Smt.Sushila Devi vs Amar Singh (Since Deceased ) ...
2011 Latest Caselaw 1576 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                              Date of Judgment: 18.03.2011


+                        RSA No.150/2005


SMT.SUSHILA DEVI                               ...........Appellant
             Through:          Mr.Satish Kumar Verma, Advocate.

                   Versus

AMAR SINGH (SINCE DECEASED ) THROUGH LRS.
                                      ..........Respondent
                  Through: Mr.Raghvinder Verma, 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

18.10.2004 which had endorsed the finding of the trial judge dated

2.4.1997 whereby the suit filed by the plaintiff Sushila Devi seeking

permanent and mandatory injunction against the sole defendant

Amar Singh had been dismissed.

2. Plaintiff had initially filed a suit for permanent injunction

against the defendant. Her contention was that the defendant was

threatening to interfere in the suit property bearing 100 sq. meter

situated in Khasra No.42/9/5, plot no.8 in village Badli, Delhi. In

the course of the proceedings it was brought to the notice of the

Court that on 01.8.1982 the defendant had actually trespassed into

the land; the plaint was thereafter amended and apart from the

relief of permanent injunction, mandatory injunction has also been

sought to the effect that the defendant be directed to hand over the

possession of the suit property back to the plaintiff.

3. Case of the plaintiff as set out in the plaint is that she had

been allotted a plot of land by Delhi Administration measuring 100

sq. meters in Khasra No.42/9/5, plot no.8 under a scheme for

landless persons who were not in position to purchase land for

construction of houses. Certificate to this effect had also been

issued by the Delhi Administration to every allotee; a nominal sum

of Rs.45/- had been paid. This certificate of allotment has been

proved in the course of the trial as Ex.PW-1/B. It is in fact the

basis of the case of the plaintiff. Version of the plaintiff is largely

hinged on this document. This document is dated 11.1.1977 and

was purported to have been issued by the Pradhan of the village

allotting 100 sq. yards of land in Khasra No.42/9, village Badli to

the plaintiff; condition was that the allotment was for a period of

nine years; the construction on the plot had to be made within two

years from the said date. The plaintiff has also relied upon a

receipt of payment dated 29.9.1976 Ex.PW-1/A supporting her

stand that Rs.45/- was paid by her in advance pursuant to which

this allotment was made in her favour. The other documents relied

upon by the plaintiff are Ex.PW-1/C i.e the site plan depicting the

area in her possession and Ex.PW-1/D which is the khasra

girdawari for the year 1981-82 showing that the aforenoted

property which is located in Khasra No.42/9/5 is in the name of the

plaintiff Sushila Devi.

4. In the written statement the defence of the defendant was

that he is in possession of the suit land. The case of the plaintiff is

false. Plaintiff is neither the owner or in possession of the suit land.

Defendant in support of his case relied upon khasra girdawaris for

the year 1979-90 (Ex.D-1), for the year 1982 (Ex.D-3) showing his

possession of the suit land. It was denied that the Delhi

Administration had ever allotted the aforenoted plot of land to the

plaintiff; in fact there was no such scheme.

5. On the pleadings of the parties, trial judge had framed four

issues. Oral and documentary evidence was led. Documents relied

upon by the plaintiff, Ex.PW-1/B the allotment letter purported to

have been issued by the Pradhan of the village in her favour,

Ex.PW-1/A the receipt evidencing the payment of Rs.45/- against

the said allotment was disbelieved. Per contra the documents of

the defendant found favour; on the preponderance of the

probabilities the suit of the plaintiff was dismissed.

6. In appeal this finding was endorsed. Findings of the first

appeal court are as follows:

" ............ A perusal of allotment certificate Ex.PW-1/B shows that plot No.8 of 100 sq. yards in Khsara No.42/9 village Badli was allotted to Smt.Sushila Devi on 11.1.1977. Receipt Ex.PW-1/A of `45/- on form No.37 was issued on 29.9.1976. Vide certificate Ex.PW-1/B plaintiff Smt.Sushil Devi was allotted Patta of the plot No.8 of 100 sq. yards for a period of nine years. One of the conditions of Patta was that the house could be constructed within two years. It is worth noting that a period of nine years from the alleged allotment of land on 11.1.977 has already expired. Accordingly, plaintiff Smt.Sushila Devi cannot claim any right in the plot in question on the basis of certificate Ex.PW-1/B. Further, the plot was to be constructed within two years w.e.f. 11.1.1977. It does not appear probably that plaintiff had collected construction material of the plot in the first week of July 1982.

12. As per admitted case of plaintiff Smt.Sushila Devi, she is not in possession of the plot in question. Accordingly,

the relief of permanent injunction is not maintainable. As regards the relief of mandatory injunction, it is worth noting that plaintiff is claiming possession in the relief of mandatory injunction. Present is not the suit for possession and in particular a suit under Section 6 of Specific Relief Act. I am of the considered view that the relief of possession cannot be granted to plaintiff Smt.Sushila Devi in the present suit for mandatory injunction. As regards contempt application, it is worth noting that while passing order dated 30.7.1982 in order sheet directing the parties to maintain status quo till 10.8.1982 there is no finding that plaintiff was in possession of the suit land. Further, possession of plaintiff of the suit land cannot be inferred from the said order. Still further, documents on record do not specifically show any possession of plaintiff at the time of passing of order dated 30.7.1982. thus, record does not show violation of order of direction to parties to maintain status quo by defendant.

