 DDA and duly fenced. The Appellant is mentioned to be an encroacher over the Government land falling in Khasra No. 274, which is under control and management of DDA. By way of Replication, the Appellant had reaffirmed its case as set out in the plaint. The issues framed in the lis vide Order dated 22.05.2012 were as under:
(i) Whether the Plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP
(ii) Whether the suit property is situated in Khasra No. 274 min of Village Jasola and not in Khasra No. 273? OPD
(iii) Whether the suit property has been acquired by DDA? OPD
(iv) Relief.
4. The Parties led evidence, whereafter vide the Impugned Judgment and Decree dated 30.09.2019, the suit stood dismissed by the Ld. Trial Court with the following observations:
"20. In the present case, the Plaintiff has claimed himself to be owner of the suit property through his father late Sh. Likkhi Singh who allegedly purchased the suit property by virtue of agreement to Sell, GPA, Affidavit, Receipt all dated 02.11.1989. No document as required under Section 54 of the Transfer of Property Act, 1882 have been executed in favour of father of Plaintiff in respect of the suit property. Further, the Plaintiff has failed to bring on record complete chain of documents of the suit property to establish that the ownership of the suit property has been passed from original bhumidhar to the Plaintiff and that the suit property is situated in Khasra No. 273 and not in Khasra No. 274. The Plaintiff has merely filed the objections to the Demarcation Report dated 22.01.2010 which is of no consequence and not fatal to the validity and reliability of the Demarcation Report. The Plaintiff has not taken any step for examination of the said Local Commissioner who have prepared the Demarcation Report.
In respect, Ld. Counsel for Defendant has placed reliance upon the Judgment of Hon'ble High Court of Delhi titled as "New Multan Timber Store Vs. Rattan Chand Sood"
68 (1997) DLT 680 and rightly so.
RCA SCJ 9/2019 KUNWAR PAL SINGH VS. DELHI DEVELOPMENT AUTHORITY Page 4 of 1521 On the contrary, the Defendant has proved on record award no. 6-D Supplementary 86-87 in respect of acquisition of land under Khasra No. 274 as Ex. DW1/1. This award clearly shows that entire land of Khasra No. 274 was acquired by the Government vide Notification no. F 4 (9)/64-L&D dated 06.04.1964 under Section 4 of the Land Acquisition Act and Notification No. F 4 (9)/64-L&D dated 07.12.1996 under Section 6 of Land Acquisition Act.
22. The defendant has further proved on record award no. 6-B/Supplementary/81-82 in respect of acquisition of land under khasra No. 273 as Ex. DW1/5. This award clearly shows that entire land of Khasra No. 273 was acquired by the government vide Notification no. F 4 (9)/64- L&D dated 06.04.1964 under Section 4 of the Land Acquisition Act and Notification No. F 4 (9)/64-L&D dated 07.12.1996 under section 6 of Land Acquisition Act.
23 The plaintiff's father through whom he is claiming ownership over the suit property has entered into transaction for purchase of suit property which was already acquired by the government, hence, this Court is of the opinion that these transactions do not create any right and interest in favour of Plaintiff in the suit property. Since, the Plaintiff had occupied the government land without any right, hence his status in the suit property was only of a encroacher and such encroacher are not entitled to service of any per-demolition notice. However, this Court is not going into the controversy as to whether the suit property purchased by the Plaintiff in the time of the father and hence comes under the category of "Benami Transactions: or that since the Defendant has challenged the title of the Plaintiff over the suit property, suit for mere injunction is not maintainable as argued by Ld. Counsel for the defendant for the simple reason these controversies are not relevant for deciding the present suit. Hence, the Plaintiff has failed to prove his case."
