Shri Bashir Ahmed vs Delhi Development Authority & ...
2011 Latest Caselaw 2696 Del

R-293
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


%                              Date of Judgment: 19.05.2011


+            R.S.A.No. 41/2008 & CM NO.1943/2008


SHRI BASHIR AHMED                                ...........Appellant
                        Through:     Mr.Ankit Jain, Advocate.
                   Versus



DELHI DEVELOPMENT AUTHORITY & ANR. ..........Respondents
                 Through: Mr.Ajay Verma, Advocate for
                          R-1.
                          Mr.Noorun Nahar Firdausi,
                          Advocate for R-2 .


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

13.11.2007 which has endorsed the finding of the trial judge dated

29.5.2004 whereby the suit filed by the plaintiff Bashir Ahmed

seeking permanent injunction against the defendant (to the effect

that the defendant be restrained from interfering in the peaceful

use and occupation of the suit property i.e. a workshop being run

by the plaintiff in land measuring 600 sq. yards in Khasra No.61

belonging to Majid Gulakwali and the grave yard in Village Sheikh

Sarai, New Delhi where he claims himself to be a tenant at

monthly rental of `100/-) had been dismissed.

2. Case of the plaintiff was that he was a tenant in the

aforenoted suit property. He was running a workshop there; the

said land is a wakf property. Employees of the Delhi Development

Authority (DDA) with a view to extract money from the plaintiff

threatened that they would throw his goods and he would be

arrested him if he did not accept their demand. Further

contention was that the plaintiff has no concern with Khasra

No.531/156 and Khasra No.525/60, Sheikh Sarai for which threats

had been raised upon the plaintiff. Present suit was accordingly

filed.

3. Suit was defended. It was stated that the plaintiff has not

come to the court with clean hands; he is guilty of the suppression

of material facts. As per the defendants plaintiff was running his

business under the name and style of M/s Bashir Steel Industry in

an unauthorized area of 200 sq. yards in Khasra No.525/60 which

is a government land and being "Nazul Land" it is under the

control and management of the defendant. Suit is not

maintainable. It was further stated that the land falling in Khasra

No.61 measuring 2 bighas 3 biswas and the land falling in Khasra

No.525/60 measuring 7 bighas 13 biswas vide separate

notifications was taken over by the DDA on 23.12.1962. Plaintiff

has no right, title or interest in the above noted land. Plaintiff had

in fact made representation to the department; Estate Officer had

passed an order under Public Premises Act (hereinafter referred

to as „the PP Act‟) wherein the plaintiff has been assessed to

damages for the unauthorized use and occupation qua Khasra

No.525/60. Suit is otherwise also not maintainable.

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

were framed:

1.Whether plaintiff is a tenant of DWB in the suit land measuring 600 sq. yds in KH.No.61, Village Sheikh Sari, New Delhi? OPP

2.Whether suit land is wakf property? OPP

3.Whether suit land from a part of KH. No.525/60 Village Sheikh Sarai which belongs to Govt. and placed at the disposal of DDA? OPD

4.Whether plaintiff is entitled to the relief claimed for? OPP

5.Relief.

5. Oral and documentary was led. Trial court was of the view

that the land belongs to the DDA. Possession of the same had

already been taken by the DDA being Nazul Land which has been

placed under the disposal of the DDA under Section 22(1) of the

Delhi Development Act (hereinafter referred to as „the DD Act‟);

documentary evidence to the said effect has been proved; suit of

the plaintiff was dismissed.

5. In appeal this finding was endorsed.

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

08.2.2008 the following substantial question of law was

formulated:

Whether in view of neither party challenging the demarcation report Ex.PW2/1 the view taken by the learned Trial Judge in not accepting PW2/1 is legally sustainable"

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

judgment of the trial judge is illegal; no finding has been returned

on the demarcation report Ex.PW-2/1; it was the bounden duty of

the first appellate court to have return a finding on all the issues

which had not been adverted to; it has failed in its duty. To

support this submission reliance has been placed upon (2007) 2

SCC 619 Shantilal Kesharmal Gandhi Vs. Prabhakar Balkrishna

Mahanuhav as also on JT 2010(10) SC 551 B.V.Nagesh Vs.

H.V.Sreenivasa Murthy. It is pointed out that even otherwise this

demarcation had been effected by the Field Kanungo and this

report could not have been rejected. Reliance has been placed

upon 2000 (52) DRJ Kartar Singh Vs. DDA to support his

submission that demarcation of land is the job of the Revenue

officials who are the conversant with the rules of demarcation; in

this case the demarcation had been carried out by the Kanungo

and proved through the Patwari (PW-2); the same could not have

been ignored. This demarcation report has supported the case of

the appellant/plaintiff; dismissal of the suit is an illegality.

