S. Amrik Singh vs Delhi Development Authority
2013 Latest Caselaw 5178 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 12th November, 2013

+                            RFA No.179/2009
       S. AMRIK SINGH                                             ..... Appellant
                          Through:      Mr. Girdhar Govind & Mr. Noor Alam,
                                        Advs.
                                     Versus
       DELHI DEVELOPMENT AUTHORITY                 ..... Respondent
                    Through: Mr. Rajiv Bansal, Advocate.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and decree dated 21st March, 2009

of the Court of the Addl. District Judge - 22 (Central) Delhi of dismissal of

Suit No.290/04/01 filed by the appellant, for declaration that he is entitled to

the benefit of the policy of the respondent/defendant of regularization of

plots/flats in occupation of the persons since prior to the year 1977 , and for

permanent injunction restraining the respondent/defendant from forcibly

dispossessing the appellant/plaintiff from property No.R-536, New Rajinder

Nagar, New Delhi.

2. Trial Court record was requisitioned and notice of the appeal issued.

Though the appellant/plaintiff along with the appeal had not filed any

application for interim relief but after notice of the appeal had been issued,

filed an application for stay of operation of the impugned judgment and

decree and to restrain the respondent/defendant from dispossessing the

appellant/plaintiff from property No. R-536, New Rajinder Nagar, New

Delhi during the pendency of the appeal. Notice of the said application was

also issued, though no ad interim relief granted. The appeal was on 20th July,

2010 admitted for hearing. The appellant/plaintiff filed another application

for interim relief pleading that he had learnt that this Court in W.P.(C)

No.5885/2012 had directed the respondent/defendant to hand over

possession of the plot of land bearing No.R-536, New Rajinder Nagar, New

Delhi to one Shri Surjit Singh and contending that unless DDA was

restrained from taking possession from the appellant, the appeal will become

infructuous. The said application came up before this Court first on 21st

October, 2013 when the counsel for the appellant/plaintiff was asked to

address on the appeal itself. However the counsel stated that he was not

ready to address arguments and on his request, the matter was adjourned to

today. The counsel for the appellant/plaintiff and the counsel for the

respondent/defendant have been heard.

3. The appellant/plaintiff instituted the suit from which this appeal

arises, in or about January/May, 2001, pleading:-

(a). that he had been in continuous and lawful possession of

property No. R-536, New Rajinder Nagar, New Delhi

comprising of two rooms, one kitchen, one bathroom, one

latrine and courtyard since the year 1962 and had been using

the same for residential purposes;

(b). that the said property was provided with electricity, water and

telephone connections and was assessed to Property Tax;

(c). that the properties in the neighbourhood had also been allotted

in favour of their respective occupants and the said properties

had been regularized in their favour;

(d). that the appellant/plaintiff was also entitled to allotment of the

said property and to regularization thereof in his name in

accordance with the policy of the respondent/defendant;

(e). that instead of allotting and regularizing the said property in

favour of the appellant/plaintiff, the respondent/defendant had

sent a notice under Section 7(3) of the Public Premises

(Eviction of Unauthorized Occupants) Act, 1971 (PP Act)

calling upon the appellant/plaintiff to pay damages for

occupying the same from 1st April, 1962 till 30th March, 1983;

(f). that the appellant/plaintiff without prejudice to his rights and

contentions had paid a total sum of Rs.15,000/- in installments

towards the said damages;

(g). that the appellant/plaintiff had been approaching the

respondent/defendant for regularization of the said property in

his name, as had been done with respect to the neighbouring

properties;

(h). that however since the respondent/defendant was threatening to

dispossess the appellant/plaintiff, the appellant/plaintiff

instituted a suit for permanent injunction to restrain the

respondent/defendant from doing so and in which suit the

respondent/defendant was restrained from dispossessing the

appellant/plaintiff;

(i). that during the trial of the aforesaid suit it transpired that the

respondent/defendant had regularized the unauthorized

occupations up to June, 1977 as per the letter dated 16th

February, 1977 of the Government of India and under the said

policy, occupants of the properties no. R-538 & 537, New

Rajinder Nagar, New Delhi were regularized;

       (j).    that the appellant/plaintiff had also filed a writ petition in this

               Court    pertaining     to   the    said    property     but     the

respondent/defendant concealed the factum of their policy of

regularization and under which the neighbouring plots were

regularized; and,

(k). that the appellant/plaintiff was also entitled to the benefit of the

said policy.

