Smt.Subhadra & Anr. vs Delhi Development Authority
2010 Latest Caselaw 5123 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                  Judgment Reserved on: 02.11.2010
                  Judgment Delivered on: 11.11.2010


+            RSA No.28/2001 & CM No.73/2001 (for stay)

       1.SMT.SUBHADRA
       2. SMT. CHANDERWATI                       ...........Appellants

                   Through:    Mr.Vipin K. Singh, Advocate.

                   Versus

       DELHI DEVELOPMENT AUTHORITY
                                              ..........Respondent
                   Through:    Mr.Bhupesh Narula, Advocate.


       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR


     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J.

1. This second appeal has impugned the judgment and decree

dated 10.1.2001 which had endorsed the finding of the Trial Court

dated 2.5.2000 whereby the suit of the plaintiffs i.e. Smt.Subhdara

& another was dismissed.

2. There were two plaintiffs who had filed the present suit

which was a suit for permanent injunction. The plaintiffs were

stated to be in possession of two residential houses bearing no.

20-H and 20-I in Khasra No.48/7, 4 bighas 4 biswas in Village

Humayunpur of which a portion of land i.e.75 sq. feet stood in the

name of each plaintiff. It was stated that the plaintiffs were

paying house tax and water tax in respect of the suit property. The

property had been described as being bounded on the northern

side by property bearing no.B-4/182 and B-4/206, Safdarjung

Enclave; on the west there was a land measuring 12 feet; on the

east there was a pucca road. The contention of the plaintiffs was

that on 10.3.1987 a demolition notice under Section 30(1) read

with Section 31(1) of the Delhi Development Act, 1957 (hereinafter

referred to as the Act) was served upon the plaintiffs restraining

them from raising any construction in the land. On 8.9.1987 the

officials of the DDA visited the site and threatened them with

demolition. A decree for permanent injunction was accordingly

prayed for by filing the present suit.

3. The defendant/DDA had contested the suit; it was submitted

that the land belongs to the department; suit was not maintainable.

It was denied that the suit land forms a part of the Khasra no.48/7,

Village Humayunpur; contention was that the plaintiffs have

illegally and unauthorizedly encroached upon the land of the

defendant which land falls in Khasra no.48/5; they had illegally

raised construction therein; Khasra no.48/5 had been acquired by

the government vide Award no.1170 and has been placed at the

disposal of the DDA under Section 22(1) of the said Act vide

notification dated 3.11.1961.

4. Trial Judge had framed four issues. On 15.02.1989 the

Patwari had been appointed as a local commissioner to demarcate

the suit property. His report had been filed on 27.9.1989. No

objections had been filed to the said report.

5. The plaintiffs in support of their case examined three

witnesses of whom the Patwari Sunil Kumar was examined as

PW-3. The department had also examined two witnesses of whom

the Patwari Gulfam Ahmed was examined as DW-1.

6. Trial Jude returned a finding that the plaintiffs are not the

owners in possession of the residential houses bearing no.20-H and

20-I falling in Khasra No.48/7, Village Humayunpur; they had failed

to establish that the suit land falls in aforenoted khasra. The

demarcation report dated 27.9.1989 of the Patwari holding that

two house fall in Khasra No.48/7 was ignored; it was held that the

demarcation report had clearly stated that no permanent point

could be found in the absence of which this was a violation of the

Punjab High Court Rules and the said Rules not having been

adhered to, this demarcation report could not be relied upon in

evidence.