8. Arguments have been rebutted. It is pointed out that the

impugned judgment calls for no interefence. It is pointed out that

the plaintiff has to stand on his own legs and he has failed to show

that the suit property was located in Khasra No.61.

9. Record had been perused. The impugned judgment had

returned a finding on issue no.1 in favour of the plaintiff; it was

held that Ex.PW-1/3 shows that the plaintiff is a tenant of the Delhi

Wakf Board. Issue nos. 2 and 3 had been decided against the

plaintiff; plaintiff had failed to show that he is in possession of

Khasra No.61; his suit was dismissed.

10. In appeal this finding was endorsed but for different

reasons. Court had noted that the notice under the P.P.Act had

admittedly been received by the plaintiff/appellant; notice under

Section 7 of the P.P.Act had been proved as Ex.DW-2/1 which had

been replied by the defendant vide his reply Ex.DW-2/2. Ex.DW-

2/1 is dated 08.5.1973; it specifically states that the appellant

Bashir Steel occupying house and shop no.525/60 is an

unauthorized occupant and he is liable for eviction under Section

7 of the P.P.Act. The reply of the appellant is dated 03.6.1973; it

is relevant to state that there is no contention raised herein that

the plaintiff is in occupation of the Khasra No.61 and not Khasra

No.525/60. This is very relevant as the entire case of the plaintiff

is now hinged upon the fact that he is in occupation of Khasra

No.61. Why he did not advert to this position on his reply on

03.6.1973 is not answered by him. The defence of the DDA was

that this land stood acquired vide an Award No.1405 dated

26.10.1962. Ex.PW-1/1 is the award showing that Khasra

No.525/60 had been acquired and the possession of the same was

taken over on 23.12.1962 (Ex.DW-1/2); vide Ex.DW-1/3 dated

03.1.1967 the notification under Section 22 of the DD Act had

been issued placing this land at the disposal of the DDA. Akszira

for the aforenoted land i.e. in Khasra No.525/60 had been proved

as Ex.DW-1/4. Defence of the DDA as per the written statement

was that Khasra No.61 measuring 2 Bighas 3 Biswas had also

stood acquired on the same day vide Award No.1405 and

possession was taken over on 23.12.1962; it was thereafter

placed at the disposal of the DDA under Section 22 of the DD Act.

11. All these aforenoted facts had been adverted to in the

impugned judgment. This documentary evidence had been

correctly appreciated. The case of the plaintiff all along was that

he was in possession of 600 sq. yards in Khasra No.60. His only

document to the said effect was Ex.PW-2/1 which was the

demarcation report. This demarcation report had been proved

through the testimony of Patwari. In his cross-examination PW-2

had admitted that this demarcation was held at the instance of the

Tehsildar but there is nothing placed on record on the basis of

which this can be substantiated; there is no order of the SDM for

demarcating this land by the Tehsildar; he does not know if pucca

points were considered for demarcating the suit property; it was

by looking at the wall which appeared to be old; conclusion was

drawn that the suit property was in Khsara no.61. In these

circumstances, this report was rightly not adverted to by the two

courts below to substantiate the case of the plaintiff. Ex. PW-2/1

was rightly not relied upon.

12. Submission of the learned counsel for the appellant is that

Ex.PW-2/1 has not been adverted to in the impugned judgment

and no finding has been given by the first appellate court on this

score is a wrong submission. The impugned judgment had

detailed the demarcation report on internal page 9 and the

discussion had followed thereafter in the subsequent pages with a

specific reference again to the said report on internal page 11.

13. After going through the documentary evidence and the oral

versions of the witnesses the court had held that the plaintiff is

not entitled to the relief prayed for; by filing the present suit he

was trying to subvert the proceedings initiated under the P.P.Act

against him. There is no perversity in this finding. Plaintiff has to

stand upon his own legs and to establish his being in possession of

the suit land before he could have been granted the relief of

injunction. He has failed to show that he was in possession of

Khasra No.61. His submission that Khasra No.61 has since been

de-notified by a subsequent notification of 02.8.1963 also does not

stretch his case any further as it is an admitted position that

Ex.DW-1/3 was the notification dated 13.1.1968 under Section 22

of the D.D.Act. placing this land at the disposal of the DDA.

Contention of the DDA all along was that the suit land is a part of

Khasra No.525/60 and not Khsara No.61; plaintiff had failed to

prove this factum; his suit was rightly dismissed.

14. The substantial question of law is answered in favour of the

respondent and against the appellant. There is no merit in the

appeal. The appeal as also the pending application is dismissed.

INDERMEET KAUR, J.

MAY 19, 2011 nanan