Delhi District Court
Cs. No. 612611/2016 Madan Lal (Through ... vs . Dda Page 1/ 26 on 29 November, 2021
IN THE COURT OF DEEPAK KUMAR-I,
COMMERCIAL CIVIL JUDGE (WEST), TIS HAZARI COURTS,
DELHI.
CS No: 612611/2016
CNR No. DLWT03-000084-2002
1. Sh. Madan Lal (since deceased)
-expired on 31.01.2007)
S/o Late Sh. Ram Saran
Through L.Rs:-
(i). Smt. Shakuntla Devi (since deceased) (Abated)
(ii). Vicky Kumar
(iii). Ms. Sunita
(iv). Ms. Sonam
2. Sh. Bansi Lal
(Since deceased expired on 04.01.2014)
S/o Late Sh. Ram Saran
Through his legal heirs:-
(i). Smt. Ram Phali Devi
(ii). Smt. Giano Devi
(iii). Smt. Laxmi Devi
(iv). Sh. Chaman Lal
(v). Sh. Dharambir
(vi). Sh. Bhagwan Dass (Abated)
(vii). Sh. Lucky
(viii). Sh. Praveen
(ix). Sh. Dhiraj
(x). Sh. Gulab
3. Sh. Kundan Lal
(Since deceased - expired on 24.01.2009)
S/o Late Sh. Ram Saran
Through his legal heirs:-
(i). Smt. Imarti Devi
(ii). Smt. Krishna Devi
(iii). Smt. Darshana Devi
(iv). Sh. Shyam Lal
CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 1/ 26
(v). Sh. Ram Lal
(vi). Sh. Raju
(vii). Sh. Sunder
(viii). Sh. Hem Raj
4. Sh. Manohar Lal
S/o Late Sh. Ram Saran
5. Smt. Bhagwani Devi
(since deceased) (Abated)
6. Smt. Shanti Devi
(since deceased) (Abated)
All plaintiffs R/o 6135, Gali Ravi Dass,
Nabi Karim, Pahar Ganj,
New Delhi-110005.
....Plaintiffs
VERSUS
1. Delhi Development Authority
Through its Vice Chairman
Vikas Sadan, INA,
New Delhi-110023.
2. Union of India (Proceeded Ex-parte)
Through its Secretary
Ministry of Urban Development
Nirman Bhawan,
New Delhi-110011.
... Defendants
Date of Filing : 05.09.2002
Date of Judgment : 29.11.2021
SUIT FOR DECLARATION AND PERPETUAL INJUNCTION
JUDGMENT
1. Brief facts of the present case are that the present suit CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 2/ 26 has been filed by the plaintiff praying therein to pass a decree in favour of plaintiffs and against the defendants that the plaintiffs are the absolute and exclusive owner of the property in suit bearing No. 6135, Nabi Karim, Qadam Sharif, Paharganj, New Delhi, as specifically shown in red colour in the site plan. It is further prayed to pass a decree for perpetual injunction in favour of plaintiffs and against the defendants, restraining their employees, agents attorneys etc., from interfering in any manner in the peaceful use, occupation and enjoyment of the suit property bearing No. 6135, Nabi Karim, Qadam Sharif, Paharganj, New Delhi, as shown in red colour in the site plan.
2. It is inter-alia averred by the plaintiffs that the land measuring 260 sq. yds. for residential purposes has been in continuous use, occupation of the plaintiffs through their predecessor for a period of 120 years as its owner. That their use and occupation has been continuous, peaceful, uninterrupted open and visible to all the concerns. That the plaintiffs' predecessor in interest have been making material addition, alterations in the structures of the building over the said property. That the said property has been assigned Municipal No. 6135, Nabi Karim, Pahar Ganj, New Delhi- 110055, as shown in red colour in the site plan attached.
It is further averred by the plaintiffs that they are the owners of the property in question and as such, they cannot be dispossessed from the property in question without due process of law. That the defendant no. 1 wrongfully, illegally and without determination of the title of ownership in the property, determined by a competent court of law, claimed ownership in CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 3/ 26 the same and started proceedings for assessment of damages through its Estate Officer U/Sec. 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. That the question of ownership is a question involving civil rights between the parties and the same fall exclusively for its determination within the jurisdiction of the Civil court and not the Estate Officer. That the plaintiffs and their predecessor in interest have been contesting the proceedings for the assessment of damages commenced by the Estate Officer of DDA but to no effect.