13. In view of the above discussion, present appeal fails and is dismissed."

7. The documents relied upon by the plaintiff in support of her

claim had been adverted to. It was held that in Ex.PW-1/B khasra

number has been noted as 42/9 whereas the contention of plaintiff

in her plaint is that she was allotted plot of land in khasra

No.42/9/5. It is further worthwhile to mention that in the plaint

averment was made that she has been allotted 100 sq. meters of

land whereas the document Ex.PW-1/B mentions 100 sq. yards of

land. Ex.PW-1/A was disbelieved as there were cuttings in the said

document. Moreover this document is dated 29.9.1976 purporting

payment of Rs.45/- in lieu of an allotment which was effected seven

months later i.e. on 11.1.1977. Moreover the contents of

Ex.PW-1/A also did not spell out the purpose for which this receipt

had been issued. The trial judge had also noted that a single stray

document Ex.PW-1/D which was the khasra girdawari for the year

1981-82 does not establish the possession of the plaintiff as

plaintiff had failed to produce the revenue record for earlier years

i.e. of 1977; this was relevant in view of the fact that the contention

of the plaintiff that she had been allotted this plot of land in the

year 1977. Moreover there were counter documents produced by

the defendant showing counter entries for the same plot of land

which were for the year 1979-80 and 1982; the impugned judgment

had also noted that the case of the plaintiff was based upon a

scheme of the Delhi Administration for the grant of land to landless

persons; no such scheme has been proved or brought on record.

Specific contention of the defendant in the written statement was

that there was no such scheme in existence. Learned counsel for

the defendant has also filed on record certified copy of an order

dated 26.5.1983 wherein an earlier suit filed by the defendant

herein (i.e. Amar Singh) seeking permanent injunction against the

Union of India and Gaon Sabha, Badli Village had been withdrawn

by him on the statement of the counsel for the defendants that they

would not interfere with the peaceful possession of the suit land of

the plaintiff. A perusal of the plaint in that suit (certified copy of

which is on record) shows that the plaintiff claimed himself to the

owner and in possession of 352 sq. yards comprised in Khasra

No.42/9/5 in the revenue estate of Village Badli, Delhi. The

defendants i.e. the Union of India and Gaon Sabha, Badli through

their counsel agreed not to interfere with the possession of the

defendants; in these circumstances the suit of the plaintiff had

been withdrawn on 26.5.1983. Contention of the defendant is that

the possession of the defendant had been established through this

document as well.

8. PW-4 Nathu had come into witness box to substantiate the

case of the plaintiff that Ex.PW-1/B had been issued by him.

Attention has been drawn to his version. Nowhere in his entire

testimony PW-4 has deposed that he has come into witnesses box

in his capacity as the Pradhan of the village. It was incumbent

upon him to have deposed so if he had come into witness box in his

official capacity. Whether PW-4 Nathu has came in the capacity of

Pradhan or otherwise has not been explained. Testimony of this

witness was rightly not relied upon. The case of the plaintiff is

largely based on the fact that the plot of land had been allotted to

him by the Delhi Administration. Plaintiff had also failed to prove

that any such resolution was passed by the Delhi Administration or

this plot of land had been allotted to her through them. No official

witness has come into witness box to support this stand. Both the

courts below had rightly held that the plaintiff has not been able to

prove her case.

9. Learned counsel for the respondent has also drawn attention

of this Court to Section 47-A(h)(2) of the Delhi Land Reform

Rules,1954. It is pointed out that a lease of land for purpose other

than agriculture can only be by way of a public auction; an

agreement in writing then has to be executed with the Gram

Panchayat providing that no permanent structure without the prior

sanction of the Deputy Commissioner shall be raised. It is pointed

out that admittedly this provision has not been adhered to.

Attention has also been drawn to Rule 178 of the Delhi Panchayat

Rules, 1959 which postulates that in the case of a lease without

premium transferring immovable property vested in the Gaon

Panchayat, a reasonable annual rent shall be reserved and made

payable. It is pointed out that this has also neither averred nor

proved by the plaintiff.

10. This is a second appeal and it has been admitted. The

substantial question of law was formulated on 14.2.2011; it reads

as follows;

"Whether the finding in the impugned judgment dated 18.10.2004 are perverse, if so, its effect?"

11. The contentions raised and noted hereinabove do not in any

manner show that the findings in the impugned judgment are

perverse. The findings returned in the impugned judgment had on

appreciation and re-appreciation of the evidence both oral and

documentary drawn a conclusion that neither Ex.PW-1/A nor

Ex.PW-1/B could be relied upon. Ex.PW-1/B which was a patta

prescribed a condition that the house shall be constructed within

two years. Plaintiff had averred that she had collected building

material for construction in the first week of July 1982 which was

much later; this condition has also not been complied with.

12. This court is not a third fact finding court. Findings of fact

can be interfered with only if the same are perverse and on no

other count. These findings cannot be said to be perverse. They call

for no interference. Substantial question of law is answered

accordingly. Appeal is dismissed.

INDERMEET KAUR, J.

MARCH 18, 2011 nandan