Delhi Development Authority vs Kaushalya Devi
2015 Latest Caselaw 6182 Del

$~20.
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                        Date of Decision: 24.08.2015
%       RSA 314/2015
        DELHI DEVELOPMENT AUTHORITY
                                                             ..... Appellant
                           Through:    Ms. Kanika Agnihotri and Mr.
                                       Vaibhav Agnihotri, Advocates

                           versus

        KAUSHALYA DEVI
                                                              ..... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VIPIN SANGHI

VIPIN SANGHI, J. (OPEN COURT)

C.M. No.16617/2015 There is a delay in re-filing of the appeal by 11 days. For the reasons stated in the application, the same is allowed. The delay in re-filing is condoned. The application stands disposed of.

RSA 314/2015 & C.M. Nos.16614-16/2015

1. I have heard learned counsel for the appellant and perused the record. Since I am not inclined to issue notice in the appeal, there is no purpose of issuing notice in either application seeking condonation of delay or application seeking stay of the impugned judgment.

2. The present second appeal is directed against the judgment and decree dated 03.03.2015 passed by the learned ADJ (West) in RCA No.43/2013, titled DDA v. Kaushalya Devi, whereby the first appeal preferred by the appellant/DDA has been dismissed as being devoid of merit. The said first appeal had been preferred to assail the judgment and decree dated 31.10.2011 passed by the court of learned Civil Judge (W), Delhi in Suit No.1058/2006 preferred by the respondent Smt. Kaushalya Devi against the appellant/DDA to seek the relief of permanent injunction.

3. The respondent/plaintiff claimed that she was the owner of the built up property, built on land admeasuring 320 sq. yds out of Khasra No.28/11 and 28/20/1 situated in the Laldora of Village Mangolepur Kalan, Delhi. The plaintiff stated that she had purchased the land from the erstwhile owner Sh. Ajit Singh vide sale deed dated 24.05.1996. The plaintiff claimed exclusive possession of the property in which business being run by her family.

4. The plaintiff claimed that on 16.12.1998 at about 12:00 noon, the demolition squad of the DDA started demolishing the property adjoining the plaintiffs property. On enquiry, the plaintiff learnt that the DDA would also demolish her property after demolishing the adjoining property. She further stated that on 17.12.1998, the DDA started the demolition of her property as well, and demolished some portion thereof. The plaintiff offered resistance and, consequently, the remaining property was saved. Resultantly, the plaintiff preferred the suit in question to seek a permanent injunction to restrain the DDA and its officers from demolishing any part or parcel of the plaintiffs property which was demarcated in the site plan attached.

5. In the written statement, the DDA claimed that the entire land in dispute formed part of the land falling in Khasra No.28/11, Village Mangolepur Kalan, Delhi which had been acquired vide award no.42/82-83 dated 16.10.1982. The DDA claimed that after acquisition, the land had been transferred to the DDA and physical possession was taken on 18.11.1982. It was handed over to the engineering department of DDA for development of the Rohini residential scheme. The plaintiffs exclusive possession of the land was disputed. It was denied that the plaintiff was running her business in the property in question. It was stated that the plaintiff is an encroacher on the DDAs land.

6. On an application preferred by the plaintiff under Order 26 Rule 9 CPC, a local commissioner was appointed by the trial court vide order dated 30.09.2003. Mr. M.K. Nauhihal, Naib Tehsildar, Saraswati Vihar was appointed as the local commissioner, who subsequently appeared as PW-1 and exhibited his demarcation report dated 09.12.2003 as Ex. PW-1/1.

7. In his demarcation report, PW-1 found the suit property as not falling in the acquired land, except a small portion thereof in one corner. Consequently, the plaintiff amended the suit. The plaintiff introduced the averment in the suit which, inter alia, reads as follows:

"That further the said land/ property is free from any acquisition etc. except the aforesaid portion of 10' from North West corner towards south of the suit property and 12' from the same North West corner towards east of the said property i.e. an area of only about 6.6 sq. yards out of the above suit property measuring 320 sq. yards." The prayer clause in the amended plaint was that "thereby restraining the defendant, its officials, agents, employees, representatives, assignees and/ or anybody else on their behalf from demolishing any part or parcel of the property shown red in the site plan attached, forming part of the property bearing khasra no. 28/20/1, situated in Lal Dora Deh of village Mangolepur Kalan, Delhi and they be further permanently restrained from interfering in any manner in the peaceful possession and enjoyment of the suit property fully shown as red in the site plan attached situated in Lal Dora khasra no. 28/20, of village Mangolepur Kalan, Delhi".

