Satwant Singh Devgan vs Delhi Development Authority And ...
2010 Latest Caselaw 5758 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 20.12.2010

+           CS(OS) No.1464/2009

SATWANT SINGH DEVGAN                            .....Plaintiff

            - versus -

DELHI DEVELOPMENT AUTHORITY
AND ANR.                                       ....Defendants

Advocates who appeared in this case:
For the Plaintiff: Mr.Rajesh Gupta and Mr.Harpreet Singh,
                   Advs.
For the Defendants: Mr. Pawan Mathur, Adv. for DDA.
                      Ms. Shyel Trehan, Adv. for D-2/MCD.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may
   be allowed to see the judgment?                          No

2. To be referred to the Reporter or not?                   No

3. Whether the judgment should be reported                  No
   in Digest?

V.K. JAIN, J. (ORAL)

1. This is a suit for mandatory injunction and

possession.

2. The case of the plaintiff is that he is the owner of

the land bearing No.WZ 133-A, Srinagar, Shakarpur, Delhi,

admeasuring 150 sq. yds., which has been carved out of

Khasra No.30/11 of village Shakarpur, Delhi. It is also

alleged in the plaint that the defendants have illegally

dispossessed the plaintiff from the suit property and have

clandestinely merged the same with a municipal park. It is

further alleged that on 6.11.2000, the officials of DDA came

to the suit property and started demolishing the structure.

The plaintiff thereupon was constrained to file a suit for

permanent injunction in which DDA claimed that the suit

property falls in Khasra No.30/26/1 min.

3. When questioned about the date on which the

plaintiff was dispossessed from the suit property, the

learned counsel for the plaintiff states that though the date

on which the plaintiff was dispossessed from the suit

property has not been given in the plaint, the dispossession

came soon after 6.11.2000 when his structure was

demolished. The plaintiff has sought two reliefs. The first

relief claimed by him is for a decree for mandatory

injunction directing the defendants to demarcate the land

bearing No.WZ 133-A, Srinagar, Shakarpur, Delhi, as well

as the adjoining municipal park and the other is for

possession of the aforesaid property.

4. The suit has been contested by defendant No.2

DDA which has taken preliminary objections that the suit is

barred by res judicata as also under Order 2 Rule 2 of CPC.

It is also claimed that the suit is not properly valued for the

purpose of court fee and jurisdiction.

5. The following issues were framed on the pleadings

of the parties:-

              (i)     Whether the suit land falls in
              Khasra      No.   30/11    of     Village
              Shakarpur, Delhi as alleged in the

plaint and is owned by the plaintiff?

OPP

(ii) Whether the suit land stands acquired as alleged in the written statement of defendant No.1 DDA?

OPD-1

(iii) Whether the suit is barred by res judicata as alleged in the preliminary objection in para 4 of the written statement of defendant No.1?

              OPD-1
              (iv)    Whether the suit is properly

valued for the purpose of Court fee and jurisdiction? OPP

(v) Whether the plaintiff is entitled to possession and mandatory injunction as claimed by him? OPP

(vi) Whether the suit is barred under Order 2 Rule 2 of CPC as alleged in the written statement of defendant No.1? OPD-1

(vii) Relief.

5A. Issues No.(iii), (iv) & (v) were treated as preliminary

issue. I have, however, proposed to take up only issues

No.(iii) & (v).

6. Section 11 of the Code of Civil Procedure, to the

extent it is relevant provides that no Court shall try any suit

or issue in which the matter directly and substantially in

issue has been directly and substantially in issue in a

former suit between the parties, in a Court competent to try

such subsequent suit or the suit in which such issue has

been subsequently raised, and has been heard and finally

decided by such Court.

Admittedly, the plaintiff had filed a suit for

permanent injunction which came to be decided by

Ms.Madhu Jain, Civil Judge, Delhi, vide judgment dated

10.01.2002. The suit was filed on 14.11.2000 and a perusal

of the judgment would show that in the suit, the plaintiff

claimed to be owner in physical possession of property

No. WZ 133-A, Srinagar, Shakarpur, Delhi, admeasuring

150 sq. yds. having purchased it from Mr.Rajiv Kumar vide

sale deed dated 15.12.1998. This was also the case of the

plaintiff before the civil court that the suit property falls in

Khasra No.30/11 of village Shakarpur. The suit was

contested by DDA which claimed that the said land falls in

Khasra No.30/26/1 min. and had been acquired vide award

No.2112, its physical possession had been taken by DDA on

31.07.1968 from Land & Building Department and the land

had been placed at its disposal under Section 22(1) of DD

Act by virtue of Notification dated 3.6.1972.

7. Onus of proving issue No.3 was on the defendant

DDA and the issue was decided against the defendants,

whereas issues No.1 & 4 onus of proving which was on the

plaintiff were decided against the plaintiff. The Court noted

that the plaintiff had neither produced documents nor had

he come in the witness box to prove his case and, therefore,

had failed to discharge the onus placed on it.

8. Thus by deciding issue No.1 against the plaintiff,

the Court rendered a finding that he was not owner of

property No. WZ 133-A, Srinagar, Shakarpur, Delhi, and

was not in its possession.

9. Admittedly, no appeal was filed by the plaintiff

against the aforesaid judgment and, therefore, the finding of

the learned Civil Judge became final and binding on the

parties.

10. Since the finding of the learned Civil Judge in the

aforesaid suit operates as res judicata, the same issue

cannot be allowed to be re-agitated in the present suit and

the plaintiff cannot claim to be owner of the suit land, as

against DDA.

11. Since the plaintiff is not the owner of the suit land,

in view of the findings rendered against him in the civil suit

decided by Ms.Madhu Jain, Civil Judge, Delhi, he has no

right in law to claim back possession of the suit land from

DDA.

12. As regards the relief of mandatory injunction

directing DDA to demarcate the suit land as also the

adjoining municipal park, since the plaintiff is neither

owner nor in possession of the suit land, he cannot claim

demarcation of the suit land. As regards demarcation of the

adjoining municipal park, the relief claimed by the plaintiff

is based on the allegation that he is the owner of the land

bearing No. WZ 133-A, Srinagar, Shakarpur, Delhi, which

falls in Khasra No.30/11 and that land has been merged by

the defendants with the adjoining municipal park. Since

the plaintiff is not the owner of the land alleged to have been

illegally merged with the adjoining municipal park, he is not

entitled even to demarcation of the adjoining land on which

the park has been developed.

13. Issues No.3 & 5 are, therefore, decided against the

plaintiff and in favour of the defendants. In view of my

finding on these issues, the plaintiff is not entitled to relief.

14. The suit is hereby dismissed without any costs.

Decree sheet be prepared accordingly.

(V.K. JAIN) JUDGE

DECEMBER 20, 2010 'SN'