Delhi High Court
Mcd vs Daljit Singh Bhatia & Ors. on 15 October, 2008
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order : 15.10.2008
+ RFA 746/2003
MCD ..... Appellant
Through: Mr. Ashok Bhasin, Sr. Adv. with
Ms. Smita Shankar, Advocate
versus
DALJIT SINGH BHATIA & ORS. ..... Respondents
Through: Mr. Kirti Uppal, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE J.R.MIDHA
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J.(Oral)
1. Heard learned counsel for the parties.
2. Vide impugned judgment and decree dated 9.4.2003
suit filed by the respondents seeking decree for possession and
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mesne profits has been decreed. Appellant and DESU who were
impleaded as defendants 1 and 2 have been directed to
surrender possession of the land mark „X‟ and „Y‟ in the site plan
Ex.PW-1/1. Mesne profits in sum of Rs.1,00,000/- have been
awarded, to be paid in the ratio 9:1 by the appellant and DESU.
3. The short issue which arose for consideration before
the learned Trial Judge was whether the respondents were the
owner of the suit land and whether the appellant and DESU had
trespassed into the same. An ancillary issue also arose whether
the claim for possession and mesne profits was barred by
limitation. Certain technical defences were urged and in respect
whereof issues were framed but since at the hearing of the
appeal learned counsel for the appellant has urged submissions
limited to the findings returned on issue No.7 and additional
issue No.1 we would be noting the facts relevant for said issues.
4. Issue No.7 was whether the plaintiffs (respondents)
are the co-owners of the plot in suit. Additional issue No. 1 was
(I) whether the plaintiff is entitled to possession of the suit
property?
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5. The respondents proved title of their predecessor
through the medium of the sale deed Ex.P-1 which records that
the property sold to S.Niranjan Singh is bearing Municipal No.27,
Subhash Mohalla, Gandhi Nagar. The linkage of the said
municipal No. to the agricultural land on which the unauthorized
colony Subhash Mohalla, Gandhi Nagar was carved out is
through the medium of Ex.PW-1/4 and Ex.PW-1/5, being a
certified copy of the Khata Khatoni and Khasra Girdawari
showing that Niranjan Singh (the predecessor-in-interest of the
respondents) was in possession of 1 bigha and 18 biswa of land
comprised in Khasra No.601/110 in the revenue estate of Village
Seelam Pur.
6. Learned Trial Judge has accordingly returned a
finding that the sale deed Ex.P-1 coupled with the entries in the
revenue record establish title of S.Niranjan Singh as owner of
the land comprised in khasra No.601/110 and that Municipal
No.27, Subhash Mohalla, Gandhi Nagar was assigned to the said
land.
7. It is not in dispute that a large track of agricultural
land of village Seelam Pur came under unauthorized
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colonization. The colony was called Subhash Mohalla, Gandhi
Nagar, Delhi.
8. The issue whether the land sold under the sale deed
Ex.P-1 was the same which was comprised in Khasra No.601/110
and whether it was this land which was in occupation and
possession of MCD has been answered by the learned Trial
Judge with reference to a suggestion put by the counsel for the
MCD to PW-1. The same is as under:-
"Q: It is put to you that the MCD is functioning on plot
bearing Municipal No.6521/2, Subhash Mohalla, Gandhi
Nagar built on Khasra No.601/110."
9. The answer to the question was that PW-1 was not
aware as to wherefrom MCD was referring to Municipal
No.6521/2, Subhash Mohalla, Gandhi Nagar but admitted that it
was correct that the school was built on land comprised in
Khasra No. i.e. 601/110.
10. There being no evidence led by the MCD that the
land was given Municipal No.6521/2, learned Trial Judge has
opined that the suggestion of the MCD that the land in question
wherefrom a municipal school was functioning was built on
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Khasra No.601/110 concluded that matter against the MCD, that
the site occupied by MCD was on Khasra No.601/110 belonging
to S.Niranjan Singh.
11. So holding, learned Trial Judge has decreed the suit
for possession.