This was in consonance with the report of the local commissioner Ex.

PW-1/1.

8. The defendant in its amended written statement labelled the demarcation report dated 09.12.2003 as incorrect, illegal and full of irregularities. The defendant also filed its objections on 03.02.2005 to the report dated 09.12.2003. The defendant also sought to produce another demarcation report prepared by it on its own, without notice to the plaintiff on 18.01.2005 in pursuance of the orders of the Commissioner (LM) DDA. The said report was filed on the record on 03.02.2005 alongwith the objections.

9. The plaintiff examined four witnesses - the first being Sh. Nauhihal, the local commissioner who carried out the demarcation as PW-1; Sh. Surender Pal Singh, PW-2 - who was present when the demarcation report was prepared and was posted as Halka Patwari in the year 2003-04 in the area where the suit property falls; Sh. Sunhera Singh - Kanungo as PW-3, who was also present at the time of demarcation, and; Sh. Sandeep Agarwal, the attorney of the plaintiff as PW-4. The defendant/DDA examined one witness, namely, Sh. Subash Chand Gupta, Kanungo LM (Rohini) as DW-1.

10. The Trial Court observed that the moot point of controversy was whether the plaintiff had encroached any portion of the land beyond the area of 6.6 sq yds in Khasra No.28/11, as disclosed in the report of the local commissioner Ex PW-1/1. The discussion as found in the judgment of the trial court on this aspect reads as follows:

"The most vital piece of evidence relied upon by the plaintiff is the demarcation report dated 09.12.2003 submitted by the Local Commissioner Sh. M. K. Nauhihal, Naib Tehsildar, Saraswati Vihar who was appointed under Orders of the court dated 30.09.2003. The said report is proved as Ex. PW1/1. In the said report, it has been stated that the said local commissioner started the inspection of the property along with the concerned parties with the help of Field Book and Aks-sizra which was matched with Massavi and found as per Demarcation proceedings, duly signed and admitted by both the parties and concerned officials i.e. by Sh. Sunhera Singh, Kgo. (SV) Sh. Survender Pal Singh Patwari (SV), Sh. Ramesh Yadav, Kgo (DDA/NL), Sh. Niranjan Singh Kgo. (DDA/(LM)R), Sh. Satbir Patwari (DDA/ NL), Sh. Sandeep Aggarwal s/o Smt. Kaushalya Devi:-

"That 10 ft from North­West corner towards south of the suit property and 12 ft from the same North-West corner towards East of the suit property, falls in khasra no. 28/11 which has been acquired by the DDA and rest part of suit property falls in khasra no. 28/20 which is un­ acquired".

Thus the Local Commissioner gave a report which supports the contentions of the plaintiff but certain objections had been raised on behalf of defendant/ DDA to the said report which are as follows:-

(i) That the demarcation had not been carried out in accordance with the rules and guidelines since the three permanent points were not taken into consideration.

(ii)That the measurements on the demarcation report are not correct because the northwest point was fixed and triangular piece of land as demarcation is 10 ft towards South and 12 ft.

towards East from these point had not been shown as a portion of khasra no. 28/11 which is a Government land whereas the exact demarcation was 15 ft towards South and 49 ft. towards Eastern side and the said demarcation report amounts to loosing of 41 sq. yards of Government land.

(iii)That the marking of demarcation on the Nazri Naksha has been made on the basis of imagination and therefore, cannot be relied upon.

(iv)In pursuance of the order of Commissioner dated 17.01.2005 Sh. Ram Kishan Tehsildar, DDA was appointed to demarcate the suit land on 18.01.2005 and as per second demarcation report, the dimensions of land are 15 ft. towards South and 49 ft. towards East as is taken by DDA. Thus the demarcation report dated 09.12.2003 filed by the Local Commissioner cannot be relied upon.

I propose to decide the objections raised by defendant/ DDA to the demarcation report dated 09.12.2003 as well as consider the second demarcation report dated 18.01.2005 filed by DDA, as follows:-

It is objected by defendant/ DDA that the demarcation had not been carried out in accordance with the rules and guidelines since the three permanent points were not taken into consideration. But there is nothing on record to show that demarcation was not carried out as per rules and guidelines. Rather the three permanent points which were considered by the Local Commissioner were the corners of Village Firni, the corner of khasra no. 15/18/4 towards South West direction and corner of khasra no. 16/20/1 towards Eastern South which falls in khasra no. 28/1 which were duly confirmed as per the field book and the mussavi.

