Delhi District Court
) Sh. Attar Singh vs ) The Union Of India on 9 April, 2019
Suit No. 26213/16 Page 1 of 20
IN THE COURT OF DR. JAGMINDER SINGH
JSCC-cum-ADDITIONAL SENIOR CIVIL JUDGE
cum-GUARDIAN JUDGE, DWARKA COURTS, DELHI
Suit No. : 26213/16
In the matter of :
1) Sh. Attar Singh,
S/o Sh. Ram Mehar,
2) Sh. Hari Ram,
S/o Sh. Sheo Lal,
3) Sh. Jai Narain,
S/o Sh. Udai Ram,
4) Sh. Mahabir,
S/o Sh. Devi Singh,
All R/o Village Kanganheri, Delhi.
........Plaintiffs
Versus
1) The Union of India,
Through The Secretary,
Ministry of Works,
Housing & Urban Development,
Govt. of India, Nirman Bhawan,
New Delhi-110001.
2) Govt. of NCT of Delhi,
Through The Chief Secretary,
Delhi Secretariat, I.P. Estate,
New Delhi-110002.
Sh. Attar Singh & Ors. Vs. Union of India & Ors.
Suit No. 26213/16 Page 2 of 20
3) The Deputy Commissioner/Collector (Revenue),
South-West, Kapashera,
Near D.T.C. Terminal Kapashera,
New Delhi.
4) The SDM (South-West), Nazafgarh,
BDO Office, New Roshanpura,
Nazafgarh, Delhi.
5) Sh. R.A. Dohery, Block Development Officer,
(South-West), Nazafgarh,
New Roshanpura, Nazafgarh, Delhi.
......Defendants
Date of institution of the suit : 12.05.2011
Final Arguments Heard on : 09.04.2019
Date of Judgment : 09.04.2019
Final Decision : DISMISSED
SUIT FOR MANDATORY & PERMANENT INJUNCTION
JUDGMENT :-
1. This is a suit for mandatory & permanent injunction.
2. Brief facts necessary for the disposal of the present suit as mentioned in the plaint are that the Khasra No.148 denotes the Abadi of village Kanganheri. The plaintiffs & their forefathers have been in possession of the Sh. Attar Singh & Ors. Vs. Union of India & Ors. Suit No. 26213/16 Page 3 of 20 portion of land admeasuring about 700 Sq. Yards towards West in Khasra No.148 (Lal Dora) and their predecessors had constructed a Dharamsala over the same in the year 1948. Adjacent to the Dharamsala of plaintiffs, there was a Chopal which vests in Gaon Sabha. The land for the Chopal was provided in the year 1970-71 during the settlement/consolidation and around the year 1974 the Chopal was constructed and the total area of the Chopal as originally allotted was South 5 Gatha and East & West is 10 Gatha. Khasra No.148 denotes the land of Lal Dora of village Kanganheri, while Khasra No.100 denotes land of Chopal of village which vests in Gaon Sabha (extended Lal Dora). The measurement of Chopal is North & South 5 Gatha i.e. 41 ft. 3 Inch and East & West is 10 Gatha i.e. 82 ft. 6 inches. In August, 2009, Block Development Officer (Nazafgarh) i.e. defendant no.3 who is incharge of properties of Gaon Sabha, illegally carried out demolition of a portion of Dharamsala constructed in Khasra No.148 by the predecessors of plaintiffs and was in their possession since 1948 and is Sh. Attar Singh & Ors. Vs. Union of India & Ors. Suit No. 26213/16 Page 4 of 20 belonging to the plaintiffs and after illegally demolishing the said portion of Dharamsala, a portion admeasuring about 400 Sq. Yards was illegally merged with the Chopal which was under reconstruction at the time. Thereafter, with the ill conceived motives defendants illegally got the old boundary wall plastered around the Dharamsala. On 07.10.2009, the plaintiffs gave an application to SDM (Nazafgarh) vide diary no. 5454/SDM/NG for removal of this encroachment. On 27.10.2009, an application was moved by the plaintiffs to Deputy Commissioner for removal of this encroachment from the land of plaintiffs. But no action was taken on these applications. On 09.11.2009, plaintiffs started reconstructing a wall & repairing the damaged portion of Dharamsala in the possession of the plaintiffs. The officials of defendants came to spot and stopped the work of plaintiffs and further threatened to get the entire remaining structure of the plaintiffs demolished without any right, rhyme & reason. Plaintiffs and their predecessors are enjoying the peaceful possession of the suit property without any obstruction since Sh. Attar Singh & Ors. Vs. Union of India & Ors. Suit No. 26213/16 Page 5 of 20 1938 and are in possession of Dharamsala. Founding stone at the Dharamsala clearly showing that the Dharamsala was constructed by Sh. Ramji Lal the predecessors of plaintiffs in year 1948 