7. The relevant extract of the finding of the Trial judge qua this

observation was recorded as follows:

"As per demarcation report dt. 27.9.89, it has been mentioned that houses of both the plaintiffs falls in Kh. No.48/7 and vacant land infront of the house does not fall in Kh. No.48/7. Counsel for pltf. during the course of arguments has submitted that as per aks sajra placed on record Ex.PW-3/1, under no circumstances vacant land in front of house can fall in Kh. No.48/5 because Kh. No.48/5 is in the Northern side of Kh. No.48/7 whereas vacant land is shown in the Eastern side of the suit property by Naib Tehsildar in the site plan prepared with the demarcation report. Copy of jamabandi has been placed on record and according to the same, land of Khasra No.48/7 is total measuring 34 bigha 3 biswas out of which 20 bigha is banjar and 14 bigha 3 biswa is gair mumkin. It is land Shamlat Thok of village Humayunpur and has been entered in the name of different persons. But still the question is same whether the suit land falls in Khasra No.48/7 or 48/5. In demarcation report, it has been mentioned that no permanent point was found on the site. According to Punjab High Court Rules regarding dispute of Boundaries, demarcation is required to be carried out at least from 3 permanent points and demarcation is a material piece of evidence only. Demarcation report has neither been exhibited nor proved by examining the persons who conducted the

demarcation. Moreover, at the same time, plaintiffs cannot deny some part of demarcation and can relied upon on other part of the demarcation. The demarcation report cannot be relied upon partly in favour of plaintiffs and partly against them. SLO for DDA submitted that at least vacant land which falls in Kh. No.48/5 be protected. But in my opinion as demarcation has not been carried out according to the rules as provided and it has not been proved in any manner, hence, cannot be relied upon to decide the question whether the suit land falls in Kh. No.48/7 or 48/5."

Suit of the plaintiff was dismissed.

8. The Appellate Court endorsed this finding. The first

Appellate Court had also ignored the report of the Tehsildar. The

finding on this issue inter alia reads as follows:

"The record of the learned trial Court would reveal that the court had directed the Nayab Tehsildar to carry out the demarcation in order to determine whether the suit property fell in khasra no.48/7 or in khasra no.48/5. The record of the learned trial Court contains one report of the Nayab Tehsildar, Attar Singh dated 13.9.89 submitting that the entire area is heavily built up and thus, it was only after inquiries that it was determined that four walls on khasra no.29 were very old and were taken as a measuring point after determining the measurements of khasra no.29 and finding the same correct. However, further demarcation was not conducted on that date on account of heavily built up properties in khasra no.30. After further directions were given for use of bamboos etc. Shri Attar Singh carried out the demarcation on 27.9.89 once again observing that the areas was heavily built up and khasra no.29 with its four boundaries were found to be correct as per the field book measurement and from there the various measurements were commenced. The learned trial Court, however, did not look into this report on the ground that they were not proved by Shri Attar Singh. Moreover, the learned trial Court observed that the measurements were not taken from three permanent points as required under the Punjab High Court Rules and therefore, did not find it appropriate to rely on the demarcation report. According to the learned counsel for the appellants since the demarcation report had been sought for by the court it had become part of the court records. It was also submitted that since no objections had been filed therefore, the learned trial Court could not have rejected this report.

8. No doubt neither side had filed any objections to the Nayab Tehsildar‟s demarcation report. Moreover, when an area is heavily built up it is quite possible that permanent points as required for demarcation may not be easily traceable. However, even if the demarcation report is taken as an acceptable report it is difficult to see how the plaintiffs would be helped in their case. Admittedly the khasra no.48/5 is acquired land. Equally the khasra no.48/7 is private land. The demarcation report only says that the two houses fell in khasra no.48/7 whereas the area in front of these houses which was open land did not fall in 48/7. Having measured up to the houses it is not known why the Patwari failed to ascertain as to in which khasra the open vacant land fell. It was submitted that since 48/5 was towards the North of 48/7 as per Aks Shajra the vacant land could not be considered to be in that khasra number and thus, the learned counsel for the plaintiffs/appellants have submitted that the vacant land lying to the east of the constructed portion was clearly not part of the acquired land. Reliance has been placed on Ext.PW3/1 which is one Aks Shajra brought on record by the Patwari, PW3 examined by the plaintiffs. But it may be noticed that in this Aks Shajra whereas there are clear lines demarcating various khasras, only dotted lines seem to be delineate khasra no.48/5 and 48/7 which itself leaves the demarcation uncertain. 48/7 is rather extensive, as also 48/5 unless these two khasras were clearly demarcated by straight line. In the absence of such division no conclusion can be reached that 48/5 was only towards the North of 48/7 and not towards the East of 48/7 as certain portions have been separated only by dotted line towards the East also.