4. The respondent/defendant contested the suit, by filing a written

statement, on the grounds:-

(i). that the appellant/plaintiff had not approached the Court with

clean hands;

(ii). that the appellant/plaintiff had unauthorizedly occupied plot

No.536, New Rajinder Nagar, New Delhi and raised some

temporary structures thereon;

(iii). that when the respondent/defendant initiated action for removal

of the said encroachment, the appellant/plaintiff filed Suit

No.521/1985 before the Civil Judge wherein ad interim

injunction was granted in his favour; however subsequently the

said ad interim injunction was vacated and the application of

the appellant/plaintiff for interim relief dismissed vide order

dated 20th January, 1989;

       (iv). thereafter     the     unauthorized         structure   raised      by

              appellant/plaintiff      was        demolished         and        the

respondent/defendant on 21st January, 1989 dispossessed the

appellant/plaintiff from the said property and resumed

possession thereof;

(v). that the appellant/plaintiff filed an appeal before the District

Judge against the order dated 20th January, 1989 supra but

which appeal was also dismissed vide order dated 17 th

February, 1989;

(vi). that the appellant/plaintiff however re-encroached upon the

property and an FIR in this regard was lodged with the Rajinder

Nagar Police Station;

(vii). that the appellant/plaintiff filed Criminal Misc.(Main)

No.1366/92 in this Court for quashing of the said FIR;

(viii). that the appellant/plaintiff also preferred Civil Writ

No.2754/1990 in this Court which was dismissed vide order

dated 12th December, 1991 of the Division Bench of this Court;

(ix). that the appellant/plaintiff also filed a Civil Revision

No.1055/1997 in this Court but which was also dismissed in

default on 13th September, 1999;

(x). that on dismissal of Civil Revision No.1055/1997, the

respondent/defendant again demolished the unauthorized

construction raised by the appellant/plaintiff and resumed

possession of the property on 14th June, 2001;

(xi). that not only had the appellant/plaintiff concealed all the

aforesaid facts from the plaint but the issues raised in the suit

had been raised by the appellant/plaintiff in the earlier suit and

in the appeals/revisions arising therefrom as well as in the writ

petition earlier filed and the suit was thus barred by Sections 10

& 11 of the CPC owing to the suit for injunction before the

Civil Judge filed by the appellant/plaintiff till then still pending

before the learned Civil Judge;

(xii). denying that the appellant/plaintiff on the date of institution of

the suit was in possession of the property; and,

(xiii). denying that the case of the appellant/plaintiff was similar to

that of occupants of the neighbouring properties and pleading

that the appellant/plaintiff had failed to submit any document in

support of his claim of continuous possession of the suit

property on or before 30th June, 1977 and to comply with the

other requisite conditions under the policy of regularization.

5. The appellant/plaintiff filed a replication not denying the pleas in the

written statement qua the earlier legal proceedings but pleading that the

same were of no relevance because the respondent/defendant had concealed

and withheld material facts from the Courts where the earlier proceedings

were pending of there being a policy for regularizing the occupation of

persons upto June, 1977 and of regularization effected under the said policy

in favour of the occupants of neighbouring properties No.R-537 & R-538,

New Rajinder Nagar, New Delhi. It was thus pleaded that the suit from

which this appeal arises was on a different and distinct cause of action of

respondent/defendant's own policy of regularization. It was also denied that

the respondent/defendant had ever resumed possession. It was yet further

pleaded that in the suit pending before the Civil Judge, the appellant/plaintiff

had applied for amendment of the plaint to incorporate the plea of the said

policy of the respondent/defendant but the said application for amendment

was dismissed on the ground that the same would change the cause of action

in the suit and the revision petition preferred against the same was also

dismissed in default and restoration application of the same was pending. It

was reiterated that the appellant/plaintiff was in possession of the property.

6. Vide interim order dated 23rd August, 2001 in the suit from which this

appeal arises, the parties were directed to maintain status quo. The said order

was confirmed on 27th August, 2002 upon the failure of the counsel for the

respondent/defendant to oppose the application for interim relief. Though

the appellant/plaintiff as one stage filed an application for amendment of the

plaint to take a plea that if the Court were to ultimately hold that the

respondent/defendant had resumed possession of the property as pleaded by

it, the said possession be got delivered to the appellant/plaintiff, but after

keeping the said application pending for more than one year, withdrew the

same.

