Delhi District Court
R. S. Ahluwalia vs South Delhi Municipal Corporation on 16 April, 2025
IN THE COURT OF MS. PURVA SAREEN,
DISTRICT JUDGE-01, SOUTH, SAKET COURT, NEW DELHI
RCA DJ No.38/2019
DLST-01-006401-2019
1. R. S. Ahluwalia
S/o Late Sh. A. S. Ahluwalia
R/o 151, Carriapa Marg, Village Khirki
New Delhi
......Appellant
Vs
1. Municipal Corporation of Delhi
(Erstwhile)
Town Hall, Chandani Chowk,
Through its Deputy Commissioner
Green Park, Delhi
2. Delhi Development Authority
Through uts Secretary/Vice Chairman
Vikas Sadan, INA, New Delhi
3. SHO
PS Ambedkar Nagar,
New Delhi
.......Respondents
Date of institution : 19.09.2019
Final argument heard on : 27.02.2025
Date of order : 16.04.2025
JUDGMENT
Appeal under Section 96 CPC r/w Section 151 CPC for setting aside the judgment and order dated 23.08.2019 passed by Ld. JSCC-cum-ASCJ-
cum-Guardian Judge, West, Tis Hazari Court, Delhi
1. The appellant has filed the present appeal against the impugned judgment RCA No.38/2019 R. S. Ahluwalia Vs. SDMC & Ors Page 1 of 9 and order dated 23.08.2019, passed by Ld. JSCC-cum-ASCJ-cum- Guardian Judge, West, Tis Hazari Courts in civil suit titled J. S. Chaudhary & Anr Vs Municipal Corporation of Delhi & Ors bearing civil suit no.6933/2016.
2. The appellant had filed a suit for permanent injunction against the defendants. As per facts of the case, the plaintiff were in lawful possession of land bearing khasra no.427, Village Khirki, General Criappa Marg, New Delhi. The plaintiff was entered as a Bhumidar in the Revenue Record. The plainitffs had constructed a residential dwelling house in the year 1988 and were living peacefully in the said house. On 05.03.1990, some officails of the defendants came to the site and strated demolishing the properties in the village and threatened to demolish the property existing on the said khasra of the plaintiff and to dispossess him without any notice. The land did not belong either to the defendant no.1 or to the defendant no.2. Hence, defendant no.1 had no right to demolish any structure existing on the land without statutory notice. There was no acuisition because acquisition resorted to by the Delhi Administration had already been quashed by the Division Bench of Hon'ble High Court of Delhi in respect of all the thirteen villages including village Khirki and defendants had no right, title or interest in the suit land. Hence, the plaintiff filed the suit for permanent injunction.
3. Summons were issued to the defendants and the defendants appeared and filed written statement. Preliminary objections were taken by defendant no.1/MCD which included the bar of section 477/478 of DMC Act for want of statutory notice and the lack of cause of action. The defendants also stated that the plaintiffs had not come to the court with clean hands and had suppressed the material facts and therefore were not entitled to any relief.
RCA No.38/2019 R. S. Ahluwalia Vs. SDMC & Ors Page 2 of 9Written statement was also filed by defendant no.2/DDA who took a preliminary objection that the plaintiffs were not in possession of the suit property and the same belonged to DDA. DDA also stated that suit land was the property of the Department of Rehabilitation, Government of India, which was transferred including land comprising of Khasra No.427 in favour of the DDA under package deal dated 02.09.1982 and the same was taken over by DDA on 23.12.1987. It was also the plea of the defendant no.2 that the suit land was part of the package deal of approximately 1020 acres and was transferred to DDA on payment of Rs.30 crores. DDA further stated that the structure appearing in khasra in suit was demolished by the DDA on 06.04.1988 and plaintiffs were encroachers on the land of DDA.
4. Replication was filed by the plaintiff reiterating the facts of plaint.
5. Vide order dated 23.04.2005, following issues were framed :-
i) Whether the suit is bad for want of notice under 53B, DDA Act against defendant no.2? OPD2
ii) Whether the suit is bad for notice against defendant no.1- MCD u/s 477/478 DMC Act ? OPD1
iii) Whether the suit land falls in khasra no.427, Village Khirki transferred to the defendant no.2 by virtue of package deal dated 02.09.1982, if so, its effect ? OPD2
iv) Whether the plaintiff is entitled for decree of injunction, as prayed?
OPD
v) Relief.