5. By way of the present appeal, the Appellant has challenged the Impugned Judgment as being 'illegal, unlawful and contrary to the provisions of law', seeking to have it set aside on the following grounds:
(A) That the Impugned Order is not sustainable as certain relevant documents filed by the Appellant were not considered.RCA SCJ 9/2019 KUNWAR PAL SINGH VS. DELHI DEVELOPMENT AUTHORITY Page 5 of 15
(B) That the Impugned Judgment is contrary to the facts and material on record and that the Ld. Trial Court failed to consider that the suit property falls in Khasra No. 273 and not in 274. (C) That the Ld. Trial Court wrongly came to the conclusion that there is a dispute about the identity of the suit property. (D) That the Ld. Trial Court wrongly relied upon the demarcation report dated 22.01.2010, wherein it was found that the suit property falls in Khasra No. 274 and not 273. (E) That the Ld. Trial Court decided the suit without deciding the objections filed by the Appellant against the demarcation report.
(F) That the Ld. Trial Court had erred in its conclusion observing that the documents filed by the Appellant such as Agreement to Sell, GPA, Affidavit, Receipt, all dated 02.11.1989, are not documents as required under Section 54 of the Transfer of Property Act and that the Appellant had failed to bring the complete chain of documents on record to establish ownership. (G) That the Ld. Trial Court wrongly relied upon the Award No. 6 B-Supplementary-81-82 in respect of Khasra No. 273 and notification no. F 4 (9)/ 64-L&H dated 06.04.1964 and dated 07.12.1966 under Sections 4 and 6 of the Land Acquisition Act.
(H) That the testimonies of the Plaintiff witnesses were not considered properly by the Ld. Trial Court.
6. It is pertinent to note that during the pendency of the proceedings in the suit, vide Order dated 16.03.2009, the Ld. Civil Judge, while disposing an application under Order XXVI Rule 9 CPC, noting that the main dispute in the suit was concerning the identity of the suit property which could not be clarified by the documents placed on record, had appointed the SDM/Tehsildar, Mehrauli, Delhi as the Court Commissioner for RCA SCJ 9/2019 KUNWAR PAL SINGH VS. DELHI DEVELOPMENT AUTHORITY Page 6 of 15 demarcating the suit premises, who was directed to visit the suit property and assess the exact location thereof. Subsequently, vide Order dated 29.09.2009 noting that the area in question fell in village Jasola, within the Tehsil Kalkaji, the Ld. Trial Court directed SDM/ Tehsildar Kalkaji to conduct the demarcation and file the report in compliance. The Demarcation Report dated 22.01.2010 was received by the Court submitted by Kanungo, as per which the suit property was reported to be situated in Khasra No. 274, to which objections were filed by the Appellant. Vide Order dated 16.11.2011, the Ld. Trial Court observed that the objections so filed by the Appellant would be decided at the stage of final arguments and accordingly proceeded further with the matter. By way of objections formally brought on record, the Appellant/ Plaintiff has questioned the demarcation report on the following grounds:
(i) That the report is illegal and arbitrary, violative of principles of natural justice.
(ii) No measurement was done on the date claimed and the proceedings do not bear the signatures of the Plaintiff. It is also not mentioned on the report that the Plaintiff refused to sign the same.
(iii) That the demarcating officer indulged in mis-conduct, going against the record, since the Plaintiff refused to meet the undue demands of the officials.
(iv) That the guidelines as per High Court Rules and Order (Chapter 1 M) as part of the Punjab High Court Rules concerning Finance Commissioner, followed in practice by Revenue Department (as per which if the map is not on square system, three permanent points for demarcation have to be selected before the process is commenced) were not complied with in the present case.RCA SCJ 9/2019 KUNWAR PAL SINGH VS. DELHI DEVELOPMENT AUTHORITY Page 7 of 15
(v) That the southern line of Khasra No. 271, eastern and southern line of Khasra Nos. 273 and 272 as periphery have been wrongly considered merely because of raising of boundary walls and houses.
(vi) That the procedure for measurement and verifying its correctness was not proper.
(vii) That the Local Commissioner has not reported as to what was distance in measurement from the alleged permanent points while going to the disputed place.
(viii) That the copy of the revenue record containing measurement of various points from which the land was allegedly demarcated was not annexed with the report and the measurement from Khasra No. 271 was not mentioned in the report.
