Dharam Dev Sharma vs Santosh
2014 Latest Caselaw 7008 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                      Date of Decision: December 19, 2014
+     RSA 15/2013
      DHARAM DEV SHARMA                                   .....Appellant
                  Through:              Mr.Jai Bansal, Advocate

                           versus

      SANTOSH                                          ..... Respondent
                           Through:     Wg.Cdr.Mohd. Mujeeb, Advocate

      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR

                               JUDGMENT

(ORAL)

CM No.1319/2013 (condonation of delay in re-filing)

There is a delay of 30 days in re-filing the accompanying appeal.

For the reasons stated in the application, it is allowed and the delay in re-filing the appeal is condoned.

CM No.1317/2013 (condonation of delay in filing)

There is a delay of 242 days in filing the accompanying appeal.

Notice.

Mohd.Mujeeb, Advocate accepts notice of the application on behalf of the respondent. The averments made in paragraph nos. 3

RSA 15/2013 Page 1 to 5 provide sufficient cause to condone the delay of 242 days. The application is allowed and the delay is condoned.

RSA 15/2013 & CM No. 1318/2013 (stay) Appellant is the defendant, who has suffered a decree for permanent injunction in respect of plot No.C-117 in Swami Shardhanand Park, Delhi. The First Appellate Court vide impugned order has maintained the trial court decree for injunction against the appellant.

The facts giving rise to this appeal are already noticed in the opening paragraphs of the impugned judgment and need no reproduction. Suffice it would be to note that respondent-plaintiff basis his claim over 233 sq. yards of land in khasra no.50/2 in village Bhalswa, Jahangirpuri in the colony of Swami Shardhanand Park, Delhi-45 and is said to have purchased the suit property from one Mukesh Kumar on 10th September, 1998 on execution of various documents i.e., registered GPA, notorised Receipt for the consideration amount of Rs.50,000/- and notorised Agreement to Sell as well as registered Will and a notorised Affidavit. Respondent-plaintiff claims to be in possession of the suit property since 10th September, 1998. Whereas, it is the case of the appellant- defendant that he is in peaceful possession of the suit property since 1980 and in fact the suit property is not situated in khasra no.50/2 but is in khasra no.50 of the aforesaid village and khasra no.50 is owned by the Gram Sabha of the village.

Trial court in its judgment of 23rd November, 2009 has relied

RSA 15/2013 Page 2 upon the unrebutted testimony of respondent-plaintiff and one Mr.Vinod Kumar (PW-2). However, First Appellate Court in the impugned judgment had suo moto called for the status report in respect of the suit property from the concerned SDM and on this aspect, the observations of the Appellate Court in the impugned judgment are as under:-

9. Vide order dt. 15.11.11 this court called for report from the office of SDM Model Town, regarding the suit property and pursuant to that concerned patwari Sh.L.D.Sharma from the office of SDM Model Town, had appeared and had stated that concerned khasra no. is 50 and not 50/2 and had also placed on record photocopy of khatoni And khasra girdawari wherein it was mentioned that khasra no.50 is in the ownership of Gram Sabha.

At the hearing, learned counsel for appellant had submitted that appellant is in long settled and peaceful possession of 110 sq.yards of land in khasra no.50 and in view of the findings of the First Appellant Court in paragraph no.9 of the impugned judgment, the decree for injunction in respect of khasra no.50/2 is unsustainable and deserves to the set aside. To rebut the stand taken on behalf of appellant, learned counsel for respondent submits that appellant is a trespasser whereas respondent-plaintiff is a bonafide purchaser of the suit property and the SDM's report is not per se admissible as it was not subjected to any cross- examination by the parties and in view of the unrebutted evidence of respondent-plaintiff, there is no infirmity in the findings returned by both the courts below against the appellant.

RSA 15/2013 Page 3 Upon hearing and on perusal of the judgment of the courts below and the material on record, I find that in view of the observations made by the First Appellate Court in paragraph no.9 of the impugned judgment, the decree for injunction in respect of khasra no.50/2 does not bind the appellant as the aforesaid SDM's report is in respect of khasra no.50 and the aforesaid SDM report is neither approved nor disapproved because it was not subjected to cross-examination by either side.

With aforesaid clarification, this appeal and the application are disposed of, with a direction to the concerned Gram Sabha to initiate the proceedings against the trespassers and if appellant or respondent are found to be trespassers on the suit land, then by following the due process of law, the trespassed premises be got vacated. The concerned Gram Sabha or the authorities concerned be apprised of this judgment forthwith and the compliance report be submitted to this Court within twelve weeks.

The appeal and the application stand disposed of accordingly.

                                                        (SUNIL GAUR)
                                                           JUDGE
      DECEMBER 19, 2014
      mb




RSA 15/2013                                                          Page 4