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[Cites 7, Cited by 0]

Delhi District Court

Sh. Rama Kant Sahu vs Union Of India on 11 January, 2019

     IN THE COURT OF SH. DHEERAJ MITTAL : CIVIL JUDGE ­02
             (CENTRAL), TIS HAZARI COURTS, DELHI.

Old Suit No. 66/14
New Suit No. 94582/16

In the matter of :­

Sh. Satya Narain (Deceased)
Through his LR's

1.     Sh. Rama Kant Sahu
       S/o Late Sh. Satya Narain
       R/o 4570, Roshan Pura,
       Kucha Bibi Gohar, Delhi­110006.

2.     Smt. Minakshi
       W/o Sh. Mahesh Chand
       D/o Late Sh. Satya Narain
       R/o 3/190, Panama Road,
       Mt. Wellington, Auckland, Newzeland

3.     Smt. Kamakshi
       W/o Sh. Arun Kumar Rathore
       D/o Late Sh. Satya Narain
       R/o 1024, First Floor, Gali Teliyan,
       Tilak Bazar, Delhi­110006.

4.     Sh. Chandra Kant Sahu
       S/o Late Sh. Satya Narain
       R/o G­53, Saurabh Vihar, Jaitpur
       New Delhi­110044.                       .... Plaintiffs

                                VERSUS

1.     Union of India
       Through Its Secretary,


                                Page 1 of 17
       Ministry of Rehabilitation,
      Jaiselmer House, New Delhi.

2.    Delhi Development Authority
      Through Its Chairman
      Vikas Sadan, I.N.A., New Delhi

3.    Sh. A.S. Khullar,
      Director (Land Management)
      Delhi Development Authority
      Vikas Sadan, I.N.A., New Delhi

4.    Delhi Administration, Delhi.                  ....Defendants

            Date of Institution:                    25.04.1991
            Date of reserving the judgment:         19.11.2018
            Date of Judgment:                       11.01.2019
            Final Judgment :                        Suit decreed.

                                AND

In the matter of Contempt Petition
Old M. No. 02/14
New M. No. 60661/16

Contempt Petition filed U/o 39 Rule 2­A & Rule 7 r/w Sec. 151
CPC

Satya Narain S/o Sh. Khairati lal
R/o 67, Patti Hamid Sarai,
Mauza Hauz Rani,
Begumpur, Malviya Nagar,
New Delhi­110017.                             .... Applicant/Plaintiff

                                Versus
1.    Chairman,


                               Page 2 of 17
       DDA, Vikas Sadan,
      I.N.A., New Delhi.

2.    Mr. B.S. Asiwal,
      Joint Director, DDA
      309, A­Block, Vikas Sadan
      IIIrd Floor, I.N.A., New Delhi.

3.    Sh. M.S. Tyagi, Junior Engineer,
      DDA, Vikas Sadan,
      I.N.A., New Delhi.

4.    Sh. Rajbir Singh Jakhar, S.H.O.
      P.S. Malviya Nagar, New Delhi­110017.          .... Respondents.

Date of Institution of Contempt Petition: 26.05.1999 Date of reserving the Order: 19.11.2018 Date of Order : 11.01.2019 Final Order : Allowed.

J U D G M E N T/O R D E R

1. The present suit was filed by the plaintiff in the court in the year 1991. During the proceedings original plaintiff expired and was substituted through his LRs. It is noted that initially the suit was filed before the Hon'ble High Court of Delhi and thereafter due to the change in jurisdiction, the suit was ultimately transferred in the present Court. The case set up by the plaintiff in brief is as under :­ 1.1 The plaintiff is the owner and in possession of plot of land ad­measuring 1 bigha 18 biswas situated in Khasra No. 67 of Patti Hamid Sarai, Mauza Hauz Rani, Begum Pur, Malviya Nagar, New Page 3 of 17 Delhi­110017 (hereinafter referred to as suit property) as shown in the site plan Ex.P­1. It is further stated that the plaintiff purchased the suit property from its previous owner by virtue of registered Sale Deed dated 28.08.1958. The plaintiff took the possession of the suit property from its previous owners and raised some construction over the suit property prior to the year 1960. The said construction raised over the suit property was regularized by MCD. It is alleged by the plaintiff that defendants are neither the owner of the suit property nor in possession of the suit property, however, the plaintiff has been threatened by the defendants/by the officials of the defendants regarding demolition of the construction of the suit property as well as forcible dispossession of the plaintiff from the suit property. It is further alleged that on 18.06.1990 certain officials of defendant/DDA came to the suit property and illegally demolished certain portion of the constructed portion of the suit property. It is further stated that the plaintiff filed a writ petition being Civil Writ No. 1981/90 and in the said petition a restrain order was passed against the defendants restraining them not to disturb the possession of the plaintiff. Later on the plaintiff withdrew the said writ petition and filed the present suit. In brief, it is alleged by the plaintiff that the defendants cannot take forcible possession of the suit property from the plaintiff.