9. The plaintiffs in the plaint have set out confusing claims in that whereas they claim that in khasra no.48/7 the land belonging to Shri Nathu Ram, Har Narain owned 4 bighas and 4 biswas. They also claimed that there remained only 1500 sq. yard after disposing 2 bighas and 4 biswas by the forefathers but the extent of land belonging to Nathu Ram & Har Narain etc. is not clear at all. Moreover, the plaintiffs claim in the plaint that each had 75 ft. of built up area. No extent of vacant land adjacent to the built up area is mentioned. The Patwari‟s report is also silent about the extent of the built up area and the extent of the vacant land except to say that 70 ft. shown in black colours in his site plan did not fall in 48/7.

10. No doubt the Patwari, PW3, Shri Sunil Kumar deposed that khasra no.48/7 was in the ownership of Har Narain but it is claimed that khasra no.48/7 measures only 2 bighas and plaintiff Subhadra was in possession to the extent of 3 biswas and Smt.

Chandra Wati to the extent of 2 biswas. But these measurements were never mentioned in the plaint. Moreover, extract of which has been placed on record as Ext.PW1/2 is nowhere mentioned that Smt. Subhadra is in possession to the extent of 3 biswas and Chandra Wati to the extent of 2 biswas. Besides when the plaintiffs themselves claim equal extent of 75 ft. of built up area the testimony of PW3 Sunil Kumar that one plaintiff has 3 biswas and the other 2 biswas creates only contradiction in the case of the plaintiffs.

11. As regards the testimony of DW1 Gulfam Ahmad Patwari, he no doubt had stated that at the time of the filing of the written statement the DDA had believed that the subject matter in dispute fell in khasra no.48/5 and claimed that after demarcation the disputed land was taken by Nayab Tehsildar and Kanungo, it came to their knowledge that it fell in khasra no.48/7 which was not acquired by Government. It is clear that the Patwari‟s report restricts only the built up portion of the disputed property as falling in khasra no.48/7 excluding the vacant portion. Thus, DW1 has himself gone beyond the Patwari‟s report.

12. In these circumstances, neither can the plaintiffs/appellants seek any help from the Patwari‟s report nor from the oral testimonies of the witnesses to prove that the suit premises fell in khasra no.48/7. The only admitted fact is that khasra no.48/7 is not acquired and khasra no.48/5 is. But in the light of the contradiction pointed out hereinabove it is clear that the learned trial Court was justified in coming to the conclusion that there was no conclusive evidence to decide whether the suit land fell in khasra no.48/7 or 48/5. Even if the issue no.2 was decided against the DDA it is not as if the plaintiffs/appellants would be entitled to a decree in as much as they had to prove that the entire suit property comprising of built up and vacant land fell in khasra no.48/7 which belonged to the plaintiffs or their families as ancestral property. They have failed to discharge this onus. It is for the plaintiffs to prove their case as to their entitlement for an injunction and they have to stand on their own legs irrespective of how successful the defendants are in proving their defence."

9. This is a second appeal. After its admission on 5.12.2003 the

following substantial question of law were formulated which inter

alia read as follows:

"Whether in view of the statement of DW-1, Gulfam Ahmed, Patwari, New Lease Section, DDA, who deposes to the effect that

the house in question falls in Khasra NO.48/7, it would be proper for the courts below to have disregarded his evidence?"