and the plaintiffs are in possession of the same since then but now the defendants forcibly & illegally demolished Dharamsala and illegally merged a portion admeasuring about 400 Sq. Yards of Dharamsala in the Chopal. Earlier the plaintiffs had filed a petition under Article 226 of Constitution of India before the Hon'ble High Court of Delhi against the demolition/encroachment by the defendants. However, the said petition was dismissed by the Hon'ble High Court of Delhi with the observation that the issue can not be decided without taking evidence. Plaintiff sent statutory notice under Section 80 CPC on 13.04.2011 to defendants in order to file such a suit for declaration, mandatory injunction along with consequential relief of possession against the defendants. On 20.04.2011 soon after issuance of said notice and before the expiry of statutory period, again some officials of defendants came to the site Sh. Attar Singh & Ors. Vs. Union of India & Ors. Suit No. 26213/16 Page 6 of 20 and threatened to completely demolish the remaining portion which was in possession of Dharamsala and get it merged with the Chopal. Therefore, plaintiffs had filed the present suit. Cause of action to file the present suit firstly arose on August, 2009, when BDO (Najafgarh) carried out demolition of a portion of Dharamsala constructed in Khasra No.148 and plaintiffs are in possession of same since 1948 and the said portion of Dharamsala was illegally merged with the Chopal and on 07.10.2009, the plaintiffs gave an application to SDM (Nazafgarh) for removal of this encroachment. It further arose on 27.10.2009 & 04.11.2009, when an application was moved by the plaintiffs to Deputy Commissioner for removal of encroachment from the land of plaintiffs and on 20.04.2011 when again the officials of defendants came to the site and threatened to completely demolish the rest of portion of the Dharamsala which was in possession of plaintiffs and get it merged with the Chopal. The cause of action continues to arise as the plaintiffs are under constant threat of injury to his person & property. Plaintiffs requested Sh. Attar Singh & Ors. Vs. Union of India & Ors. Suit No. 26213/16 Page 7 of 20 to pass a decree of permanent injunction restraining the defendants and its employees etc. from dispossessing the plaintiffs or from causing interference or hindrance, in any manner, in the peaceful enjoyment of the suit property and to restrain the defendants from causing any interference in constructing the boundary wall and the damaged portion of Dharamsala by the plaintiffs. This Court is having jurisdiction for trial of this suit.
3. On the suit of the plaintiff, summons were issued to the defendants. Defendants no. 1 & 3 to 5 were appeared but none appeared on behalf of defendant no.2 i.e. State/Govt. of NCT of Delhi. WS was filed on behalf of defendants no. 1, 3, 4 & 5 stating that the present suit is not sustainable under law and liable to be dismissed; the suit is bad under law for mis-joinder & non-joinder of necessary party; Plaintiffs have not approached the Court with clean hands; ownership of the suit land lies in favour of Gaon Sabha Kanganheri in the revenue record and Gaon Sabha Kanganheri is also recorded owner of Khasra No.100 & Sh. Attar Singh & Ors. Vs. Union of India & Ors. Suit No. 26213/16 Page 8 of 20 Khasra no.148; The suit of plaintiff is without any cause of action. In reply on merits, defendants no. 1 & 3 to 5 denied the allegations and averments made by plaintiff. Defendants further stated that the suit of the plaintiff is liable to be dismissed. Thereafter, on the basis of the pleadings, the following issues were framed :-
(i) Whether the plaintiff is entitled for decree of permanent injunction as prayed for in the plaint? OPP.
(ii) Relief.
4. Thereafter, the matter was fixed for plaintiff's evidence and plaintiff had examined two witnesses. PW1 is plaintiff no. 1 who tendered his affidavit Ex.P1 and relied upon the following documents :-
1) Ex.PW1/1 i.e. the site plan.
2) Ex.PW1/8 i.e. the photograph of founding stone.
5. PW2 Sh. Hari Ram who tendered his affidavit Ex.PW2/1 and he relied upon following documents:-
1) Ex.PW2/2 & PW2/3 i.e. certified copy of Khatoni.
