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2006 DIGILAW 373 (DEL)

MOOL CHAND SHARMA v. DELHI DEVELOPMENT AUTHORITY

2006-02-28

MUKUNDAKAM SHARMA, SANJIV KHANNA

body2006
MUKUNDAKAM SHARMA, J. ( 1 ) THIS appeal in the nature of a regular first appeal is filed under Section 96 of the Code of Civil Procedure against the judgment and decree dated 28th September, 2005 passed by the Additional District Judge in suit No. 175/2003. By the aforesaid judgment and decree the suit filed by the appellant herein was dismissed. ( 2 ) THE aforesaid suit was filed by the appellant herein seeking for a decree of permanent injunction against the respondents, their agents, their employees and any person acting on their behalf from demolishing the property of the appellant plaintiff at A-47, Shiv Mandir Complex, Village Masoodpur, New Delhi and also restraining the respondents from dispossessing the appellant herein in any other manner from the aforesaid property. ( 3 ) RESPONDENT No. 1 in the present appeal is the Delhi Development Authority whereas Union of India is impleaded as respondent No. 2 through the Ministry of urban Development. According to the appellant in village Masoodpur there is a shiva temple and the same was lying neglected as there was no Brahmin to perform pujas in the temple for which the villagers of Masoodpur requested the appellant plaintiff to come to the village to look after the temple and perform pujas. It is alleged that from 1965 the appellant-plaintiff has been looking after the temple along with another priest namely, Karan Mudgal and they were living there in a room adjacent to the temple. Subsequent thereto Gaon Sabha gave the land to the appellant-plaintiff and the other Pujari and they made their house adjacent to the temple and started living there since long. It was further alleged that on 19th january, 2003 a policeman from Police Station Vasant Kunj came to the aforesaid temple and informed the appellant-plaintiff that the temple as well as the house of the appellant and Ram Karan are to be demolished on 22nd January, 2002 upon which the appellant made inquiries during the course of which he was informed that the State Government has acquired the land and it is shown that possession of vacant land has been taken over in the year 1986 and therefore demolition order has been issued. Immediately thereafter the aforesaid suit was filed by the appellant praying for a decree of permanent injunction restraining demolition and restraining respondents from disturbing peaceful possession of the appellant. Immediately thereafter the aforesaid suit was filed by the appellant praying for a decree of permanent injunction restraining demolition and restraining respondents from disturbing peaceful possession of the appellant. The DDA contested the suit by filing written statement. It was stated in the said written statement that the appellant was an encroacher in the land belonging to DDA. It was stated that the suit land falls in Khasra No. 205/2 of village Masoodpur which stands acquired under Award No. 42/86-87, the total land being 3 bighas 3 biswas. It was also stated that physical possession of the land was taken over from LAC/ l and B on 22nd September, 1986 and the said land is now at the disposal of the Delhi development Authority. In that context it was submitted that the appellant has no right, title or interest in the suit property. It was also contented that the suit was not maintainable in view of the fact that no statutory notice as required under Section 53 (B) of the DDA Act was served on the respondent-defendant. ( 4 ) ON the pleas of the appellant-plaintiff the following issues were framed:" (1) Whether the plaintiff has no right, title, interest in the suit property? -OPD (2) Whether the suit is not maintainable in view of no statutory notice under Section 53 (B) of the DDA Act? -OPD (3) Whether the plaintiff is entitled to decree for permanent injunction as prayed for in para A of the plaintiff? -OPP (4) Relief?" ( 5 ) THE appellant examined himself in the suit and he also produced certain documents which were exhibited as Ex. PW1/1 to Ex. PW 1/121. He also examined his son Pawan Kumar who was examined as PW-2, Ajit Singh as PW-3, Dharam singh as PW-4, Hoshiar Singh as PW-5, Pawan Jeet as PW-6 and Ravi Kumar as pw-7. He also proved a few documents. DDA on the other hand examined Jagdish chander, Patwari, examined as DW-1, who had also produced and exhibited certain documents. On completion of the trial, the learned Additional District Judge heard the learned Counsel appearing for the parties and thereafter dismissed the suit of the appellant herein. ( 6 ) AS against the aforesaid findings and conclusions recorded by the learned additional District Judge the present appeal is preferred on which we have head the learned Counsel appearing for the parties. ( 6 ) AS against the aforesaid findings and conclusions recorded by the learned additional District Judge the present appeal is preferred on which we have head the learned Counsel appearing for the parties. ( 7 ) COUNSEL appearing for the appellant has drawn our attention to the suit records which we have perused during the course of hearing and at the time of preparation of this judgment. In the light of the aforesaid submissions and the allegations we propose to deliver our judgment recording our findings and conclusions therein. ( 8 ) IT was submitted before us by the Counsel appearing for the appellant that the land in which the aforesaid Shiva temple is situated and where both the appellant along with the other Pujari are residing is the land of the Gaon Sabha and that the Gaon Sabha allotted the said land to the appellant by giving lease to the appellant. The lease is stated to be Ex. PW 1/2. Another submission which was advanced before us by the Counsel appearing for the appellant is that the land in which the Shiva Temple is existing and the appellant is residing by constructing a house is situated and falls under Khasrano. 204 and not under Khasrano. 