It is further averred by the plaintiffs that after the partition of the country, the said property was declared as evacuee property by the Custodian of Evacuee property on account of communal disturbance in 1947. That the predecessor of the plaintiffs had also run away from the property in question temporarily at some safer place and they re-occupied the same after the resumption of peace in the area.
It is submitted by the plaintiff that Mohd. Ahmed, one of the occupants of the portion of House No. 6135, Nabi Karim, Qadam Sharif, Paharganj, New Delhi, was given a show cause notice by the custodian department as to why the portion vacated by him be not declared as evacuee property. However, after holding an enquiry, Sh. V.S. Jetly, Authorised Deputy Custodian discharged the said notice vide his order dated 22.10.1952 and he was declared as non-evacuee. Thereafter, the property mentioned above, earlier declared as evacuee property on 05.03.1949 vide Gazette Notification No. 6679 under Act XIV of 1947, was also declared as non-evacuee. Consequently, according to this notification, the said property is CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 4/ 26 deemed to have vested in the custodian of Evacuee property in accordance with law and the custodian is assumed to be in possession of the same on the date of the notification. That the custodian also issued notices on 01.05.1950 to the tenants for the realization of the rent from them. That the said property property was surveyed by the said department on 19.08.1949. That one Mohd. Yamin along with other claimant filed a petition before the Custodian of Evacuee Property, New Delhi. The same was disposed of by Sh. R.B. Batra, Assistant, Custodian Judicial-II, Delhi vide his order dated 21.01.1995 and it was found that the petitioners were non-evacuees, thus, the property No. 6135, mentioned above was de-notified from being declared as an evacuee's property and it reverted back to its owners. That the orders denotifying the property by the Central Government and consequentially the same having been reverted back to its owner, the defendants are left with no right, title or interest in the property in suit. That the plaintiffs become absolute lawful owner and title holder in respect of the suit property in question by virtue of adverse possession which is uninterrupted, settled and peaceful physical possession for last more than 120 years therein while the defendants including DDA having no right, title, interest, claim nor concerned with the suit property in any manner.
It is also averred by the plaintiffs that the defendants through the officials of the defendant no. 1 got opened the proceedings U/Sec. 7 of the Public Premises Act, 1971 wrongfully, most arbitrarily and without jurisdiction in respect of a private property i.e. the suit properly, therefore, the entire proceedings commenced by the estate officer as well the CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 5/ 26 appellate authority was illegal, wrongful void and without jurisdictions. That the order of the Custodian Department have not been challenged by the defendants thereafter, the same are final and binding upon the defendants.
It is further averred that the cause of action is continuing one as the same culminated finally vide order dated 26.03.2002 passed by the Court of Sh. Raghubir Singh, the then Ld. ADJ, Delhi in M.PPA No. 75/2000, titled as Madan Lal Vs. E.O/DDA. Hence, the present suit filed by the plaintiffs.
3. Thereafter, the defendant filed the Written Statement. In the Written Statement, it is inter-alia contended by the defendant/DDA that the statutory notice U/sec. 53-B of D.D. Act. 1957 is mandatory and compulsory but the same has not been served upon the answering defendant/ DDA.
It is contended by the defendant that the suit is liable to be dismissed as Sh. Ram Saran/ the plaintiffs was/are encroachers over the Govt. land of Khasra No. 81 of revenue estate of Village Qadam Sharif. That Sh. Ram Saran was assessed for damages on account of unauthorised occupation of Govt. Land, hence, the suit is not maintainable and liable to be dismissed under the provision of P.P. Act.
It is submitted by the defendant/DDA that suit property falls in Khasra No. 81 min of village Qadam Sharif. It is a government land and transferred to DDA by virtue of Nazul Agreement, 1983. It is further submitted that as per payment and collection Ledgers (Damages) available in the office of answering defendant in respect of property No. 6135, Qadam Sharif (measuring 260 sq.yds.) the damages was assessed in CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 6/ 26 the name of Sh. Ram Sara w.e.f. 1961. As per record a sum of Rs. 11,232/- for the period of 01.01.61 to 31.12.78 and Rs. 12,102/- for the period from 01.01.1979 to 31.03.80 is still outstanding as an arrear. That it is absolutely incorrect that plaintiffs or his predecessors were in occupation of the suit property for the last 120 years as its owner. In fact, Sh. Ram Saran was unauthorised occupant of Govt. property/ land and accordingly damages was assessed on account of unauthorised use of Govt. property/ land. That the answering defendant/ DDA, being owner of the suit land, is vested with the rights and power to get the land vacated from unauthorised occupants.
