Delhi High Court
Pankaj Bajaj vs Meenakshi Sharma & Ors. on 1 July, 2013
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 1st July, 2013
+ CS(OS) 1114/2009, I.A. No.7817/2009 (u/O 39 R-1 & 2 CPC),
I.A. No.7818/2009 (u/S 80(2) CPC), I.A. No.13653/2009 (of
defendant no.1 u/O 7 R-11 CPC), I.A. No.15695/2012 (of
defendant no.3 u/O 39 R-4 CPC), I.A. No.20017/2012 (u/O 1 R-10
CPC) & I.A. No.22188/2012 (of defendant no.1 u/O 39 R-4 CPC)
PANKAJ BAJAJ ..... Plaintiff
Through: Mr. Rakesh Tiku, Sr. Adv. with Mr.
Sunil Mittal, Adv.
Versus
MEENAKSHI SHARMA & ORS. ..... Defendants
Through: Mr. N.K. Kaul, Sr. Adv. with Mr.
Chetan Sharma, Mr. Subodh Kr.
Pathak, Mr. Mohit Agarwal, Mr.
Anif Sikandar Mir & Mr. A.
Chaterji, Advs. for D-1.
Mr. Subrat Deb, Adv. for D-3 DDA
along with Mr. Ravinder Kumar,
Asstt. Director (Cooperative
Societies), DDA
Ms. Mridul Chawala, Adv. for D-5.
Mr. Yeeshu Jain and Ms. Jyoti
Tyagi, Advocates for D-6 L&DO.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
1. The plaintiff has instituted the present suit; (i) for perpetual injunction
restraining the defendant no.1 Smt. Meenakshi Sharma and defendant no.3
CS(OS) 1114/2009 Page 1 of 18
Delhi Development Authority (DDA) from forcibly dispossessing the
plaintiff from property No.A-20, New Friends Colony, New Delhi; (ii) for
declaration that the restoration dated 02.05.2009 by the defendant no.2
Lieutenant Governor, Delhi of allotment of plot of land bearing No.A-20,
New Friends Colony, New Delhi in favour of defendant no.1 is illegal and
unlawful; and (iii) for declaration that the Lease Deed executed by the
defendant no.3 DDA in favour of defendant no.1 with respect to the plot
No.A-20, New Friends Colony, New Delhi is illegal, unlawful and
inoperative.
2. It is the case of the plaintiff:
(i) that he is the owner in possession of property No.A-20, New
Friends Colony, New Delhi ad-measuring 435 sq. yds. and
has constructed one drawing-cum-dinning room, two bed
rooms with attached bathroom and one kitchen thereon;
(ii) that the plaintiff acquired the plot of land underneath the
property vide registered Sale Deed dated 26.03.2007
executed in his favour by the defendant no.5 New Friends
Cooperative Group House Building Society Ltd. acting
through its Secretary;
(iii) that the land underneath plot No.A-20, New Friends Colony,
New Delhi was comprised in Khasra No.60/3 measuring 1
Bigha 17 Biswas of the Revenue Estate of Village
Khizrabad, Delhi which was jointly owned by Sh.
CS(OS) 1114/2009 Page 2 of 18
Bishamber Dayal, Sh. Jaswant Singh, Sh. Jagdish Singh, Sh.