1.2 With these facts, the plaintiff filed the present suit against the defendants seeking the relief of permanent injunction restraining the defendants, its agent etc. not to dispossess the plaintiff or his Page 4 of 17 family members from the suit property, restraining the defendants, its agents etc. from demolishing the construction over the suit property and relief of mandatory injunction has been sought against the defendants seeking directions to the defendants to repair the damaged portion of the suit property.

2. Summons of the suit were issued to the defendants. Only defendant No. 2/DDA filed its written statement (WS) and the other defendants did not file their written statements.

2.1 It is noted that defendant no. 1 i.e. Union of India and defendant No. 4 Delhi Administration, Delhi were proceeded exparte during the proceedings. Defendant No. 3 Sh. A.S. Khullar, was the then Director (Land Management) of defendant No. 2/DDA and he has not filed his separate written statement.

In brief, it can be said that only defendant No.2/DDA has contested the present matter.

3. In the written statement filed by defendant No. 2/DDA, defendant No. 2/DDA denied the averments made by the plaintiff and took several objections inter­alia the suit is barred U/s 53­B of DD Act for want of service of statutory notice, the plaintiff is seeking the relief of declaration of ownership rights in the garb of simplicitor suit of injunction, suit has not been properly valued for the purpose of Page 5 of 17 jurisdiction and court fees and certain land including the suit property was acquired by Government of India in 1948 vide Notification dated 13.09.1948 and vide subsequent Notification dated 02.09.1982 the land including the suit land was transferred to DDA under a package deal of Rs. 30 crore. It is further mentioned in the written statement that in 1986 physical possession of the lands transferred to the DDA including the disputed land was handed over to DDA and in the possession report plaintiff was shown as an encroacher. In brief, it can be said that the defendant/DDA did not dispute the possession of the plaintiff in the suit property, however, termed the plaintiff as a trespasser/encroacher over the government land.

4. The plaintiff filed the replication to the written statement of defendant No. 2/DDA, disputing the averments made in the written statement and reaffirming those as made in the plaint.

5. On the basis of the pleadings/material on record, the following issues were framed by my Ld. Predecessor vide order dated 02.04.2009 :­

1. Whether the plaintiff is owner of the suit property ? OPP

2. Whether the defendant can be restrained from dispossessing the plaintiff ? OPP

3. Whether the defendant can be restrained from demolishing constructed portion over the suit land ? OPP Page 6 of 17

4. Whether the suit is not maintainable and is barred U/s 3 of DD Act ? OPP

5. Relief.

6. In the plaintiff's evidence, LR of the plaintiff Sh. Rama Kant Sahu appeared as PW­1 and mainly relied upon the documents Ex.P­1 to Ex.P­13­A, PW­2 Sh. Heera Lal, LDC appeared from the office of Sub Registrar to prove the Sale Deed Ex.PW2/1, PW­3 Sh. Rajiv Chhibber also appeared to support the case of the plaintiff and PW­4 Sh. Harinder Mohan, Kanungo was a summoned witness who brought the record regarding mutation of the suit property.