It is further submitted that the land in question is a government property and transferred to DDA by virtue of Nazul Agreement, 1937. That the plaintiffs or his predecessors were never the owner of this land/property. That as explained in forgoing paras that one Sh. Ram Saran was unauthorized occupant of government land and consequently, he was assessed to damages. That the land in question is a government property and transferred to DDA by virtue of Nazul Agreement, 1937. That the plaintiffs or his predecessors were never the owner of this land/property. That one Sh. Ram Saran was unauthorised occupant of Govt. land and consequently, he was assessed to damages. That the plaintiff has also paid damages on 20.05.2005 and 15.09.2005 of the amount of Rs. 40,000/- and Rs. 5,000/- respectively.
It is further submitted by the defendant/ DDA that the suit property/ land is in the name of Govt. even prior to Nazul Agreement, 1937. That Sh. Ram Saran, father of the plaintiffs, was the encroacher over the Govt. land of Khasra No. 81, CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 7/ 26 Kadam Sharif and damage was assessed in his name since 1961. Therefore, unauthorised occupation of Sh. Ram Saran and the plaintiffs are not adverse, uninterrupted and settled possession since last more than 120 years. That the suit land/property bearing No. 6135 falls in Khasra No. 81 min of revenue estate of Qadam Sharif which is a government land and the same is placed at the disposal of D.I.T (the predecessor of DDA) by virtue of Nazul Agreement, 1937. That the plaintiffs or their predecessors were never the owner of the disputed land. That as per revenue record i.e. jamabandi for the year 1968-69, the suit land stands in the name of Government. That the damages in respect of the suit land measuring 260 sq. yds. of khasra number 81, Qadam Sharif bearing property No. 6135 was assessed in the name of Sh. Ram Saran (Father of the plaintiffs) by the Damage Section of DDA since 1961. That Sh. Ram Saran was in unauthorized occupation of government land and accordingly damages was assessed on account of unauthorised use of government land. That the assessment of damages in favour of unauthorized occupant does not create any ownership rights in his favour. That the answering defendant/ DDA has every right and power to recover damages from the unauthorised occupants for the period the government land remained under unauthorised occupation. That the plaintiffs or any other person have no right, title or interest over the suit property/ land except defendant/ DDA which is vested with the government and the jurisdiction of DDA by virtue of Nazul Agreement, 1937.
It is further submitted that the suit land has been transferred to DDA by virtue of Nazul Agreement, 1937 and CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 8/ 26 since then it is under its jurisdiction. That the defendant/DDA was neither a party of proceedings, if any, before the Custodian Department nor any copy of order was ever served or received in its office and, therefore, question of challenging the order of custodian department by DDA hardly arises. That the suit property/land was never an evacuee property. That no cause of action has arisen to plaintiffs to file the present suit. Lastly, it is prayed that the present suit be dismissed with costs.
4. Replication to the written statement of defendant was filed by the plaintiff reiterating the same facts as stated in the plaint.
5. Thereafter, vide order dated 24.07.2006, following issues were framed: -
ISSUES:
1. Whether the plaintiff is entitled to a decree of declaration, as prayed for ? (OPP).
2. Whether the plaintiff is entitled to decree of perpetual injunction, as prayed for? (OPP)
3. Whether the suit is bad for want of notice U/Sec. 53 of DD Act, 1957 ?(OPD)
4. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction ? (OPD)
5. Whether the suit property falls in Khasra No. 81min of village Qadam Sharif and government land transferred to DDA by virtue of Nazul Agreement 1937 ? (OPD)