Narain Singh, Sh. Satpal Singh and Sh. Hatam Singh;
(iv) that the land comprised in Khasra No.60/3 was notified
under Sections 4 & 6 of the Land Acquisition Act, 1894 on
13.11.1959 and 09.01.1969 and notice under Sections 9 and
10 of the Land Acquisition Act was served on the land
owners on 20.06.1971;
(v). that the acquisition pursuant to the Notifications aforesaid
was for the benefit of the defendant no.5 Society and the
acquired land was to be handed over by the Delhi
Administration post acquisition to the defendant no.5
Society;
(vi). that besides land in Khasra No.60/3, other adjoining lands
were also acquired vide the aforesaid Notifications and the
Delhi Administration vide Agreements dated 13.02.1963 and
15.12.1964 had given the said land to the defendant no.5
Society for developing the same;
(vii) that the aforesaid land owners of Khasra No.60/3 filed
W.P.(C) No.764/1971 impugning the acquisition and vide
interim order dated 12.07.1971 in the said writ petition,
dispossession of the said land owners was stayed and the
stay order was made absolute on 09.08.1971;
CS(OS) 1114/2009 Page 3 of 18
(viii) that on the said land ad-measuring 1 Bigha 17 Biswas
comprised in Khasra No.60/3, four plots i.e. plots No.A-13,
A-14, A-19 and A-20 of the colony of New Friends Colony
were carved out but owing to the interim stay aforesaid, the
land remained in possession of the land owners aforesaid;
(ix) that of the four plots aforesaid carved out on the said land,
the allottees of plots No.A-13, A-14 and A-19 became
parties to W.P.(C) No.764/1971 supra and settled their
disputes with the land owners and the writ petition qua part
of Khasra No.60/3 on which plots A-13, A-14 and A-19,
New Friends Colony, New Delhi were carved out stood
withdrawn;
(x) that the dispute qua plot No.A-20, New Friends Colony,
New Delhi was also settled between the land owners and the
defendant no.5 Society;
(xi) that accordingly the challenge in W.P.(C) No.764/1971 to
acquisition of the land was withdrawn on 19.04.2005 and
possession of plot No.A-20, New Friends Colony, New
Delhi was delivered to the defendant no.5 Society;
(xii) that after withdrawal of W.P.(C) No.764/1971 the land
underneath the plot No.A-20, New Friends Colony, New
Delhi was mutated by the Revenue Authorities in the name
of the defendant no.5 Society and the defendant no.5 Society
CS(OS) 1114/2009 Page 4 of 18
thus became absolute owner in possession of the suit land
and vide Sale Deed aforesaid sold the same to the plaintiff;
(xiii) that plot No.A-20, New Friends Colony, New Delhi was
allotted to Sh. R.D. Sharma father of defendant no.1 Smt.
Meenakshi Sharma and a Perpetual Sub-Lease dated
27.08.1982 with respect thereto was also executed in his
favour - however since on that date the land underneath plot
No.A-20, New Friends Colony, New Delhi did not vest with
the government and possession of the said land had also not
been delivered to the Society and was under the interim
order in W.P.(C) No.764/1971 with the land owners, thus the
allotment in favour of Sh. R.D. Sharma was illegal and was
subsequently cancelled / withdrawn by the DDA on
09.02.2001;
(xiv) that the stay on acquisition with respect to land under plot
No.A-20, New Friends Colony, New Delhi was finally
removed on 19.04.2005 on withdrawal as aforesaid of the
writ petition and till then DDA had no right with respect to
the said land; and
(xv) that the DDA however on the basis of representation dated
10th July, 2008 of the defendant no.1 has wrongly vide order
dated 02.05.2009 restored the allotment in favour of the
defendant no.1.
CS(OS) 1114/2009 Page 5 of 18
The plaintiff contends that since the plot No.A-20, New Friends
Colony, New Delhi prior to 02.05.2009 stood sold vide Sale Deed dated
26.03.2007 to the plaintiff, there could have been no restoration of
allotment in favour of the defendant no.1.
3. The defendant no.1 and the defendant no.3 DDA have contested
the suit. The defendant no.5 Society has supported the plaintiff. Need is
however not felt to elaborate the defence of the defendant no.1 and the
defendant no.3 DDA since the contention of the senior counsel for the
defendant no.1 is that the plaintiff, on the basis of undisputed documents
on record, has no right to the plot and thus no right to maintain this suit.