2) Ex.PW2/4 i.e. certified copy of Masavi.
3) Mark-A i.e. Copy of counter affidavit of BDO.
Sh. Attar Singh & Ors. Vs. Union of India & Ors. Suit No. 26213/16 Page 9 of 20
6. Thereafter, PE was closed vide order dated 21.02.2017 and matter was fixed for DE. Only one witness was examined on behalf of defendants as DW1 who tendered his affidavit Ex.DW1/A and he relied upon the following documents:-
1) Ex.DW1/1 i.e. Khatoni dated 29.06.2011 pertaining to Khasra No.100.
2) Ex.PW2/2 i.e. Khatoni for the year 2002-2003 dated 29.06.2011 pertaining to Khasra No.148.
7. Thereafter, DE was closed and matter was fixed for final arguments.
8. Final arguments heard. Ld. Counsel for plaintiffs argued that the predecessor of the plaintiffs as well as the plaintiffs are in possession of the suit property i.e. 700 Sq. Yards in Khasra No.148 (Lal Dora) of village Kanganheri, Najafgarh. There is a Chopal in Khasra No.100 adjacent to the plot of the plaintiff in extended Lal Dora. The Dharamshala was constructed by forefathers of the plaintiffs upon portion of the land measuring 700 Sq. Yards situated in Lal Dora. The defendants under the garb of extension of the Chopal, Sh. Attar Singh & Ors. Vs. Union of India & Ors. Suit No. 26213/16 Page 10 of 20 demolished the portion of Dharamshala & also encroached upon about 400 Sq. Yards upon the land belonging to the plaintiffs. The defendants is further trying to encroach the remaining portion of 300 Sq. Yards of the Dharamshala which is under possession & ownership of the plaintiffs. Therefore, present suit may be decreed in favour of plaintiff restraining the defendants from disturbing the possession of the plaintiff upon the suit property i.e. portion of land measuring about 300 Sq. Yards towards West in Khasra No.148 (Lal Dora) as shown in Green in the site plan.
9. On the other hand, Ld. Counsel for defendants/Gram Sabha argued that the suit property is under the ownership of the Gram Sabha. The plaintiffs are having no right, title or interest qua the suit property. The Dharamshala in question was constructed by one lady Late Smt. Ghodhani over the Gram Sabha land for common purpose of the village and thereafter, same was handed over to Gram Sabha. Plaintiffs are having no right, title or interest in the said land. Both properties i.e. land of the Chopal Sh. Attar Singh & Ors. Vs. Union of India & Ors. Suit No. 26213/16 Page 11 of 20 situated in Khasra No.100 as well as the land of Dharamshala situated in Khasra No.148 belongs to Gram Sabha and plaintiffs are having no locus standi qua the said land. The plaintiffs have not filed any document to show their ownership or possession over the said land. The plaintiffs have not filed this suit for declaration despite that their claim of ownership qua the suit land is denied by the defendants and despite that the defendant is claiming its ownership upon the suit land. Therefore, present suit only for injunction not maintainable. Suit filed by the plaintiff is without any merit and same is liable to be dismissed.
10. I have considered the submissions of both the parties and perused the records. I have also gone through the evidence placed on record by both the parties. In this case, only issued to be decided by the Court is that Whether the plaintiff is entitled for decree of permanent injunction as prayed for in the plaint? OPP. Onus to prove this issue is upon the plaintiff.
11. As per prayer clause (i) of the plaint, plaintiff has Sh. Attar Singh & Ors. Vs. Union of India & Ors.
Suit No. 26213/16 Page 12 of 20
requested to pass a decree of permanent injunction
restraining the defendants and its
employees/associates/attorneys/agents etc. from
dispossessing the plaintiff or from causing interference or hindrance in any manner, in peaceful enjoyment of the suit property i.e. portion of land admeasuring about 300 Sq. Yards towards West in Khasra No.148 (Lal Dora) as shown in Green in the site plan. It is also prayed that the defendants may be restrained from causing any interference in constructing the boundary wall and the damaged portion of Dharamshala by the plaintiffs.