On the other hand, defendant No. 2 examined only one witness i.e. DW­1 Sh. Ram Pal Sharma, the then Asstt. Director of DDA who led his evidence by way of affidavit Ex.DW1/A and mainly relied upon the following documents :­

i) Ex.DW1/1 is the copy of the offer no. 1027­A regarding acquisition of the land and offer regarding the same by the Land Acquisition Collector in the year 1962.

ii) Ex.DW1/2 is the copy of the plan.

iii) Ex.DW1/3 is the copy of the letter dated 02.09.1982 approving the proposed transfer of the unutilized land to DDA.

iv) Ex.DW1/4 is the copy of the letter dated 14.04.1986 Page 7 of 17 regarding handing over the possession of land in Patti Hamid Sarai to DDA along with the plan. 

      v)     Ex.DW1/5 is the Development Plan.
      vi)    Ex.DW1/6 is the combined Akshsara of village malviya

Nagar and village Hauz Rani, Begam Pur Patti Hamid Sarai etc.

vii) Ex.DW1/7 & Ex.DW1/8 are the photographs of the suit property taken on 17.07.1990.

vii) Ex.DW1/9 to Ex.DW1/11 are the photographs taken on 05.09.1990.

7. I have heard final arguments from the Ld. Counsel for the parties and perused the entire case files. The counsel for the plaintiff has mainly relied upon the following judgments / citations :­

i) Abdul Hakim Vs. Habib Khan passed by High Court of Rajasthan (Jaipur Bench), decided on 13.08.1997

ii) AIR 2006 AP 131.

iii) 1996 (4) SCC 622 (See para 17 to 21)

iv) Sh. Pratap Singh Vs. Smt. Chanderwati, decided by Delhi High Court on 25.08.2006.

On the other hand, Ld. Counsel for the defendant/DDA has mainly relied upon the following judgments / citations :

Page 8 of 17
i) (2008) 4 Supreme Court Cases 594, Anathula Sudhakar Vs. P. Buchi Reddy (Dead) By LRs & Ors. etc.

8. Vide this judgment/order, I will dispose of the Civil suit filed by the plaintiff as well as contempt petition filed by the plaintiff/petitioner against the defendants/respondents for violation of status­quo order dated 30.04.1991 passed by the Court. The common order for disposal of the civil suit and the contempt petition is being passed in view of the facts and circumstances of the present matter as discussed hereinafter.

9. It is mentioned that the present civil suit was initially filed before the Hon'ble High Court of Delhi and Hon'ble High Court of Delhi vide order dated 26.04.1991 passed a status­quo order directing the parties to maintain status­quo regarding the possession of the suit property till the next date of hearing 30.04.1991 and thereafter vide order dated 30.04.1991 the Hon'ble High Court of Delhi disposed of the application moved by the plaintiff U/o 39 Rule 1 & 2 r/w Sec.151 CPC and directed the parties to maintain status­quo as revealed in the report of the Local Commissioner dated 29.04.1991 till the disposal of the suit. It is noted that vide order dated 26.04.1991 Advocate Sh.Vijeyesh Roy was appointed as Local Commissioner to report regarding the factum of the possession on the suit property. The Local Commissioner Sh. Vijeyesh Roy, Advocate submitted his report in the court on 29.04.1991 and stated in his report that the plaintiff and his family members are in possession of the suit property. The Page 9 of 17 defendants did not file any objections to the report of the Local Commissioner and therefore, it can be said that the defendants did not dispute the report of the Local Commissioner. As noted above, due to the change in jurisdiction, the matter came to be transferred to this court.

10. On 26.05.1999, the plaintiff/petitioner filed a contempt petition/application U/o 39 Rule 2­A r/w Rule 7 r/w Sec. 151 CPC in the court against the respondents alleging that on 18.05.1999 the respondents demolished the room of the plaintiff from the suit property, thrown away the goods of the plaintiff on the road, started constructing a fresh boundary wall after demolishing the old wall of the plaintiff and put a sign board of the DDA on the suit property and therefore, they have intentionally violated the status­quo order dated 30.04.1991 passed by the court. The plaintiff sought the relief in the Contempt petition that the respondents be imprisoned for contempt of court, the possession of the suit property will be restored to the plaintiff, the suit property be put in its original condition as per the site plan with a room and boundary wall and signboard of the DDA be removed therefrom and damages of Rs.2 lacs be awarded to the plaintiff/petitioner for mental and physical harassment of the plaintiff.

11. The respondent Nos. 1, 2,& 3 filed their joint reply disputing the allegations of the plaintiff/petitioner. Briefly stated, it is mentioned in the reply that the plaintiff was never in possession of the suit property and rather the defendant/DDA was in possession of the Page 10 of 17 suit property and they have tried to protect the possession of the defendant/DDA in discharge of their official duty to protect the government from the plaintiff who is an encroacher on the government land. Respondent Nos. 1 to 3 in para No. 2 of the preliminary objections of the reply tendered an unconditional apology.

