Pandit Ram Karan Mudgal vs Delhi Development Authority And ...
2007 Latest Caselaw 317 Del

JUDGMENT

J.M. Malik, J.

1. In this first appeal, the appellant has called into question the order delivered by the trial court dated 09.01.2007, wherein it refused to grant him temporary injunction restraining the respondents from dispossessing him from the case property, under Order 39 Rule 1 and 2 C.P.C. In the original plaint dated 21.01.2003, Pandit Ram Karan Mudgal, the appellant/plaintiff averred that case property bearing No. A-48, Shiv Mandir Complex, Masoodpur, New Delhi forms a part of khasra number 205. Devi Sahai and after his death Mool Chand Sharma, his son and the appellant have been working there as Priests since 1965. The Gaon Sabha allotted the said land to the above said Priests. Both of them constructed their houses adjacent to Shiv Mandir. On 19.01.2003, out of blue, a policeman appeared there and apprised them of the fact that the construction situated therein was to be demolished on 22.01.2003. They were also informed that the said land had been acquired and was taken over by the D.D.A. in the year 1986. Thus, the appellant filed the aforesaid case. The said Mool Chand Sharma filed a separate suit No. 175/2003, which was dismissed by learned Additional District Judge on 28.09.2005 and its appeal was also dismissed by the Division Bench of this Court on 28.02.2006 in RFA No. 26/2004

2. Vide his order dated 06.11.2004, the learned Additional District Judge dismissed the application for grant of temporary injunction. He, however, came to the conclusion that the plaintiff was in possession of the suit property since long because he was able to produce proof of water, electricity and telephone bills since the year 1981. The appellant also produced a certified copy of an earlier judgment passed by the Civil Judge, wherein it was held that the appellant was a lessee in respect of the suit land under Gaon Sabha, Masoodpur since the year 1978. Devi Sahai had filed that suit against the appellant which was dismissed on 24.02.1979. The respondent has filed copy of the award number 42/1986-1987 which mentions that khasra number 205/2 stands acquired. The trial court also cited authority reported in Laxmi Chand v. Gram Panchayat, Kataria and Ors. which lays down that Land Acquisition Act is a complete Code in itself and in cases arising under the Land Acquisition Act, the jurisdiction of the Civil Court is barred. Consequently, he dismissed the present application. Appeal filed by the appellant against the order dated 06.11.2004 was dismissed by this Court on 08.12.2004

3. Thereafter, the appellant moved an application for amendment of the plaint stating that after the order was passed by learned Additional District Judge on 06.11.2004 and its appeal was dismissed by this Court on 08.12.2004, it transpired that the property in question forms part of khasra number 204. The revenue record revealed that khasra number 205/2 was a pond and the appellant's property forms part of khasra number 204. The Gaon Sabha also filed a resolution dated 01.07.1978 that the appellant was being allotted the land near Johar (pond) of Lal Dora land near Mandir for his living purpose. Thereafter, the amendment was allowed. Application for amendment was moved on 21.12.2004 and it was allowed on 04.09.2006. In his order dated 09.01.2007, the learned Additional District Judge pointed out that the appellant has failed to prove that his plot forms part of khasra number 204 and dismissed the application. It is against this order that the present appeal has been preferred.

4. I have heard the learned counsel for the parties. Learned counsel for the appellant vehemently argued that the case property forms part of khasra number 204 and not 205/2. He argued that when there is a dispute as to which khasra number, the disputed land forms the part of, the Court must depute a Survey Commission to locate the land in dispute. In support of his case, he has cited an authority reported in Shreepat v. Rajendra Prasad and Ors. J.T. 2000 (7) SC 379, wherein it was held:

In our opinion, this contention is correct. Since there was a serious dispute with regard to the area and boundaries of the land in question, especially with regard to its identity, the courts below, before decreeing the suit should have got the identity established by issuing a survey commission to locate the plot in dispute and find out whether it formed part of Khasra No. 257/3 or Khasra No. 257/1. This having not been done has resulted in serious miscarriage of justice. We consequently allow the appeal, set aside the order passed by the courts below as affirmed by the High Court and remand the case to the trial court to dispose of the suit afresh in the light of the observations made above and in accordance with law.

5. The second submission made by him was that judgment of the Division Bench of this Court in RFA 26/2006 in case Mool Chand Sharma v. D.D.A. is not binding upon him because he was not made a party in that case.

6. Thirdly, land of Mool Chand Sharma had been demolished but his premises still remain intact. His amendment application has been permitted and he should be permitted to lead evidence that the premises in dispute forms part of khasra number 204.

7. Lastly, the revenue record goes to show that land in khasra number 205 is a vacant land which had a pond but khasra number 204 consists of constructed property. He has cited an authority reported in Rame Gowda (D) v. M. Varadappa Naidu 2004 RLR 104 (S.C.), wherein it was held that a person who is in settled possession of property is entitled to protect his possession and real owner must sue for declaration of his title, till then person in possession can protect his possession.

8. All these arguments are bereft of force. It must be borne in mind that at this stage, the Court has to form a prima-facie opinion based on the documents produced before it. The judgment delivered by the Division Bench of this Court in RFA No. 26/2004 is of utmost importance. This judgment is in respect of the same temple and same complex. In that case, property No. A-47, Shiv Mandir Complex, Village Masoodpur, New Delhi was involved but in the instant case property No. A-48, Shiv Mandir Complex, Village Masoodpur, New Delhi is involved. In that case, Mool Chand Sharma had alleged that from 1965, the appellant/plaintiff has been looking after the temple along with another priest namely Ram Karan Mudgal and they were living there in a room adjacent to the temple. It was stated that land in question falls in khasra number 205/2 of Village Masoodpur. In that case, the Court held that the plea that the suit property is situated in khasra number 204 and not in khasra number 205, appears to be an afterthought because no such averment was made in the plaint. It was held:

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. 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.

Consequently, it stands proved that the Division Bench of this Court has already held that the land in question stands acquired and belongs to the DDA. It is a very strong prima-facie evidence against the appellant. It puts the case of D.D.A. in an impregnable position.

9. Amendment of plaint at this belated stage should not be made a devise to re-open the case to that extent. Most importantly, the appellant has failed to produce even a single document which may go to show that plot in question forms part of khasra number 204. The appellant was asked to file khasra girdawari in his favor. Although, he has submitted khasra girdawari pertaining to the years 2004-2005 in respect of khasra number 443/204, yet, it shows that Gaon Sabha is the tenure holder as clarified in part first of the khatuni. The name of the appellant is conspicuously missing. He has also filed khasra girdawaries pertaining to khasra number 205/2 which mention the area of the field as 3 bighas and 3 biswas which clearly, specifically and unequivocally tallies with the disputed land. The land has been shown there as Banzar Kadeem. These pertain to the years 2003-2004, 2004-2005, 2005-2006. These clearly mention that the owner of the land is Sarkar Daulat Madar, meaning thereby the respondent-D.D.A. The name of Gaon Sabha is also conspicuously missing.

10. I am satisfied that the trial court has made decision with perspicacity. The appeal has no merits. The same is, therefore, dismissed. There will be no orders as to costs. Copy of this order and trial court record be sent back forthwith. CM No. 1378/2007 in FAO No. 40/2007 In view of the disposal of the appeal, no further orders are required to be passed in the application. The same is disposed of.