Delhi District Court
Suleman vs Dda on 4 September, 2024
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IN THE COURT OF MS. DISHA SINGH, CIVIL JUDGE-02
WEST DISTRICT, TIS HAZARI COURTS, DELHI
SUIT NO.606888/2016
CNR No. DLWT03-000005-1993
Sh. Suleman (since deceased)
Through Legal Representatives:
Sh. Hans Raj Verma
S/o Late Sh. M.L. Verma
R/o H.No.T-15, Ward No.8, Mehrauli,
New Delhi-110030.
..........................PLAINTIFF
VERSUS
Delhi Development Authority
(through its vice chairman)
Vikas Sadan, INA, New Delhi.
.....................DEFENDANT
Suit filed on :- 24.06.1993
Judgment Reserved on :- 14.08.2024
Date of decision :- 04.09.2024
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SUIT FOR PERMANENT INJUNCTION
JUDGMENT
By this judgment, this Court shall adjudicate the suit for permanent injunction instituted by the plaintiff against the defendant. Before adjudicating upon the issues framed in the present suit, it is necessary to state the pleadings in the present suit concisely.
Pleadings of the plaintiff: -
1. This is a suit for permanent injunction filed by the plaintiff against the defendant whereby plaintiff has sought decree of permanent injunction thereby restraining the defendant, its officials, employees, agents from raising any wall between points A,B,C,D & E shown in the site plan and/or from dispossessing the plaintiff from portion marked red in the site plan forming part of the property no.T-15, Ward no.18, Village Mehrauli, New Delhi-110030 without due process of law.
2. The brief facts as mentioned in the plaint are that, plaintiff is the owner of built up property bearing no.T-15, Ward No.8, Village Mehrauli, New Delhi-110030 falling in Lal Dora Abadi Deh and the same is built on the land measuring 2 bighas 5 biswas i.e. approximately 2250 sq. yds. as shown in the site plan annexed. It has been further averred that, the suit is being filed through plaintiff's Suit No.606888/2016 Suleman Vs. DDA Page-2/28
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general attorney Sh. H.R. Verma, who holds valid general power of attorney for the property in question and is conversant with the facts of the case and is fully competent to sign, file the plaint and to file the suit and prosecute the same.
3. It has been further averred that in the month of July'1988, Delhi Administration, Delhi issued a notification U/s 4, 6 & 17(1) of the Land Acquisition Act, 1894 in respect of Khasra no.1151/3 min Village Mehrauli, New Delhi (old no.1665. The notification was challenged by the petitioner under Article 226 of the Constitution of India vide Civil Writ Petition No.1660/98 wherein vide order dated 05.08.1988 in C.M.P. No.3040/88 the Division Bench of Hon'ble Ms. Justice Lila Seth J. and Hon'ble Mr. Justice Arun B. Saharia J. was pleased to stay the dispossession of the plaintiff fro the property T-15, Ward No.8, Village Mehrauli, New Delhi. The order of the stay was made absolute while issuing a rule D.B. in the writ petition on 12.12.1988 and the order dated 05.08.1988 was ordered to be continued till the disposal of the case. It has been further averred that the writ petition has not been decided so far by Hon'ble High Court and the same is pending.
4. It has been further averred that, the plaintiff is in physical possession of the property bearing no. T-15, Ward No.8, Village Mehrauli, New Delhi which falls in Abadi Deh and is a part of Lal Dora. That the land underneath the property is correctly shown in site plan in black line and Suit No.606888/2016 Suleman Vs. DDA Page-3/28
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that the property is heavily built-up property. It has got two gates on north side which open to the open land which has a barred fencing and in this portion which is shown red the plaintiff has made a garden which has plants, flower pots and grass for sitting purpose in the evening and the cow dung cakes are also placed in one of the corners of this portion. That the portion shown in rend in the site plan is part and parcel of total area of the land which is 2250 sq. yds.
5. It has been further averred that the plaintiff's attorney requested to the Tehsildar, Mehrauli, New Delhi for demarcation of the land but the Tehsildar vide order dated 05.09.1990 informed the attorney of the plaintiff that the work of demarcation cannot be carried out because this land is in Lal Dora/Old Abadi of the Village. It has been further averred that, no portion of the property shown in the site plan as that of the plaintiff belongs to DDA. The DDA has no right, authority or title to encroach upon the land of the plaintiff.