12. Mesne profits were claimed @ Rs.5 per sq. yds. per
month. Learned Trial Judge has awarded a lump sum of
Rs.1,00,000/-.
13. A short and crisp submission is urged at the hearing
today by Sh.Ashok Bhasin learned senior counsel for the MCD.
Counsel urges that without a demarcation no finding could be
returned that the land in question is comprised in Khasra
No.601/110. As an extended limb of the submission it is urged
that there is no material to show that the land in question is
bearing Municipal No.27, Subhash Mohalla, Gandhi Nagar, Delhi.
An alternative submission made is that the MCD, which has
established the school at site, is occupying an area ad-
measuring approximately 1625.45 sq.yds. but the decree relates
to land ad-measuring only 1300 sq.yds. Counsel urges that
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without demarcation it would not be possible to execute the
decree.
14. Though no submissions have been urged in relation
to the suit being barred by limitation we may note that the
defence of the MCD was that it occupied the site in the year
1974. We note that the suit was filed in the year 1983. The suit
sought a decree of possession relating to land and being filed
within 12 years of the date of alleged trespass, obviously, the
suit was within limitation.
15. On the plea whether the respondents established title
to the suit land and whether it was comprised in Khasra
No.601/110 Village Seelam Pur, it would be relevant to note that
MCD while cross examining PW-1 itself suggested that the site in
question was comprised in Khasra No.601/110. This suggestion
which has been found to be fatal by the learned Trial Judge,
indeed concludes the issue against the MCD and is sufficient to
hold that the land in question was comprised in Khasra
No.601/110 Village Seelam Pur.
16. On the issue of title, it is true that Ex.P-1 does not
describe the land with respect to the khasra number and records
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that the land bears Municipal No.27, Subhash Mohalla, Gandhi
Nagar. But, Ex.PW-1/4 and Ex.PW-1/5 being the certified copy of
the Khata Khatoni and Khasra Girdawari pertaining to the years
1979 and 1980 show that in the revenue record name of
S.Niranjan Singh was recorded as the owner of 1 bigha and 18
biswa of land falling in Khasra No.601/110. Under the column of
cultivator possession it was recorded that the land has come
under an illegal colonization. Thus, Ex.PW-1/4 and Ex.PW-1/5 by
themselves establish the ownership of Sardar Niranjan Singh
and clearly relate to land comprised in Khasra No.601/110.
17. Thus, whether the land in question was assigned
Municipal No.27 recedes in the background.
18. Even otherwise, we do not find that MCD has tried to
link the land purchased by S.Niranjan Singh vide Ex.P-1 to some
other site.
19. On the preponderance of probability we find there is
good evidence to sustain the finding returned by the learned
Trial Judge.
20. In the view we have taken above, it hardly matters
whether the site was demarcated.
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21. Issue of the demarcation would have become
relevant if MCD had claimed that the land in question was
bearing some other Khasra number and not the one which was
alleged by the respondents.
22. As regards the alternative contention that MCD has
occupied about 1625.45 sq.yds. of land but the decree relates to
only 1300 sq.yds. suffice would it be to state that the
respondents have proved the site plan of their property as
Ex.PW-1/1. The portions in respect whereof decree has been
passed against the appellant and DESU have been delineated in
the said site plan. The portion mark „X‟ is shown in possession
of MCD and the portion mark „Y‟ is in possession of DESU. Thus,
the decree would have to be executed only in respect of the
land mark „X‟ and „Y‟ in Ex.PW-1/1. We see no scope of any
interference on said issue except clarifying that the Executing
Court would be conscious of the fact that the decree has to be
executed as per the site plan Ex.PW-1/1.
23. We find no merit in the appeal.
24. The appeal is dismissed with cost.
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25. We take on record the statement made by Sh.Kirti
Uppal counsel for the respondents that his clients would not
execute the decree for a period of 6 months from today.
PRADEEP NANDRAJOG, J.
J.R.MIDHA, J.
OCTOBER 15, 2008
mm
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