10. On behalf of the appellant, it has been vehemently argued

that the impugned judgment had illegally ignored the report of the

Patwari. It is pointed out that the Patwari had been appointed

under the orders of the Court. Admittedly no objection had been

filed by either side to his report. In these circumstances, there was

a patent illegality on the part of the two Courts below in ignoring

this report. Once this report is read in evidence, it categorically

establishes that the suit land falls in Khasra No.48/7; the land

which has been acquired by government vide Award no.1170 is the

land falling in Khasra No.48/5; the plaintiffs in these circumstances

are lawfully entitled to a decree of permanent injunction.

11. Arguments have been countered by the department. It is

submitted that the Courts below had returned positive findings and

given cogent reasons for ignoring the report of the Patwari which

was wholly for the reason that Patwari had failed to follow the

mandatory procedure which is ordained under the Delhi High

Court Rules which specifically postulate that for disputes relating

to boundary, three permanent (pucca) points have to be located by

the Tehsildar before the demarcation is effected. In the absence

of this procedure having been followed by Patwari this report could

not be looked into; it was not authentic.

12. No other argument has been urged before this Court.

13. Perusal of the record shows that on 22.2.1989 a local

commissioner had been appointed to set at rest the controversy

raised between the parties as to whether the suit land falls in

Khasra No.48/5 or 48/7. The extract of the order dated 22.2.1989

reads as follows:-

"The controversy between the parties is regarding the Kh. No. in which the property in question is situated. The case of the pltffs. are that the property in question is situated in Kh. No.48/7 which has not been acquired whereas the case of the deft. is that the suit property is situated in Kh. No.48/5 which is acquired. It is not disputed that Kh. No.48/7 has not been acquired. In order to resolved the controversy between the parties Naib Tehsildar Mehrauli is appointed as the Local Commissioner, he will inspect the suit property and find as to whether the same falls within Kh. No.48/7 or falls within Kh. No.48/5. He will also find out as whether the suit land has been acquired or not. He will inspect the suit property after given notice to both the parties. His fee for that purpose is fixed Rs.500/- which will be shared equally by both the parties. The fees of the L.C. to be deposited within 10 days thereafter the notice will be sent to the L.C. Case adjourned for the report of L.C. for 5.4.89."

14. On 15.9.1989 the Court had reiterated that no separate

notice would be given to the parties; local commissioner would

inspect the suit property on 27.9.1989 at 1.00 P.M. Report dated

27.9.1989 is on record. This is the report of Attar Singh, Naib

Tehsildar, Mehrauli. As per this report the disputed land falls in

Khasra No.48/7 in village Humayunpur. It further states that as

per the directions of the Court the identification of the suit land as

to whether it fell in Khasra No.48/5 or Khasra No.45/7 had to be

determined and this was possible only after

„nishandehi‟/identification of the permanent points; it stated that

„nisandehi‟/identification of the permanent points was not feasible

as there were houses located in the suit land; measurement in

Khasra Nos.29 and 30 was taken with approximation whereupon

the aforenoted conclusion had been arrived at; site plan was also

prepared at the spot. The rough site plan appended along with the

report had depicted the houses of the two plaintiffs in red colour

with a road on the east and the west side and a gali on the north.

No further details or measurement had been depicted in this site

plan. What was the built up area had not been explained and

informed by the Patwari in his report except to show that the black

portion in the rough site plan prepared by him did not fall in

Khasra No.48/7. Aksjira report had proved through the version of

PW-3 Sunil Kumar, the Patwari at the relevant time and is Ex.PW-

3/1. Ex.PW-3/1 shows that there are dotted lines which had

demarcated Khasra Nos.48/5 and 48/7; dotted lines are not

deciphered anywhere else in Ex.PW-3/1; it was obviously for the

reason that the demarcation of Khasra Nos.48/5 and 48/7 was

uncertain. It was primarily for this reason that the local

commissioner had been appointed to ascertain and identify as to

whether the suit land falls in Khasra No.48/5 or 48/7. PW-3 who

was the witness of the plaintiffs had stated that Subhadra i.e. the

plaintiff no.1 is in possession of 3 biswas of land; plaintiff no.2

Chander Devi is in possession of land measuring 2 biswas of land;

no such measurement has been detailed or mentioned in the plaint.