6. It has been further averred that, on 22.06.1993 the DDA officials along with some laborers from its Horticulture Department came to the spot and they started digging pits for making wall just adjacent to the hind wall of the plaintiff property and they also threatened the plaintiff to cover this open land of the plaintiff in between points A,B,C,D & E. The plaintiff's attorney pleaded that they cannot do so as they cannot dispossess the plaintiff from Suit No.606888/2016 Suleman Vs. DDA Page-4/28
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any part of the land as he has got stay against the dispossession from the Hon'ble High Court but the officials of the DDA instructed the laborers to annex the red portion shown in the site plan and to raise the wall between points A, B, C, D & E.
7. It has been further averred that the defendants are enjoined upon a statutory duty to abide by the law and they cannot encroach upon the property of the individual citizen without the legal procedure established by law. That the defendant, its officials are liable to be restrained from dis- possessing the plaintiff from the portion shown in red in the site plan and from raising any wall between points A, B, C, D & E. In these circumstances plaintiff has filed the present suit.
Pleadings of the Defendants: -
8. The written statement was filed on behalf of defendant/ DDA denying the allegations as contained in the plaint wherein inter alia, it was submitted that the notice U/s 53- B of the DDA Act, 1957 has been served on the defendant/DDA by the plaintiff, therefore, the suit is not maintainable in the present form; that the suit has not been properly valued for the purpose of Court fees and jurisdiction and that the plaintiff wants much more than a mere relief or injunction.
9. It has been further submitted that, plaintiff has not stated the correct facts. It is submitted that the portion shown red Suit No.606888/2016 Suleman Vs. DDA Page-5/28
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in the site plan filed by the plaintiff is not a part of Abadi Deh of Village Mehrauli. That the said red portion as shown by the plaintiff in the site plan in fact falls in khasra no.1570 and khasra no.2341/1571 which stand acquired vide award no.43-A/81-82 and 60/82-83 and the possession of the vacant land was taken over by the DDA on 09.03.1983 and 14.02.1983 and the same was placed at the disposal of defendant, DDA under Section 22 (1) of the DD Act vide notification no.F.9(20)/78 L&B dated 21.03.1983 and 28.02.1983 and since 1983, it is at the disposal of Hort. Deptt. of the defendant/DDA for care and maintenance. Therefore, neither the plaintiff nor any other person has any right, title or interest in respect of the land under reference and the plaintiff cannot be allowed to grab the government land under the garb of present suit. Hence the present suit deserves dismissal.
10.During reply on merits, the entire case of the plaintiff was categorically denied. It was specifically submitted that, it is denied that the portion marked red in the site plan falls in the Lal Dora, Abadi Deh. It has been further submitted that the land under reference i.e. portion shown in red in the site plan filed by the plaintiff does not form part of property no. T-15; in fact, it is an acquired land and is under the control and management of DDA by virtue of notification U/s 22(1) of the DD Act and the answering defendant is within its right to protect its land from any unauthorized illegal encroachment by any rank trespasser. It has been further submitted that the alleged garden is on Suit No.606888/2016 Suleman Vs. DDA Page-6/28
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the government land. It has been further submitted that defendant/DDA is within its right to protect its land from any unauthorized/illegal encroachment by any rank trespasser. It has been further submitted that no cause of action has arisen.
Replication: -
11.Replication has also been filed on behalf of plaintiff to the written statement of defendant/DDA, wherein the averments made in the written statement were denied and those made in the plaint were reiterated and reaffirmed and it was additionally stated for the first time that the suit land falls in khasra no.1151/3.
Issues: -
12.From the pleadings of the parties, following issues were framed in the suit vide order dated: -
1). Whether the suit is bad for want of notice U/s 53-
B or DD Act? OPD
2). Whether plaintiff is the owner of the suit property measuring 2 bigha 5 biswa falling in lal dora abadi deh of Vill. Mehrauli, Delhi? OPP
3). Whether suit land falls in kh. no.1570, 2341/1571 which stands acquired and has been placed at the disposal of DDA? OPD
4). Whether the plaintiff is entitled for the relief of Suit No.606888/2016 Suleman Vs. DDA Page-7/28
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injunction as prayed for? OPP
5). Relief.
Evidence:-
13.In order to prove his case, the plaintiff got examined Sh. Hans Raj Verma as PW-1, who led his evidence by way of affidavit which is Ex.PW-1/A, wherein he reiterated the averments made in the plaint. PW-1 also relied upon certain documents which are as under :-
Identification Mark Description
Ex. PW-1/1 Copy of power of attorney
executed by plaintiff.
