Delhi High Court
Delhi Development Authority vs Jagbir Singh & Ors. on 25 February, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 182/2012
% 25th February, 2014
DELHI DEVELOPMENT AUTHORITY ......Appellant
Through: Mr. Rohit Gandhi, Adv.
VERSUS
JAGBIR SINGH & ORS. ...... Respondents
Through: Mr. Umesh Mishra, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This regular second appeal has been filed against the concurrent
judgments of the courts below; of the trial court dated 22.10.2009 and the
first appellate court dated 5.3.2012; by which the suit of the
respondents/plaintiffs to the extent of injunction was decreed with respect to
the suit land comprising of an area of 50'X201' in village Samaspur Jagir,
Delhi, however, the relief of declaration of ownership prayed by the
respondents-plaintiffs with respect to this very land has been declined.
2. A reference to the impugned judgments shows that both the courts
below have relied upon the demarcation report of the revenue official
appointed as a Local Commissioner, and which is dated 7.1.2003, exhibited
RSA 182/2012 Page 1 of 4
as Ex.PW4/C, showing that the area of 50'X201' does not fall in the
acquired land falling in K.Nos.48 and 49 as per the case of the appellant-
defendant. The plot in question is found to have been located in K.No. 37/2
as was the case of the respondent/plaintiff.
3. I may note that originally the suit was dismissed by the judgment
dated 30.7.1996, but in an appeal the appellate court remanded the matter in
terms of the order dated 17.2.1997 with direction to appoint a Local
Commissioner to inspect the suit property. It is pursuant to such directions
of the appellate court that the Local Commissioner was appointed for
demarcation of the suit property.
4. The relevant observations of the first appellate court are contained in
paras 8,18,22 and 23 of the impugned judgment and which read as under:-
"8. Upon remand, Sh. Suraj Prakash, Tehsildar, Preet Vihar
was appointed as a Local Commissioner by the Trial
Court with the direction to demarcate the suit property.
The Tehsildar Sh. Suraj Prakash gave a report dated
07.01.2003 as per which the disputed suit property was
found to be falling in khasra no. 37/2 and not in khasra
no.48 min and 49 min(which had been acquired).
18. As per this report, Tehsildar M.H.Zaidi, Kanoongo Sh.
Sunil Kumar Arora, Halka Patwari alongwith report and
revenue record of village Samaspur Jagir and articles of
measurements went to the site. Representatives on behalf
of plaintiff Jagbir Singh and on behalf of defendant DDA
Sh. Rajender Singh, Naib Tehsildar (LM/EZ) along with
staff and on behalf of Electricity Department Sh.
P.S.Varun AE (Civil) and Sh. Jagdev Singh (Architect)
RSA 182/2012 Page 2 of 4
were present during the inspection. It is reported that the
demarcation proceedings were carried out in the presence
of the above mentioned persons and it was found that the
suit property fell in khasra no.37/2 of village Samaspur
Jagir. Along with the report a site plain/map is also
annexed which shows that the suit property was not part
of khasra no.48 min and 49 min and the same was
separated from khasra no. 37/2 by a road (Rasta).
22. Order 26 Rule 10(2) CPC provides that the report of the
commissioner and the evidence taken by him shall be
evidence in the suit and shall form part of the record.
However with the permission of the Court any of the
parties to the suit may examine the commissioner
personally in open Court touching on any of the matters
referred to him or mentioned in his report. In the present
case the appellant DDA has not taken any steps to
examine the Local Commissioner Sh. Suraj Prakash in
open court within the meaning of Order 26 Rule 10(2)
CPC. In the absence of the same the Ld. Trial Court has
rightly held that the report of the Local Commissioner
Sh. Suraj Prakash Ex.PW4/C has to be read in evidence.
As per the said report, suit property fell within Khasra
no. 37/2 and not in khasra no. 48min and 49 min of
village Samaspur Jagir. Case of the DDA/appellant was
that the suit property fell in khasra no.48 min and 49 min.
23. Since as per the report of the Local Commissioner the
suit property fell in khasra no.37/2, plaintiff being in
possession of the same, Ld. Trial Court has rightly held
that the plaintiffs were entitled to relief of permanent
injunction to restrain the defendants from dispossessing
them from the suit property. It is settled law that a
person in possession is entitled to protect his possession
from the entire would except the true owner. Since the
DDA could not prove that the suit property fell in khasra
no.48 and 49 min of village Samaspur Jagir, the plaintiffs
were entitled to protect their possession of the suit
property from the defendants. Findings on issue no.1 do
not call for any interference." (underlining added)
RSA 182/2012 Page 3 of 4
5. In view of the above, no substantial question of law arises under
Section 100 CPC because the report prepared by the revenue official, and
which pertains to the realm of appreciation of evidence and not to a
substantial question of law, shows that the suit land is not situated in
acquired land in K.Nos.48 and 49 as was claimed by the appellant-
defendant.
6. In view of the above, this regular second appeal is dismissed,
however, since the trial court has dismissed the claim for declaration of
ownership of the suit land for falling in K.No. 37/2 as claimed by the
respondents-plaintiffs, in case the appellant-defendant is able to show that
the land in K.No. 37/2 belongs to government or to any other departments of
the government, such department of the government or any statutory body or
authority etc which owns the land can take action in accordance with law
with respect to the suit land comprising in K.No.37/2, admeasuring
50'X201'.
7. The appeal is dismissed, subject to the aforesaid observations.
FEBRUARY 25, 2014 VALMIKI J. MEHTA, J.
ib
