Ramanand S/O Late Shri Chhellu Ram ... vs Union Of India (Uoi), Through ...
2005 Latest Caselaw 975 Del

JUDGMENT

Madan B. Lokur, J.

1. Khasra No. 218, Village Masoodpur, New Delhi is in two parts, that is, Khasra No. 218/1 and Khasra No. 218/2. The Petitioners claim to be owners and occupants of land, which they say forms a part of Khasra No. 218/1.

2. The total land of Khasra No. 218 consists of 8 bighas and 15 biswas. A part of this (that is, Khasra No. 218/2) was acquired by an Award No. 2040 dated 2nd December, 1967. The acquired land was also placed at the disposal of the Delhi Development Authority (DDA "Respondent No. 2). Khasra No. 218/1 was not acquired by the Respondents.

3. According to the Petitioners, the land in dispute forms a part of Khasra No. 218/1 which was not acquired. But according to the Respondents the land in dispute forms a part of Khasra No. 218/2 and was in fact acquired and possession physically handed over to the DDA. According to the Respondents, the Petitioners have encroached upon this land on the pretext that it falls in Khasra No. 218/1.

4. Apparently, when the DDA wanted to make some construction on the disputed land, the Petitioners/their predecessors-in-interest filed Suit No. 121/1986 in the Court of the Sub Judge, Delhi for a permanent injunction restraining the DDA from interfering in their peaceful possession in the land in dispute. Along with the suit, an application for an interim injunction was also filed by the plaintiffs therein. For convenience this suit is referred to as the first suit.

5. By an order dated 2nd March, 1989, the application for interim injunction was rejected by the learned Sub Judge. It was held that the DDA had brought on record a demarcation report of the Kanungo along with a site plan. According to the report, the land in dispute forms a part of Khasra No. 218/2. The plaintiffs had not rebutted the documentation and in view thereof it was prima facie held that the land in dispute does not form a part of Khasra No. 218/1 but that it forms a part of Khasra No. 218/2. The plaintiffs had relied upon the report of a Local Commissioner to show that they were in possession of the land in dispute. The learned Sub Judge was, however, of the opinion that the report of the Local Commissioner did not indicate whether the land forms a part of Khasra No. 218/1 or Khasra No. 218/2 and mere possession of the land in dispute by the plaintiffs does not indicate that that land does not form a part of Khasra No. 218/2. Since no prima facie case was made out by the plaintiffs for the grant of a temporary injunction, the application was dismissed.

6. Feeling aggrieved, the plaintiffs filed an appeal being MCA No. 115/1989 which came to be heard by a learned Additional District Judge who passed an order on 7th February, 2003 dismissing the appeal.

7. Feeling aggrieved by the refusal to grant any interim injunction by both the Courts below, the plaintiffs filed CR No. 251/2003 in this Court. By an order dated 13th March, 2003, the civil revision was dismissed in the following words:-

"Heard.

Learned counsel for the Petitioner relies on the report of the Local Commissioner which does not relate to demarcation of the land. On the other hand the Respondent/DDA has produced demarcation report of the Kanoongo, according to which the land was part of Khasra No. 218/2. In view of this observation the Learned Trial Court, I do not find that this Court should interfere with the impugned order.

The petition is dismissed along with application for stay."

8. The plaintiffs in the first suit then filed an application seeking review of the order dated 13th March, 2003 and this was registered as RA No. 1494/2003. By an order dated 29th January, 2004, this Court dismissed the review application in the following words:-

"This Review is directed against the order dated March, 13, 2003 wherein S.N. Kapoor, J had been persuaded to dismiss the Revision on the grounds that the Respondent/DDA have produced demarcation report of the Kanoongo, according to which land was part of Khasra No. 218/2. It is relevant to mention that in the Trial Court as well as in the First Appellate Court, the findings of facts are against the Petitioner, albeit on a prima facie basis. The Suit is still continuing. By means of this application, a fresh hearing is sought to be claimed. No grounds for Review are sought to be claimed. No grounds for Review is made out.

Dismissed."

9. It appears that since an interim injunction was declined by the learned Sub Judge by an order dated 2nd March, 1989, a fresh suit was filed in respect of the same property and that suit was registered as Suit No. 259/1990 in the Court of the Sub Judge, Delhi. The plaintiffs in the second suit were Jagdish Singh Malik, Lachhman Singh and Ramanand, all sons of Ami Chand.