6. Relief.
6. Thereafter, the matter was fixed for Plaintiff's Evidence.
CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 9/ 26The plaintiff examined Sh. Bansi Lal as PW-1 and he has relied upon the documents Ex.PW-1/1 to PW-1/5 and photocopy of judgment and decree passed by the court of Sh. A.S. Yadav, the then Ld. Sub-Judge, Delhi dated 07.02.1989 (Mark-B) and order of Sh. B.S. Jatley, Authorised Dy. Custodian dated 22.10.1952 (Mark-A). Plaintiff has also examined Sh. Nitin Sharma, Mauja Clerk, Record Room (Civil), THC, Delhi as PW-2. Plaintiff has also examined Sh. Manohar Lal as PW-3. Plaintiff has also examined Sh. Vicky as PW-4. He has relied upon various documents Ex. PW-4/1 to PW-4/67. All the witnesses were cross examined at length. Thereafter, the plaintiff closed his evidence.
Thereafter, the matter was fixed for Defendant's Evidence. Defendant examined Sh. Jai Pal Singh, Kanoongo, DDA as DW-1 and Sh. D.R. Mehto, Assistant Director, Damages Branch, Land Management Department, DDA as DW-2. DW-1 has relied upon the documents i.e. Nazul Agreement as DW-1/1 and copy of Jamabandi as DW-1/2 (OSR). Both the witnesses were cross examined at length. Thereafter, defendant closed her evidence.
7. I have heard the arguments advanced by Ld. Counsels for the parties, perused the material on record, documents relied upon as well as written submissions filed by the parties.
8. My issue-wise findings are as under: -
CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 10/ 26FINDING ON ISSUE NO. 1, 2 and 5: (All the issues are taken up together as they are interconnected with each other).
1. Whether the plaintiff is entitled to a decree of declaration, as prayed for ? (OPP).
2. Whether the plaintiff is entitled to decree of perpetual injunction, as prayed for? (OPP)
5. Whether the suit property falls in Khasra No. 81min of village Qadam Sharif and government land transferred to DDA by virtue of Nazul Agreement 1937 ? (OPD)
9. The Hon'ble Supreme Court has in the matter of Anathula Sudhakar vs. P Buchi Reddy & Ors[AIR 2008 SC 2033], clarified the general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and or possession with injunction as consequential relief, which is reproduced as under:
"Para 11.1- When a Plaintiff is in lawful or peaceful possession of a property and such possession is disturbed or threatened by the defendant, a suit for 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. Para 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 his possession cannot seek the relief of injunction simpliciter, without claiming the relief for possession.
Para 11.3- Where the plaintiff is in possession but his title to the property is dispute, or under a cloud, or where the defendant asserts title thereto and there is also threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and consequential relief of injunction. Where the title of the CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 11/ 26 Plaintiffs is under 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."
10. It assumes relevance and significance to note that present case is suit for declaration and perpetutal injunction and it is settled position of law that a suit for declaration of title could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not.
11. Present suit has been filed by the plaintiff praying therein to pass a decree in favour of plaintiffs and against the defendants that the plaintiffs are the absolute and exclusive owner of the property in suit bearing No. 6135, Nabi Karim, Qadam Sharif, Paharganj, New Delhi. It is further prayed to pass a decree for perpetual injunction in favour of plaintiffs and against the defendants, restraining their employees, agents attorneys etc., from interfering in any manner in the peaceful use, occupation and enjoyment of the suit property bearing No. 6135, Nabi Karim, Qadam Sharif, Paharganj, New Delhi.
12. On the other hand, it has been contended by the answering defendant /DDA that suit land/property bearing No. 6135 falls in Khasra No. 81 min of revenue estate of Qadam Sharif which is a government land and the same is placed at the disposal of D.I.T (the predecessor of DDA) by virtue of Nazul Agreement, 1937. That the plaintiffs or their predecessors were never the owner of the disputed land. That as per revenue CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 12/ 26 record i.e. Jamabandi for the year 1968-69, the suit land stands in the name of Government. That the damages in respect of the suit land measuring 260 sq. yds. of khasra number 81, Qadam Sharif bearing property No. 6135 was assessed in the name of Sh. Ram Saran (Father of the plaintiffs) by the Damage Section of DDA since 1961. That Sh. Ram Saran was in unauthorized occupation of government land and accordingly damages was assessed on account of unauthorised use of government land. That the assessment of damages in favour unauthorized occupant does not create any ownership rights in his favour. That the plaintiffs or any other person have no right, title or interest over the suit property/ land except defendant/ DDA. It is further contended that the suit land has been transferred to DDA by virtue of Nazul Agreement, 1937 and since then it is under its jurisdiction.