(ix) That contrary to the field book, measurement of the two Khasras viz. Khasra Nos. 273 and 274 were not tallying with the report.
(x) That neither the presence nor the statement of the Plaintiff was recorded.
7. Having regard to the specific grounds raised in challenge to the Impugned Judgment by the Appellant, it is essential that the evidence that has come on record during the trial is perused and considered with utmost care.
8. The Appellant had deposed as PW-1 tendering in evidence the Site Plan Ex. PW1/1A of the suit property, stated to have been purchased in his father's name on the basis of Agreement to Sell, GPA, Affidavit, Receipt and Will dated 02.11.1989 (Ex. PW1/1 to Ex. PW1/5) along-with copy of ration card (Mark A), Copy of LIC (Mark B), Caste Certificate of son Mr. Vipin Bharti (Ex.
RCA SCJ 9/2019 KUNWAR PAL SINGH VS. DELHI DEVELOPMENT AUTHORITY Page 8 of 15PW1/7), Copy of driving license of son Mr. Vipin Bharti (Mark D), Copy of Caste Certificate of daughter of Ms. Poonam Bharti (Ex. PW1/10) and appointment letter dated 02.06.2006 issued by the Government of NCT of Delhi (Ex. PW1/11). During his cross-examination by the DDA, he is noticed to have baldly denied the suggestion that the suit land had been acquired and that in the year 1986, the possession of the suit land had been taken over by the DDA and the disputed land fell in Khasra No. 274 instead and not in Khasra No. 273. He referred to have obtained the Khatoni from the Revenue Department, in the name of Mr. Hari Ram which shows that the suit property falls in Khasra No. 273, though admitting that the same had not been filed in the Court. He could not remember as to when the demarcation of the land was carried out, claiming that the same was indeed done, though in his absence. He stated that he had not read the Demarcation Report and could not confirm if as per the Report the suit land fell in Khasra No. 274. He stated that the Report filed was false and that he had raised his objections with the concerned authority i.e. SDM, though admitting that the copy of the same was not filed in the Court. He acknowledged that he had participated in the demarcation proceedings only once, but could not remember the details. He denied knowing a person by the name of Mr. Prem Singh, claiming that nobody from his family had participated in the demarcation proceedings. He admitted having no connection with Khasra No. 274, claiming ignorance as to whether the said Khasra had been acquired vide Award No. 6-D/supplementary 87-88 and as to whether the possession of the same had been taken over by DDA on 22.09.1986. He stated that he had made a construction of four rooms in the property without taking any permission from any authority. He further stated that the property in dispute had been RCA SCJ 9/2019 KUNWAR PAL SINGH VS. DELHI DEVELOPMENT AUTHORITY Page 9 of 15 purchased by him in the name of his father and that his other brothers and sisters had no share in the suit property.
9. The second witness examined by the Plaintiff was the legal assistant from the Defence Colony District, South Zone-23, Education Department, Government of NCT who had produced the summoned record (Ex. PW1/11) i.e. Appointment Letter issued in the name of daughter of Appellant. In the cross- examination of the witness, he confirmed that the address details are filed by the candidates themselves in the department and that no verification of the residence of the candidates is done by the Department. The third witness summoned by the Plaintiff (PW-3) was the AAO, LIC of India who had brought the statement of accounts of the LIC policy in the name of the Plaintiff and the computer-generated statement of account was labelled as Ex. PW3/1. The fourth witness examined by the Plaintiff was Inspector, FSI, Food and Supply Office Circle, who deposed as PW-4 and stated that he could not bring the summoned record concerning the ration card issued in the name of the Plaintiff since the same was not traceable.
10. The DDA/ Respondent examined its Kanungo, Mr. Jagpal Singh as DW-1 who deposed on his affidavit Ex. DW1/A tendering in evidence documents viz. Certified copy of the award no. 6-D Supplementary 86-87 (Ex. DW1/1), Certified copy of the possession report dated 22.09.1986 (Ex. DW1/2), Certified copy of the notification dated 10.10.1986 u/s 22 (I) of DD Act 1957 (Ex. DW1/3), Copy of Aks Sizra of Village Jasola, Delhi (Ex. DW1/4) (OSR), Certified Copy of the Award no.