205 and therefore there could not have been any proceeding against the appellant as it is the land under Khasra No. 205/2 which has been acquired by the State Government. In support of the aforesaid contention the Counsel has drawn our attention to the judgment and order dated 25th May, 2005 passed by the Additional District Judge in the application filed by the appellant seeking for amendment of the plaint. It was submitted by the Counsel appearing for the appellant in the present appeal that the aforesaid order passed by the learned Additional District Judge is also under challenge in this appeal. Counsel submitted that interim order passed in the suit could also be challenged in the appeal filed as against the final judgment and decree. Counsel also submitted that a person in settled possession cannot be dispossessed without due process of law. In support of the aforesaid contention our attention was drawn to several decisions of the Supreme Court. Counsel submitted that interim order passed in the suit could also be challenged in the appeal filed as against the final judgment and decree. Counsel also submitted that a person in settled possession cannot be dispossessed without due process of law. In support of the aforesaid contention our attention was drawn to several decisions of the Supreme Court. So far as the aforesaid submission that interim order passed in the suit could also be challenged in the appeal filed against the final decree and that a person in settled possession cannot be dispossessed without due process of law is concerned, there could no dispute with the said position of law that a person having legal right and title cannot be dispossessed without due process of law. It is also not in dispute that interim orders which are passed in the suit could also be challenged when an appeal is filed as against the final judgment and decree. Therefore, it is not necessary to deal with the decisions which have been cited by the Counsel appearing for the appellant. However we are required to examine the contention that the land of the appellant is covered by Khasra No. 204 and not Khasra No. 205/2. ( 9 ) IN order to appreciate the contention of the Counsel appearing for the appellant that the suit property falls under Khasra No. 204 and not under Khasra no. 205 we have considered the pleadings of the parties as also the contents of the application under Order 6 Rule 17, CPC in which order dated 25th May, 2005 was passed by the learned Additional District Judge. In the plaint the appellant has made a statement that the action of demolition which has been planned by respondent No. 1 on 22nd January, 2003 was for Khasra No. 205, possession of which has already been taken over by the DDA on 22nd September, 1986 and, therefore, the same could not be the land in which the temple and the house of the plaintiff and Ram karan Mudgal exists. However on a reading of the averments made in the plaint it is clear that in none of the paragraphs of the plaint it was specifically stated by the appellant that the suit land falls under Khasra No. 204. However on a reading of the averments made in the plaint it is clear that in none of the paragraphs of the plaint it was specifically stated by the appellant that the suit land falls under Khasra No. 204. The respondent DDA on the other hand in the written statement filed specifically pleaded that the suit land falls under Khasra No. 205/2 Min. at Village Masoodpur. It was also pleaded that the said land containing 3 Bighas and 3 Biswas was acquired by Award No. 42/86-87 and that physical possession of the said land was taken over on 22nd September, 1986. It was also pleaded therein that the appellant is an encroacher and has no right, title or interest in the suit property. Evidence was lead by the appellant and he examined seven witnesses in the aforesaid suit and on 21 st April, 2005 evidence of the appellant was closed. The Delhi Development Authority/defendant No. 1 in the suit in support of its case filed evidence by way of affidavit of Patwari. When the aforesaid suit was fixed on 17th May, 2005 for cross-examination of defence witnesses it was only on that date that the appellant filed an application seeking for amendment of the plaint contending inter alia that Paragraph 11-A is to be incorporated after paragraph 11 to the following effect:"11 (a) That the plaintiff from the date of filing of the suit till date is making regular inquiries from the revenue records offices, DDA and other Government agencies with regard to the exact Khasra numbers of the properties. " ( 10 ) THE said application seeking for amendment only to the aforesaid extent was contested by the DDA by filing a reply. The aforesaid application and the manner and nature of the amendment which was sought for clearly establishes that the appellant himself is not sure in which Khasra number the suit land falls. It is not denied by defendant No. 1 that Khasrano. 205/2 was earlier a pond and Khasrano. 443/204 is abadi deh as per Revenue records. It is also stated that since no pond exists at the site of Khasra No. 205/2 therefore unauthorisedly a house has been constructed by the appellant over the portion of Khasra No. 205/2 which could be now removed by the DDA for unauthorised encroachment on the the said government land. 443/204 is abadi deh as per Revenue records. It is also stated that since no pond exists at the site of Khasra No. 205/2 therefore unauthorisedly a house has been constructed by the appellant over the portion of Khasra No. 205/2 which could be now removed by the DDA for unauthorised encroachment on the the said government land. The aforesaid application which was filed by the appellant seeking for amendment was definitely belated. The DDA has specifically pleaded in the written statement that the suit land falls within Khasra No. 205/2. With the aforesaid pleadings, the parties went to trial. The appellant examined seven witnesses. The DDA also submitted its affidavits by way examination in chief. At that stage this application was filed. The aforesaid application filed seeking for amendment and the nature of the amendment which was sought for also make it clear that even on that date when the said application was filed the appellant could not plead definitely and with exactitude the Khasra number of the suit property and therefore the said amendment was rightly rejected by the learned Additional district Judge. The application filed by the appellant with very vague and uncertain statements could not have been allowed under any circumstances by the learned additional District Judge. ( 11 ) THE fact proved by the DDA thatthe said land falls within khasrano. 