13. At this juncture, it appears pertinent to refer the judgement of Hon'ble Supreme Court of India in Union of India & Ors vs Vasavi Co-Op. Housing Society 2014 (2) SCC 269 wherein it has been held by Hon'ble Apex Court that: -
"12. It is trite law that, in a suit for declaration of title, burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff."
14. Perusal of record of present case shows that it is admitted case of the plaintiffs that the suit land was subject to assessment for damages and they were paying damages to DDA. Plaintiffs are claiming ownership over suit land by CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 13/ 26 invoking the shield of adverse/settled possession. It has been contended that they have been in possession of the suit property through their ancestors for last 120 years and as such perfected their right over the same by adverse possession. It is settled position of law that in order to set up the case of adverse possession of land,the nature of possession of land should be exclusive, continuous, uninterrupted and it should be actual physical possession and not merely constructive possession over the land. Secondly, the possession should be hostile to the actual owner. The requisite ingredient of animus possidendi (intention to possess) should be present when claiming ownership by taking the plea of adverse possession.
15. In the case of Karnataka Board of Wakf v Government of India & Others (2004) 10 SCC 779 Hon'ble Supreme Court of India elaborately discussed the concepts of adverse posses- sion. It was held by Hon'ble Apex Court that: -
"In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile pos- session by clearly asserting hostile title in denial of the title of true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period."CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 14/ 26
16. In the present case, It is undisputed that the plaintiffs were assessed for damages by the DDA and damages were being actually paid by them. DW-2 Sh. D. R. Mehto, assistant Director, land Management Department, DDA has produced and got marked copy of receipts of damages dated 15.09.2005 and 20.05.2005 deposited by Sh. Bansi Lal, Kundan Lal, Madan Lal and Manohar Lal i.e. Mark A and Mark. B respectively. Except giving formal suggestions, nothing could be extracted by the Ld. Counsel for plaintiffs from the said witness to discredit the genuineness of the said receipts. Merely suggesting that some of the documets produced by the defendant's witness are forged and fabricated in no way impeach the crdibility of the documents produced by the witness. The onus was on the plaintiffs to first specify the document they are controverting and then show how and in what manner they are forged. However, plaintiffs failed to do so. Similarly, it is relevant to reproduce the excerpt of the cross -examination of DW-2 conducted by Ld. Counsel for the plaintiffs which are a follows:- "It is correct that father of the plaintiff Late Sh. Ram Saran was asessed for damages in respect of the land measuring area 260 square yards and super structure made thereon on 01.01.1961 (as per my record)." From the above line of cross-examination, the only inference which can be drawn is the admission of the plaintiffs regarding assessment of damages in respect of the suit prroperty. It is relevant to note the document i.e. Ex. DW2/5 produced by DW-2 which is the request for transfer of assessment of damages in respect of premises bearing no. 6135 , Gali Ravi Dass Nabi Karim , Paharganj, Delhi measuring 260 square yards made by Sh. Bansi Lal, Kundan Lal, Madan CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 15/ 26 Lal and Manohar Lal to the Estate Officer-1, Damages Section,DDA. This document remains unrebutted and unchallanged by the plaintiffs. The bare perusal of the said request letter further confirms the asessment of damages in the suit property by the DDA against the plaintiffs. Further, It is pertinent to reproduce the averments made by the PW-2 Sh. Bansi Lal,S/o- Late Sh. Ram Saran Das in his evidence affidavit which are as under:-
"I say that deponent and their predecessor in interest have been contesting the proceedings for the assessment of damages commenced by the Estate Officer of DDA but to no effect. Even the appeal preferred by the predecessor of the deponents also met the same fate. The deponent and his brothers filed review application against the order of the Appellate Court but the same was also dismissed."