Though the senior counsel for the defendant no.1 has also sought to
justify the title of the defendant no.1 to the said land and the senior
counsel for the plaintiff has been at great pains to challenge the said title
but need is not felt to pronounce on the title set up by the defendant no.1
inasmuch as this suit is concerned with adjudication of the rights of the
plaintiff qua the said land and on the basis of which rights, the plaintiff
has sought the reliefs aforesaid. Though the plaintiff has also sought the
reliefs of declaration qua the Lease Deed dated 27.08.1982 in favour of
the father of the defendant no.1 and the restoration of allotment made in
favour of the defendant no.1 but need is not felt to pronounce on the said
aspects also inasmuch as if the plaintiff is not found to be having rights
qua the land pleading which the said reliefs are claimed, the plaintiff
would have no locus to claim the declarations injurious to the defendant
no.1 qua the said land and would have no right to challenge the title if any
set up by the defendant no.1 to the said land.
CS(OS) 1114/2009 Page 6 of 18
4. The senior counsel for the plaintiff faced with the aforesaid
situation also argued that even if this Court finds the plaintiff to be not
having the ownership, the plaintiff being in possession of the land has a
right to injunct the defendants no.1 and 3 from dispossessing him from
the said land. No merit is however found in the said contention. The
plaintiff has approached this Court setting up a title to the land as owner
thereof and not on the basis of possession and the plaintiff cannot succeed
on a case not pleaded by him. Moreover, the possession asserted by the
plaintiff is under the Sale Deed dated 26.03.2007 and the present suit was
filed soon thereafter in the in the year 2009 and the possession of the
plaintiff since the institution of the suit is under protection of the interim
order of this Court. If the plaintiff is not found to be the owner of the
land, the question of protecting the possession of the plaintiff does not
arise. The plaintiff has not set up a case of adverse possession. The
Supreme Court even otherwise in Karnataka Board of Wakf Vs. Govt. of
India (2004) 10 SCC 779 and in L.N. Aswathama Vs. P. Prakash
(2009) 13 SCC 229 has held that a plea of adverse possession is
inconsistent to the plea of possession on the basis of lawful title. The
plaintiff can thus either succeed on the basis of his lawful title and if fails
in the same, cannot protect his possession of the land.
5. Reference in this regard may also be made to Anathula Sudhakar
Vs. P. Buchi Reddy (Dead) by LRs (2008) 4 SCC 594 where it has been
held that the possession of the open land goes with title. Though the
plaintiff has pleaded having raised the construction of approximately
1100 sq. ft. on the said land but the said construction is non existent in the
CS(OS) 1114/2009 Page 7 of 18
eyes of law having been carried out without obtaining any sanctions and
permissions and would have been demolished but for the interim order in
the present suit. The property thus has to be treated as open land only and
possession whereof is to be deemed to be of the person having title
thereto. (See also Naval Ram, Laxmi Das Devmurari Vs. Vijayaben
Jayvantbhai Chauda AIR 1998 Guj 17)
6. I am conscious that the aforesaid may be out of tune with certain
judgments of the past where the Courts have gone at great length to
protect possession. However as observed in S.P. Chengalvaraya Naidu
Vs. Jagannath (1994) 1 SCC 1, the Courts today are inundated with land
grabbers. Similarly in Dalip Singh Vs. State of UP (2010) 2 SCC 114 it
was held that to meet the challenge posed by the new creed of litigants
who shamelessly resort to falsehood and unethical means, the courts,
from time to time have to evolve new rules. Unless the Courts keep pace
with the times and with the situations which they are called upon to meet
today, the Courts would be failing in their duty. Bhagwati J. in Bandhua
Mukti Morcha Vs. UOI (1984) 3 SCC 161 echoed the same sentiment by
observing that in the centre of a social order changing with dynamic pace
the Court needs to balance the authority of the past with the urges of the
future. Judge Learned Hand‟s observations in 52 HLR 361 [1939] that the
judge must discover some composition with the dominant needs of his
times were quoted with approval. I have recently in Chemical Systems
Technologies (India) Pvt. Ltd. Vs. Simbhaoli Sugar Mills Ltd.
MANU/DE/0677/2013 dealt with this aspect in detail and thus need is not
felt to elaborate further on the same.
CS(OS) 1114/2009 Page 8 of 18
7. That brings me to locus of the plaintiff to maintain this suit and
which is dependent on the title set up by the plaintiff to the said plot and
which is challenged by the defendants no.1&3.