7. On the pleadings of the parties, the following issues were framed in

the suit on 8th November, 2006:-

"(i). Whether the suit is barred by section 11 of the CPC?

OPD

(ii). Whether the present suit is liable to be stayed by section 10 of CPC? OPD

(iii). Whether the present suit has not been properly valued?

OPD

(iv). Whether the suit is bad on account of non compliance of section 80 of CPC? OPD

(v). Whether the plaintiff is entitled for a decree of declaration as prayed in the plaint? OPP

(vi). Whether the plaintiff is entitled for a decree of permanent injunction as prayed in the plaint? OPP

(vii). Relief."

8. The appellant/plaintiff filed affidavit by way of his examination-in-

chief. The respondent/defendant after taking adjournments for cross

examination stopped appearing and was on 1st October, 2007 proceeded

against ex parte. The learned Addl. District Judge after hearing ex parte

arguments of the counsel for the appellant/plaintiff and perusing the written

arguments filed by the appellant/plaintiff, dismissed the suit,

finding/observing/holding:-

A. that the respondent/defendant having not led any evidence,

issues no.1,2,3 & 4 were decided in favour of the

appellant/plaintiff and against the respondent/defendant;

B. that the appellant/plaintiff had proved the electricity, water and

telephone bills in his name at the address of the suit property as

well as notices issued by the respondent/defendant at the said

address and the receipt issued by the respondent/defendant

towards payment of damages for unauthorized occupation;

C. that the appellant/plaintiff had also proved that the Lok Adalat

of the respondent/defendant vide its order dated 28 th May, 2002

had recommended to the Competent Authority of the

respondent/defendant to regularize the occupation of the

property on usual charges and to return back the possession of

the property to the appellant/plaintiff;

D. that from a perusal of the documents placed on record by the

appellant/plaintiff, it was not clear as to how the

appellant/plaintiff was claiming to be the owner of the suit

property;

E. the water, electricity and telephone bills do not confirm title in

respect of a property;

F. that the appellant/plaintiff had not placed on record any title

documents regarding ownership such as Sale Deed, General

Power of Attorney, Agreement to Sell etc.;

G. the question of regularization of a property is a matter of policy

and no parity can be claimed by an occupant on the ground that

property of other occupants in the neighbourhood had been

regularized particularly when the appellant/plaintiff was

admittedly an unauthorized occupant;

H. thus issues no.5 was decided against the appellant/plaintiff; and,

I. that the appellant/plaintiff had failed to prove that there was any

obligation on the part of the respondent/defendant in favour of

the appellant/plaintiff for which directions could be given to the

respondent/defendant; accordingly issue no.6 was decided in

favour of the respondent/defendant against the

appellant/plaintiff.

resultantly the suit was dismissed.

9. The counsel for the appellant/plaintiff has contended that the learned

Addl. District Judge, in the impugned judgment, has misconstrued the relief

claimed by the appellant/plaintiff. It is contended that the appellant/plaintiff

was not claiming declaration of his title on the basis of any Sale Deed or

Agreement to Sell or other documents in his favour but was claiming a

declaration of being entitled to the benefit of the policy of the

respondent/defendant and which aspect has not been considered by the

learned Addl. District Judge. It is yet further contended that the case of the

appellant/plaintiff was for regularization of his occupation and not for

declaration of his title. Attention is invited to the orders dated 28th May,

2002, 24th September, 2002 and 2nd September, 2003 of the Lok Adalat of

the respondent/defendant observing:-

(i) that it was the admitted case of the Department that

regularization of unauthorized occupation of such plots could

be effected in case the occupant showed any proof of his

unauthorized occupation prior to the June, 1977 as per

Government of India orders contained in their letter

No.4(19)/78-S-S-II (Vol.II) dated 16th February, 1977 in the

case of residential structure, on premium being charged as per

scheduled rates fixed by the L&DO;

(ii) that the short question thus to be determined was whether the

appellant/plaintiff was in occupation of plot No.R-536, New

Rajinder Nagar, New Delhi measuring 200 sq. yds. prior to

June, 1977;

(iii) admittedly the respondent/defendant had regularized the

adjoining two plots bearing No.R-537 & R-538 in favour of

their occupants;

(iv) that the Estate Officer of the respondent/defendant had vide

letter dated 30th November, 1983 asked the appellant/plaintiff to

file his objections if any for proceeding under Sections 7(3) &

4(1) of the PP Act;