17. From the above averments it is further amply clear that the plaintiffs were assessed for damages by the DDA. Further, It appears relevant and significant to note the demand notices dated 20.03.1979 and 29.08.1989 i.e. DW-2/1 and DW2/2 respectively regarding suit property which were addressed to Sh. Ram Saran (Father of plaintiffs). The import of the said notices lead to the inference that the possession of the plaintiffs in the suit property was not peaceful and settled. The present suit has been filed in the year 2002 and as such the above notices frustrates the very claim of the plaintiffs regarding ownership over the suit property by adverse possession. From the perusal of pleadings and depositions of witnesses, it is also clear that plaintiffs are not in possession of any documents to CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 16/ 26 lay claim over the ownership of the suit property. As such, it does not require any rocket science to hold that the nature of possession was permissive even going by the case set up by the plaintiffs themselves. It is settled law that in the cases of permissive possession the plea of adverse possession cannot be taken by a party. This situation was affirmed by the Hon'ble Supreme Court in the case of Thakur Kishan Singh v Arvind Kumar 1994 SCC (6) 591 wherein it was held that a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession. This position was reaffirmed by the Hon'ble Supreme Court in Ram Nagina Rai v Deo Kumar Rai (D) By Lrs . 2018 (10) SCJ
533.
18. From the examination of materials available on record and deposition of witnesses, it is clear that plaintiffs have entered into the suit property, at best, as licensees to begin with and there is nothing on record to show as to when the permissive possession became adverse to the interest of the real owner. 'Animus possidendi' is one of the ingredients of adverse possession, and unless the person possessing the property has the requisite hostile animus, the period of prescription does not commence. The plaintiffs are required to prove the possession to be adequate in continuity, adequate in publicity and to adequately show that their possession is adverse to that of the true owner. As already discussed, it must CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 17/ 26 start with wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. It is also relevant to refer the the order dated 24.05.2005 passed by the Estate Officer i.e. Ex. DW2/12 which clearly shows that the plaintiffs have given undertaking to withdraw the pending court cases against DDA. Further, from the said order dated 24.05.2005 and the affidavits of plaintiffs Sh. Manohar Lal, Sh. Bansi Lal, Madan Lal and Kundan Lal i.e. Ex. DW2/6 to Ex.DW2/9 respectively, wherein, they have catogorically admitted that they are in unauthorized occupation of the suit land, it is clear that plaintiffs are in unauthorized occupation of the government land. Order and affidavits further show that plaintiffs have given undertaking to pay the damages and arrears of damages and have given further undertaking to vacate the premises as and when required by DDA. From the pleadings and deposition of PW-2, it is also clear that the appeal and review application preferred by the plaintiffs/ their predecessor-in-interest against the proceedings for the assessment of damages commenced by the Estate Officer of DDA qua the suit property were dismissed and as such, the said proceedings attained finality.
19. One of the contentions of the plaintiffs has been that after the partition of the country, the property in suit was declared as evacuee property by the custodian of Evacuee property on account of communal disturbance in 1947. That Mohd. Ahmed, one of the occupants of a portion of suit property bearing No. 6135, Karim, Qadam Sharif, Pahar Ganj, New Delhi, was given a show cause notice by the Custodian Department as to why CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 18/ 26 the portion vacated by him be not declared as evacuee property. That after holding an enquiry, Sh. V.S. Jetly authorised Deputy Custodian discharged the said notice vide his order dated 22.10.1952 and he was declared as non- evacuee. That the suit property was de-notified from being declared as an evacuee property and reverted back to its owner. That the orders de- notifying the property by the Central Government and consequentially the same having been reverted back to its owner, the defendants are left with no right, title or interest in the property in suit. In this regard, it is relevant to note that, as already held above, this is the suit for declaration and injunction and the onus to prove the same is on the plaintiffs. It is the plaintiff who has to independently prove his case by leading the evidence of cogent and credible value to lay claim over the ownership over the suit property. It is undisputed that the possession of the property lie with the plaintiffs. Ld. Counsel for plaintiffs has not elaborated how the aforesaid proceedings, as stated by the plaintiffs, led the transfer of the title/ownership of the suit property in favour of the plaintiffs. Plaintiffs failed to produce any documents in this regard. Needles to say, mere assertions ,bereft of corroborative materials of substantive value and probative nature, are not suffice to reach to any definite conclusion. Defendant has led sufficient evidence, as discussed and elaborated above, to rebut the case of the plaintiffs. It is pertinent to note that plaintiffs have primarily set up their case on the basis of adverse possession. There is no justification regarding the two seemingly contradictory claims. Moreover, in view of the admission of the plaintiffs regarding the assessment of CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 19/ 26 damages in respect of the suit property, dismissal of the appeal/review against the said proceedings and their categorical admissions, as discussed and held above, that they are in unauthorised occupation of the same, the aforesaid contention of Ld. Counsel for plaintiff becomes untenable.