Ex. PW-1/2 & PW-1/3 Aksh sijra plan/naksha sijra of
Village Mehrauli.
Ex. PW-1/4 Site plan.
Ex. PW-1/5 Copy of Karyawahi Nishandehi.
Ex. PW-1/6 Copy of order dated
05.08.1988.
Ex. PW-1/7 Copy of notification dated
08.07.2002.
Ex. PW-1/8 Copy of order dated
05.08.2002.
Ex.PW-1/9 & PW-1/10 Copy of notifications issued by Delhi Administration.
Ex.PW-1/11 Demarcation report.
PW-1 was also cross-examined at length on behalf of DDA by SLO.
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Thereafter, vide separate statement, Ld. counsel for plaintiff closed PE on 10.07.2019 and the matter was proceeded further for DE.
Defendant Evidence: -
14.The plaintiff got examined two witnesses i.e. Sh. Vijender, Kanoongo from DDA as DW-1 and Sh. Harshvardhan Sharma as DW-2.
a). DW-1 Sh. Vijender led his evidence by way of affidavit which is Ex.DW-1/A. DW-1 also relied upon certain documents which are as under :-
Identification Mark Description
Ex.DW-1/1 Aks Sizra.
Mark DW-1/2 Photocopy of award no.43A/81-82.
Ex.DW-1/3 (OSR) Possession proceedings dated
09.03.1983.
Ex.DW-1/4 Notification dated 21.03.1983
Ex.DW-1/5 Photocopy of award no.60/82-83.
Ex.DW-1/6 (OSR) Possession proceedings dated
14.02.1983.
Ex.DW-1/7 Notification dated 28.02.1983 (not
exhibited in the affidavit but is
relied upon and the document is on
record).
DW-1 was also cross-examined at length on behalf of plaintiff. During cross-examination, DW-1 exhibited on record photocopy of noting dated 01.08.2019 as Ex.DW-
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1/P1.
b). DW-2 Sh. Harshvardhan Sharma led his evidence by way of affidavit which is Ex.DW-2/A. DW-2 also relied upon the documents already exhibited by DW-1 Sh. Vijender, Kanoongo.
DW-2 was also cross-examined at length on behalf of plaintiff and during cross-examination certain photographs were put to DW-2 by Ld. counsel for plaintiff and the same were exhibited as Ex.DW-2/X-1 and DW-2/X3. However, the same was objected to by Ld. counsel for DDA on the ground that neither photographs have been taken by the witness nor he is witness to the said photographs nor the same has been filed by him nor by DDA and the said photographs, though filed by the plaintiff have not been proved by plaintiff. It is pertinent to mention at this stage that the Ld. Predecessor Court had noted that the objection is to be decided at the stage of final decision.
That in view of the arguments heard on both the sides at the time of final arguments and the settled proposition of law with respect to confrontation to a witness in terms of Indian Evidence Act, 1872 (now Bhartiya Sakshya Adhiniyam, 2024), the objections are sustained and the same are not being relied upon by this Court.
Thereafter, vide separate statement, Ld. counsel for defendant closed DE on 17.10.2022 and the matter was Suit No.606888/2016 Suleman Vs. DDA Page-10/28
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proceeded further for final arguments.
Decision with reasons :-
15.The arguments were heard on behalf of both the parties at length and record has been carefully perused. That both the sides have relied upon their respective pleadings and the evidence tendered on their behalf and the same is not being reiterated for the sake of brevity. Now, I shall give my issue-wise findings which are as under:
16.Issue No.(1) -
(1) Whether the suit is bad for want of notice U/s 53-B or DD Act? OPD The onus to prove this issue was upon the defendant.
In this regard, the defendant i.e., DDA has relied upon the provision under Section 53B of the Delhi Development Authority Act, 1957 [hereinafter "the DDA Act"] on the ground that, the suit of the plaintiff is not maintainable for want of notice under Section 53B of the DDA Act; and therefore, should have served the mandatory notice under Section 53B of the DDA Act. Before adverting further, let us first discuss Section 53B of the DDA Act, which reads as under:
"53B. Notice to be given of suits.--(1) No suit shall be instituted against the Authority, or any member thereof, or any of its officers or other employees, or any person acting under the Suit No.606888/2016 Suleman Vs. DDA Page-11/28
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directions of the Authority or any member or any officer or other employee of the Authority in respect of any act done or purporting to have been done in pursuance of this Act or any rule or regulation made thereunder until the expiration of two months after notice in writing has been, in the case of the Authority, left at its office, and in any other case, delivered to, or left at the office or place of abode of, the person to be sued and unless such notice states explicitly the cause of action, the nature of relief sought, the amount of compensation claimed and the name and place of residence of the intending plaintiffs and unless the plaint contains a statement that such notice has been so left or delivered.
