Daya Nand Chandila vs Delhi Development Authority
1997 Latest Caselaw 458 Del

JUDGMENT

M.S.A. Siddiqui, J.

(1) This second appeal u/Section 100, Civil Procedure Code . brings in challenge the judgment and order dated 30.8.1995 passed by the Add). District Judge, Delhi in Rca No. 71/93 confirming the decree of dismissal of the appellant's suit for permanent injunction as rendered by the Trial Court.

(2) The facts which gave rise to this appeal may be shortly stated are that the appellant filed a suit against the respondent for permanent injunction restraining it from demolishing the appellant's house bearing No. WZ-40/1, situated at Village Khayala, New Delhi. The appellant set up the plea that in the year of 1971-72, he had constructed the said house and since then he has been in continuous and uninterrupted possession thereof. That on 23.1.1985, the respondent, through its employees, attempted to demolish the said house. The defense of the respondent was three-fold. Firstly, it was contended that the land in question comprising of Khasra No. 48/27 belonged to Gaon Sabha of Village Khyala and by the notification dated 20.8.1974 issued by the Central Government u/Section 22 of the Delhi Development Act (for short the Act), the lands including the land comprising of Khasra No. 48/27, which had vested in the Central Government on the urbanisation of the Village Khyala, were placed at the disposal of the respondent for the purpose of development and maintenance of the said lands and as such the appellant had no right, title or interest in the said land. The second defense was that the suit was bad for want of notice u/Section53B of the Act read with Section 80, CPC. The third defense was that the appellant had no cause of action as the respondent had not threatened to demolish the structure raised on the said land.

(3) After recording evidence the learned trial Judge came to the conclusion that the land comprising of Khasra No. 48/27 belonged to the Gaon Sabha and the same had been placed at the disposal of the respondent vide notification dated 22.8.1974 (Ex. DWI/2) and, the appellant had no right, title or interest in the said land. It was also held that the appellant being in unlawful possession of one Bigha of the said Khasra number is a trespasser and, therefore, he cannot seek the helping hand of the Court for protecting his unlawful possession. Feeling aggrieved, the appellant carried the matter in appeal. The Additional District Judge, on the reappreciation of evidence confirmed the findings of the trial Judge.

(4) The question which arises for determination in this appeal is whether the judgments of the Courts below are the result of total misreading of evidence and of recording the findings while ignoring the oral as well as documentary evidence on record. At the outset, I must make it clear that there is no document on record evidencing appellant's title over the land comprising of Khasra No. 48/27. His claim is based on his long and uninterrupted possession of the said land. In Ismail Arif v. Mohd. Ghaus, 201.A. 99 (P.C), their Lordships of the Privy Council have laid down that it is not necessary for the person claiming injunction to prove his title to the suit land. It would suffice if he proves that he was in lawful possession of the same and his possession was invaded or threatened to be invaded by a person who had no title whatsoever. In the present case, it is beyond the pale of controversy that the Gaon Sabha was the recorded tenure holder of the land comprising Khasra No. 48/27 and there is a Shiv Mandir on the said land. It is contended by the learned Counsel for the appellant that the certificate Ex. Public Witness 1 / B and copy of Khatauni Ex. Public Witness 2/1 clearly prove that the appellant is in settled possession of the said land and both the Courts below have ignored the said material evidence and on the basis of surmises they had come to a wrong conclusion. It is now well settled that on a question of fact the decision rendered by the lower Appellate Court is final and this Court in exercise of its jurisdiction under section 100, Civil Procedure Code cannot interfere with the findings of fact unless these findings are found to be vitiated in law.

(5) It is stated in para No. 1 of the plaint that the appellant had constructed his house No. WZ-40/1, measuring 1030 sq. yards in the year 1971-72. It is also stated in para 2 of the plaint that the appellant's house falls in Khasra No. 48/27. On the contrary, the certificate (Ex. PWI/8) issued by the Sub-Divisional Magistrate, Punjabi Bagh, Delhi shows that the property bearing No. WZ-40/1, which falls in Khasra No. 48/27, is a Shiv Mandir and the said Mandir is in existence since 1951- 52. Similarly,copy of the Khatauni for the year l951-52 (Ex. PW2/l) also shows that the said Mandir falls in Kahsra No. 48/27 and the land comprising of Khasra No. 48/27 was earmarked for common use of the village community. In the said Khatauni, name of Bhoomidar has been shown as 'Shamlat Deh'. Thus, both the said documents clearly go to show that the property bearing No. WZ-40/1 area 1030, which falls in Khasra No. 48/27, is a Shiv Mandir and the said Mandir is in existence since 1951-52. This variance between proof and pleading knocks the bottom out of the appellant's case. The aforesaid documents have been considered by the Courts below to negative the appellant's case with regard to his ownership of the property bearing No. WZ-40/1. Both the Courts below have concurrently held that the appellant is in unlawful possession of the portion of the land Khasra No. 48/27. The appellant has not adduced any evidence to prove that he had been in settled possession of the said land extending over a sufficiently long period and acquiesced in by the Government of India. Both the Courts below have rightly held that the appellant is a trespasser and his possession over the said land has not matured into settled possession. It, therefore, cannot be said that any material evidence having a direct impact on the decision of the case on merits was ignored by the first Appellate Court as the final Court of facts while arriving at the findings that the appellant was a trespasser and as a trespasser he cannot seek the helping hand of the Court for protecting his unlawful possession as against the owner. For the foregoing reasons, the appeal is dismissed. In the facts and circum- stances of the case, there will be no order as to costs.