8. It is the contention of the defendants no.1&3 that the defendant
no.5 Society was not competent to execute the Sale Deed dated 26 th
March, 2007 in favour of plaintiff and the plaintiff under the said Sale
Deed has not acquired any rights in the property.
9. Attention in this regard is invited to the Agreement dated
13.02.1963 between the President of India and the defendant no.5 Society
which inter alia records:
(i) that the defendant no.5 Society had applied to the President
to grant to it land belonging to the President, ad-measuring
828 Bighas and 15 Biswas situated at village Kilokri, Joga
Bai and Khizra Bad for the purpose of development and after
development thereof has been completed, the right to have
the lease in respect of residential plots carved out of the said
land for sub-leasing to its members;
(ii) that the President by the said Agreement granted licence to
the defendant no.5 Society to enter upon the said land for
preparing a layout plan dividing the said land into streets,
open space, plots etc. and after sanction of the layout plan by
the appropriate Municipal or other Authorities to enter upon
CS(OS) 1114/2009 Page 9 of 18
the said land to carryout and complete development thereof
in accordance with the layout plan;
(iii) that the defendant no.5 Society under the said Agreement
was not entitled to deviate in any manner from the layout
plan;
(iv) that upon completion of development, the President of India
agreed to grant to the defendant no.5 Society lease of such of
the residential plots in perpetuity and the President reserved
to himself the right to dispose of the remaining parts of the
land;
(v) that the defendant no.5 Society was not entitled under any
circumstances whatsoever directly or indirectly to assign,
transfer or otherwise part with its rights under the
Agreement;
(vi) that after the grant of lease, the defendant no.5 Society was
to sub-lease the residential plots to its members; and
(vii) that if the Society was to take back possession of any of the
residential plots from its members, the Society shall
forthwith surrender such residential plot to the President and
the right to dispose of the said plot was of the President.
10. Attention is next invited to the order dated 19.04.2005 disposing of
W.P.(C) No.764/1971 and which records as under:
CS(OS) 1114/2009 Page 10 of 18
(i) that a compromise application had been filed by the land
owners and the private respondents and as per which
compromise, the land owners had agreed not to raise any
challenge to the legality or validity of the Notifications under
Section 4 and 6 of the Land Acquisition Act;
(ii) that "it is commonly conceded that possession of the land
has already been taken and handed over to the New Friends
Cooperative Housing Society which has already developed
the land in question". The land owners withdrew the writ
petition; and
(iii) that it was "made clear that the compromise is being taken
on record with a clear understanding between the parties and
in fact with a specific statement made at the bar by the
learned counsel appearing for the parties that there is no
challenge to the acquisition proceedings of the land in
question".
11. The senior counsel for the defendant no.1 has contended that
though the writ petition aforesaid challenging the acquisition was filed by
the land owners of Khasra No.60/3 and vide interim order in which writ
petition the dispossession of the said land owners was restrained but on
19.04.2005 the land owners also confirmed that possession of the land
had already been taken from them and had been handed over further to
the defendant no.5 Society.
12. That thus the land underneath plot No.A-20, New Friends Colony,
New Delhi was part of the acquired land possession whereof was taken
by the Land Acquisition Collector and possession of which was handed
over to the defendant no.5 Society being beneficiary of the said
acquisition proceedings and the layout plan of the colony developed by
the Society on the said land was sanctioned over the entire land handed
over to the Society and plot No.A-20, New Friends Colony, New Delhi
was thus part of the acquired land and possession of which was taken
over.
13. Reference in this regard is made to the Sale Deed dated 26.03.2007
on the basis of which the plaintiff claims title which also records that the
Society was allotted land ad-measuring 828 Bighas 15 Biswas including
land falling in Khasra No.60/3 under the Agreement dated 13.02.1963
and the possession of the entire said land was handed over to the Society
in the year 1963 itself and the Society had developed the entire land
including the land falling in Khasra No.60/3.