(v) that the appellant/plaintiff had thereafter been assessed for

damages for land ad measuring 350 sq. yd. of plot No.R-536

from 1st April, 1962 to 31st March, 1983;

(vi) that the appellant/plaintiff protested thereagainst on the ground

that he was in possession of only 200 sq. yds. and not 350 sq.

yds.; that the respondent/defendant however took possession of

the property in the garb of the application for stay filed by the

appellant/plaintiff in the Civil Suit having been dismissed;

(vii) that the appellant/plaintiff had filed documents regarding

assessment of the property for House Tax w.e.f. 1968 and letter

dated 29th April, 1976 of the MCD for demolition of one room

in the property and which proved that the appellant/plaintiff

was in possession of plot No.R-536 from 1962 or at least much

before the cut-off date of June, 1977 and was thus entitled to

the same treatment which was given to adjoining plots No. R-

537 & R-538;

(viii) that the fact that the appellant/plaintiff had been dispossessed

was of no consequence in as much as, as per the then policy his

unauthorized occupation should have been regularized;

(ix) that the respondent/defendant had in the writ petition before the

Division Bench of this Court taken a false stand that

regularization of plots No.R-537 & R-538 was not under any

policy of DDA but owing to the occupants thereof being

displaced persons; and,

(x) that had the respondent/defendant not suppressed the factum of

policy of Government of India and DDA dated 16 th

February,1977 in the writ petition aforesaid earlier filed by the

appellant/plaintiff, the judgment dated 12th December, 1991

therein might not have denied the appellant/plaintiff equal

treatment as was meted out to his immediate neighbours and

might not have labeled the appellant/plaintiff as a land grabber.

and thus recommending regularization of plot no.R-536 ad measuring

200 sq. yds. in favour of the appellant/plaintiff.

10. The counsel for the appellant/plaintiff has argued that the

recommendations of the statutory Lok Adalat of the respondent/defendant

are binding on the respondent/defendant.

11. Per contra, the counsel for the respondent/defendant has argued that

the Lok Adalat whose recommendations are relied upon is not statutory and

the recommendations are not binding on the respondent/defendant; that the

Lok Adalat could not have commented on the judgment dated 12th

December, 1991 of the Division Bench of this Court in Civil Writ

No.2754/1990 and has invited attention to the said judgment. He has further

contended that notwithstanding the respondent/defendant in the written

statement in the suit from which this appeal arises having

disputed/controverted the possession of the appellant/plaintiff of the

property, the appellant/plaintiff did not claim the relief of possession and the

suit is thus misconceived.

12. Neither counsel inspite of enquiry is able to inform of the

fate/outcome of the suit before the Civil Judge earlier filed by the

appellant/plaintiff or of the Criminal Miscellaneous (M) petition supra

preferred by the appellant/plaintiff for quashing of the FIR lodged against

him. Though undoubtedly the learned Addl. District Judge in the impugned

judgment has not adjudicated whether the appellant/plaintiff is entitled to the

benefit of the policy of the respondent/defendant of regularization in favour

of occupants of prior to the year 1977 or whether there was any such policy

and which was the relief claimed in the suit and though the learned Addl.

District Judge merely for the reason of the respondent/defendant having

been proceeded against ex parte and having not led any evidence decided

issues no.1 to 4 supra against the respondent/defendant but I am of the view

that in the light of admitted position in the pleadings of earlier litigation

between the same parties, the learned Addl. District Judge ought to have

considered whether the claim of the appellant/plaintiff in the suit was barred

by Sections 10 & 11 of the CPC. Sections 10 & 11 of the CPC are based on

a principle of public policy which bars re-litigation and which bar if not

enforced would reduce litigation to a wager and interfere with the principle

of finality of judgments of the Court. I have thus proceeded to peruse the

order dated 17th February, 1989 of the Addl. District Judge in MCA

No.20/1989 preferred by the appellant/plaintiff against the order dated 20 th

January, 1989 of the Civil Judge of dismissal of the application in the earlier

suit filed by the appellant/plaintiff as well as the order dated 12th December,

1991 of the Division Bench of this Court in Civil Writ No.2754/1990

preferred by the appellant/plaintiff and inspite of copies of which order

being on the Trial Court record, the learned Addl. District Judge failed to

notice the same.

