C.L.Gupta vs Delhi Development Authority
2011 Latest Caselaw 2338 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                              Date of Judgment: 02.5.2011


+R.S.A.No. 237/2007 & CM No.11503/2008 (u/O 41 R. 27
CPC) & CM No.12747/2007 (for stay)



C.L.GUPTA                                      ...........Appellant
                         Through:    Mr.Sumeet     Bansal   and
                                     Mr.Ateev Mathur and Mr.Ajay
                                     Monga, Advocates.
             Versus
DELHI DEVELOPMENT AUTHORITY           ..........Respondent
                  Through: Mr.Ajay 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)

R.S.A.No. 237/2007 & CM No.11503/2008 (u/O 41 R. 27 CPC)

1. This appeal has impugned the judgment and decree dated

30.8.2007 which had endorsed the finding of the trial judge dated

02.9.2002 by virtue of which the suit filed by the plaintiff

C.L.Gupta seeking permanent injunction against the Delhi

Development Authority (DDA) restraining them from

dispossessing the plaintiff from the suit property i.e. property

bearing No.29/1, situated in village Sheikh Sarai, P.O.Malviya

Nagar, Savitri Nagar, New Delhi had been dismissed.

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

aforenoted suit property. He had purchased it from Laxman Singh

vide a sale deed duly registered in his favour dated 19.12.1988; he

is in continuous possession for the last 30 years; defendant was

threatening him from dispossession. Suit was accordingly filed.

3. In the written statement it has been stated the plaintiff has

no right to land in question; Khasra No.548/135 (min) measuring 3

bighas has since been acquired and the suit property is located

therein. Plaintiff has also failed to prove his title.

4. Three issues had been framed by the trial judge. Oral and

documentary evidence was led by the parties. Suit of the plaintiff

was dismissed. Plaintiff had relied upon Ex.PW-3/1 i.e. the copy of

a blue print of the area where the suit property was located. This

was through PW-3 who was the Planning Assistant i.e. a witness

from the DDA. This witness had deposed that the copy of the blue

print available in the office of the DDA is on record; which is

Ex.PW-3/1; the area which has been shown at point ABCD (suit

property) has since been regularized. In his cross-examination he

had stated that the original layout plan has been transferred to

the MCD and is not available with the DDA. This part of the

evidence has been noted by the trial judge on para 10. The trial

judge had also adverted to the testimony of DW-1 who had proved

the Aks Sizra as Ex.DW-1/2. Attention has been drawn to the

version of DW-1 wherein he had stated that the disputed land falls

in property no.29A; contention of the appellant/plaintiff is that the

suit property is property No.29/1. That apart the evidentiary

value of Ex.PW-3/1 had been curtailed for the reason that PW-3 in

his cross-examination had deposed that the original of the blue

print is lying with the MCD office. While trial judge had noted this

the first appellate court had not examined this document at all.

5. This is a second appeal. It has been admitted and the

following substantial question of law is formulated:

"Whether the findings in the impugned judgment dated 30.8.2007 are perverse? If so, its effect?"

6. Along with this appeal an application under Order 41 Rule

27 of the Code has been filed wherein a prayer has been made to

place on record a certified copy of Ex.PW-3/1 (which has since

been obtained pursuant to an RTI application from the MCD). It is

stated that in spite of due diligence this document could not have

been obtained earlier; a certified copy of the said document has

since been obtained; it is necessary to set the controversy at rest

and to establish that the averment of the plaintiff that the land as

aforenoted in blue print Ex.Pw-3/1 has since been regularized.

7. Reply filed to the said application has not opposed the

authenticity of the document Ex.PW-3/1. Contention before this

Court is that this document has been considered and no

interference is called for in the impugned judgment. Case under

Order 41 Rule 27 of the Code has not been made out.

8. Record has been perused. Case of the plaintiff is that he is

in occupation of the property bearing No.29/1 which is not a part

of Khasra No.548/135 (min) comprising of 3 bighas which area

has admittedly been acquired. The case of the plaintiff is that the

suit property does not fall in this acquired portion. For this he

had placed reliance upon Ex.PW-3/1 which is blue print of the

layout plan. PW-3 who was a summoned witness from the DDA

had admitted that the portion shown at points ACBD (suit

property) as depicted in Ex.PW-3/1 has been regularized. The

trial court had however noted the testimony of PW-3 but did not

rely upon it for the reason that in the cross-examination PW-3 had

admitted that the original layout plan is not on record which is

with the MCD.

9. By way of the present application under Order 41 Rule 27 of

the Code the applicant wishes to place certified copy of Ex.PW-3/1

on record; it has since been obtained from MCD. The reasons

given in the application for not having filed the application earlier

have also been read. Learned counsel for the appellant has also

placed reliance upon that part of Order 41 Rule 27 which states

that the court "in order to pronounce judgment" and also to do

substantial justice for any "substantial cause" may permit

additional evidence.

10. This appears to be a fit case for remand. The impugned

judgment had not adverted to Ex.PW-3/1; neither had it rejected it

and nor accepted it; it was not examined at all. The

plaintiff/appellant is granted one opportunity to produce the

additional evidence which is purported to be a certified copy of

the blue print of the development plan (as detailed in para 6 of the

application) layout plan of the concerned colony where the suit

property is located. He is permitted to prove these documents in

accordance with law. The prayer made in the application is

accordingly allowed.

11. Parties are directed to appear before learned District &

Sessions Judge (Central) on 09.5.2011 at 10.30 AM who will

assign the case to the concerned civil judge permitting the

plaintiff to adduce these documents and prove the same in

accordance with law. Trial judge will thereafter return its

findings on the merits of the case.

12. Substantial question of law is answered accordingly.

13. Appeal is disposed of in the above terms.

CM No.12747/2007 (for stay)

14. This application has become infructuous; it is dismissed.

INDERMEET KAUR, J.

MAY 02, 2011 nandan