6. Plaintiff examined 6 witnesses to prove his case.
7. The plaintiff no.1 examined himself as PW1 and relied upon documents RCA No.38/2019 R. S. Ahluwalia Vs. SDMC & Ors Page 3 of 9 including SPA, GPA and affidavit, judgment of Ld. ADJ dated 02.07.1999, telephone and electricity bills, ration card and MCD documents of the suit property.
In his cross examination, he stated that property was purchased by him from Sh. J. S. Chaudhary who had not given him any document which could show that he was the owner of the property but he had given him one receipt against the cheque. He was given copy of khasra girdawari and there was one room constructed upon the suit property. Plaintiff had completed the construction in December 1998. He denied all the suggetions given to him by the defendant counsel specifically denying that he was an encroacher on the government land.
(ii) Plaintiff also examined the official from the DDA as PW2 who exhibited the list of unathorized colonies.
(iii) PW3 was the UDC from Urban Development Department who proved the copy of eligibility slip dated 10.08.2008. He also produced the list of unauthorized colonies as Ex.PW3/B.
(iv) The same witness was examined as PW4 when he produced the copy of gazette notification and the eligibility slip for issunance of provision regularization certificate.
(v) Plaintiff also examined Kanoongo as PW5 who proved the khasra girdawaris and one Sh. Raj Kumar Saini who was the OSD to Law Minister.
(vi) PW6 exhibited the dispatch register of the SDM office.
8. Defendant only examined only one witness namely Rajbir Singh who was the Kanoongo. He exhibited the copy of possession letter and demolition report.
RCA No.38/2019 R. S. Ahluwalia Vs. SDMC & Ors Page 4 of 99. The Ld. Trial Court while deciding the issue no.1 and 2 in favour of the plaintiffs hold that as the suit was for injunction, hence, keeping in view the urgency of the matter the plaintiffs were not required to issue any notice to the defendant. The Ld. Trial Court decided issue no.3 also in favour of the plaintiff holding that the witness of the defendant had not stated anything with respect to the fact that the suit property fell in khasra no.427. No evidence was also produced by the defendant in support of his claim. The court also held that the acquisition order had been cancelled by hon'ble Delhi High Court in D. R. Gupta Vs Union of India. Therefore, the transfer of land in favour of defendant no.2 could not be proved.
10.The main grievence of the plaintiff/appellant in the appeal is with respect to issue no.4. The learned Trial Court decided the issue no.4 against the plaintiff despite the fact that issue no.3 was decided in favour of the plaintiff. The defendant no.2 in his written statement claimed ownership by way of transfer of the suit land in his favour. However, the defendant no.2 did not give any reply with respect to quashing of the acquisition proceedings by Hon'ble Delhi High Court in case of D. R. Gupta Vs Union of India. The Ld. Trial Court did appreciate that defendant no.2 had not denied quashing of the acquisition of the suit land and therefore held that suit land bearing khasra no.427 was not transferred to DDA but at the same time held a contrary view by deiciding issue no.4 against the defendant.
11.The appellant was further aggrieved as the Ld. Trial Court decided issue no.4 against the appellant on the ground that plaintiff /appellant was not having any registered document to show that they had purchased the suit land as pleaded by them.
12.The appellant further stated the Ld. Trial Court had failed to appreciate that after admitting the quashing of the acquisition, DDA was left with no RCA No.38/2019 R. S. Ahluwalia Vs. SDMC & Ors Page 5 of 9 right, title or interest over the suit property. Ld. Trial court also failed to appreciate the appellants/plainiffs were in settled possession and had been paying house tax and electricity bills qua the suit property. Even Ex.D2W1/2 relied upon by defendant no.2 showed the possession of the appellants in khasra no.427. The appellant submitted that the documents of the suit property were executed on 14.05.1987 and construction was completed in 1998, only subsequent to the execution of the said documents.
13.The defendant has not been able to show that khasra no.427 was demolished. In fact, the appellant had succeded in proving that their names were appearing in khasra girdawari and hence they were bhumidars and further the documents including agreement to sell, GPA and affidavit were also in their favour. The khasra girdawari was never challenged at any point of time. No evidence was produced by the defendant to show that the land was a government land or the same were transferred to DDA. The Ld. Trial Court also did not take into consideration that Khirki Extension was included in the list of unauthorized colony which were in DDA owners development plan and the central government has passed in NCT of Delhi Special Provision Act under which the unauthorized colonies were covered and all the local and statutory bodies were directed not to take any coercive action with respect to such properties. Hence, the suit property was covered under the protection of the said act. It was therefore prayed that the impunged order be set aside and a decree be passed in favour of the appellants and against the defendants.