(2) No suit such as is described in sub-section (1) shall, unless it is a suit for recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.
(3) Nothing contained in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit.]"
[Emphasis Supplied] In the present matter, the plaintiff is seeking the relief of permanent injunction thereby restraining the defendant, its officials, employees, agents from raising any wall between Points A, B, C, D & E as shown in the site plan and/ or from dispossessing the plaintiff from the portion marked as red in the site plan forming part of Property no..T-15, Suit No.606888/2016 Suleman Vs. DDA Page-12/28
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Ward No.8, Village Mehrauli, New Delhi-110030 i.e., the suit property without due process of law.
That, a meaningful reading of the relief sought by the plaintiff transpire that, the plaintiff is merely seeking two reliefs of permanent injunction as stated above. Further, it is explicitly mentioned under sub-section (3) of Section 53B of the DDA Act, that, the mandate of Section 53B does not apply on the cases where the relief of injunction has been sought in the simplicitor, for the same may defeat the ends of justice and urgency in the matters relating to injunctions. Hence, this Court is of the opinion that, the plaintiffs were not required to serve any notice upon DDA in light of the provisions of sub-section (3) of Section 53B of the DDA Act.
Hence, issue no. (1) is decided in favour of the plaintiff and against the defendant/DDA.
17.Issue No.(2) and (4) -
(2) Whether plaintiff is the owner of the suit property measuring 2 bigha 5 biswa falling in lal dora abadi deh of Vill. Mehrauli, Delhi? OPP (4) Whether the plaintiff is entitled for the relief of injunction as prayed for? OPP That both the above said issues are being dealt with together. That, the onus to prove both these issues was upon the plaintiff.
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It is pertinent to mention herein that, in a suit for permanent injunction simplicitor, an issue on the factum of ownership in the plaintiff is neither a fact substantially in issue nor a sine qua non for grant of the relief of injunction. However, in certain circumstances, the issue of ownership of the suit property in the plaintiff may be a relevant fact. Since the equitable remedy of injunction cannot be granted de-hors any right/title/interest in the suit property. In the present matter, the DDA has contended that, the suit property in fact falls in Khasra no. 1570 and 2341/1571 which already stands acquired vide Award No. 43-A/81-82 and 60/82-83; and the possession of the same also stands taken over by DDA vide possession proceedings on 09.03.1983 and 14.02.1983. In the given circumstances, for seeking the relief of permanent injunction, the plaintiff is required to prove his entitlement to the relief sought w.r.t the suit property, since the general burden of proving the case rests upon the plaintiff and the case of the plaintiff must stand on its own legs.
In order to prove his case, plaintiff got examined only one witness Sh. Hans Raj Verma as PW-1 being the AR and successor-in-interest of the plaintiff. At the outset, it is pertinent to mention that, no documents in the form of the title deeds were tendered in evidence by plaintiff side stating that, the suit property falls in lal dora abadi deh of Village Mehrauli built over a land measuring 2 bighas and 5 biswas or that the same stands transferred in the name of Sh. Hans Raj Verma. At this stage, it is further pertinent to Suit No.606888/2016 Suleman Vs. DDA Page-14/28
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mention that, no khasra number has been mentioned in the plaint wherein the suit property is situated. That, the khasra number of suit property finds mention for the first time in the replication filed by the plaintiff, after the filing of written statement by DDA along with the above said objections qua the location of the suit property and its acquisition.
Nevertheless, coming to the merits of the matter at hand, PW-1 tendered in evidence several documents such as, power of attorney in favour of PW-1 was tendered as Ex.PW-1/1. However, it is pertinent to mention that, the said document has neither been tendered in original as per law nor produced during cross-examination despite directions nor was proved in law as per law for the reasons best known to PW-1. At this stage, it is further pertinent to mention that, plaintiff never appeared before the Court, let alone entering the witness box. That, only upon the insistence of the Court during the cross-examination of PW-1, when PW-1 stated that, he is not aware whether the plaintiff is alive or not; it came to light that, plaintiff Suleman had expired in the year 2011. However, PW-1 was substituted as LR of the plaintiff on the ground that, PW-1 allegedly purchased the interest of the plaintiff in suit land by paying consideration and no other natural LR of plaintiff was traceable by PW-1. However, after having regard to the evidences, it is pertinent to mention that, PW-1 has not placed any material on record to the effect that, he is a successor-in-interest in the suit property in any Suit No.606888/2016 Suleman Vs. DDA Page-15/28
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manner. The said fact has also been admitted by PW-1 during his cross-examination that, he has not filed any documents or consideration receipt on record.