6B/Supplementary/81-82 of Village Jasola, 31.11.1995 (Ex. DW1/5) and Certified copy of the Possession Report dated RCA SCJ 9/2019 KUNWAR PAL SINGH VS. DELHI DEVELOPMENT AUTHORITY Page 10 of 15 07.09.2000 of the said award (Ex. DW1/6). During his cross- examination by the Ld. Counsel for the Appellant, the witness stated that there was no house of the latter in the Khasra No. 274, where the suit property is located, stating that the same had been demolished. He stated that when the possession of Khasra No. 274 was taken, it was a vacant land. The witness deposed that the Appellant had encroached upon Khasra No. 274, but had prepared the documents of Khasra No. 273. He further stated that the encroachment must have been done after possession had been taken by DDA and the DDA did not issue any notice to the encroacher.
11. The second witness examined by DDA was Kanungo, Mr. Jai Prakash, who deposed as DW-2 on his affidavit Ex. DW2/A, tendering in evidence, the demarcation report of Local Commissioner Ex. DW2/1. He identified the signatures of Kanungo, Mr. Vijender Singh, who was also present at the time of demarcation proceedings along-with other SDM staff. The third witness to depose for DDA was Kanungo, LAC South Mr. Ganga Sai Meena, who deposed as DW-3 and proved the original demarcation report dated 22.01.2010 (Ex. DW-2/1).
12. The Appellant has challenged the Impugned Judgment by way of the appeal herein on the aforesaid grounds, inter-alia, that the suit has been wrongly dismissed by the Ld. Trial Court without taking into account the evidence led and in complete disregard of the objections filed by the Appellant to the Demarcation Report dated 22.01.2010, whereby the Appellant has particularly pointed out that the same had not been done as per the required procedure and in the absence of the Plaintiff, without proper measurements having been taken and without RCA SCJ 9/2019 KUNWAR PAL SINGH VS. DELHI DEVELOPMENT AUTHORITY Page 11 of 15 there being clear identified permanent points for the demarcation proceedings.
13. The Appellant has claimed ownership over the suit property stated to be falling in Khasra No. 273 of Village Jasola, Tehsil Mehrauli, New Delhi on the strength of the title documents viz. Agreement to Sell, GPA, Affidavit, Receipt and Will dated 12.11.1989 executed in the name of his father (Ex. PW1/1 to Ex. PW1/5) and has placed reliance upon documents such as ration card, LIC Record, Caste Certificate of son, Caste Certificate of daughter et al as being evidentiary of his possession and occupation over the suit property. The Respondent on the contrary has asserted that Appellant's claims are devoid of merits since the suit property instead fell in Khasra No. 274 as opposed to Khasra No. 273 and the said Khasra had already been acquired under the Land Acquisition proceedings as per Award (Ex. DW1/1) and with possession duly taken over as per possession report 22.09.1986 (Ex. DW1/2) and that the Ld. Trial Court had therefore rightly dismissed the suit.
14. The concerned suit essentially involved a dispute over the identification/ exact location of the suit land, which as per the Plaintiff fell in Khasra No. 273, while as per the Defendant in Khasra No. 274. It is a matter of record that, acknowledging the said issue as being the primary point of contest, the Ld. Trial Court vide Order dated 16.03.2009 had allowed the application filed by the Plaintiff/ Appellant herein under Order XXVI Rule 9 CPC issuing directions for the demarcation to be carried out, for assessing and reporting on the exact location of the suit property. The Demarcation Report was tendered in evidence by witness RCA SCJ 9/2019 KUNWAR PAL SINGH VS. DELHI DEVELOPMENT AUTHORITY Page 12 of 15 DW-3 (Kanungo, LAC South, Saket) who produced the Report 22.01.2010 (Ex. DW2/1).