12. It is noted that vide order dated 22.09.2011, the Ld. Predecessor Sh. Ajay Goel dismissed the contempt petition filed by the plaintiff. Plaintiff challenged the said order and vide order dated 21.03.2013 passed by the Ld. Appellate Court in the MCA No. 06/11 set aside the order dated 22.09.2011 and remanded back the contempt petition with directions to decide the contempt petition on merits and with further directions to give a clear finding on the point whether there is any violation of the interim order.

13. It has come on record that vide order dated 30.04.1991 a status­quo order was passed and parties were directed to maintain the status­quo qua the possession of the suit property as revealed in the report of the Local Commissioner. I have perused the report of the Local Commissioner dated 29.04.1991. The conclusion of the report of the Local Commissioner is reproduced hereinafter for the sake of clarity :­ "From the aforesaid inspection of the suit premises, it is clear that Sh. Satya Narain plaintiff and his family members are in possession of the premises known as 31­A/1 Begampur, (Khasra No. Page 11 of 17 67, Patti Hamid Sarai, Mauza Hauz Rani, Begampur), New Delhi."

14. The defendants did not file any objections to the report of Local Commissioner and therefore, it can be said that the defendants accepted the report of the Local Commissioner.

15. It is clear from the aforesaid facts and circumstances as well as the report of the Local Commissioner that the plaintiff and his family members were in possession of the suit property and it is clear that they have been dispossessed from the suit property except without following the due process of law despite status­quo order passed by the Court and therefore, respondent Nos. 2 & 3 who are the officers/officials of DDA have clearly violated the status­quo order passed by this Court and they are liable to be punished for contempt of court U/o 39 Rule 2­A CPC. The contentions of the respondents in their reply to the contempt petition are liable to be rejected because prima­facie the same are wrong because the respondent/DDA failed to explain as to when and how it came in the possession of the suit property when the possession of the plaintiff and his family members was there on the suit property as per the report of Local Commissioner and when there was a status­quo order passed by the court qua the suit property. It is clear that respondent/DDA is in clear violation of the status quo order dated 30.04.1991 passed by this court. Here it is noted that respondent No. 1 i.e. Chairman, DDA was deleted from the array of parties in the contempt petition vide order dated 21.03.2013 passed by the Ld. Appellate Court in MCA No. Page 12 of 17 06/11 on the submissions/consent of Ld. Counsel for the plaintiff/petitioner. In view of the material on record, this Court is of the opinion that contempt U/o 39 Rule 2A CPC is not made out against respondent No. 4 i.e. Rajbir Singh Jakhar, the then SHO of P.S. Malviya Nagar, Delhi because he was not party to the main suit and plaintiff/petitioner has failed to place on record sufficient material to prove that he was in connivance with respondent Nos. 2 & 3. No separate evidence was recorded in the contempt petition file because there is no requirement for the same as the material available on record (as discussed above), it is clear that respondent Nos. 2 & 3 have willfully violated the status­quo order dated 30.04.1991 passed by this court.

16. In para No. 2 of the written statement on merits, the defendant No. 2/DDA stated that the possession of the plaintiff is not disputed but he is a trespasser/encroacher on the government land. The possession of the plaintiff over the suit property was also recorded by the Local Commissioner in his report and status­quo order was passed qua the suit property by the court till disposal of the present suit.

17. The Ld. Counsel for defendant No. 2/DDA argued that the present suit filed simplicitor for injunction by the plaintiff is not maintainable in view of the Judgment of the Supreme Court of India in the case titled as "Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. & Ors., DoJ 25.03.2008, Civil Appeal No. 6191/2001". This Page 13 of 17 argument can also not be accepted because it is settled proposition of law that a person who is in settled possession of a certain land / property cannot be dispossessed from there except without following due process of law. No one can be permitted to take the law in his own hands and to throw out the person from the possession of a particular land/ property, even though, the occupant has no right to retain the possession. The possession can be recovered in a lawful manner. In this regard, judgment of Full Bench of Hon'ble Supreme Court of India in the case titled as Rame Gowda (D) by LRs Vs. M. Varadappa Naidu (D) by LRs & Anr. Appeal (civil) 7662 of 1997 DOJ 15.12.2003 is noteworthy.