14. The senior counsel for the defendant no.1 has contended that once
the land in Khasra No.60/3 and of which plot No.A-20, New Friends
Colony, New Delhi is a part, is part of the land subject matter of
Agreement dated 13.02.1963, then the Society could not have executed
the Sale Deed of the said land in favour of the plaintiff and could have
dealt with the said land only in accordance with the terms and conditions
of the Agreement dated 13.02.1963.
15. On the contrary, the senior counsel for the plaintiff has contended
that owing to the interim order in W.P.(C) No.764/1971 the possession of
land in Khasra No.60/3 remained to be taken and thus the said land
remained outside the acquisition and the Society acquired rights to the
said land under the order dated 19.04.2005 supra and was competent to
execute the Sale Deed with respect thereto in favour of the plaintiff.
16. Reliance in this regard is placed on the letter dated 19.11.2012 of
the DDA to the plaintiff in response to a RTI query of the plaintiff to the
effect that possession of Khasra No.60/3 acquired vide Award Nos.49/72-
73 had not been handed over to the DDA by LAC/L&B Department filed
along with the brief note of arguments on behalf of the plaintiff.
17. The compromise application filed in the writ petition supra, leading
to the order dated 19.04.2005 discloses that the writ petition qua the land
underneath plots No.A-13, A-14 and A-19, New Friends Colony, New
Delhi stood withdrawn on 16.10.1987 and in 1994 upon settlement being
arrived at between the land owners and the allottees of the said plots and
was thereafter pending only qua land underneath plot No.A-20, New
Friends Colony, New Delhi. The said application inter alia states as
under:
"The petitioners now admit that the said plot of land belongs to the
respondent no.5 to whom it has been given after acquisition under
agreement for its members and the respondent No.5 also agreed to
compensate the petitioners in this regard by making payment of
Rs.48,00,000/- (Rupees Forty Eight Lacs only) without having any
claim on the amount of compensation."
The aforesaid application thus contains an acknowledgment that
the title of the defendant no.5 Society qua plot No.A-20, New Friends
Colony, New Delhi was under the Agreement dated 13.02.1963 and not
under the order dated 19th April, 2005 as contended by the plaintiff.
18. It is even otherwise inconceivable that the defendant no.5 Society
could have different rights qua one of the plots in the colony than qua the
other plots and could sell the said plot itself without involving the DDA.
19. Once it is found that plot No.A-20 vested in the defendant no.5
Society under the agreements dated 13th February, 1963 and 15th
December, 1964 entered into by the said Society with the President of
India, the Society could not have executed the Sale Deed thereof in
favour of plaintiff and only a perpetual sublease thereof could have been
executed jointly by the defendant no.5 Society and the defendant no.3
DDA. The plaintiff has been unable to show as to how the Society was
competent to alone execute the Sale Deed of the said plot in favour of
plaintiff.
20. The senior counsel for the plaintiff has also argued that since the
possession of the said land underneath plot No.A-20, New Friends
Colony, New Delhi has not been taken in pursuance to the acquisition
Notifications aforesaid, the plaintiff has applied for de-notification
thereof under Section 48 of the Land Acquisition Act.
21. There is no merit in the aforesaid contention. It stands abundantly
admitted by the predecessor-in-interest of the plaintiff i.e. the defendant
no.5 Society and by which admissions the plaintiff is bound that the
possession of the said land was taken in pursuance to the acquisition
proceedings and it is now not open to the plaintiff to contend to the
contrary. Even in the Sale Deed executed by the defendant no.5 Society
in favour of plaintiff it is recorded that the entire land ad-measuring 828
bighas 15 biswas including land falling in Khasra No.60/3 measuring 1
bigha 17 biswas was allotted to the Society by DDA for allotment to its
members under the Agreement dated 13th February, 1963 with the
President of India and the possession of the entire land was handed over
to the Society in the year 1963.
22. The senior counsel for the plaintiff has argued that the matter needs
to be put to trial to determine whether the Central Government had taken
possession of the land pursuant to the acquisition Notifications and placed
the same at the disposal of the DDA for onward delivery to the defendant
no.5 Society.