10. In the second suit, by an order dated 17th April, 1990, notice was issued by the learned Sub Judge who declined to grant an ex parte injunction. Against refusal to grant an ex parte injunction, the plaintiffs in the second suit filed CR No. 383/1990 in this Court and this Court passed an interim order staying demolition of the house of the plaintiffs in the second suit in Khasra No. 218/1.

11. On 1st August, 1991, this Court passed an order to the effect that the land be demarcated so that a clear report is given as to in which khasra number the house of the plaintiffs in the second suit stands. It was also directed that the Trial Court shall dispose of the application for ad interim injunction on merits and pass an appropriate order.

12. It appears that demarcation of the land did not take place and the Trial Court disposed of the application for ad interim injunction in the second suit with the result that on 25th February, 1992, the revision petition was dismissed as having become infructuous. It is not known whether the injunction application filed in the second suit was allowed or not, but it does seem that the injunction was declined.

13. Despite the order dated 1st August, 1991, it appears that the Revenue officials did not demarcate the land in question and the Petitioners do not seem to have taken any steps in this regard.

14. The present writ petition was filed by the Petitioners and Petitioner No. 21 is Lachhman Singh, son of late Ami Chand, one of the plaintiffs in the second suit. Petitioner No. 22 is Jagdish Singh, also a son of late Ami Chand (but not a plaintiff in the second suit). Most of the other Petitioners are the legal heirs of the plaintiffs in the first suit.

15. In the writ petition that has been filed before us, the Petitioners have stated their case and have referred to the order dated 1st August, 1991 passed in CR No. 383/1990. The fact that many of them had filed an earlier suit bearing Suit No. 121/1986 in respect of the same property has not been disclosed by the Petitioners. The Petitioners have also not disclosed that Lachhman Singh (Petitioner No. 21) was one of the plaintiffs in the second suit, that is, Suit No. 259/1990. Similarly, Petitioner No. 2 has not disclosed that one of his brothers, that is, Lachhman Singh and others were plaintiffs in the second suit, that is, Suit No. 259/1990. In other words, there has been a serious concealment of relevant facts by the Petitioners and on this ground a one, the writ petition deserves to be dismissed.

16. We find that in respect of the same land in dispute, two civil suits have been filed, that is, Suit No. 121/1986 and Suit No. 259/1990. In respect of the first suit, an interim injunction has been declined and it has been held that the land in dispute forms a part of Khasra No. 218/2. This view has been taken by the learned Sub Judge, by the learned Additional District Judge as also by a learned Judge of this Court. A review application in this regard has also been dismissed by this Court. In the second suit also, being Suit No. 259/1990, the application for injunction has been disposed of and although it is not known what decision has been taken in that application, it appears that the interim injunction application was dismissed.

17. Under these circumstances, we are of the view that the present writ petition seeking the same relief as in the two earlier civil suits is wholly misconceived. The writ petition also raises disputed questions with regard to the property bearing Khasra No. 218/2 in Village Masoodpur, New Delhi. Such a dispute cannot be the subject matter of adjudication in a writ petition particularly when two civil suits have been filed in respect of the same property.

18. Learned counsel for the Petitioners submitted that the reliefs prayed for in the present writ petition are different from the reliefs prayed for in the earlier proceedings. It is true that there is some difference in language in the reliefs claimed. But, these differences are insignificant - the sum and substance and the effect of the reliefs claimed is the same. A mere change in language does not change the sum and substance of the case. We find no merit in the writ petition. It is accordinly dismissed.

19. In view of the conduct of the Petitioners in failing to disclose all relevant facts of the case truthfully and correctly, we dismiss this writ petition with costs of Rs.10,000/- which will be paid by the Petitioners to the DDA within six weeks from today.

20. The Registry will ensure that a copy of this order is placed on the files of Suit No. 121/1986 and Suit No. 259/1990 in the Court of the Sub Judge, Delhi, regardless of whether those cases are pending or decided. In case both the civil suits are still pending, the learned District Judge will consolidate them so that they are listed before one Court for disposal in accordance with law. In case any appeals are pending (against any interlocutory order or otherwise), a copy of this order will be placed in the files of those appeals also. The learned Judge dealing with any of the cases relating to the land in dispute will ensure that costs are paid to the DDA before proceeding further in the matter.