Dda vs Captain Bhika Ram
2011 Latest Caselaw 2695 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Date of Judgment:       19.05.2011

+                 RSA No.221/2008 & CM No. 14578/2008

DDA                                            ...........Appellant
                  Through:    Mr. Ajay Verma, Advocate.

              Versus
CAPTAIN BHIKA RAM                         ..........Respondent

                  Through:    Mr. S.C. Singhal and Mr. Sanjay,
                              Advocates.

      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

03.05.2008 which has endorsed the finding of the trial Judge

dated 01.11.2006 whereby the suit filed by the plaintiff Bhika

Ram seeking a perpetual injunction (to the effect that the

defendant/Delhi Development Authority (DDA) be restrained

from making construction on the suit land i.e. 1 bigha 10 biswas

of land shown as raasta in khasra No. 368/2, Village Ghazipur,

Delhi) had been decreed.

2 The case of the plaintiff is he is residing in an ancestral

house in khasra Nos.386/1 & 386/2. It is contended that a large

part of this land had been acquired but some part of it was

retained by him for his cattle and selling milk from there. The

houses are built on a large piece of land and in front of the said

houses there is an old „raasta‟ measuring 1 bigha 10 biswas; this

raasta falls in khasra no. 368/2. The doors of the houses of the

plaintiff open upon this raasta and this raasta is necessary for

ingress or egress and in fact is the only means of access to their

house. On 20.08.1974 the Central Government had with

immediate effect placed this land at the disposal of the DDA; in

terms of this notification, the defendant had been restrained

from making any construction on this land. The access of the

plaintiff is being threatened as defendant proposes to raise

construction on his „raasta‟; present suit was accordingly filed.

3 In the written statement, it was contended that pursuant

to the acquisition proceedings the land in khasra no. 386 has

since been acquired; however under the garb of a writ petition,

the plaintiff encroached upon this land; in para 3 of the written

statement it has not been denied that this land was used for

housing cattles. Contention of the defendant is that since this

land has been acquired, the plaintiff is an unauthorized and

unlawful occupant. The raasta which is in khasra no. 368/2 is a

government land; nothing prevents the department from

carrying out any activity therein; the plaintiff is not entitled to

the relief of injunction.

4 On the pleadings of the parties, the following four issues

were framed:-

1. Whether the defendant is entitled to make constructions as proposed?

2. Whether the plaintiff is entitled to use „RAASTA‟ being the Kadim Raasta? If so, to what effect?

3. Whether the plaintiff is entitled to the injunction prayed for?

4. Relief.

5 Oral and documentary evidence was led. Ex. P-8 is the

khasra girdawari for the year 1991 qua khasra no. 386/2

showing the prima-facie possession of the plaintiff in the suit

land. Even in the written statement , it has been admitted that

the plaintiff is in possession of this portion of the land although

the contention of the defendant is that this khasra now stands

acquired; however; admittedly no proof of actual taking over of

possession of this land has been led by the defendant. Khasra

No. 368/2 is admittedly a Government land; this comprises of 1

bigha and 10 biswas; it is a raasta; in Ex. P-5 which is the khasra

girdawari for khasra no. 368/2, it has been shown as a „gair

mumkin raasta‟. The notification dated 20.08.1974 (Ex. DW-1/3)

is also an admitted document. This document shows that the

raasta which is comprised in khasra no. 368/2 has been placed

at the disposal of the DDA under Section 22 of the Delhi

Development Act, 1957; this is after the urbanization of the

villages; it is however subject to the condition that the DDA will

not make or cause or permit any construction to be made on the

said land. This is specified in Ex. DW-1/3 itself.

6 All this aforenoted documentary evidence was correctly

appreciated by both the two courts below. Both the two courts

below noted that the primafacie proof of possession of the

plaintiff in the suit land i.e. khasra no. 386/2 has been

established. The „gair mumkin raasta‟ is admittedly a

Government raasta; it is comprised in khasra no. 368; vide Ex.

DW-1/3 dated 20.08.1974 no construction would be carried out

by the DDA on the said land. The impugned judgment had noted

that if the DDA wants to construct a wall to preserve the land

from encroachment and to maintain its green, nothing prevented

it from doing so; at the same time, the plaintiff and other

residents of the village should not be deprived of this „raasta‟ i.e.

from accessing the main highway no. 56. This finding in the

impugned judgment had endorsed the finding of the trial Judge.

This was after a detailed scrutiny of the documentary evidence

discussed supra as also the oral testimony of the witnesses. This

finding in no manner calls for any interference.

7 This is a second appeal. It has been admitted and on

26.11.2010, the following substantial question of law was

formulated:-

"Whether the finding in the impugned judgment dated 02.5.2008 permitting the plaintiff to use the disputed "raasta" which had admittedly being placed at the disposal of the DDA for development and maintaining the same as green is a perverse finding? If so its effect? "

8 Reliance by learned counsel for the appellant on the

judgment reported in Civil Appeal No.6191/2001 Anathula

Sudhakar Vs. P. Buchi Redday is misplaced. The plaintiff in this

case is not asserting title to the suit land; prayer is simplicitor a

suit for injunction. Para 11 which has been vehemently

highlighted of the said judgment would thus become

inapplicable. The judgment reported in 60 (1995) DLT 474

Essex Farms Pvt. Ltd. & Anr. Vs. Delhi Transport Corporation is

also of no help to the appellant. In this case, reliance by the

plaintiff on the entries in the revenue records to establish his

possession had been dispelled in view of the defence of the DDA

that the land stood acquired; the present case is a case where

the defendant in his written statement has himself admitted that

the plaintiff is in possession of the suit land. Ratio of this

judgment is also inapplicable.

9 In view of the aforenoted discussion, the substantial

question of law is answered in favour of the respondent and

against the appellant. There is no merit in this appeal. Appeal as

also pending application are dismissed.

(INDERMEET KAUR) JUDGE MAY 19, 2011 A