Kewal Park Welfare Association & ... vs Shri Chander
2013 Latest Caselaw 5143 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+                   R.S.A. No.121 of 2008 & C.M. No.7737/2008
+                   R.S.A. No.123 of 2008 & C.M. No.7746/2008
+                   R.S.A. No.124 of 2008 & C.M. No.7750/2008
+                   R.S.A. No.125 of 2008 & C.M. No.7752/2008

                                         Decided on : 11th November, 2013

KEWAL PARK WELFARE ASSOCIATION & ORS.
                                      ...... Appellants
            Through: Mr. J.C. Mahindroo, Advocate.

                            Versus

SHRI CHANDER                                          ...... Respondents
                        Through:      Mr. Naveen Yadav, Advocate.

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

V.K. SHALI, J.

1. These are four regular second appeals filed by the appellants

against the common order dated 1.3.2008 passed by the learned

Additional District Judge dismissing the appeals of the appellants and

upholding the judgment and the decree dated 31.5.2006 and rectified vide

order dated 4.12.2006 passed by the learned Civil Judge.

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

filed four different suits for declaration and permanent injunction against

the defendants bearing Nos.634/1993, 58/1995, 114/2000 and 306/2000

in respect of land measuring 500 square yards in Kewal Park, Azad Pur,

Delhi-110033. All these suits were consolidated by virtue of an order

dated 15.4.2004 read with order dated 27.10.2004. The case which was

set up by the plaintiff/respondent was that the suit property measuring 10

biswas, that is, 500 square yards belonged to him and it was situated in

khasra No.21 at Kewal Park, Azad Pur, Delhi. The aforesaid parcel of

land was mutated in the name of his father, Ram Prasad, since 1964 till

1974. It was also pleaded by the respondent/plaintiff that

appellant/defendant Nos.2 & 3 in collusion with appellant/defendant No.1

obtained a decree by compromising the suit which was filed by them

amongst each other that the suit land was falling in khasra No.23 and not

in khasra No.21. This decree was passed by the Civil Judge on

31.5.2006. It was also the case of the plaintiff/respondent that the

compromise decree which was passed on 7.4.1993 in Suit No.336/1981

titled Pratap vs. Kewal. Park Association & Ors. was nullity and was not

binding on the defendants who are the present appellants. The present

appellants filed their written statements and contested the suit. It was

their case that out of 500 square yards of land, a portion of land

measuring 300 square yards was actually falling in khasra No.21 and not

in khasra No.23 and the said land was allotted to the appellants for the

purpose of construction of a community centre. The respondent was

trying to usurp that land and, therefore, the suit deserves to be dismissed.

3. On the pleadings of the parties, the learned trial court framed

different issues in all the four suits but one core issue which was involved

and on the basis of which the entire controversy was dependent was

'whether the land in question falls in khasra No.21 or 32?' Both, the

respondent as well as the appellants adduced their respective evidence.

The respondent herein proved khasra girdawari of the year 1973-74

which clearly showed that the suit land was falling in khasra No.21 in the

revenue estate of village Azad Pur. The trial court had also got the

demarcation of the suit land conducted twice, firstly, on 4.9.1987 by one

Sh. Ganga Prasad, Naib Tehsildar/Local Commissioner as per the order

of the SDM/Revenue Assistant dated 13.8.1987, Kingsway Camp, Delhi.

The said demarcation report was accepted as exhibit PW 1/1 in Suit

No.114/2000 and exhibit PW 7/1 in Suit No.306/2000. This demarcation

report was proved by the person who had actually conducted the

demarcation. The second demarcation was conducted on 26.12.1989 by

R.D.S. Chauhan, Tehsildar/Local Commissioner as per orders of Sh. A.K.

Chaturvedi, the then Sub Judge in case titled Pratap Singh vs. Chander.

This demarcation report was also exhibited as PW 2/1 in Suit

No.114/2000, exhibit PW 5/4 in Suit No.306/2000 and exhibit PW 1/28

in Suit No.634/1993. It may also be pertinent here to mentioned that the

aforesaid demarcation was done in the presence of Pratap Singh from

whom the present appellants are purported to have derived their title.

Both these demarcation reports show that the land in question falls in

khasra No.21 and not in khasra No.23 as claimed by Pratap Singh or by

the present appellants.

4. The respondent also proved that a compromise decree dated

7.4.1993 between legal heirs of Pratap Singh and Kewal Park Association

is in respect of khasra No.23 and not khasra No.21 and thus, it was urged

since the land in question was not falling in khasra No.23 but was

actually falling in khasra No.21, therefore, the same was nullity and not

binding upon the answering respondent. Suit No.336/1981 which was

filed by Pratap Singh against Kewal Park Association and was

participated by his legal representative was also proved as exhibit PW

1/16 in Suit No.58/1995 and exhibit PW 10/14 in Suit No.306/2000.

