Sh.Chandru (Deceased) Through ... vs Subhakar Tiwari (Since Deceased) ...
2011 Latest Caselaw 2939 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Judgment reserved on : 30.05.2011
                             Judgment delivered on : 01.06.2011
+                  R.S.A.No. 69/2010

DELHI DEVELOPMENT AUTHORITY                      ...........Appellant

                         Through:    Mr.P.K. Mittal, Advocate.

                         Versus

SUBHAKAR TIWARI (Since deceased) Through LRs.
                                    ..........Respondent
                Through: Mr.G.D. Sharma, 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 appeal has impugned the judgment and decree dated

03.12.2009 which had reversed the finding of the trial judge dated

13.03.2003. Vide judgment and decree dated 13.03.2003, the

suit filed by the plaintiff Subhakar Tiwari seeking a declaration (to

the effect that the plaintiff was the occupant of premises bearing

no. C-76/9, Hudson Lane, Kingsway Camp, Delhi and the

defendant is under a legal obligation to allot an alternative

accommodation of land measuring 25 sq. yards in lieu of this suit

land) had been dismissed. Impugned judgment has reversed this

finding. Suit of the plaintiff stood decreed.

2. Plaintiff was the resident of C-76/9, Hudson Lane, Kingsway

Camp, Delhi. She was living there with her family for several

years. Defendants i.e. Delhi Development Authority/DDA had

started an improvement of the locality; under the scheme those

who were tenants and in possession had been granted alternative

accommodation of land measuring 25 sq. yards plots. Since

January 1987 upto May, 1987, defendant had been allotting

alternative spaces. Plaintiff was in legal occupation of the

aforenoted suit premises; she was entitled for an alternative

allotment of a plot measuring 25 sq. yards. Defendants were

illegally harassing the plaintiff and not acceding to her request;

they were misusing their powers; notice under Section 53 B of the

Delhi Development Authority Act, 1957 (hereinafter referred to as

DDA Act) have been served upon the defendants. Thereafter, suit

was filed.

3. In the written statement, it was denied that the plaintiff was

entitled to an alternative plot. It was stated that the plaintiff had

filed the present suit with a malafide intention; a demolition slip

had been already issued to the plaintiff. No question of issuance

of a second demolition slip would arise. She had no right or

entitlement to her claim.

4. On the pleadings of the parties, following issues were

framed:-

i. Whether suit is not maintainable in the present form?

OPD.

ii. Whether demolition slip bearing No. 4614 was issued

against Jhuggi No. 76/9 Block C Hudson Line,

Kingsway Camp and plot of 25 sq. yards provided to

the plaintiff? OPD

iii. Whether plaintiff is entitled for the relief claimed for?

OPP

iv. Relief.

5. Oral and documentary evidence was led. It is not in dispute

that an earlier suit had been filed by the plaintiff which had been

withdrawn for the reason that notice under Section 53 (B) of the

DDA Act had not been served.

6. This is a second appeal. It had been admitted and on

10.05.2010, the following substantial question of law was

formulated.

"Whether the findings of the Appellate Court are perverse

on facts and law?"

7. On behalf of the appellant it has been urged that the

judgment of the trial court is illegal; mandate of Section 53 (B) of

the DDA Act has not been proved, in the absence of which, the

suit could not have been decreed. To support this submission

reliance has been placed upon the judgment reported in

MANU/DE/0364/2005 Smt. Prinda Punchi and Anr. Vs. Municipal

Corporation of Delhi and Ors. It is pointed out that the impugned

judgment comparing the thumb impression on the demolition slip

with the entry made in the register was a perverse finding;

attention has been drawn to the testimony of DW-3; it is pointed

out that he was an independent witness who had come into the

witness box to state that he had purchased the suit property from

the plaintiff meaning thereby that an alternative plot had been

given to the plaintiff and he had thereafter sold it; documentary

evidence led before the first appellate court i.e. CW 1/1 to CW 1 /4

also shows that an electricity connection had been granted in

favour of the plaintiff in the alternative accommodation.

Impugned judgment is liable to be interfered with.

8. Arguments have been rebutted. It is pointed out that on no

count does the judgment suffer from any perversity.

9. Record has been perused. It is noted that the impugned

judgment had set aside the finding of the trial judge on two

counts. The first was on the service of notice under Section 53 (B)

of the DDA Act. No issue had been framed qua this aspect. In

para 12 of the plaint, a specific averment had been made by the

plaintiff that notice under Section 53 (B) of the DDA Act had been

served upon the plaintiff before the filing of the present suit. In

the corresponding para of the written statement, there was no

specific denial. This has been noted in the impugned judgment.

Moreover, PW-1 had come into the witness box to specifically

testify to the effect that Ex. PW 1/A (notice under Section 53 (B) of

the DDA Act) have been served upon the defendant. Not a single

suggestion have been given to PW-1 on this count that no such

notice had, in fact, been given. It does not now lie in the mouth of

the appellant/defendant to state that the notice had not been

served; he had not assailed this notice at the time when PW-1 had

come into the witness box to depose about the same. There is no

dispute to the proposition that Section 53 (B) contemplates a

mandatory notice to be served upon the DDA before certain suits

could be filed as has been noted in Smt. Prinda Punchi and Anr.

(supra). This judgment is, however, inapplicable to the facts of

the instant case. This finding is accordingly returned in favour of

the plaintiff/respondent.

