Hafiz Abdul Mannan vs Dda & Anr.
2013 Latest Caselaw 2705 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                             R.S.A. No.110 of 1993

                                        Decided on : 2nd July, 2013

HAFIZ ABDUL MANNAN                                  ...... Appellant
             Through:             Mr. Rajesh Banati & Mr. Sunil Verma,
                                  Advocates.

                         Versus

DDA & ANR.                                         ...... Respondents
                       Through:   Mr. Parvinder Chauhan, Adv. for R-2.

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

V.K. SHALI, J.

1. This is a regular second appeal under Section 100 CPC against the

order dated 6.2.1993 passed by the learned Additional District Judge in

appeal No.204 of 1984 upholding the judgment and the decree dated

17.11.1984 passed by the learned Sub Judge in Suit No.885/1972 (re-

numbered as 433/1973) by virtue of which the said suit was dismissed.

2. Briefly stated the facts of the case are that the appellant/plaintiff

filed a suit for possession in respect of property bearing Municipal

No.XI/3438 to 3453 situated at Delhi Gate, Delhi. It was alleged that a

portion of the property referred to as bearing Municipal No.XI/3440-3445

(old Nos.4485-4490) is under the unauthorized and illegal possession of

the Municipal Corporation of Delhi (MCD) from September, 1961 and

presently, the same is under the unauthorized occupation of the

defendant/respondent herein (DDA) and they are also not paying any

rent, damages or license fee. The respondent/defendant contested the suit

and took the plea that the aforesaid building/land was acquired for

implementation of Slum Clearance Scheme known as Delhi Ajmeri Gate

Scheme vide award No.943/590 dated 22.5.1950 which property vested in

Delhi Improvement Trust through Special Land Acquisition Collector. It

has been stated that the present suit is not maintainable on account of the

fact that the suit is filed for declaration without giving notice under

Section 53-B of the DDA Act, 1957. Further, the land having been

voluntarily acquired and utilized for the purpose for which it was meant,

the appellant/plaintiff was not left with any right, title or interest to claim

the property in question. Further, it was also stated that the respondents

have been in possession of the suit land for more than 12 years which has

been admitted by the appellant/plaintiff and, therefore, they have become

owner by way of adverse possession.

3. On the pleadings of the parties, the following issues were framed :-

"1. Whether the plaintiff is the owner of the disputed property as alleged by him? If so, its effect? OPP

2. Whether the suit property was transferred as an evacuee property on or before 22/5/50? If so, its effect? OPP

3. Whether there has been any estopple against the defendant as alleged by the plaintiff in para No.7 of its replication? OPP

4. Whether the defendant DDA is the owner of the suit property? OPD

5. Whether this court has no jurisdiction? OPD

6. Whether the suit is bad for want of a valid notice?

OPD

7. Relief."

4. An additional issue was also framed on 11.1.1980 which reads as

under :-

"1. Whether the defendant DDA has been in possession of the suit property for more than 12 years and has become owner of the property in question by adverse possession? OPD"

5. After the parties were permitted to adduce evidence, the suit for

possession was dismissed by the learned trial court. While dismissing the

said suit, the court also observed that the suit was barred by limitation and

further that the suit has not been properly valued for the purpose of court

fees. In this regard, it was observed by the learned Sub Judge that

originally in 1972, when the suit for possession was filed by the

appellant, he had valued the suit at rupees one lac and the said suit was

withdrawn later on in the year 1975. When the present suit was filed, the

value of the suit for the purpose of court fees and jurisdiction was shown

to be only `3,450/- which was well below than the value which was

referred to in the earlier suit.

6. The appellant, feeling aggrieved, preferred the appeal bearing

No.204/1984 which was also dismissed on 6.2.1993 by the learned

Additional District Judge upholding the reasoning given by the trial court

that the suit is barred by limitation and further it is not properly valued for

the purpose of court fees. The plea of the appellant was not accepted and

it was held that the suit land has been acquired by an award No.943/590.

7. Still not feeling satisfied, the present regular second appeal has

been filed by the appellant.

8. I have heard the learned counsel for the appellant and have gone

through the record. The contention of the learned counsel for the

appellant is that the following substantial questions of law arise from the

present appeal :-

"1. Whether the learned ADJ erred in holding that the suit is liable to be rejected since the suit has not been valued properly in the absence of any issue before learned Sub Judge and that too at an appellate stage? Can the learned ADJ give its own valuation?

2. Could the learned ADJ wrongly dismiss the suit on the ground of limitation, especially when there is no issue nor it was raised by defendant at trial court?

3. Can the learned ADJ rely on the award which even the trial court has not accepted since the defendant failed to produce the original? Moreover, defendant did not challenge the judgment of learned trial court on this point.

4. Whether the learned ADJ completely ignored the resolution dated 14.7.1964 whereby defendant agreed to return the property to the appellant. Moreover, the resolution was passed on the representation made by appellant vide application dated 14.6.1964.