20. Ld. Counsel for the plaintiffs has also sought relief in the present case by referring the judgment dated 07.02.1989 passed by Sh. A. S. Yadav, the then Ld. Civil Judge in the case titled as Radha Bai Vs. UOI & Ors in respect of the adjacent property to the suit property. The Copy of the Judgment is Mark B. It has been conteded by the Ld. Counsel for the plaintiffs that vide said Judgment, the then Ld. Civil Judge granted relief in similar case. The same has been opposed by the Ld. Counsel for defendant by contending that the said case was decided on the basis of altogether different circumstances which includes the Sale Deed produced on behalf of the plaintiffs in the said case. It is the contention of the Ld. Counsel for the defendant that no such Sale Deed or Title Deed or any Ownership documents has been filed in the present case.
21. I have heard the submissions of the parties and perused the record.
22. I have perused the referred Judgment, passed by Sh. A. S. Yadav, the then Ld. Civil Judge. Though, the said Judgment ie. Mark B was passed in respect of the property situtated adjacent to the suit property,however the same was based on different set of facts and circumstances. In that suit, the plaintiffs produced the Sale Deed againt the proof of their CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 20/ 26 ownership.Similarly the pleadings and depositions of witnesses were also different from the present case. Moreover, the plaintiffs were not the party of said suit. It is settled law that every case has to be decided on the basis of its own set of facts and circumstances. Accordingly, the judgement i.e. Mark B is of no help to the case of the plaintiffs.
23. Further, in order to prove its case, defandant/DDA has examined Sh. Jai Pal Singh, Kanoongo, DDA as DW-1 who produced the Nazul Agreement i.e. Ex.DW1/1 and the copy of Jamabandi i.e. Ex. DW1/2. It is to be noted that in his evidence affidavit i.e. Ex. DW1/A, DW-1 deposed that the suit land/property bearing no. 6135 falls in Khasra No. 81 min of revenue estate of Qadam Sharif which is a Government land and transferred to defendant/DDA by virtue of Nazul Agreement. However, the Ex. DW1/1 pertains to 1940. In response to the clarification sought, Ld. Counsel for defendant submitted that the Nazul Agreement of year 1937 as referred in evidence affidavit of DW-1 is already on record, however due to inadvertance, the agreement of 1940 was marked instead of the agreemnt of year 1937. Record reveals that the Nazul Agreemnt of year 1937 is already on record, however, the same is not marked. Though the document is not marked, however the same is identifiable. Court has already recorded that in his Examination-In-Chief by way of Evidence Affidavit, DW-1 has specfically deposed about this Nazul Agreement of year 1937. It appears that its formal marking was not done due to some clericial or bonafide error. It is settled law that technicalities of procedures should not be allowed to defeat and diregard the CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 21/ 26 interest of justice. During the cross-examination of DW-1, no question was asked by the Ld. Counsel for plaintiffs disputing or controverting the sanctity or genuineness of the said Nazul Agreemnt of year 1937. In view of the aforesaid facts and circumstances and discussions as held above, this court deems it fit to read the Nazul Agreemnt of year 1937 which is alreday on record.
24. During the cross-examination of DW-1 by the Ld. Counsel for defendants, the deposition of the witness that the suit property/land bearing no. 6135 falls in Khasra No. 81 min of revenue estate of Qadam Sharif, remained unrebutted and unchallanged. No specfic suggestion or question was put to the witness to controvert his assertions as stated above. It is settled law that the unrebutted and unchallanged deposition of the witness has to be treated as admitted. Thus, it can be safely inferred that the suit land/property falls in Khasra No. 81 min of revenue estate of Qadam Sharif. It is to be further noted that as per the Jamabandi i.e. Ex. DW1/2, Khasra No. 81 mim is owned by government. From the collective reading of aforesaid Nazul Agreement of year 1937 and Jamabandi i.e. Ex. DW-1/2,it is cleart that the suit property falls in Khasra No. 81min of village Qadam Sharif and government land transferred to DDA by virtue of Nazul Agreement 1937. The Issue no. 5 is decided accordingly in favour of the DDA and against the plaintiffs. However, it view of the admitted fact that earlier suits (though between different parties) were decided against the DDA on the basis of Sale- Deed and further that the Khasra No. 81 is totally built up, it is deemed fit, in the ineterst of justice, to clarify that CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 22/ 26 the present finding regarding Issue No. 5 shall be read only in the reference of suit property/land of the present case.