12. During evidence, PW1 has placed on record site plan Ex.PW1/1 clarifying the suit property. As per the site plan, Khasra No.148 is situated adjacent towards North side of Khasra No.100. There is a road on the South side of Khasra No.100 and West side of both Khasra No.100 & 148. A Gali is shown towards North side of Khasra No.148. Portion of Khasra No.148 and the Chopal situated in Khasra No.100 both are shown combined in the site plan adjacent to each Sh. Attar Singh & Ors. Vs. Union of India & Ors. Suit No. 26213/16 Page 13 of 20 other and the total land is partitioned in three portions. Towards South side, there is a Chopal & towards North side adjoining to Gali, there is shown portion of the alleged Dharamshala which is shown in green. In between the alleged portion of Dharamshala and Chopal, there is a portion shown in red which is according to the plaintiffs was earlier part of the Dharamshala but later on same was merged into the Chopal i.e. 400 Sq. Yards. The main dispute between the parties is regarding remaining green portion of Khasra No.148 towards Gali as shown in site plan Ex.PW1/1 which is according to the plaintiff is measuring 300 Sq. Yards and plaintiffs are seeking injunction against the defendants qua this green portion claiming their ownership and possession upon this part.
13. To prove their case, plaintiff had examined two witnesses. PW1 is plaintiff no.1 who tendered his affidavit Ex.P1 and relied upon the documents Ex.PW1/1 i.e. site plan and Ex.PW1/8 i.e. photographs showing stone of name of Sh. Ramji Lal & showing constructed gates of a building. No other Sh. Attar Singh & Ors. Vs. Union of India & Ors. Suit No. 26213/16 Page 14 of 20 document is proved on record by the PW1. In his affidavit, PW1 reiterated the version of plaint. During cross- examination, it is admitted by PW1 that he had not filed any document on record showing his possession upon 700 Sq. Yards of land as stated in the plaint. He further admitted that in the Khatoni the land of 700 Sq. Yards is not mentioned as in possession of the plaintiffs. He further stated voluntarily that same is not mentioned as it is of everyone. Therefore, if the land in dispute is of everyone of the village, then how, plaintiffs can claim their exclusive possession or ownership upon the suit property. PW1 had further stated that he is claiming their possession upon the suit property on the basis of photographs which are in his possession since, 1954. When Ld. Counsel for defendants objected upon mode of proof of the photographs as same are filed without any negatives, then PW1 stated that he is not having any negative of the photographs as same were taken by digital camera. However, it is not clarified by PW1 that who had clicked the said photographs or who had developed the said Sh. Attar Singh & Ors. Vs. Union of India & Ors. Suit No. 26213/16 Page 15 of 20 photographs or that the digital camera was there with the plaintiffs in year 1954. Moreover, merely showing photograph of a gate or a stone showing name of Sh. Ramji Lal cannot be a conclusive proof of possession of the plaintiffs or his forefathers upon the suit property.
14. According to the plaintiffs, the Dharamshala was got constructed by forefathers of the plaintiffs and accordingly, they are in continuous possession of the suit property. During cross-examination, it is admitted by PW1 that there was no trust for operating Dharamshala and they are also not having any record as to who is coming and residing in the Dharamshala. The plaintiffs have not filed any documents in their name regarding operation or maintenance of the Dharamshala in question. The plaintiffs have even not filed any proof of electricity or water connection in the Dharamshala in their name.
15. PW2/Plaintiff no.2 Sh. Hari Ram when appeared as a witness, he tendered his affidavit Ex.PW2/1 in which he corroborated the version of the plaint. He placed on record Sh. Attar Singh & Ors. Vs. Union of India & Ors. Suit No. 26213/16 Page 16 of 20 certified copies of Khatonies Ex.PW2/2, PW2/3 & PW2/4. Khatoni Ex.PW2/2 regarding Khasra No.148 for the year 2002-2003, according to which name of Khatedaar of Khasra No.148 is shown as Gram Sabha (Abadi Deh). During cross- examination it is admitted by PW-2 that khasra no. 148 is Abadi Deh of the entire village. It is further stated that area of dharamshala pertains to the plaintiff Attar Singh was about 700 sq. yards of which 400 sq. yards was demolished and the remaining 300 sq. yards is in their possession. PW-2 further stated in his cross-examination that he do not have any document to show their possession and ownership of dharamshala. He further stated that they did not get any certificate from any government authority regarding they being in possession of dharamshala and therefore they are owner of the same with the commencement of Delhi Land Reforms Act in 1954.