Further, PW-1 tendered in evidence aksh shijra/naksh shijra of Village Mehrauli as Ex.PW-1/2 and Ex. PW-1/3. That, the site plan has been tendered in evidence as Ex. PW-1/4. That, the copy of karyawahi nishandehi has been tendered in evidence as Ex.PW-1/5. Further, the copy of order dated 05.08.1988 passed by the Hon'ble High Court of Delhi has been tendered in evidence as Ex.PW-1/6. The copy of notification dated 08.07.2002 has been tendered as Ex. PW-1/7. That, the copy of order dated 05.08.2002 has been tendered as Ex.PW-1/8. The copy of notifications issued by Delhi Administration has been tendered as Ex.PW-1/9 and Ex. PW-1/10. Furthermore, the demarcation report has been tendered as Ex. PW-1/11.
Now, a careful perusal of the documents tendered in evidence by PW-1 further transpires that, the order dated 05.08.1988 passed by the Hon'ble High Court of Delhi i.e., Ex.PW-1/6 which has been heavily relied upon by the plaintiff side is to the effect that, the DDA was restrained from dispossessing the plaintiff Suleman from the suit property, till the next date of hearing. However, it is pertinent to mention that the same was an interim order and the plaintiff/AR of plaintiff has not filed any further final orders to the effect that, the said order was made final in the perpetuity or any observations/ factual finding w.r.t Suit No.606888/2016 Suleman Vs. DDA Page-16/28
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the possession and/or ownership of the suit property in the plaintiff. Further, documents such as aksh shijra/naksh shijra i.e., Ex. PW-1/2 and Ex. PW-1/3 only shows the layout of the khasras of the Village Mehrauli. However, said documents including site plan Ex. PW-1/4, do not show and prove the location of the suit property in any manner, let alone as a conclusive proof.
Further, now coming to the demarcation report i.e., Ex. PW-1/11 and karyawahi nishandehi i.e., Ex. PW-1/5. That, as per demarcation report, the suit property was demarcated by manual mode and stated the suit property to be situated in the lal dora abadi deh of Village Mehrauli bearing Khasra no. 1151/3 min, as is also the case of the plaintiff. However, upon a bare reading of the said demarcation report, two crucial facts came to light. Firstly, that the original field book of Village Mehrauli pertaining to the year 1980-1981 was not found to be proper by the Tehsildar (Hauz Khas) conducting the demarcation, so much so the khasras were not properly depicted therein and also did not mention the dimensions of the khasras. Further, it has been stated therein that, the original field book of the year 1980-1981 and the shijra plan of 1880 of Village Mehrauli was not available being annexed with an award with the Land Maintenance Department and that, the copy of the same was requisitioned by the Tehsildar from the concerned department. However, the copy of the same, whether certified or uncertified, has not been annexed along with the report for perusal as to its contents Suit No.606888/2016 Suleman Vs. DDA Page-17/28
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and reliability, since the original has been cited to be improperly maintained and unclear in the demarcation report dated 23.03.2012 by Tehsildar. The relevant excerpts from the demarcation report Ex.PW-1/11 is reproduced herein:-
" (xxx) yaha par jo varsh 1980-81 ka shizra va field book pesh kiye hain, inme shizra me khasro ki shakal bhi thik nahi banai hai tatha number khasra ki field book me lambai chaurai bhi darj nahi hai. Sirf badastoor likha hai (xxx)"
Secondly, the three permanent points fixed by the Tehsildar were also not as per the settled law and rules w.r.t demarcation in consonance with the Punjab Land Revenue Act, 1887 and Part C of the Delhi High Court Act 1966, that is to say, the permanent fixed points to be considered for the purpose of demarcation should be fixed in three opposite directions. However, in the present matter, the same has been fixed in the same directions i.e., all in East direction and further relying upon the copy of the improperly maintained and unclear field book and shijra plan of Village Mehrauli as per the admitted submissions of Tehsildar conducting demarcation. Hence, the demarcation report Ex. PW-1/11 and its karyawahi nishandehi Ex. PW-1/5 are not credible pieces of evidence and hence, not being relied upon by this Court.