18. In view of the aforementioned facts and circumstances, it is clear that the plaintiff was in possession of the suit property and there was a status­quo order in his favour and the plaintiff should not have been dispossessed from the suit property except without following the due process of law. The defendant No. 2 /DDA/ its officials in total disregard to the status­quo order passed by this court dispossessed the plaintiff from the suit property and the said property is liable to be restored to the plaintiff as per law. In this regard, judgment of Hon'ble High Court of Rajasthan (Jaipur Bench) in the case titled as, "Abdul Hakim Vs. Habib Khan", decided on 13.08.1997 is noteworthy, wherein it has been held that if the plaintiff is dispossessed during the suit, the amendment of the plaint should not be insisted upon and the plaintiff should be put back in possession Page 14 of 17 so that status­quo ante be restored.

19. The defendant No.2/DDA could not prove any document on record to show that compensation qua the suit property was ever given to the plaintiff or his predecessor in interest and therefore, the stand of the defendant No.2/DDA that the suit property was part of the land which was acquired by the Union of India/defendant No. 1 cannot be accepted because if the land including the suit property would have been acquired, there must be some document to show that the plaintiff or his predecessor in interest was paid compensation qua such acquisition. The defendant No. 1/UOI did not file its written statement in the present suit and was proceeded exparte. Defendant No.2/DDA failed to summon and produce on record any record/document to show that the suit property was acquired and compensation was paid to the plaintiff or his predecessor in interest. Moreover, this Court finds force in the contention of Ld. Counsel for the plaintiff to the effect that if the suit property was acquired by the Union of India then how the concerned Sub­Registrar/Tehsildar registered the Sale Deed of the suit property. It is noted that the plaintiff has duly proved the registered Sale Deed on record as Ex.PW2/1 after getting summoned the relevant record to show that the suit property was purchased by the plaintiff from the previous owners.

20. In the light of the aforesaid discussion, there is no requirement to decide Issue Nos. 2 & 3 as they have already become infructuous/redundant due to the facts and circumstances of this case Page 15 of 17 because the plaintiff was dispossessed from the suit property during pendency of the suit and despite there being a status­quo order passed by this court and similarly, the structure on the suit property was demolished by the defendants during pendency of the suit despite there being a status­quo order passed by this court. The defendants could not bring any material on record as to how the present suit is not maintainable. The defendants could also not bring on record as to how the suit is barred under Sec. 3 of the DD Act as mentioned in Issue No. 4. In view of these facts and reasons, it appears that Issue No. 4 was wrongly framed and the same is accordingly struck off U/o 14 Rule 5 CPC. Since the present suit is simplicitor for injunction, this Court does not find it appropriate to decide as to who is the actual owner of the suit property in the given facts and circumstances of the present case and the said Issue No. 1 is accordingly struck off U/o 14 Rule 5 CPC.

21. In view of this discussion, the present suit as well as contempt petition/application are decided with following reliefs in favour of the plaintiff/petitioner :­

a) The defendant No.2/DDA is directed to restore the possession of the suit property as shown in the site plan Ex. P­1 to the plaintiff within one month from today.

b) The defendant No. 2/DDA is directed to restore the suit property in its original condition as per site plan with a room and Page 16 of 17 boundary wall on the suit property after removing the signboard of DDA therefrom.

c) The respondent nos. 2 and 3 are held to be liable for contempt of the interim order dt. 30.04.1991 and they are liable to be punished u/o. 39 rule 2­A CPC, regarding quantum of the sentence they will be heard on the next date of hearing.

d) Costs of the suit are also awarded in favour of the plaintiff.

Decree­sheet be prepared accordingly.

File of the civil suit be consigned to record room after due compliance.

Arguments on the quantum of sentence in the contempt petition will be heard on 21.01.2019 at 12:30 PM.

Respondent Nos. 2 & 3 will remain present in the court on the next date of hearing.

Announced in the open court today i.e. on 11.01.2019. ( Dheeraj Mittal ) Civil Judge­02 (Central) Tis Hazari Courts :Delhi.

Page 17 of 17