10. The second reason recorded in the impugned

judgment for upsetting the finding of the trial judge was that the

comparison of the purported thumb impression of the plaintiff on

the demolition slip (ex. DW 1/1) with the entry in the register at

serial no. 472 clearly evidenced that the thumb impressions are of

two different persons. This fact finding had been arrived at after

a detailed examination and scrutiny; record had also been

summoned from the Department.

11. Finding returned is as follows:-

"Coming now to the first objection raised by the appellant with regard to

the authenticity and correctness of the demolition slip and the extract of

allotment register, it is evident that the plaintiff before the Trial Court has been

in total denial of the same. He has denied having put his thumb impression on

either the demolition slip or the allotment. In fact, what is most surprising is,

that despite the evictee Subhakar Tiwari all through denying his thumb

impressions on both the demolition slip and the allotment register of the DDA,

at no point of time did the respondent department make any request to the

court for obtaining his thumb impressions which could have clinched the entire

dispute at the earliest. Subhakar Tiwari having expired before filing the appeal,

it is not possible now to have obtained his thumb impressions at the appellate

stage. Efforts were made by this court to get the thumb impression of the

deceased Subhakar Tiwari from his bank, which attempts proved futile since

the concerned bank had closed his account after his death and were not in

possession of any records. However, records have been called from the NDPL

with regard to the grant of connection to Subhakar Tiwari which has been duly

produced. The application for grant of connection bears the signatures of

Subhakar Tiwari which signatures do not tally with the admitted signatures of

Subhakar Tiwari which he had put at the time of recording of his testimony. It

has been a consistent plea by the appellants that Subhakar Tiwari had always

been putting his signatures and was not thumb impressions on any of the

documents. This being so, in order to prove that the thumb impression on the

demolition slip were of Subhakar Tiwari it was necessary for the respondent

DDA to have examined the official of its department in whose presence the said

thumb impression of Subhakar Tiwari was taken on the demolition slip and on

the allotment register. This becomes all the more necessary since it is evident

from the certified copy of the extract of the allotment register showing the

alleged thumb impression of Subhakar Tiwari and demolition slip that both the

thumb impression do not tally. A bare comparison of both the documents with

naked eye shows that not only there is a difference in the size of thumb

impression but also there is a difference in the pattern of Whorl and Loop

apparently showing that the same are not of the same person. The plaintiff/

appellants have been very consistent in their stand. According to them

Subhakar Tiwari was never given any alternative accommodation and it

appears that some other person has fraudulently in connivance with the

officials of the respondent DDA obtained the possession of alternative

accommodation by impersonating himself as Subhakar Tiwari. The aforesaid

apprehension of the plaintiff and his family is not unfounded in view of the

fact that even the record of the NDPL reveals that the signatures of the

applicant Subhakar Tiwari does not tally with the admitted signatures of

Subhakar Tiwari appended before the Ld. Trial Court during his examination

and hence the conclusion that the applicant before the NDPL who had applied

for electricity connection in the name of Subhakar Tiwari as owner of the

alternatively allotted accommodation is not the same person who had signed as

Subhakar Tiwari, the plaintiff before the court. Therefore, firstly the alleged

thumb impression of Subhakar Tiwari on the demolition slip does not tally with

the thumb impression present on the alternative accommodation register at Sr.

No.472. Both the thumb impressions are not only of different size showing that

they belong to different persons but there is also a difference in the whorl and

loops as observed by the court. Secondly, it is not mention whether the thumb

impressions present on the demolition slip and on the alternate allotment

register are of the right hand or left hand of the person putting his thumb

impression. The name or parentage of the person putting his thumb impression

has also not been mentioned either on the demolition slip or on the register.

Thirdly the signatures of Subhakar Tiwari on the application filed with the

NDPL do not tally with the admitted signatures of Subhakar Tiwari present on

the Trial Court record which signatures he had put before the Ld. Trial Court

while signing his testimony. Lastly as evident from the record of the testimony

of CW1 O.P. Arora no physical verification of the spot has been done while

granting the electricity connection in the allegedly alternative accommodation

allotted by the DDA and the same has been granted only on the basis of the

documents submitted alongwith the application and therefore, the possibility of

some person having got the possession of the alternative accommodation and

enjoyed the benefits thereof by impersonating himself as Subhakar Tiwari

cannot be ruled out. This being so, I hereby hold that the allotment of

alternative accommodation to the plaintiff Subhakar Tiwari has not been duly

proved by the DDA and the Ld. Trial Court has seriously erred in placing its

reliance totally on the demolition slip and the record of the allotment register

which has not been duly proved by the department at all and that too when the

circumstantial evidence points to the contrary. "

12. Court had also noted that the documents qua the grant of

electricity connection were suspect as the witness was unable to

tell as to whether any physical verification of the site had been

made which was a pre-requisite before the grant of the electricity

connection. Court had noted that this could clearly be a case

where the actual evictee had been deprived of the alternative

accommodation on account of some other person.

13. On the thumb impressions, the impugned judgment had

noted that besides the fact that to the naked eye, the thumb

impressions on the demolition slip and the register appeared to be

different, there was also no details noted; whether it was the right

or left thumb impression; the parentage of the person whose

thumb impression it was had not been noted by the department.

14. These findings returned by the first appellant court do not,

in any manner, call for any interference. There is no perversity in

the said findings. The substantial question of law is accordingly

answered in favour of the respondent and against the appellant.

There is no merit in the appeal. Dismissed.

INDERMEET KAUR, J.

JUNE 01, 2011 ss