This Court is further fortified by the observations passed by the Hon'ble High Court of Delhi in the case titled Subhadra v. Delhi Development Authority [ RSA 64/2020] Suit No.606888/2016 Suleman Vs. DDA Page-18/28
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and further relied upon in the case of Nathu Ram v. Delhi Development Authority [RSA No.28/2001], and stated as thus:
"16. However, the question which has to be answered is as to whether the suit land falls in Khasra No.48/7 or 48/5. Both the Courts below had given concurrent findings of fact that the demarcation report not having followed the procedure relating to enquiries to be made by Revenue Officers in boundary disputes, the said demarcation report could not be relied upon. The demarcation report had clearly stated that since there were houses in the vicinity no pucca/permanent points could be established for the purpose of 'paimaish'/measurement.
17. The Punjab Land Revenue Act, 1887 extends to the Union Territory of Delhi. Chapter VII deals with surveys and boundaries. Under Section 100, the Financial Commissioner has powers to make rules as to matters in which the boundaries of all or any estates in any local area are to be demarcated. Part C of the Delhi High Court Act 1966 relate to the instructions to Civil Courts. The procedure has been entailed for "Hadd Shikni"
cases/boundary disputes under the aforenoted instructions which are binding instructions. As per these instructions the Field Kanungo should with his scale read on the map, the position and distance of those points from a line of square, and then with a chain and cross staff mark out the position and distance of those points. If there is no map on the square system available, he should then find three points on different sides of the place in dispute as near to it as he can, and if possible, not more than 200 kadams, apart which Suit No.606888/2016 Suleman Vs. DDA Page-19/28
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are shown in the map and which the parties admit to have been undisturbed. Further, these instructions should be followed by the Revenue Officers of Field Kanungos whenever they are appointed by a Civil Court as a Commissioner in suits involving disputed boundaries. This is a mandate."
[Emphasis Supplied] At this juncture, let us further have a look on the relevant excerpts of the cross-examination of PW-1, which is being reproduced hereunder for brevity:
" (xxx) It is wrong to suggest that abadi deh of village does not bear any khasra number. Vol.
Entire abadi of the village i.e. abadi deh has only one khasra number and that khasra number of village mehrauli abadi is 1151/3... It is wrong to suggest that the suit property does not fall in khasra no.1151/3. It is further wrong to suggest that suit property falls in khasra no.1570 and 2351/1571 belonging to DDA... In lal dora abadi deh, the entire village is denoted by one khasra number and separate name of property owner are not entered into revenue record. Therefore, I have no sale deed and other revenue record regarding khasra number 1151/3 i.e. suit property. The dispute is regarding land measuring about 400-450 sq. yds. I am in possession of land measuring 1650-1700 sq. yds. of land in khasra no.1151/3 (xxx).
I am not aware whether Sh. Suleman is still alive or not... He has left out T-15 in the year of 1988... It is wrong to suggest that he was not in T- 15 in the year of 1988... Three cases have been Suit No.606888/2016 Suleman Vs. DDA Page-20/28
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filed including the present one in respect of the property in dispute. Two cases were filed in respect of acquisition. In the year 1993, the area measuring 500-700 sq. yds. was demolished about which this case is pending. I have not filed any case claiming damages for demolition. After demolition the land is lying vacant and there is a stay operating against taking possession by DDA... I have no certificate regarding lal dora about disputed land. In respect of urbanized village, lal dora certificate is not issued... Khasra no.1151/3 is adjacent to khasra no.1570 and khasra no.2341/1571. It is correct that no other document has been executed regarding the disputed property except power of attorney in my favour... It is correct that there is no sale deed in favour of plaintiff or in my favour but the name of plaintiff has been recorded in the records of corporation. House tax is assessed in the name of plaintiff but no assessment has been filed in the Court record. I am residing in T-15. (xxx).
