Delhi High Court
Shri Phool Singh vs Delhi Development Authority on 21 February, 2011
Author: Indermeet Kaur
R-177
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 21.02.2011
+ R.S.A. No. 249/2004 & CM No. 16143/2004
SHRI PHOOL SINGH ...........Appellant
Through: Mr. J.P.S. Sirohi, Advocate
Versus
DELHI DEVELOPMENT AUTHORITY ..........Respondent.
Through: Mr. M.K. Singh, 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. (oral)
1. This appeal has impugned the judgment and decree dated
23.10.2004 which had endorsed the finding of the trial judge dated
07.07.1999 whereby the suit filed by the plaintiff had been
dismissed.
2. The plaintiff claims to be the owner of the premises forming
part of khasra no. 1422/662/364 of Village Sadarakhurd, Delhi.
Initially, he had filed two suits i.e. suit no. 581/86 and 418/89
claiming permanent injunction against the defendants/DDA on the
ground that they were interfering with the peaceful possession qua
the suit property of the plaintiff. The said two suits had been
RSA No.249/2004 Page 1 of 4
consolidated and the following issues had been framed on
30.06.1994.
1. Whether suit premise form part of Kh. No. 723/665 Village
Khampur Rai which has been placed at the disposal of DDA?
OPD.
2. Whether the plaint is signed and verified and suit is
instituted by a duly competent person? OPP
3. Whether plaintiff is entitled for the relief claimed for ? OPP
4. Relief.
Suits had been dismissed. The court had recorded a finding that
the plaintiff has failed to show that the suit property forms a part
of khasra no. 1422/662/364 of Village Sadarakhurd; defendants
claim that the suit land has been placed at the disposal of the DDA
as the said land had been acquired in terms of an Award and forms
the part of khasra no. 723/665 of Village Khampur Rai had also not
been proved. Suit was dismissed. This was vide order dated
07.07.1999. This judgment has since attained a finality as neither
party had admittedly filed any appeal against the said judgment
and decree.
3. Thereafter, the present suit i.e. suit no. 11/2001 had been
filed by the plaintiff seeking permanent injunction against the
defendant on the ground that the defendant is interfering with the
peaceful possession of his suit property. His averment is that he is
in possession of the afore-stated suit land which forms a part of
khasra no. 723/665 Village Khampur Rai since the last 45 years.
The defendant in his written statement has not disputed the fact
that the plaintiff is in possession of the suit land. He has, infact,
admitted the plaintiff's possession in the suit land contending that
he had illegally encroached upon it and made illegal construction
RSA No.249/2004 Page 2 of 4
thereon.
4. On the pleadings of the parties, issues were framed. The
first issue related to the Section 11 of the Code of Civil Procedure
(hereinafter referred to as the `Code'). Five other issues were also
framed. The trial judge disposed of the suit on the first issue itself
i.e. holding thereby that the present suit is barred under Section
11 of the Code and the contention now raised by the plaintiff has
already been dealt with while disposing of the first suit i.e. vide
judgment and decree dated 07.07.1999.
5. This is a second appeal. After its admission on 27.07.2007,
the following substantial questions of law were formulated which
read as follows:
1. Whether the finding of issue no. 1 in Suit No. 418/1989 and
Suit No. 518/1986 that the suit premises form part of khasra
no. 723/665 village Khampur Raya which has been placed at
the disposal of the DDA? OPD
-Decided in the above said case is not bidnign upon the
DDA in the second suit bearing no. 111/2001-
2. Whether the appellant is legally entitled to relief claimed in
the suit?
6. On behalf of the appellant, it has been urged that the plaintiff
is admittedly in possession of the suit land and this has not been
denied by the defendant; infact, the defendant has admitted this
fact in the written statement. It is submitted that even a tress-
passers cannot be dispossessed without due process of law and it
was incumbent upon the courts below to have decided all the
issues on merits and could not have dismissed the suit on issue no.
1 alone.
7. After hearing the submissions of the learned counsel for the
parties and the perusal of the record, it is borne out that the trial
RSA No.249/2004 Page 3 of 4
judge had dismissed the suit which finding was endorsed in the
impugned judgment on the doctrine of res judicata itself alone.
It is not in dispute that the plaintiff is in possession of the
suit land. His claim is that he is in possession of the suit land
which comprises in khasra no. 1422/662/364 of Village
Sadarakhurd, Delhi whereas the contention of the defendant all
along in the written statement and even before this court is that
the suit land is comprised in khasra no. 723/665 Village Khampur
Rai. Neither party was able to prove their averments.
8. In these circumstances, it would be appropriate that the
matter be remanded back to the Trial Judge to decide on the merits
of the controversy and give issue-wise findings on all the issues.
For the said purpose, the matter is remanded back to the Trial
Court.
9. The parties are directed to appear before the learned District
and Sessions Judge, Tis Hazari Courts who shall assign the matter
to the concerned court. Parties to appear before the District and
Sessions Judge on 1st March, 2011 at 10.30 am.
10. Record be sent back.
11. Appeal as also the pending application are disposed of in the
above terms.
INDERMEET KAUR, J.
FEBRUARY 21, 2011
ss
