* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:23.03.2012
+ CM(M) 931/2010 and CM No. 12880/2010
DELHI DEVELOPMENT AUTHORITTY ..... Petitioner
Through Mr. Rajiv Bansal and Mr.Rahul
Bhandari, Adv.
versus
SIS RAM ..... Respondent
Through Mr. Naresh Thanai, Adv.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1. The order impugned before this court is the order dated 27.01.2010 vide which the application filed by the petitioner under Order 41 Rule 27 of the Code of Civil Procedure (hereinafter referred to as 'the Code') before the First Appellate Court had been dismissed; the prayer made in the said application was to the effect that the demarcation conducted by the petitioner/DDA on 20.02.1985 be permitted to be taken on record. This prayer had been declined by the impugned order. This order is the subject matter of the present petition.
2. Record shows that a suit for declaration and permanent injunction CM(M) No.931/2010 Page 1 of 5 had been filed by the plaintiff against the DDA; his contention was that the disputed land falls in khasra number 33/3 of Village Basant Nagar, New Delhi; this was disputed by the DDA; contention of the DDA was that the disputed land forms a part of khasra number 33/10. After evidence, the suit was decreed in favour of the plaintiff on 21.01.1981. In the Regular First Appeal filed by the DDA, on 27.05.1982 the First Appellate Court passed an order whereby a Consolidation Officer-cum- Tehlisdar, namely, Sh. Chander Bhan Sharma was appointed as a Local Commissioner to carry out fresh demarcation. Matter had been remanded back to the Trial Court. The said Consolidation Officer i.e. Sh. Chander Bhan Sharma had submitted the report before the Trial Court after the demarcation had been conducted by him pursuant to an inspection carried out by him on 06.05.1983; he was examined and cross-examined; thereafter the suit of the plaintiff was again decreed on 08.05.1984. A Regular First Appeal was again filed against that decree and judgment and in this pending appeal the present application under Order 41 Rule 27 of the Code had been filed by the DDA. The averments made in the said application have been perused. It is reiterated that the land in dispute falls in khasra number 33/10 and a CM(M) No.931/2010 Page 2 of 5 Naib-Tehsildar had in fact been appointed by the DDA who has carried out a demarcation on 20.02.1985 and permission had accordingly been sought by the DDA to place on record the said report. Admittedly this demarcation report dated 20.02.1985 was a report which was prepared unilaterally by the DDA on its own without any order from the court; this was the primary reason why this report was not permitted to be taken on record and rightly so.
3. A valuable right had accrued in favour of the plaintiff on two occasions i.e. when the suit was first decreed on 21.01.1981and the for the second time when the suit of plaintiff was again decreed on 08.05.1984. In this intervening period on the application filed in the Regular First Appeal filed by the DDA, the First Appellate Court had remanded the matter back to the Civil Judge where a fresh demarcation had been carried out by Sh. Chander Bhan Sharma; fresh report had been tested in his examination-in-chief as also in the detailed cross- examination pursuant to which a second decree dated 08.05.1984 had fallen in the hands of the plaintiff. This valuable right to the plaintiff was now sought to be disturbed again by the DDA. The oral submission of the DDA before this court is that the Total Standard Method (TSM) CM(M) No.931/2010 Page 3 of 5 has been formulated by which a more accurate demarcation of the disputed property can be carried out and it would be in the interest of justice that the demarcation effected by the DDA on 20.02.1985 be taken on record; in the alternate, the DDA has no objection if a fresh demarcation be ordered by this court on the Total Standard Method.
4. Arguments have been opposed and rightly so.
5. The contention of the defendant all along i.e. right from the inception of the suit as is evident from the written statement was that the suit property falls is a part of khasra no. 33/10; the plaintiff has obtained a decree on this issue; in fact two decrees as aforenoted in favour of the plaintiff had been passed; in this intervening period a fresh demarcation carried out by the Consolidation Officer-Chander Bhan Sharma had been given. The DDA however did not allow the controversy to rest; his submission that the controversy again be raked up in suit proceedings which had been initiated in 1973 cannot be allowed; the issue of demarcation has finally stood settled. Impugned order disallowing the application under order 41 Rule 27 of the Code by virtue of which a unilateral report prepared by the DDA of the demarcation of the same land which already stood settled by a demarcation carried out under the CM(M) No.931/2010 Page 4 of 5 orders of the court on 25.05.1982 thus suffers from no infirmity.
Petition is without any merit; it is dismissed.
INDERMEET KAUR, J MARCH 23, 2012 rb CM(M) No.931/2010 Page 5 of 5