I have not brought today the original attorney as were asked by me during cross-examination held on 03.10.2012. I do not remember if the entire sale consideration of the alleged sale of suit land was paid by Zafruddin to plaintiff Suleman. I do not remember if I had paid any money to Suleman towards the alleged purchase of suit land... I have not filed on record any money receipt issued by Suleman towards the alleged payment of sale consideration of the suit land... It is wrong to suggest that during the demarcation, DDA officials had objected to the fixing and location of permanent points... I do not have any knowledge about the revenue record of the suit land... it is correct that I have not seen any revenue record of the suit land... It is correct that the patwari/ Suit No.606888/2016 Suleman Vs. DDA Page-21/28
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tehsildar had not issued any document in writing stating that suit land is part of khasra no.1151/3. I am not aware if the revenue record i.e. shizra and field book with respect to suit land is not correct... It is wrong to suggest that plaintiff was neither the owner of the suit land nor he has any right, title or interest in the said land nor he was authorized to sell/transfer the suit land. It is wrong to suggest that the documents of transfer of suit land executed by Suleman and Zafruddin are all illegal, invalid and fabricated. It is wrong to suggest that GPA executed by Suleman in my favour stood lapsed on his death. It is incorrect to suggest that Suleman has not executed agreement to sell in my favour... I do not have any documentary proof to show that I was in possession of suit land at the time of filing of the suit. It is wrong to suggest that suit land forms part of khasra no.1570 and 2341/1571. It is wrong to suggest that suit land forms part of acquired land and has already been placed and is under the possession of DDA. It is wrong to suggest that suit land does not form part of lal dora/abadi deh. (xxx)."
That, a bare reading of the cross-examination of PW-1 in conjunction with the plaint, transpire that, the present suit was filed in the year 1993 in the name of Suleman stating that, he was the owner and in physical possession of the suit property and on 22.06.1993 the DDA officials along with some laborers from its Horticulture Department came to the spot and they started digging pits for making wall just adjacent to the hind wall of the plaintiff property and they also threatened the plaintiff to cover this open land of the plaintiff in between points A, B, C, D & E. While, Suit No.606888/2016 Suleman Vs. DDA Page-22/28
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during cross-examination, PW-1 has categorically admitted that, Suleman had left the suit property in the year 1988 itself. Further, in the plaint, it has been stated that the suit property is measuring 2 bighas 5 biswas i.e., about 2250 sq yds. While on the other hand, PW-1 stated during his cross-examination that, the dispute is regarding land measuring about 400-500 sq. yds and that, he is in possession of land measuring 1650-1700 sq yds of land in Khasra no. 1151/3. It has been further admitted by PW-1 that, the present suit was filed owing to the demolition carried out by DDA over 400-450 sq. yds. of land. Hence, it is evidently clear that the plaintiff as well as AR of the plaintiff have not been in the possession of the suit property which is land measuring about 400-450 sq. yds. with respect to which the present suit has been instituted and PW-1 has further admitted that he has no documents to show that he is in the possession of disputed land and the same is lying vacant due to demolition by DDA.
Further, PW-1 was rigorously cross-examined on behalf of DDA w.r.t their objections qua the validity and reliability of the demarcation report, which was stated to be wrong and denied by the PW-1. However, PW-1 admitted that, demarcation report neither bears the signature of PW-1 nor the signatures of DDA officials. PW-1 has further admitted that patwari/tehsildar had not issued any document in writing stating that suit land is part of khasra number 1151/3. It is pertinent to mention that, PW-1 was questioned w.r.t the filed book and shijra plan not being Suit No.606888/2016 Suleman Vs. DDA Page-23/28
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properly maintained. However, PW-1 did not answer to the point of question and merely denied it, despite the fact that, the said fact has been mentioned by the Tehsildar himself in the demarcation report. PW-1 further admitted neither he has nor has seen any title documents or revenue record qua the suit property in the name of Suleman nor he has any document to show that he is in the possession of the suit property.
In this regard, on the basis of material available on record, the contents of plaint and cross-examination of PW-1, it is evidently clear that, the plaintiff side has further caused self-destruction of their own case by not being able to prove that, either plaintiff Suleman at the time of instituting the suit or thereafter his successor-in-interest PW-1 was ever or still is, in the possession of the suit property. Consequently, this Court is further fortified by the ratio held by the Hon'ble Apex Court in the case titled Balakrishna Dattaraya Galande v. Balakrishna Rambharose Gupta & Anr [SLP (C) 1509/2019] , wherein it has been held that:
"In a suit filed under Section 38 of the Specific Relief Act, possession on the date of suit is a must for grant of permanent injunction. When the first respondent-plaintiff has failed to prove that he was in actual possession of the property on the date of the suit, he is not entitled for the decree for permanent injunction."