5. The learned ADJ also did not consider the fact that the purpose for which the land was acquired, i.e., for building telephone exchange, was not used for that purpose and property actually handed over to illegal occupants."

9. The first question is with regard to the valuation of the suit

property. The contention of the learned counsel is that in the absence of

any issue with regard to the valuation of the suit not having been framed

by the trial court, the learned Sub Judge or even the learned Additional

District Judge could not have given his own valuation. I do not agree

with this submission made by the learned counsel that this involves any

question of law much less a substantial question of law. The submission

which has been urged by the learned counsel for the respondent is that

there is no dispute that the land was acquired in the year 1950 and the suit

for possession was originally filed by the appellant in the year 1972

where he had valued the suit for possession for a sum of rupees one lac.

Subsequent thereto, the suit was withdrawn by the appellant and he chose

to file a fresh suit in the year 1975. The appellant has valued his suit not

at rupees one lac, as was done by him originally, but he had valued his

suit at `3,450/- which was much below than the valuation which was

done in the first instance. This is despite the fact that there was a lapse of

more than three years in the filing of the two suits in which the value of

the property must have increased rather than decreased. In any case, this,

in my view does not involve any question of law much less a substantial

question of law. The valuation of a suit is essentially a question of fact

and it need not be established by permitting the parties to adduce

evidence when documents showing admission by the parties are produced

on record which show the valuation of the suit property.

10. So far as the second question with regard to the limitation and

dismissal of the suit by the learned Additional District Judge is

concerned, it has been contended by the learned counsel for the appellant

that no issue with regard to the limitation was framed by the trial court

and, therefore, the question of limitation could not have been decided

against the appellant.

11. Section 3 of the Limitation Act clearly lays down that a suit which

is instituted after the expiry of period of limitation is barred by time and

the court shall not entertain the same. According to Article 58 read with

Article 113 of the Limitation Act, a suit for possession has to be filed

within a period of 12 years from the date when the cause of action has

accrued. Admittedly, the appellant's case itself is that the land in

question was acquired in the year 1950. If that be so, then the suit for

possession could have been filed by the appellant only upto 1962 and not

after that. The law of limitation is a question which goes to the root of

the matter with regard to entertainment of the suit itself. It is not

necessary that while considering the limitation, an issue needs to be

necessarily framed. The suit admittedly has been filed by the appellant

after expiry of more than 22 years from the date of entitlement of filing of

the suit and is, therefore, barred by limitation on the face of it. I do not

feel that this involves any question of law much less any substantial

question of law as the question of limitation, in the instant case, is a

question of fact depending on the basis of the averments made in the

plaint. The averments made in the plaint are that the land has been

acquired in the year 1950 while as the suit for possession has been filed in

1975. If that be so, the suit for possession which is required to be filed

within 12 years, has been filed after expiry of 25 years and thus, the suit,

on the face of it is hopelessly barred by time.

12. So far as the third question with regard to the reliance on award is

concerned, the contention of the learned counsel for the appellant is that

the original award has not been proved and in the absence of original

award, the land could not be deemed to have been acquired and the suit of

the appellant could not have been dismissed. The acquisition of the land

in question vide award No.943/590 dated 22.5.1950 is not in dispute. The

only contention of the learned counsel for the appellant is that the award

is sought to be proved by exhibit DW 2/3 which was not admissible in

evidence. The learned counsel for the respondents has contended that de

hors the proof of award vide exhibit DW 2/3, the respondents are still

relying upon documents exhibit DW 2/1 and DW 3/1 by virtue of which

the land had been acquired. In addition to this, there is a letter dated

14.6.1965 exhibit DW 2/1 written by the appellant to the Commissioner

of MCD wherein it shows that the appellant himself had admitted to the

respondents that the land in question, though belonged to them, but stands

acquired.

13. A document may be proved by different modes. The award is a

public document and a certified copy of the public document could be

proved. There is other principle also with regard to proof which is

enshrined under Section 58 of the Evidence Act which clearly lays down

that a fact which is admitted, need not be proved. In the instant case, the

appellate court has taken note of the fact that the appellant himself had

made an application exhibit DW 2/1 to the DDA wherein he had admitted

that the land in question has been acquired by the Delhi Improvement

Trust vide award No.943/590 dated 22.5.1950. That being the position,

the absence of proof of the said award, in my view, is not vital to the case

of the respondents. In any case, this does not raise any question of law

much less a substantial question of law and is essentially a question of

fact which is proved by the evidence.

14. In view of the above, I feel since there is a concurrent finding on

all these issues returned by the two courts below and the appellant has not

been able to make out prima facie any substantial question of law

involved in the matter, the appeal is without any merit and the same is

dismissed.

V.K. SHALI, J.

JULY 02, 2013 'AA'