Sanjay Dubey vs Delhi Development Authority
2013 Latest Caselaw 4174 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+             R.S.A. No.192 of 2012 and C.M. Nos.20240/2012,
                          21108/2012, 3359/2013

                                    Decided on : 16th September, 2013

SANJAY DUBEY                                            ...... Appellant
                       Through:   Mr. Kamran Malik, Advocate.

                         Versus

DELHI DEVELOPMENT AUTHORITY            ...... Respondent
             Through: Mr. Ajay Verma, Advocate.

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

V.K. SHALI, J. (ORAL)

1. This is a regular second appeal filed by the appellant under Section

100 CPC against the order dated 21.11.2012 passed by the learned

Additional District Judge dismissing the appeal of the appellant being

R.C.A. No.5/2012.

2. I have heard the learned counsel for the appellant and have also

gone through the record. The plaintiff/appellant herein had filed a Civil

Suit No.141/2007 for permanent injunction against the respondent/DDA

claiming himself to be the owner and in possession of property/land

measuring 1000 square yards out of Khasra No.143 situated in the abadi

of village Mandawali-Fazalpur, Delhi-110092. It was stated in the plaint

that the aforesaid parcel of land was bounded as under :-

East            :      Gali No.10
West            :     Boundary of Government School
North           :     Main Road
South           :     Others plot

3. It was alleged that the plaintiff/appellant herein tried to construct

the boundary wall but was refrained from doing so by the respondent

which necessitated filing of the suit for permanent injunction. The

defendant/respondent contested the suit.

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

"(i) Whether the suit is barred by the provisions of 53-B of DD Act? OPD

(ii) Whether the land in dispute falls in Khasra No.578, Village Mandawali Fazalpur and possession of same has been taken over by the DD on 3.3.1983? OPD

(iii) Whether the land in dispute was acquired vide award No.49-

C/1970-71? OPD

(iv) Whether the plaintiff is entitled for the decree of permanent injunction as prayed for? OPD

(v) Relief."

5. Since the defendant/respondent/DDA had taken the plea that the

suit land falls in Khasra No.578, accordingly, an issue in this regard was

framed. The parties were permitted to adduce their respective evidence

and the learned trial court dismissed the suit on 19.11.2011 by observing

that the appellant was not able to prove either his title or possession in

respect of the suit land bearing Khasra No.143 measuring 1000 square

yards. The trial court observed as under:-

"24. The plaintiff has claimed ownership of the suit property on the basis of transfer documents executed by one Sh. Bhagwan Das in favour of the plaintiff that is GPA, agreement to sale, receipt, etc. all dated 23.3.1990. However, the originals of these documents were not produced before the court and only photocopies of these documents have been placed on record. These documents have clearly not been proved in accordance with law. The previous chain of documents has also not been produced. How Sh. Bhagwan Das acquired legal title in respect of the said property has neither been pleaded nor been proved. The plaintiff has, therefore, clearly failed to establish his ownership in respect of the suit property.

...............................

34. The plaintiff filed a layout plan of different properties adjacent to the suit property along with his written submissions. This layout plan has not

been properly proved during evidence. The description given to the properties in the said layout plan is Khata Khatauni No.143 whereas all throughout, in the pleadings, documents and evidence of the plaintiff the stand of the plaintiff has been that the suit property falls in Khasra No.143. Now the plaintiff cannot be allowed to contend that the description was Khata Khatauni No.143.

.......................

44. The suit property in question is vacant land and therefore, it cannot be said that the plaintiff is in actual de facto possession of the suit property. It has also not been established that the boundary wall over the suit property was raised by the plaintiff and it belongs to the plaintiff. The photographs placed on record clearly show that the plaintiff is not in actual physical possession of the suit property. In fact from the photographs it is clear that the board of the DDA is also installed on the suit property and the evidence shows that the boundary wall belongs to the defendant."

6. On the basis of the aforesaid observations, the trial court returned a

clear finding on the basis of preponderance of probability of evidence

adduced by the parties that the present appellant had miserably failed to

establish his title to the land bearing Khasra No.143 measuring 1000

square yards or that he was in possession of the land in question. As a

matter of fact, the court was called upon to observe that there was no

Khasra bearing No.143 in the revenue estate of village Mandawali

Fazalpur and there was only a Khata by the name of 143 and that was not

the case of the appellant.

7. Feeling aggrieved, the appellant preferred the first appeal being

R.C.A. No.5/2012 in which also he was unsuccessful.

8. Still feeling dissatisfied, the present regular second appeal has been

filed. During the course of arguments, the learned counsel for the

appellant has contended that the demarcation of the land in question be

got done which will establish that the appellant is in possession of a

portion of Khasra measuring 1000 square yards situated in Khasra

No.143. It is further contended by him that all other surrounding

residents are also on the said Khasra.

9. It has been pointed out by the learned counsel for the

respondent/DDA that in his application under Section 340 Cr.P.C. which

was filed by the appellant before the trial court, a stand contrary to the

one taken by the appellant in the plaint was urged. In the plaint, as has

been stated hereinabove, the case of the appellant was that his land falls

in Khasra No.143 while as in the application under Section 340 Cr.P.C.,

he changed his stand that the land in question falls partly in Khasra

No.603 and partly in 609 which further fortifies that the appellant himself

is not clear about the identification of his land.

10. The question of demarcation is essentially a question of fact which

is carried out for the purpose of identification of the property and it does

not involve any question of law. In addition to this, demarcation of a

property is essentially done in discharge of statutory duties by the

revenue authorities under the Punjab Land Revenue Act as applicable to

Delhi and the relevant rules framed there under. The appellant has not

been able to prove his title documents as he was claiming to have

purchased the land from one Bhagwan Das inasmuch as the original set of

documents were not produced before the trial court or even the connected

documents on the basis of which Bhagwan Das was claiming ownership

of the land in question were not proved, therefore, by praying now before

this court that the demarcation be got done with regard to the land in

question in order to identify his land, the appellant is trying to put cart

before the horse. The exercise of demarcation ought to have got done by

the appellant before invoking the jurisdiction of the court in the

adjudication of his rights or during the course of trial.

11. The second appeal is entertainable only when a substantial question

of law is involved. Since in the instant case, under such contingencies, no

substantial question of law is involved, accordingly, the present appeal is

totally misconceived and the same is dismissed. As the appeal itself

stands dismissed, therefore, no orders are required to be passed in

pending applications of the appellant.

V.K. SHALI, J.

SEPTEMBER 16, 2013/'AA'