16. PW-2 stated in his cross-examination that this land was in their possession since 1938. The Delhi Land Reforms Act came into existence in year 1954. According to the Sh. Attar Singh & Ors. Vs. Union of India & Ors. Suit No. 26213/16 Page 17 of 20 plaintiffs they were in possession of the suit land before the commencement of the Delhi Land Reforms Act in 1954. Section 8 of the Delhi Land Reforms Act is reproduced here as under :
"8. Private wells, trees in abadi and buildings - (1) All private wells in or outside holdings, all tanks, groves and abadis, all trees in abadi and all buildings situate within the limits of an estate belonging to or held by a proprietor tenant or other person, whether residing in the village or not, shall continue to belong to or be held by such proprietor, tenant or person, as the case may be, on such terms and conditions as may be prescribed by the Chief Commissioner.
2............"
17. Therefore, according to aforementioned Section 8 of Delhi Land Reforms Act, 1954 if the plaintiffs were already in possession of the land in question forming part of the Abadi Deh by way of the constructed building in the shape of Dharamshala, then their claim must have been settled on the basis of the relevant terms and conditions by the then Chief Sh. Attar Singh & Ors. Vs. Union of India & Ors. Suit No. 26213/16 Page 18 of 20 Commissioner. However, plaintiff had not shown any such document. According to the plaintiffs they are claiming their possession on the land in question on the basis of their claim that the Dharamshala was got constructed upon the suit land by forefathers of the plaintiffs. On the other hand, as per the defendant the Gram Sabha had given land pertaining to the suit property to Smt. Godhani who constructed the Dharamshala and gave it to the Gram Sabha for common use. At this PW-2 stated in his cross-examination that Smt. Godhani was in fact Smt. Sukhdei and was his Taai and was wife of Sh. Ramji Lal i.e. his Tau. As per the photograph Ex. PW-1/8 it is mentioned on stone that "Ramji Lal ne banwai". Therefore, as per the plaintiffs the said Sh. Ramji Lal was their predecessor/forefather who got constructed the Dharamshala in question. However, plaintiffs have not placed on record any document showing their relation or legal heirs table to clarify that how said Sh. Ramji Lal was their forefather or predecessor.
18. Defendant had examined DW-1 i.e. Panchayat Sh. Attar Singh & Ors. Vs. Union of India & Ors. Suit No. 26213/16 Page 19 of 20 Secretary, Gram Sabha, who tendered his affidavit Ex. DW- 1/A stating that entire Khasra no. 148 is under ownership of Gram Sabha being Abadi Deh of entire village. He further stated that plaintiffs have no right, title or interest in any portion of the land in Khasra no. 148 including Dharamshala in question. DW-1 relied upon the documents Ex. DW-1/1 i.e. Khatoni for the year 2002-2003 of Khasra no. 100 and the document Ex. PW-2/2 i.e. Khatoni for the same year for Khasra no. 148. in both these documents ownership of these both Khasras is recorded in the name of Gram Sabha. In Khasra no. 100, there is mention of Gair Mumkin Choupal, whereas regarding Khasra no. 148 there is mention of Abadi Deh. There is neither mentioned of any Dharamshala nor name of any of the plaintiff or their predecessor in interest in the revenue record. Present suit is filed by the plaintiffs only for injunction without seeking any relief of possession or declaration. Through the evidence & documents filed on record, the plaintiffs failed to show their possession or ownership upon the suit land. On the other hand, the Sh. Attar Singh & Ors. Vs. Union of India & Ors. Suit No. 26213/16 Page 20 of 20 defendants had shown their ownership qua the suit land through the relevant revenue record. Therefore, plaintiffs have failed to show even prima-facie case in their favour regarding relief of injunction prayed by them. Hence, issue no.1 is decided against the plaintiffs and in favour of defendants.
19. Relief: Present suit of the plaintiffs is dismissed.
20. No order as to costs.
21. Decree sheet be prepared accordingly.
22. File be consigned to record room after due compliance.
Announced in the open court Digitally signed
on this 09th day of April, 2019 JAGMINDER by JAGMINDER
SINGH
SINGH Date: 2019.04.09
16:59:58 +0530
(DR. JAGMINDER SINGH)
JSCC-ASCJ-cum-Guardian Judge,
Dwarka Courts : Delhi
Note: This judgment is having Twenty pages and each page is bearing my signatures.
(DR. JAGMINDER SINGH) JSCC-ASCJ-cum-Guardian Judge, Dwarka Courts : Delhi Sh. Attar Singh & Ors. Vs. Union of India & Ors.