13. A perusal of the order dated 17th February, 1989 of the Addl. District

Judge does show:-

(A). the claim of the appellant/plaintiff in the earlier suit filed by

him before the Civil Judge being, of being in possession of the

property since the year 1962 as was claimed in the suit from

which this appeal arises;

(B). that the appellant/plaintiff vide his letter dated 22nd May, 1984

to the respondent/defendant having admitted that he was in

occupation of the plot without any right, title or interest; and,

(C). the only claim of the appellant/plaintiff in the plaint in the

earlier suit before the Civil Judge being of being not liable to be

dispossessed save by due process of law.

14. A perusal of the order dated 12th December, 1991 of the Division

Bench of this Court in CW No.2754/1990 filed by the appellant/plaintiff

shows:-

(I). the Division Bench to have found the case, as of land grabbing;

(II). the appellant/plaintiff "admittedly" having "no legal right, title

or interest in the property";

(III). the appellant/plaintiff whenever threatened with dispossession

having successfully obtained interim orders;

(IV). the land belonging to the Government and the

appellant/plaintiff having managed to occupy and construct

thereon with the help of not too honest Government officers;

(V). there being no reason for the appellant/plaintiff to remain in

possession of the land to which he had no valid claim;

(VI). the appellant/plaintiff, by paying damages, getting no right in

the land;

(VII). the Government being entitled to part with the land only by a

fair and equitable manner without any favour to any person and

without discrimination;

(VIII). that the Government property being not liable to be parted with

save by public auction or by tender or in some other fair

equitable manner;

(IX). allowing unauthorized occupation of valuable Government

property by paying nominal damages being not permissible;

and,

(X). the argument of the appellant/plaintiff of there being other

similarly situated persons and of the respondent/defendant

having not taken any action thereagainst, being of no avail.

15. I also find on the Trial Court record a report dated 14 th June, 2000 of

the DDA of having demolished the plot area 200 sq. yds. of R-536, New

Rajinder Nagar, New Delhi and of having taken possession thereof. I also

find on the Trial Court record, a copy of the letter dated 25th July, 2000 of

the DDA of, after 14th June, 2000 having constructed a boundary wall

around the plot and installed a board thereon of the same being the property

of the DDA. I also find on the Trial Court record a copy of Civil Writ

Petition No.2754/1990 filed by the appellant/plaintiff as well as counter

affidavit of the respondent/defendant thereto and the same discloses the

appellant/plaintiff to have claimed the same reliefs therein as claimed in the

suit from which this appeal arises i.e. of directing the respondent/defendant

to allot property No. R-536, New Rajinder Nagar, New Delhi in his favour

on the same terms & conditions on which occupation of occupants of

properties No. R-537 and R-538 had been regularized and the

respondent/defendant to have pleaded, (i) that the said colony is a

rehabilitation colony; that the colony along with other unutilized lands

which once formed part of the Compensation Pool Properties constituted

under the Displaced Persons (Compensation And Rehabilitation) Act, 1954

having been transferred to the respondent/defendant vide letter dated 2nd

September, 1982 and possession of the property taken over on 24th April,

1984; (ii) that the policy of regularization of unauthorized occupation of

certain acquired evacuee properties being applicable only to those who came

into occupation before 31st December, 1960 and fulfilled certain conditions;

the plot No. R-536 being in occupation of one Shri Ram Sarup Kathuria a

displaced person who had been allotted plot No.R-708, New Rajinder Nagar,

New Delhi; (iii) the said Shri Ram Sarup Kathuria having instituted a suit in

which L&DO was injuncted vide judgment dated 10th April, 1969 from

evicting him except by due process of law; (iv) that the said Shri Ram Sarup

Kathuria also being in occupation of adjoining properties No.R-535 and R-

537; (v) the appellant/plaintiff having come into occupation of property

No.R-536 after 1985; (vi) the transfer of plots no. R-537 and R-538 being in

favour of displaced persons who had rival claims with Shri Ram Sarup

Kathuria but had entered into a compromise during the pendency of FAO

No.87/1985 decided on 17th September, 1985 by this Court; (vii) of the

appellant/plaintiff being the land grabber of late 1984 or 1985.

16. It would thus be clear that the Division Bench of this Court, while

dismissing Civil Writ Petition No. 2754/1990 filed by the appellant/plaintiff

vide judgment dated 12th December, 1991, had the entire controversy before

it.

