Vijay Sehrawat vs D.D.A
2012 Latest Caselaw 2053 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No.144/2005

%                                                             26th March, 2012

         VIJAY SEHRAWAT                                       ..... Appellant
                      Through :            Mr.Rajesh Yadav with
                                           Ms. Ruchira V. Arora, Advs.
                                           along with appellant in person.

                      versus

         D.D.A                                              ..... Respondent

Through : Mr. Ajay Verma with Mr. Amit Mehra, Advs.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this Regular First Appeal (RFA)

filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the

impugned judgment of the Trial Court dated 14.2.2005 dismissing the suit of

the appellant/plaintiff as not maintainable.

2. The subject suit was filed by the appellant/plaintiff claiming

perpetual injunction against the respondent/defendant with respect to

property situated in khasra no. 839/2, village Mahipalpur, Delhi. The area of

the land in question is 2 bighas and 4 biswas. The appellant/plaintiff

claimed that the land in question belongs to her father-in-law and whereafter

it vested in her by virtue of relinquishment deed dated 20.9.1985, executed

by her father-in-law.

3. The respondent/defendant contested the suit and pleaded that

the suit property was situated not on khasra no. 839/2 but on khasra no.

839/1 which was an acquired Government land. It was also pleaded that

earlier also the appellant/plaintiff had sought to encroach upon the khasra

no.839/1 and the illegal construction of the appellant/plaintiff was

demolished.

4. The Trial Court has dismissed the suit although the respective

parties have not yet led their evidence, and the witnesses of the respective

parties were yet to be cross-examined. The suit has been dismissed as not

maintainable in terms of the existing pleadings of the appellant/plaintiff, and

the documents relied upon, in support of her case by the appellant/plaintiff.

5. The Trial Court has dismissed the suit by observing as under:-

9. Defendant/D.D.A. in the Written Statement claimed that plaintiff had raised construction on Khasra No. 839/1 had belonged to it. The first Local Commissioner who had been appointed gave his

report that construction had been raised on Khasra No. 839/1 which belonged to D.D.A. The second Local Commissioner who had been appointed gave his report that the entire construction was in Khasra No. 839/2. But according to Revenue Records, 839/2 belonged to Gram Sabha. D.D.A in its Written Statement repeatedly submited that 839/1 was acquired by it. Plaintiff had filed reply to objections filed by the defendant to the report of Local Commissioner. She herself admitted in para 11 that as per Revenue Records Khasra No. 839/2 was in the name of Gaon Sabha. Once She had admitted that in the Revenue Records the land stood in the name of Gram Sabha, it was her duty to take steps to correct Revenue Records. It has not been done till now. As per Schedule to Delhi Land Reforms Act 1954, this Court does not have jurisdiction to order for correction of Revenue Records.

10. In unreported case Inder & Others Vs. Raghubir Singh CR No. 428 of 1982 Hon'ble Mr. Justice A.B. Rohtagi in his order dated 18.08.82 held that until an application is made to the Revenue assistant and there is a declaration in his favour, no one can claim that he has become a Bhumidar Under Section 85. It was further held that plaintiffs, if they have any rights in the land must seek a declaration. No declaration has been claimed and a mere suit for injunction does not lie.

11. Moreover, as per Section 30 of the D.D.A. Act, the authority can direct removal by way of demolition of any development which has been carried out without permission. Appeal against the order can be filed before the Appellate Tribunal. As per Section 31C of the Delhi Development Act 1957, a person can prefer an appeal to the Appellate Tribunal against any order of the authority for removal of development. In the case in hand, admittedly demolition had been carried out by the D.D.A. in the year 1989. Section 31 E is very clear. It says that no Court shall entertain any suit, application or other proceedings in respect of an order appealable Under Section 31-C.

