Indian Kanoon - Search engine for Indian Law

7. Relief."

6. Parties led evidence and proved documents which is stated in paragraphs 18 to 27 of the judgment of the trial court and which paragraphs read as under:-

"Plaintiffs' Evidence

18. The plaintiffs have examined Mr. Desh Deepak Tyagi as PW1. Mr. Desh Deepak Tyagi is the son of plaintiff no.2 and is also an attorney of both the plaintiffs. He has tendered his affidavit Ex.P-1 in evidence. In his affidavit, he reiterated the averments made in the plaint. He asserted that the plaintiff no.2 is a co-owner of the suit property. He stated that the plaintiff no.2 has entered into an agreement to sell with the plaintiff no.1 and that the said agreement to sell was executed on 04.12.1998. He stated that possession of the suit property was handed over to the plaintiff no.1 in part performance of the agreement to sell. He further stated that the defendant sometimes allows third parties to use an adjoining park without clarifying that it is only that park which is to be used and as a result, those persons enter and use the suit property. PW1 identified and relied upon a General Power of Attorney as Ex. PW1/1. He identified the khatoni of the suit property as Ex.PW2/1. He identified the agreement to sell as Ex.PW1/3, the site plan as Ex.PW1/4, notice dated 07.12.2004 as Ex.PW1/5, copy of plan attached to the notice as Ex.PW1/6, reply of post office as Ex.PW1/7, khasra girdawari as Ex.PW2/2, a wedding invitation card as Ex.PW1/9 and copy of a resolution passed by the defendant no.1 as mark "A". PW1 was crossexamined on behalf of the defendant no.1. After amendment of written statement and after impleadment of defendant no.2, PW1 was again crossexamined on behalf of defendants. PW1 was then discharged.

19. The plaintiffs examined Mr. Salim Ahmed, Patwari as PW2. PW2 identified the khatoni as Ex.PW2/1 and girdawari as Ex.PW2/2. He was crossexamined and was then discharged.

20.The next witness brought by the plaintiffs was Mr. Prashant Narula (plaintiff no.1) as PW3. PW3 tendered his affidavit Ex.P-3 in evidence. In his affidavit, he stated that he had entered into an agreement to sell with respect to the suit property. He deposed that the defendant no.1 allows the public to use Subhash Park and those persons mistakenly enter into the suit property. He asserted that he is the owner of the suit property. PW3 was cross- examined on behalf of defendants. After the defendant no.1 amended its written statement and after the defendant no.2 was impleaded as a party to the suit, the said defendants again cross-examined PW3. PW3 was then discharged.

(ii) Admittedly, no document has been filed by the appellant/defendant no. 1 to show the suit land being acquired by the appellant or by the Union of India under the Land Acquisition Act and then transferred to the appellant, and therefore, appellant/defendant no.1 is not the owner on account of acquisition of the suit land.

(iii) As regards the land vesting in gaon sabha on the date of urbanization, it is noted that no documentary evidence whatsoever to prove this fact was led by the appellant/defendant no. 1 in the trial court. Even if we take as documentary evidence being the khatoni of 2008-09 filed by the appellant/defendant no.1 in the first appellate court, and which revenue record/khatoni of the suit land for the year 2008-09 shows that the suit land is barren land owned by gaon sabha, yet, the issue is that whether this document being the khatoni of the year 2008-09 is enough for proving ownership of the suit land of the appellant/defendant no.1. In my opinion, this solitary document cannot show ownership of the appellant/defendant no.1 of the suit land because of various reasons. Firstly so that the suit land vested in the Union of India under Section 150 (3) of the Delhi Land Reforms Act as a pre-condition the vesting of the suit land in the gaon sabha has to be shown as on the date of urbanization of the village when the notification under Section 507 of the Delhi Municipal Corporation Act was issued, and, there is no evidence led as to when is this notification issued under Section 507 of the Delhi Municipal Corporation Act, i.e there is no evidence that urbanization notification was issued in the year 2008-09 and which is the year of khatoni filed by the appellant showing the suit land to be in the ownership of gaon sabha as barren land. Secondly, the subject suit itself had already been filed on 7.3.2005 and by which date there is no dispute that the suit land had already been urbanized way back. Unfortunately, it has not come on record either in the courts below or even before this Court, by either of the parties, that what is the date of the notification under Section 507 of the Delhi Municipal Corporation Act urbanizing the village in which the suit land is located. I had put a specific query to counsels for all the parties but none of the counsels could refer to the document being the notification under Section 507 of the Delhi Municipal Corporation Act on record nor could they give the date of this notification. Therefore, I cannot hold the appellant/defendant no. 1 to be the owner of the suit land on account of the suit land being vested in the gaon sabha on the date of urbanization and therefore vesting in the Union of India by virtue of Section 150 (3) of the Delhi Land Reforms Act.

(ii) In my opinion, the respondent nos.1 and 2/plaintiffs cannot take benefit of the khatoni and khasra girdwari Ex.PW2/1 and Ex.PW2/2 respectively to prove their possession of the suit land inasmuch as the suit plaint filed on 7.3.2005 and the khatoni and the khasra girdwari are of the years 1988-

89 i.e around 15 years prior to filing of the suit ie not of the date of filing of the suit. As held in the case of Anathula Sudhakar (supra), before a plaintiff succeeds in a suit for injunction, it is necessary to show that the plaintiff (respondent nos.1 and 2/plaintiffs in this case) was in possession of the suit property on the date of filing of the suit. Therefore, the documents Ex.PW2/1 and Ex.PW2/2 of the years 1988-89 cannot in any manner establish physical possession of the suit property of the respondent nos.1 and 2/plaintiffs as on 7.3.2005 when the suit was filed.