Plaintiffs themselves appear to be confused.

15. DW-1 Gulfam Ahmed, Patwari (at the relevant time) had on

the basis of the demarcation report dated 27.9.89 deposed that the

subject matter of the suit property (as per the report) falls in

Khasra No.48/7 and Khasra No.48/7 is not acquired by the

government. The acquired khasra is Khasra No.48/5. There is no

dispute to this factual averment of DW-1.

16. However, the question which has to be answered is as to

whether the suit land falls in Khasra No.48/7 or 48/5. Both the

Courts below had given concurrent findings of fact that the

demarcation report not having followed the procedure relating to

enquiries to be made by Revenue Officers in boundary disputes,

the said demarcation report could not be relied upon. The

demarcation report had clearly stated that since there were houses

in the vicinity no pucca/permanent points could be established for

the purpose of „paimaish‟/measurement.

17. The Punjab Land Revenue Act, 1887 extends to the Union

Territory of Delhi. Chapter VII deals with surveys and boundaries.

Under Section 100, the Financial Commissioner has powers to

make rules as to matters in which the boundaries of all or any

estates in any local area are to be demarcated. Part C of the Delhi

High Court Act 1966 relate to the instructions to Civil Courts. The

procedure has been entailed for "Hadd Shikni" cases/boundary

disputes under the aforenoted instructions which are binding

instructions. As per these instructions the Field Kanungo should

with his scale read on the map, the position and distance of those

points from a line of square, and then with a chain and cross staff

mark out the position and distance of those points. If there is no

map on the square system available, he should then find three

points on different sides of the place in dispute as near to it as he

can, and if possible, not more than 200 kadams, apart which are

shown in the map and which the parties admit to have been

undisturbed. Further, these instructions should be followed by the

Revenue Officers of Field Kanungos whenever they are appointed

by a Civil Court as a Commissioner in suits involving disputed

boundaries. This is a mandate.

18. These instructions/guidelines had not been adhered to as is

evident from the demarcation report. The Tehsildar had admitted

that there is construction and houses have been raised in land in

dispute; it is not possible to identify pucca/permanent points as a

result of which the paimaish/measurement could not be taken.

Only on approximations, the demarcation report had drawn a

conclusion that the suit land falls in Khasra No.48/7. This was not

the answer which was required to be given to the Court. A positive

finding had to be returned in the absence of which both the Courts

below had rightly ignored the demarcation report.

19. The plaintiffs had alleged that the suit land falls in Khasra

No.48/7; the onus was upon him to prove it. They had failed to

discharge this onus. This Court is not a third fact finding Court.

20. The question of law as formulated on 5.12.2003 was to the

effect that the statement of DW-1 that the houses in dispute fall in

Khasra No.48/7 could not have been ignored. Testimony of DW-1

was based on the demarcation report. That report itself has been

ignored for the reasons aforenoted. It could not have been read in

evidence. In this view of the matter, the testimony of DW-1 based

on demarcation report is of no relevance. It is not as if DW-1, the

Patwari had made an independent factual enquiry himself and had

drawn the said conclusion. Both the Courts below had appreciated

the fact that the demarcation report not having adhered to the

procedure and the requirements which have been set out under the

Punjab Land Revenue Act, 1887 applicable to the Union Territory

of Delhi as also the Delhi High Court Act 1966 and Rules framed

thereunder, this report was only a piece of paper; it had based its

conclusion on approximations alone; paimaish/measurements could

not be taken by the local commissioner. This report was thus

rightly ignored. Substantial question of law is answered

accordingly.

21. There is no merit in the appeal. The appeal as also the

pending application is dismissed.

(INDERMEET KAUR) JUDGE NOVEMBER 11, 2010 nandan