14.The DDA filed its reply denying all the contentions of the appellant specifically averring that the plaintiffs were not the owners of the suit land and were mere encroachers.
RCA No.38/2019 R. S. Ahluwalia Vs. SDMC & Ors Page 6 of 915.While deciding issue no.4, Ld. Trial court relied on the judgment of hon'ble Supreme Court titled M/s K. D. Saha & Sons Pvt Ltd Vs M/s Development Consultant Ltd and held that a document required to be registered is not admissible into evidence if the same is unregistered. The Ld. Trial Court also stated that the plaintiffs were supposed to prove their case on the scale of preponderance of probabilties but as the plaintiffs were not having any registered documents to show that they had duly purchased the suit land, they could not prove their title over the suit land. The court decided issue no.4 against the plaintiffs/appellants stating that the contention that they had constructed one room and boundary wall was not acceptable as the same did not find any mention in the documents.
16.Arguments were addressed and written submissions were also filed by appellants/plaintiff.
17.After hearing the arguments, this court has come to the following observations :-
The Ld. Trial Court ought not to have decided issue no.4 against the plaintiff/appellant if it has already decided the issue no.3 against the DDA. Ld. Trial Court on the one hand while deciding issue no.3 against DDA has held that the DDA is not the owner of the suit land and on the other hand has declined the plaintiff the relief of injunction which has been claimed only against DDA. The said judgment/finding on the issue no.3 has not been challenged by the DDA and thus the findings of the said issue have attained finality.
It is an admitted fact that the suit property is situated in an unauthorized colony where no person can have the ownership documents. Moreover, the said colony is in the list of unauthorized colonies and the suit property (with appellants name) specifically finds a mention in the RCA No.38/2019 R. S. Ahluwalia Vs. SDMC & Ors Page 7 of 9 said list, filed before this court.
The learned Trial Court has not appreciated that the present suit was a simplicitor suit for permanent injunction and not for declaration of title and thus the plaintiff was not required to prove his absolute ownership qua the suit property. Ld. Trial Court failed to take into consideration that property of the appellant is protected under the National Capital Territory of Delhi Laws (Special Provisions) Act in the year 2007 extended from time to time and the protection being available till the regulations are framed as regards the unauthorized colonies in Delhi.
Ld. Trial Court has failed to observe that the possession of the appellant over the suit property stands proved from the documents filed by the appellant.
18.Ld. Trial Court ignored the fact that the documents i.e. Agreement, Irrevocable GPA, Affidavit etc were executed on 14.05.1987. The amendment in Indian Stamp Act 1899 and the registration Act 1908 became applicable w.e.f 25.09.2001. The Section 49 of the Registration Act was not given retrospective effect in its operation. Hence, reliance upon the provision of law which was neither in existence at relevant time nor was made retrospective by legislation, is misplaced. The documents executed prior to 25.09.2001 did not require any stamping or registration. Further the judgment titled Suraj Lamp & Industries Pvt Ltd Vs State of Haryana (2012) 1 SCC 656 is also subsequent to execution of document on 14.05.1987.
The possession of the appellant over the suit property stands proved from the own document of the DDA Ex.D2W1/2 which duly shows that the appellant was in possession of the suit property.
19.In view of the above findings, issue no.4 stands decided against the DDA RCA No.38/2019 R. S. Ahluwalia Vs. SDMC & Ors Page 8 of 9 and in favour of the plaintiff/appellant. Accordingly, decree of injunction is granted to the appellant/plaintiff and defendants, their agents, servants, officials and officers are thereby restrained from demolishing any part of the structures existing on the property/suit land situated at Khasra No.427, Village Khirki, Tehsil Mehrauli, New Delhi. The remaining judgment of the trial court does not suffer from any infirmity. The court therefore does not see any ground to interfere in the remaining portion of the judgment of the learned Trial Court dated 23.08.2019.
20.Appeal of the appellant stands allowed qua issue no.4. Trial Court Record be sent back to the concerned court alongwith one copy of this order.
Appeal file be consigned to Record Room after due compliance.
Digitally signed by PURVAPURVA SAREEN Date: SAREEN Announced in the open court 2025.04.17 14:51:09 +0530 On 16th April, 2025 (Purva Sareen) District Judge 01, South District Saket Courts, New Delhi RCA No.38/2019 R. S. Ahluwalia Vs. SDMC & Ors Page 9 of 9