25. Further, the material available on record unequivocally suggests that the alleged possession of the plaintiffs was permissive in nature and in no way, they became the owner of the suit property. The ownership of the suit land lies with the defendant /DDA and the capacity in which the plaintiffs were in possession can best be described and summed up as licensee which does not entitle them to become its absolute owner. In view of the discussions as held above and considering the materials available on record, It is held that plaintiffs are not entitled to a decree of declaration, as prayed for. The Issue No. 1 is decided accordingly against the plaintiffs.
26. Now coming to Issue No. 2. In this regard, it is significant to note that it has been already held that the plaintiffs failed to prove their ownership over suit land/property which belongs to the government. It is settled law that injunction can not be granted against the true owner.
27. It appears relevant to refer the judgment of Premji Ratansey Shah & Ors. V/S Union of India & Ors. (Supra) passed by Hon'ble Supreme Court of India wherein it was held CS 608316/2016 Sh. Ram Singh through LRs Vs. DDA & Ors. Page 19 / 22 that:-
"It is equally settled law that injunction would not be issued against tile true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 23/ 26 any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner."
28. In view of the discussion held as above and considering the settled position of law, it is held that the plaintiffs are not entitled to the relief of perpetual injunction as prayed for against the defendant i.e. DDA. The Issue no. 2 is decided accordingly.
FINDING ON ISSUE NO. 3:-
3. Whether the suit is bad for want of notice U/Sec. 53 of DD Act, 1957 ?(OPD)
29. The onus to prove this issue was upon the defendant. No specific evidence was led by the defendant on this issue. It is relevant to refer the observations of the Hon'ble High Court of Delhi in the case of "Col. A.B. Singh (through LRs) V/s Shri Chunni Lal Sawhney and Others (RFA No.96/2002, decided on 05/10/2011)," which are reproduced hereinafter:-
"In any case, this issue is no longer res integra in as much as, it has been held by division bench judgment of this court in "Yashoda Kumari V/s MCD and Others (AIR 2004 Delhi 225)," that once there is a contest to the suit, the suit cannot be held to be barred for not giving of notice U/S 53B of DDA Act in as much as the basic object of Section 53B, like Section-80 CPC is to prevent the matters from coming to court and once the matter reach the court and are contested the suit should not be dismissed on such technical grounds."
30. The present case has been contested on merits and has gone through the rigors of trial and thus, as per the observation CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 24/ 26 of Hon'ble High Court of Delhi as aforementioned, the non- service of notice U/S 53B of DD Act cannot be held to be fatal to justify the dismissal of the suit on the ground of maintainability. In the considered opinion of this court, the defendant/DDA has contested the case at length and the dismissal of the suit which was filed in the year 2002 on this technical non-compliance of Section-53 of DD Act would not be justified. Hence, issue no. (3) is decided against the defendant and in favour of the plaintiffs.
FINDING ON ISSUE NO. 4:-
4. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction ? (OPD)
31. The onus to prove the aforesaid issue was on the defendant. However, the defendant has failed to lead substantive evidence on above issue. Mere assertions bereft of any materials of substantive value can not displace the necessity of producing the evidence of cogent and credible nature. Accordingly, the Issue No.4 is decided against the defendant and in favour of the plaintiff.
RELIEF:
32. In view of the findings given as above, it is held that the plaintiffs are not entitled to any relief as claimed for. Hence, the present suit is dismissed. Decree sheet be prepared accordingly.
CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 25/ 2633. File be consigned to Record Room after due compliance.
Announced in the open court Digitally signed on 29th November, 2021. DEEPAK by DEEPAK KUMAR (This judgment contains 26 pages) KUMAR Date:
2021.11.29 16:45:39 +0530 DEEPAK KUMAR-I Commercial Civil Judge, West District, Delhi.CS. No. 612611/2016 Madan Lal (Through LRs) Vs. DDA Page 26/ 26