5. So far as the present appellants are concerned, they failed to show

any document of title in respect of the suit property, that is, khasra No.21,

Kewal Park, Azar Pur, Delhi-33. The resolution which was purportedly

filed by them bearing No.580, exhibit DW 1/1 was also not proved. The

lay out plan of the town planner exhibit DW 2/1 also did not mention the

name of the appellants society. On the basis of the respective evidence,

the trial court took a view that the respondent was unable to prove his

case while as the appellants were able to show by preponderance of

probabilities that they were entitled to declaration by being declared

owner in respect of suit land which was situated in khasra No.21

measuring 500 square yards of land. Accordingly, the issue was decided

in affirmative in favour of the respondent.

6. Feeling aggrieved, the appellants preferred four difference appeals

before the appellate court being R.C.A. Nos.73/2006, 74/2006, 77/2006

and 83/2006. All these appeals were heard together and dismissed vide a

common and detailed order dated 1.3.2008 by the learned Additional

District Judge. Still not feeling satisfied, the appellants have preferred

the present regular second appeals.

7. I have heard Mr. Mahindroo, the learned counsel for the appellants.

During the course of submission, the main contention urged by the

learned counsel for the appellants is with regard to the identity of the land

in question as to whether it falls in khasra No.21 or 23. The contention of

the learned counsel for the appellants is that the entire dispute is with

regard to the placement of the land allotted to the appellant No.1 as to

whether it falls in khasra No.23 or 21 and their case is that it falls in

khasra No.23. If that be so, the concurrent finding returned by the court

below that it falls in khasra No.21 is to be set aside as it is not borne out

from the record. On the basis of this submission, the learned counsel for

the appellants had contended that the court, even at the stage of second

appeal, could appoint a revenue assistant as a Local Commissioner for the

purpose of conducting a demarcation afresh and finding out where the

land in question falls. In this regard, the learned counsel for the

appellants has relied upon the judgment of the Apex Court in case titled

Shreepat vs. Rajendra Prasad & Ors.; JT 2000 (7) SC 379.

8. I have considered the submissions made by the learned counsel for

the appellants and have also gone through the said judgment. There is no

dispute about the fact that in Shreepat's case (supra), the Hon'ble

Supreme Court had directed the demarcation to be conducted even at the

stage of second appeal but the facts of that case were totally different.

The question in that case was with regard to the land which was in

occupation of the appellant and it was stated that it does not fall in khasra

No.257/3. There was no demarcation report which was proved before the

courts below and that is the reason why the Hon'ble Supreme Court

directed demarcation of the land in question in the said case.

9. In the present case, there are two demarcation reports which have

been duly proved before the trial court and in one of the demarcation

report, one Pratap Singh, who is admittedly the predecessor in interest of

the appellant Nos.2 and 3 was present, wherein it has been proved that the

land in question falls in khasra No.21. Therefore, once the demarcation

report has already been carried out not once but twice and both these

reports have been duly proved before the court through the concerned

officials, a fresh demarcation of the suit land is not at all warranted. As a

matter of fact, such an exercise would only add to the confusion with

regard to the placement of the land in question. Once the demarcation

report is proved before the court below, the learned counsel for the

appellants had to show that the witness, who has proved the demarcation

report has given such a testimony or has conducted the demarcation

without reference to the fixed points in such a manner that the report

furnished by him cannot be treated as credible and authentic.

Incidentally, both the witnesses who have proved the demarcation report

have been cross-examined by the appellants and nothing has been brought

about in their testimony which can discredit the testimony of either of

them.

10. In the light of these facts, it is totally inappropriate to accept the

contention of the learned counsel for the appellants for fresh demarcation

and create confusion in the matter. Moreover, by a concurrent finding,

the trial court has upheld the said demarcation. In any case, demarcation

of a suit property as to whether it falls in khasra A or khasra B, is

essentially a question of fact and not a question of law and it is admittedly

not the case of the appellants that the finding which has been returned by

the two courts below with regard to the falling of the land in question in

khasra No.21 is not supported by the demarcation reports, howsoever

insufficient they may be, is not borne out from the record.

11. I, therefore, feel that this case does not raise any question of law

much less any substantial question of law. No other question of law is

arising from the appeal although a vain attempt has been made by the

appellants to raise questions with regard to appreciation of evidence.

Accordingly, I feel all these four appeals are without any merit as they do

not involve any substantial question of law and are, therefore, dismissed.

V.K. SHALI, J.

NOVEMBER 11, 2013 'AA'