14. Hon'ble Court held that Civil Court should be a guardian of public property. Even notice was not required to be served regarding the land which have been acquired, It was so held by My Lord Mr. Justice C.K. Mahajan in case titled as Kul Prakash Awana Vs. D.D.A in C.W.P . No. 2212 of 1998 that:

The land in question on which the construction stand has been subject to the proceedings under the Land Acquisition Act. In the circumstances it is not necessary that any further notice under the Delhi Development Act be issued to the petitioner. When notification was published under section 4 opportunity was given to the public to file objections Under Section 5 of the Act. After considering the objections notification under section 6 was issued. The award was thereafter made under the provisions of the Land Acquisition Act. The original claimant had adequate opportunity to object to the acquisition. The consequence of the land being acquired is that the Government gets absolute title to the property in question free from all encumbrances. There is thereafter no need for giving any notice for demolition of its own property.

15. Herein case in hand, Khasra No. 839/1 was a Government property. The land vested in Government. D.D.A. wanted to remove the construction raised on 839/2. In Revenue Records, 839/2 belonged to Gram Sabha. As I have already observed above, this Court cannot pass any direction for correction of Revenue Record as on 08.09.2002 land stands in the name of Gaon Sabha and as such plaintiff has no right to seek any injunction regarding it."

6. A reading of the aforesaid paragraphs shows that the Trial

Court has ignored the written statement and has proceeded on the basis of

the case of the appellant/plaintiff in terms of the pleadings and the

documents as existing. Trial Court records the fact that there were two

separate reports of the Local Commissioners, one of which was in favour of

the appellant/plaintiff and the other one which was in favour of the

respondent/defendant. The Trial Court refers to the fact that the

appellant/plaintiff herself admitted that the khasra no.839/2 was in the name

of the Gram Sabha and therefore the subject suit without taking steps to

correct the revenue records was not maintainable inasmuch as, under the

Delhi Land Reforms Act, 1954, the Civil Court does not have the

jurisdiction to correct the revenue records. Trial Court has also referred to

the fact that Courts are guardians of public property and either the land is

situated in khasra no. 839/1 which belongs to the Government and in case

the suit property was situated in khasra no. 839/2, the same belongs to Gram

Sabha and therefore suit was not maintainable as there cannot be direction

for correction of the revenue records.

7. A civil suit can be disposed of under Order 14 Rule 2 CPC on a

preliminary issue only if the preliminary issue is an issue of law, i.e. there is

not required any trial to decide the disputed questions of fact. Issues of law

which have their basis in facts, i.e. factual aspects have to be decided before

deciding the issues of law, such issues cannot be decided as preliminary

issues. That under Order 14 Rule 2 CPC a case cannot be decided once

there are disputed questions of fact which required trial, is so held by the

Supreme Court in the judgment reported as Ramesh B. Desai & Ors. vs.

Bipin Vadilal Mehta & Ors., 2006 (5) SCC 638. The Supreme Court in this

judgment of Ramesh B.Desai (supra) case made it clear that mixed

questions of fact and law cannot be decided as an issue of law i.e. as a

preliminary issue. The Supreme Court held that a decision under Order 14

Rule 2 (2) CPC is a decision on a demurrer, i.e. a Court decides an issue of

Order 14 Rule 2 CPC only, when the facts are clear from the plaint itself or

on admitted facts.

8. A reading of the facts of the present case shows that the only

plea raised by the respondent/defendant was that the suit property was

situated in khasra no.839/1 which was an acquired Government land. There

were disputed questions of fact as to whether the suit property was located in

khasra no.839/1 or 839/2 and two local commissioners appointed by the

Court gave different reports. There was no case set up in the written

statement of the suit, of the property being situated in khasra no.839/2, yet,

the suit property could not be allegedly owned by the appellant/plaintiff

inasmuch as the same was Gram Sabha land. There would also be an issue

of validity and entitlement of possession of the appellant of the suit land

once we assume that appellant's property was situated in khasra no.839/2

and not in 839/1 and the appellant would be entitled during trial to show it to

establish her case. The fact that a plaintiff may have a weak case and thus

may not be entitled to interim injunction, is an issue which is wholly

separate from the dismissal of a suit under Order 14 Rule 2 (2) CPC by

deciding the suit on the basis of a preliminary issue of the suit not being

maintainable on the facts as appearing on record. The appellant/plaintiff,

arguendo, may not be able to show at the stage of pleadings the

entitlement/ownership of the suit property situated in khasra no. 839/2

because at this stage she was not able to show that the property vested with

her father-in-law, however, the same would only be a ground to vacate the

interim injunction, but not to dismiss the suit itself inasmuch as the

appellant/plaintiff can show, during the course of trial, that her father-in-law

was the owner of the suit land if the land of Gaon Sabha was allotted to the

father-in-law.

