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2011 DIGILAW 487 (DEL)

C. L. Gupta v. Delhi Development Authority

2011-05-02

INDERMEET KAUR

body2011
Indermeet Kaur, J. (Oral) R.S.A. No. 237/2007 & CM No. 11503/2008 (u/O 41 R. 27 CPC) 1. This appeal has impugned the judgment and decree dated 30.8.2007 which had endorsed the finding of the trial judge dated 02.9.2002 by virtue of which the suit filed by the plaintiff C.L. Gupta seeking permanent injunction against the Delhi Development Authority (DDA) restraining them from dispossessing the plaintiff from the suit property i.e. property bearing No. 29/1, situated in village Sheikh Sarai, P.O. Malviya Nagar, Savitri Nagar, New Delhi had been dismissed. 2. The case of the plaintiff is that he is the owner of the aforenoted suit property. He had purchased it from Laxman Singh vide a sale deed duly registered in his favour dated 19.12.1988; he is in continuous possession for the last 30 years; defendant was threatening him from dispossession. Suit was accordingly filed. 3. In the written statement it has been stated the plaintiff has no right to land in question; Khasra No. 548/135 (min) measuring 3 bighas has since been acquired and the suit property is located therein. Plaintiff has also failed to prove his title. 4. Three issues had been framed by the trial judge. Oral and documentary evidence was led by the parties. Suit of the plaintiff was dismissed. Plaintiff had relied upon Ex.PW-3/1 i.e. the copy of a blue print of the area where the suit property was located. This was through PW-3 who was the Planning Assistant i.e. a witness from the DDA. This witness had deposed that the copy of the blue print available in the office of the DDA is on record; which is Ex.PW-3/1; the area which has been shown at point ABCD (suit property) has since been regularized. In his cross-examination he had stated that the original layout plan has been transferred to the MCD and is not available with the DDA. This part of the evidence has been noted by the trial judge on para 10. The trial judge had also adverted to the testimony of DW-1 who had proved the Aks Sizra as Ex.DW-1/2. Attention has been drawn to the version of DW-1 wherein he had stated that the disputed land falls in property No. 29A; contention of the appellant/plaintiff is that the suit property is property No. 29/1. The trial judge had also adverted to the testimony of DW-1 who had proved the Aks Sizra as Ex.DW-1/2. Attention has been drawn to the version of DW-1 wherein he had stated that the disputed land falls in property No. 29A; contention of the appellant/plaintiff is that the suit property is property No. 29/1. That apart the evidentiary value of Ex.PW-3/1 had been curtailed for the reason that PW-3 in his cross-examination had deposed that the original of the blue print is lying with the MCD office. While trial judge had noted this the first appellate court had not examined this document at all. 5. This is a second appeal. It has been admitted and the following substantial question of law is formulated: "Whether the findings in the impugned judgment dated 30.8.2007 are perverse? If so, its effect?" 6. Along with this appeal an application under Order 41 Rule 27 of the Code has been filed wherein a prayer has been made to place on record a certified copy of Ex.PW-3/1 (which has since been obtained pursuant to an RTI application from the MCD). It is stated that in spite of due diligence this document could not have been obtained earlier; a certified copy of the said document has since been obtained; it is necessary to set the controversy at rest and to establish that the averment of the plaintiff that the land as aforenoted in blue print Ex.Pw-3/1 has since been regularized. 7. Reply filed to the said application has not opposed the authenticity of the document Ex.PW-3/1. Contention before this Court is that this document has been considered and no interference is called for in the impugned judgment. Case under Order 41 Rule 27 of the Code has not been made out. 8. Record has been perused. Case of the plaintiff is that he is in occupation of the property bearing No. 29/1 which is not a part of Khasra No. 548/135 (min) comprising of 3 bighas which area has admittedly been acquired. The case of the plaintiff is that the suit property does not fall in this acquired portion. For this he had placed reliance upon Ex.PW-3/1 which is blue print of the layout plan. PW-3 who was a summoned witness from the DDA had admitted that the portion shown at points ACBD (suit property) as depicted in Ex.PW-3/1 has been regularized. The case of the plaintiff is that the suit property does not fall in this acquired portion. For this he had placed reliance upon Ex.PW-3/1 which is blue print of the layout plan. PW-3 who was a summoned witness from the DDA had admitted that the portion shown at points ACBD (suit property) as depicted in Ex.PW-3/1 has been regularized. The trial court had however noted the testimony of PW-3 but did not rely upon it for the reason that in the cross-examination PW-3 had admitted that the original layout plan is not on record which is with the MCD. 9. By way of the present application under Order 41 Rule 27 of the Code the applicant wishes to place certified copy of Ex.PW-3/1 on record; it has since been obtained from MCD. The reasons given in the application for not having filed the application earlier have also been read. Learned counsel for the appellant has also placed reliance upon that part of Order 41 Rule 27 which states that the court "in order to pronounce judgment" and also to do substantial justice for any "substantial cause" may permit additional evidence. 10. This appears to be a fit case for remand. The impugned judgment had not adverted to Ex. PW-3/1; neither had it rejected it and nor accepted it; it was not examined at all. The plaintiff/appellant is granted one opportunity to produce the additional evidence which is purported to be a certified copy of the blue print of the development plan (as detailed in para 6 of the application) layout plan of the concerned colony where the suit property is located. He is permitted to prove these documents in accordance with law. The prayer made in the application is accordingly allowed. 11. Parties are directed to appear before learned District & Sessions Judge (Central) on 09.5.2011 at 10.30 AM who will assign the case to the concerned civil judge permitting the plaintiff to adduce these documents and prove the same in accordance with law. Trial judge will thereafter return its findings on the merits of the case. 12. Substantial question of law is answered accordingly. 13. Appeal is disposed of in the above terms. CM No. 12747/2007 (for stay) 14. This application has become infructuous; it is dismissed.