17. The present is thus clearly a case of re-litigation and which the

Supreme Court in K.K. Modi Vs. K.N. Modi (1998) 3 SCC 573 and the

Division Bench of this Court in Ram Chander Aggarwal Vs. UOI 187

(2012) DLT 370 has held not permissible. Even if it were to be presumed

that the appellant/plaintiff on discovery of new facts which were not

available to him when the earlier proceedings filed by him for the same

relief were disposed of, considered himself now entitled to the relief, the

remedy thereagainst is not by re-litigation. It was the categorical stand of the

respondent/defendant in the counter affidavit in Civil Writ No. 2754/1990

that the appellant/plaintiff was not in possession of the property since 1962

as was being claimed by him but had trespassed into the property only in late

1984 or early 1985 and which was accepted by the Division Bench. Even if

it were to be presumed that the appellant is correct in his case in the plaint

from which this appeal arises of there being any policy of regularization in

favour of unauthorized occupants of prior to June,1977, the acceptance by

the Division Bench of this Court in the judgment dated 12 th December, 1991

in Civil Writ No.2754/1990 of the case of the respondent/defendant of the

appellant/plaintiff having trespassed in 1984/85, would still come in the way

of the appellant/plaintiff in claiming the relief on his own case.

18. I have even otherwise perused the Trial Court file and have not found

any document therein on the basis whereof it can be said that the

appellant/plaintiff was in possession of the property since 1962 or for that

matter since prior 1977 as claimed by him. Merely because the Estate

Officer of the respondent/defendant may have while assessing damages for

unauthorized use and occupation having assessed the same from the year

1962 would not prove the appellant/plaintiff to have been in possession since

the year 1962 since the said assessment was done on the appellant/plaintiff

showing willingness to pay the said damages. Similarly, the Property Tax for

the period from 1967-68 to 1984-85 is found to have been paid by the

appellant/plaintiff on his own only on 5th March, 1985.

19. There is thus clearly no error in the observations in the judgment

dated 12th December, 1991 of the Division Bench of this Court in Civil Writ

Petition No.2754/1990, of the appellant/plaintiff being a rank trespasser. The

assessment and demand of damages from the appellant/plaintiff from 1962

was also on his own claim of the appellant/plaintiff of being in possession

since 1962.

20. That brings to the recommendations of the Lok Adalat. At the outset I

may state that it has been held in Meenakshi Choudhrie Vs. DDA

MANU/DE/2588/2012 relying upon State of Punjab Vs. Jalour Singh

(2008) 2 SCC 660 that the Lok Adalat of the DDA was not a statutory Lok

Adalat and its recommendations are not binding. It may next be highlighted

that though the Lok Adalat has relied on notice dated 29th April, 1976 of the

MCD of demolition issued in the name of the appellant/plaintiff at the

address of R-536 but the said notice was not proved before the learned Addl.

District Judge and appears to have been filed before the Lok Adalat only.

The said notice is addressed to Shri Amrik Singh Kharbanda. The

appellant/plaintiff is not found referred to in any of the documents on record

as Kharbanda and the said notice is found to be highly suspect. Even

otherwise I may state that the order of the Lok Adalat is on the basis of the

allotment in favour of occupants of R-537 and R-538 being not on account

of their being a displaced person and thus being under a new policy under

which the appellant/plaintiff claimed but which observations/findings were

given without hearing the occupants of R-537 and 538 whose occupation

was regularized and the said observations are of no avail for this reason also.

Even otherwise, the policy on which the appellant/plaintiff relies and as set

out in the plaint, does not support the case of the appellant/plaintiff. As

aforesaid the appellant/plaintiff has not proved being in occupation since

prior to 1977.

21. There is yet another aspect of the matter. It was the unequivocal case

of the respondent/defendant in the written statement that the land had been

re-possessed and the appellant/plaintiff was not in possession thereof.

Though the appellant/plaintiff in response thereto sought an amendment of

the plaint to also claim the relief of delivery of possession but withdrew the

said amendment application. The appellant/plaintiff by applying for such

amendment inter alia admitted being not in possession of the property. The

documents on record aforesaid filed by the appellant/plaintiff himself also

support that the respondent/defendant had repossessed the land. The claim of

the appellant/plaintiff for declaration and injunction without claiming the

relief of possession was in any case not maintainable in law.

22. Thus whichever way one looks at, there is no merit in the appeal

which is dismissed with costs. The counsel's fee assessed at Rs.20,000/-. If

the appellant/plaintiff fails to pay the costs within four weeks, the

respondent/defendant shall be entitled to take steps for recovery thereof.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J

NOVEMBER 12, 2013 pp