15. It is trite law as has been held in a plethora of Judgments and reiterated in Rangammal Vs. Kuppuswami [(2011) 12 SCC 220] that the primary onus is on the Plaintiff to positively establish its case on the basis of material available and the case of the Plaintiff, on the basis of the assertions made, has to stand on its own feet. Similarly in R. Hanumaiah Anr. Vs. Secretary to Government of Karnataka, Revenue Department and Ors [(2010) 5 SCC 2003] the Hon'ble Supreme Court of India has laid down that the claims of entitlement to properties against the Government have to be established by the claimants of their own accord and even if there were a weakness in the defence or absence of contest, the onus persists and is required to be discharged by the Claimant himself. Although, the Ld. Trial Court vide Order dated 16.11.2011 had observed that the objections filed to the Demarcation Report, as per which it was reported that the suit land fell in Khasra No. 274, contrary to the assertions of the Appellant, would be decided at the final stage, it was incumbent upon the Appellant to substantiate the objections against the Demarcation Report highlighted either by discrediting the concerned witness by way of cross-examination or by himself leading evidence in challenge to the report filed, to assail the same and its veracity. The contentions raised against the Demarcation Report have not been pressed effectively in either of the two manners by the Appellant at the stage of evidence, virtually rendering the report confirmed on merits. Even the perusal of the cross-examination of Mr. Jai Prakash, Kanungo, LM/ East Zone, DDA, who was a witness to the demarcation proceedings, reveals that the specific objections in RCA SCJ 9/2019 KUNWAR PAL SINGH VS. DELHI DEVELOPMENT AUTHORITY Page 13 of 15 the nature as brought on record were put to the witness only partially, that too more as a roving inquiry. The specific objections were not put to the witness nor was any other evidence led to substantiate the same. Further, even the claim of the report having been prepared in the absence of the Appellant does not strengthen his pleas raised against the Demarcation Report, since it is a matter of record that the direction was issued to the concerned SDM for the exercise to be carried out on the application moved by the Appellant himself, leaving it only concomitantly incumbent upon him to participate in the demarcation proceedings. Disputing the identity of the person, who was present at the relevant time on his behalf, appears to be a plea taken as an afterthought.
16. It has been duly proven during trial that not only Khasra No. 274 but also Khasra No. 273 have been acquired by their respective notification under the Land Acquisition Act with the awards having been duly proven in respect of both the Khasras Ex. DW1/1 and Ex. DW1/5. The possession of the Khasra No. 274 has also been taken over by DDA. Therefore, the Appellant's father in whose name the Appellant claims to have purchased the suit property and under whom to have inherited the same, could not have in the first place acquired a lawful title in the suit property, which had already been acquired by and vested in the Government. This rendered the Appellant, as rightly observed by the Ld. Trial Court to be nothing more than an encroacher/trespasser in the suit property.
FINDING
17. Thus, for the above discussed reasons, I do not find any error, infirmity, illegality or irregularity in the Impugned RCA SCJ 9/2019 KUNWAR PAL SINGH VS. DELHI DEVELOPMENT AUTHORITY Page 14 of 15 Judgment dated 30.09.2019 passed by the Ld. Trial Court, which is well founded on the settled principles of law and passed after proper appreciation of pleadings and facts based on sound reasoning. The said judgment passed by the Ld. Trial Court is accordingly upheld and the appeal, being found wholly devoid of merits, is hereby dismissed. Parties shall bear their own costs.
18. A decree shall be drawn up accordingly. File of the present appeal be consigned to Record Room as per Rules.
19. Trial Court Record with Copy of this Judgment be sent to the Ld. Trial Court for intimation.
(Pronounced in the open court) (Shriya Agrawal) JSCC cum ASCJ cum GJ South East District/Saket Courts 15.02.2023 RCA SCJ 9/2019 KUNWAR PAL SINGH VS. DELHI DEVELOPMENT AUTHORITY Page 15 of 15