9. Learned counsel for the appellant/plaintiff agrees that it is not

the case of the appellant/plaintiff that the suit land is situated in khasra no.

839/1 and counsel for the appellant on instructions from the appellant, who

is present in person, states that in case there is a fresh demarcation by the

Revenue Authorities by the total station method which shows that the suit

property in fact situated in khasra no.839/1, the appellant/plaintiff agrees to

withdraw the suit and not claim any right inasmuch as the suit land would be

in khasra no.839/1 and not in khasra no.839/2, and the ownership claim is

only on the land situated in khasra no.839/2. Of course, I may hasten to add

that any genuine objection of the appellant/plaintiff to the demarcation

report prepared on the basis of the total station method will be considered by

the Court. The Revenue Authorities will give notice to both the parties

through their counsel to appear in the demarcation proceedings to be

conducted on the basis of total station method. The Trial Court will pass

necessary orders directing demarcation in terms of the total station method

and which demarcation will be carried out after notice to both the parties

through their counsel. In case, the Trial Court thereafter finds that the suit

property is situated in khasra no. 839/1 and not in khasra no.839/2, the suit

shall stand dismissed.

10. Learned counsel for the respondent/defendant also states that in

case the suit property is found to be located on khasra no.839/2, the

respondent/defendant be allowed to amend the written statement to raise

appropriate pleas of fact and law to plead the disentitlement of the

appellant/plaintiff to the reliefs claimed in the suit. Obviously, there can be

no objection to this, inasmuch as, it is always open to the

respondent/defendant to amend its pleadings in accordance with law. If an

amendment application is filed by the respondent/defendant to deny the

claim of the appellant/plaintiff even if the suit property is situated in khasra

no.839/2, then such application will be considered liberally by the Trial

Court.

11. I note from the Trial Court record that the ex parte injunction

granted way back on 31.7.1989, i.e. 22 years back is still continuing without

disposing of the injunction application. The Trial Court after the

demarcation report is filed by the total station method, will hear arguments

on the injunction application being IA No.5375/1989 and will dispose of the

same in accordance with law, as per the respective contentions of the parties.

The application for injunction at the request of the respondent/defendant can

also be taken up after the pleadings of the respondent/defendant are sought

to be amended, in case the respondent/defendant so wants.

12. In view of the fact that the impugned judgment disposes of the

suit on a preliminary issue, and which could not have been done in view of

the disputed questions of fact and the judgment of the Supreme Court in the

case of Ramesh B.Desai (supra), the impugned judgment is set aside.

Setting aside of the impugned judgment is no reflection on merits of the case

of either of the parties, and the Trial Court will dispose of the injunction

application as also the suit in accordance with law.

13. Let the parties appear before the District and Sessions Judge,

Delhi on 26.4.2012, and on which date, the District and Sessions Judge,

Delhi will mark the suit to a competent Court for disposal in accordance

with law.

14. Interim order dated 31.7.1989 will continue till the disposal of

the injunction application of the appellant/plaintiff, and which, as already

stated above, will be disposed of in accordance with law considering the

rights of either of the parties to the suit, including the right of the

respondent/defendant to seek amendment of its written statement as stated

above.

15. It will not be necessary for District and Sessions Judge, Delhi,

as also the competent Court, to issue fresh notices to the parties, and the

competent Court can proceed in case any of the parties chooses not to ensure

the representation on their behalf when the case is listed after remand.

16. Trial Court record be sent back so as to be available to the

District and Sessions Judge, Delhi on 26.4.2012.

VALMIKI J. MEHTA, J.

MARCH 26, 2012/ak