Jai Pal vs Uoi
2013 Latest Caselaw 597 Del

*                   HIGH COURT OF DELHI AT NEW DELHI

+                            R.S.A. NO.221/2003

                                       Decided on : 7th February, 2013

JAI PAL                                          ...... Appellant
                      Through:   Mr. Dheeraj, son of the appellant is
                                 present.

                        Versus

UOI                                           ...... Respondent
                      Through:   Mr. Jitender Choudhary, proxy counsel

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. A request for adjournment is made by the son of the appellant on

the ground that the counsel for the appellant is down with fever.

2. This is a regular second appeal which has been pending for the last

nearly ten years and till date no substantial question of law has

been formulated.

3. A perusal of the order sheets show that repeated adjournments have

been taken on behalf of the appellant on the ground that the WP(C)

no.3503/1992 titled Rati Ram & Anr. Vs. DDA & Anr. is

pending before the High Court in which the notification

purportedly showing the vesting of land with ASI has been under

challenge and the decision of the said writ petition will have a

bearing on the present regular second appeal.

4. I found from the record that the said writ petition was decided by

the High Court on 02.2.2012 against Rati Ram and in favour of the

DDA.

5. The case set up in the writ petition was that the petitioners were

claiming to be the owners of the land measuring 1127 sq. mtrs. (11

Bigha and 17 Biswas) which forms part of Khasra No.144/84

situated in the Revenue Estate of Village Sarai Sahaji, Delhi and

the same was jointly purchased by various persons including their

ancestors much prior to the year 1948-49. The petitioners in the

said writ petition claimed to be in actual cultivatory possession and

occupation of the said land. It was claimed to have constructed

various structures including boundary wall to secure their parcel of

land. They alleged that they have invested a huge amount of

money and the respondent/DDA was threatening to dispossess

them from the said land by taking the plea that the land in question

was notified under Section 9 of the Ancient Monuments and

Archaeological Sites & Remains Act, 1958 and accordingly, the

provisions of the Public Premises Act and other statute were sought

to be invoked by the DDA in the said case.

6. The matter was contested by the DDA and the High Court vide

order dated 2.2.12 held that the petitioners in the said case had

miserably failed to establish their lawful title of ownership of the

land in question or that they were in cultivatory

possession/occupation of the land in question and accordingly the

writ petition was dismissed with costs which was quantified at

Rs.20,000/-.

7. So far as the present second appeal is concerned, it emanates from

a suit which was filed by one Jaipal S/o Late Shri Sardar Singh

against the UOI through Secretary, Ministry of Culture and Human

Resources, Dept. Of Archaeology for permanent injunction. In this

suit, the appellant had claimed himself to be in occupation of a

parcel of land measuring 500 sq. Yds. (10 Biswas) forming part of

same khasra no.144/84, which was involved in the writ petition. It

was alleged that on the said land, Jaipal had constructed a room

measuring 12'x14' with open land and a kitchen garden and the

same is duly bounded by walls on all the sides. It was alleged

since the defendant in the suit was threatening demolition and

dispossession, therefore, the suit was filed for permanent

injunction. The Department of Archaeology filed its written

statement raising objections with regard to the maintainability of

the suit on various grounds. A Gazette notification dated 12.11.87

was issued and published in part-II Section 3(ii) of the Gazette of

India dated 5.12.87 expressing the intention to declare the

monument which was situated on the land in question as a centrally

protected monument and accordingly, the land around the same

was acquired.

8. The monument was called 'Sarai Shahji' and described as unique

piece of Mughal period. The land in question in respect of which

injunction was claimed was stated to be forming a part of the land

belonging to Archaeology Survey of India after following the due

processes of law.

9. On the pleadings of the parties, the following 6 issues were framed:

"(i) Whether the suit is not maintainable for want of cause of action? OPD

(ii) Whether the suit is not maintainable for mis-joinder of unnecessary parties? OPD

(iii) Whether the suit is not maintainable in view of pre- objection no.4? OPD

(iv) Whether this court has no jurisdiction in view of pre- objection no.6 of the WS? OPD

(v) Whether the plaintiff is entitled to the relief as prayed for? OPP

(vi) Relief.

10. After the parties were permitted to adduce evidence, arguments

were heard by the trial court and so far as issue nos.1 to 4 are

concerned, they were decided in favour of the plaintiff on account

of the fact that the defendant did not adduce any evidence seeking

dismissal of the suit on the various preliminary objections raised by

them.

11. So far as issue no.5, with regard to the grant of relief of permanent

injunction is concerned, wherein a restraint order was sought

against the defendant from demolition of the construction or

dispossessing them, the trial court came to a conclusion that there

was no documentary evidence on record to suggest that the plaintiff

was in possession of the suit land since long, nor were they able to

establish their right, title or interest in the land in question.

Accordingly, the suit was dismissed.

12. The plaintiff/Jaipal feeling aggrieved by the said judgment

preferred the first appeal which was decided by the appellate Court

on 9.10.2003 upholding the judgment of the trial court. The

appellate court observed that one of the documentary evidence

which was sought to be relied upon by the appellant /Jaipal in order

to prove his ownership was a record of Jamabandi of the year

1948-49 to show that the land belonged to him. But the appellate

Court observed that the affidavit which was filed by Jaipal on

30.5.2003 showed his age as 53 years and accordingly, it was

observed that he was not even born in the year 1948-49 and

consequently, reference in Jambandi record of 1948-49 to one Jai

Pal cannot be attributed to him.

13. Still feeling dissatisfied, the appellant has preferred the present

regular second appeal.

14. I have gone through the substantial questions of law which are

formulated in the appeal, and in my view, they are essentially

questions of fact. There is also a concurrent finding of fact

recorded by the Courts below that the appellant had failed to prove

the ownership or even the possessory right of the land in question.

15. One of the questions which has been raised by the appellant is as

to 'whether the appellant could be deprived of his land without

payment of compensation or whether it is not violative of his right

under Article 300A of the Constitution of India? These questions

do not arise in the instant case on account of the fact that there is a

clear cut finding that the appellant is not the owner of the said land.

16. I am of the opinion that the present regular second appeal is

without any merit and accordingly, the same is dismissed.

17. Trial court record be sent back.

V.K. SHALI, J.

FEBRUARY 07, 2013 RN