205/2, acquired by the State Government by issuing notifications under Sections 4 and 6 of the Land Acquisition Act and also by passing the award could not be contested and disproved by the appellant herein. The notification dated 10th October, 1986 was proved as Ex. DW1/1. The award passed in respect of Khasra No. 205/2 being award No. 42/86-87 was proved as Ex. DW-1/2 and the possession proceeding was also proved as Ex. DW-1/3. The aforesaid land which has been acquired also included the suit land as it is established by the contents of DW-1/1 that in the schedule of the aforesaid notification suit land Khasra No. 205/2 measuring 3 bighas 3 biswas in the village Masoodpur is clearly mentioned. The said area of 3 bighas 3 biswas of land as Gair Mumkin Johar also finds mention in the award for khasra No. 205/2. The said area of 3 bighas 3 biswas of land as Gair Mumkin Johar also finds mention in the award for khasra No. 205/2. It is also clearly established from the evidence on record that physical possession of the aforesaid acquired property was taken over from the office of the Land Acquisition Collector on 22nd September, 1986. It is stated that the suit property is in possession of the DDA since the year 1986. DW1/1 categorically denied the suggestion that the land does not fall in Khasra No. 205/2. ( 12 ) AS against the said evidence produced on behalf of the defendant the appellant plaintiff has produced rent receipts issued by the Gaon Sabha in his favour which has been proved as Ex. PW-1/2. It was also alleged that the property in question has electricity and water connection since long. Letter issued by the mcd for filing objections to the determination of ratable value in respect of the aforesaid suit property has also been proved as Ex. PW-1/15. Therefore, the specific case of the appellant before the learned Trial Court as also before us was that the land was allotted to him by the Gaon Sabha and since the appellant is in settled possession of the suit property he cannot now be dispossessed without recourse to due process of law. However the records clearly indicate that there is no sale deed or licence placed in order to prove the ownership of the appellant in respect of the suit property. The documents which are placed on record is in the nature of lease rent receipts issued by the Gaon Sabha and evidence showing that the appellant has electricity and water connection in the premises. In our considered opinion the said documents do not and cannot prove the ownership of the suit property in the name of the appellant. It was also admitted by PW-1 in his cross-examination that he did not submit any document of ownership for getting the aforesaid connection from DESU. He also clearly admitted that he could not produce any ownership document after receiving the notice of the House Tax department of the MCD. The plea that the suit property is situated in Khasra No. 204 and not in Khasra No. 205/2 appears to us as an afterthought. In the plaint no such averment was made. He also clearly admitted that he could not produce any ownership document after receiving the notice of the House Tax department of the MCD. The plea that the suit property is situated in Khasra No. 204 and not in Khasra No. 205/2 appears to us as an afterthought. In the plaint no such averment was made. The statements made in the plaint only state that the suit property does not fall within Khasra No. 205/2. At that stage it was only stated that the suit property therefore falls under some other Khasra other than Khasra No. 205/2. Even in the application seeking for amendment no definite and clear statement could be made by the appellant stating that the suit land falls under khasra No. 204. The said plea is being raised for the first time in this appeal. In the evidence of the appellant recorded before the Trial Court, he has stated in cross-examination that he cannot tell the Khasra number in which the suit property is situated. He has also stated that the suit property is given by the Village Head to him in charity. He has relied upon Ex. PW-1/2 to establish his right and title over the suit land. But the said PW-1/2 is only in the nature of lease rental receipt. His son pw-2 however stated in his answer to a question that he should not either deny or admit that the suit land falls in Khasra No. 205/2. ( 13 ) ON going through the records and the evidence led, we are of the considered opinion that the amendment which was sought for by the appellant being very vague and uncertain and there being no definite mention in the said statement regarding the exact situation and location of the land, the said amendment was rightly rejected by the learned Additional District Judge. The evidence which was lead by the respondent-DDA clearly proved and established that the suit land is a part of the acquired land which was acquired vide notification dated 10th october, 1986. The appellant has trespassed in the said land belonging to the DDA after the same was acquired and possession of the same was taken over by the DDA. We therefore hold that the contention that the suit land is not the acquired land is without any merit. The appellant has trespassed in the said land belonging to the DDA after the same was acquired and possession of the same was taken over by the DDA. We therefore hold that the contention that the suit land is not the acquired land is without any merit. In view of the aforesaid position and the evidence on record we hold that there is no merit in this appeal and the same stands dismissed with costs. Consequently the application for stay is also dismissed. Appeal dismissed. .