23. I fail to see as to how the plaintiff can seek a trial on the said aspect
when the predecessor in title of the plaintiff being the defendant no.5
Society has unequivocally in the order dated 19.04.2005 as well as the
Sale Deed supra admitted that possession of the said land was taken in
pursuance to the acquisition and delivered to the defendant no.5 Society.
24. The senior counsel for the plaintiff has also argued that acquisition
becomes complete only upon possession being taken under Section 16 of
the Land Acquisition Act. It is stated that Central Government is not a
party to the present suit and it has to be determined whether possession
was taken or not.
25. Reference in this regard may be made to the judgment of the
Division Bench of this Court in Nagin Chand Godha Vs. UOI 2003 (70)
DRJ 721 (DB) and Rajbir Solanki, Dr. Vs. UOI 2008 (101) DRJ 577
(DB) laying down that the Land Acquisition Collector is not required to
prove the actual taking over of the possession and upon taking over of the
possession on record on acquisition award being made; the possession is
deemed to have been taken over.
26. The senior counsel for the plaintiff has relied on The Special Land
Acquisition Officer, Bombay Vs. Godrej & Boyce AIR 1987 SC 2421 to
this effect but which in the facts of this case is not applicable.
27. The senior counsel for the plaintiff has next argued that the
plaintiff is in possession and there is no challenge to his possession and to
the Sale Deed under which he claims title and in the absence thereof his
title and possession cannot be declared to be bad.
28. I am unable to agree. The plaintiff having approached this Court
claiming title and possession to the land on the basis of the Sale Deed
dated 26th March, 2007 necessarily has to face an adjudication of his
rights under the said Sale Deed and cannot claim that such finding cannot
be returned.
29. I may mention that it is not in dispute that plot no.A-20, New
Friends Colony, New Delhi is part of the sanctioned layout plan of the
New Friends Colony. The said layout plan has been sanctioned only qua
the land possession whereof was delivered to the defendant no.5 Society
pursuant to acquisition under the Agreement dated 13.02.1963. If it were
to be held that the title of the Society to plot No.A-20, New Friends
Colony, New Delhi is otherwise than under the said Agreement, then the
said land would fall outside the layout plan of the colony and can in any
case not be a part of the colony and the title thereof would be of the land
owners and not of the Society.
30. The senior counsel for the plaintiff in the face of the aforesaid has
admitted that the Society could not be said to have absolute title to the
land and the title of the Society is imperfect.
31. I am unable to agree.
32. It is not in dispute that vide Perpetual Sub-Lease dated 27.08.1982,
the lease hold rights to the said land were granted to the predecessor of
the defendant no.1. The Society thus ceased to have any leasehold rights
also to the said land. Even if it were to be believed that the said Sub-
Lease was cancelled, under the Agreement dated 13.02.1963 the land
would go back to the President i.e. the DDA and could not have been
dealt with by the Society itself.
33. The senior counsel for the plaintiff has also sought to set up title of
the Society to the said land on the basis of mutation entries in the revenue
record. The said mutation entries of the year 2005 are of no avail since
by that time the village in which the said land was situated stood
urbanized and as per the dicta of this Court in Smt. Indu Khorana Vs.
Gram Sabha MANU/DE/0969/2010 the provisions of the Delhi Land
Reforms Act would cease to apply thereto and the entries in the revenue
record are of no avail.
34. Thus whichsoever way we look at, the Sale Deed executed by the
defendant no.5 Society of the land in favour of the plaintiff cannot be
held to be vesting any title in the plaintiff.
35. No purpose thus would be served in keeping this suit pending and
putting it to trial, as has been suggested by the plaintiff. If this Court on
the basis of uncontroverted documents is unable to find the plaintiff
having any rights to the land with respect to which the suit is filed, the
plaintiff cannot be said to be having any locus or cause of action to
challenge the rights and title claimed by the defendant no.1 to the said
land and, I fail to see any reason for still putting the suit to trial.
36. The suit thus fails and is dismissed; however, in the circumstances
no costs.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J
JULY 1, 2013
„gsr‟..