[Emphasis Supplied] Suit No.606888/2016 Suleman Vs. DDA Page-24/28
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It is the settled principle of law that, the general burden of proving the case lies upon the plaintiff and that, the suit of the plaintiff must stand on its own leg irrespective of the deficiencies and fallacies in the case/defence of the defendant. Further, when the question is as to the ownership, the burden upon the plaintiff is much higher which needs to be proved by leading categorical evidences in support of the ownership. In the present matter, it was the bounden duty of the plaintiff and after his demise, it was the duty of his alleged AR and successor-in-interest/ PW-1 to prove that, they have been in the continuous settled possession of the suit property since the inception till date; that, they are entitled to the peaceful and undisturbed possession of the suit property as per law, whether by way of title documents or possessory title or any other entitlement. It is pertinent to mention that, plaintiff/AR of plaintiff has not placed on record any document showing his continuous settled possession over the suit property whether by way of utility bills, identity documents etc. Plaintiff side has also not placed on record any document such as lal dora certificate of the suit property or any other revenue record, if any, or any other documents pointing towards the continuous settled position of plaintiff/AR of the plaintiff from the inception of the suit till date. Accordingly, the plaintiff has grossly failed in proving his own case.
In these circumstances, issue no.(2) and (4) are decided against the plaintiff and in favour of the defendant.
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18. Issue No.(3) -
(3) Whether suit land falls in kh. no.1570, 2341/1571 which stands acquired and has been placed at the disposal of DDA? OPD The onus to prove this issue was upon the defendant.
Now, w.r.t the instant issue, it is the claim of the defendant/DDA that, the portion shown in red colour by the plaintiff in the site plan Ex. PW-1/4, in fact falls in khasra no.1570 and khasra no.2341/1571 which stands acquired vide Award no.43-A/81-82 and 60/82-83 and the possession of the suit land being a vacant land has already been taken over by the DDA on 09.03.1983 and 14.02.1983 and the same was placed at the disposal of defendant, DDA under Section 22 (1) of the DDA Act vide notification no.F.9(20)/78 L&B dated 21.03.1983 and 28.02.1983. It has been further averred by DDA that, since 1983, the land under dispute is at the disposal of the Horticulture Department of the defendant/DDA for care and maintenance. It has been thus averred that, neither the plaintiff nor any other person has any right, title or interest in respect of the land under dispute.
That, the defendant in order to prove its case got two witnesses examined i.e., DW-1 being Kanoongo and DW- 2 being Naib Tehsildar. That, DDA in order to prove their claim tendered in evidence, Ex.DW-1/1 being aks sizra; Mark DW-1/2 being a photocopy of Award no.43A/81-82;
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Ex.DW-1/3(OSR) i.e., the possession proceedings dated 09.03.1983; Ex.DW-1/4 being the notification dated 21.03.1983; Ex.DW-1/5 being the photocopy of Award no.60/82-83; Ex.DW-1/6 (OSR) i.e., the possession proceedings dated 14.02.1983 and Ex.DW-1/7 i.e., a notification dated 28.02.1983.
That, a careful reading of all these documents transpires that, these acquisition notifications, award, possession proceedings and shijra plan pertains to the khasra no.1570 and khasra no.2341/157. However, DDA did not place any material on record to show that, in fact the suit property is already an acquired land situated in the khasra nos. 1570 and 2341/157. Though it has come on record in testimony of PW-1 that DDA had already demolished the disputed portion of land and raised a boundary wall even prior to the institution of this suit and yet plaintiff filed the present suit seeking simplicitor injunction and not any other appropriate relief, if any, as a futile exercise by not representing true and correct facts to this Court. However, there is no categorical piece of document to show that suit land/area in dispute is in fact falling in which khasra number. As such, the defendant has failed in discharging the onus cast upon them.
Accordingly, issue no.(3) is decided against the defendant/ DDA.
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19.Issue no.(5) -
(5) Relief - In view of the findings given on issues no.(1) to (4), documents placed on record, pleadings of the parties and evidence led by the parties, the plaintiff has failed to prove his case on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiff is hereby dismissed.
Decree sheet be prepared accordingly.
File be consigned to record room after completing the necessary formalities.
Digitally signedDISHA by DISHA SINGH SINGH 17:07:11 +0530 Date: 2024.09.04 (This judgment contains 28 pages and each (DISHA SINGH) page has been signed by the undersigned) Civil Judge-02, West, Announced in the open Court Tis Hazari Courts, Delhi on 04.09.2024 Suit No.606888/2016 Suleman Vs. DDA Page-28/28