Further the demarcation had taken place in the presence of DDA officials viz. Halqa Patwari Sh. Surender Pal Singh, Kanungo Sh. Sunhera Singh, Ramesh Chandra Yadav and Sh. Niranjan Singh and one Patwari Sh. Satbir from the side of defendant/ DDA who did not raise any objection to the said demarcation report on spot and rather voluntarily endorsed their respective signatures. Plaintiff has proved their signatures at point marked D to F on demarcation report Ex. PW1/1.

In fact the demarcation was carried on 09.12.2003 and the objections have been filed on 03.02.2005 after a belated stage by DDA. It is objected to by DDA that the measurements on the demarcation report are not correct because the north-west point was fixed and triangular piece of land as demarcation is 10 ft towards South and 12 ft. towards East from these point had not been shown as a portion of khasra no. 28/11 which is a Government land whereas the exact demarcation was 15 ft towards South and 49 ft. towards Eastern side and the said demarcation report amounts to loosing of 41 sq. yards of Government land. But no reasonable basis how they came to that conclusion is afforded. On the contrary, PW1 (the Local Commissioner) has categorically testified that he considered the revenue records. The extracts of the field book are proved as Ex. PW1/3 to Ex. PW1/5, Aks Sijra is Ex. PW1/6 showing the disputed land at point Y, copy of massavi proved by PW1 is Ex. PW1/7. Further it is submitted on behalf of DDA that the correct demarcation report is the one which was carried upon the instructions of concerned official of DDA on 18.01.2005. It is pertinent to mention that the said demarcation report was carried out solely upon the instructions of concerned official of DDA without the presence of plaintiff or her representative. When the matter was pending before the court, it is highly surprising that how on its own, the official of DDA ordered for a fresh demarcation without informing the court and even the plaintiff and without serving any notice of the same to the plaintiff or her representatives. In fact DW1, in his cross-examination, has categorically admitted that the demarcation dated 18.01.2005 was ordered by the concerned official, DDA and no notice of the same was sent or served upon the plaintiff before carrying out the demarcation. It is further admitted that even the officials from the concerned SDM office were also not present on the said site. Interestingly, the subsequent demarcation was admittedly carried out by Sh. Ram Kishan Kanungo and Sh. Niranjan Singh, the then kanungo, who were the same officials present on the site when the first demarcation, as was ordered by the court, was carried out on 09.12.2003. This is very surprising that how the same DDA's officials, who were present when the first demarcation as was ordered by the court dated 09.12.2003 did not raise any objection to said report on the spot but in a clandestine manner, without informing the court, on their own conducted the second demarcation, that too in absence of the plaintiff.

Prima facie it appears to be a cover up exercise on behalf of defendant/ DDA in saving themselves from the outcome of the first demarcation report where it is categorically stated that 10 ft from North-West corner towards south of the suit property and 12 ft from the same North-West corner towards East of the suit property, falls in khasra no. 28/11 which has been acquired by the DDA and rest part of suit property falls in khasra no. 28/20 which is un-acquired. Thus the objections of the defendant/ DDA are without any basis and are disposed of accordingly.

For the aforesaid reasons, the second demarcation report dated 18.01.2005 Ex. DW1/5 is not being considered since prima facie, it appears to be an arbitrary act on behalf of defendant authority without affording due information to the plaintiff. Further it bears no stamp or seal of the department nor signature of any official from SDM office or other independent witness, therefore, does not inspire confidence.

Further the plaintiff even summoned the Local Commissioner who carried out the demarcation on 09.12.2003, into witness box as PW1, who has categorically proved that he had carried the demarcation of the land of khasra no. 28/20 and 28/11 of Village Mangolepur Kalan as per direction of the Court. That the demarcation was carried out in terms of the laid down guidelines with the assistance of his staff. That the DDA official namely Sh. Ramesh Chand Yadav, Kanungo; Sh. Niranjan Singh, Kanungo and Sh. Satbir, Patwari were also present at the time of demarcation. The Demarcation report is Ex. PW1/1 which proves the signatures of PW1 at point A and the signatures of the official of DDA at point D to F respectively. The report which was submitted in the court is proved Ex. PW1/2. The extracts of the field book was Ex. PW1/3 to Ex. PW1/5, Aks Sijra is Ex. PW1/6 showing the disputed land at point Y, copy of massavi testified by PW1 is Ex. PW1/7. The site plan is Ex. PW1/8 and notice sent to DDA is Ex. PW1/9. In his cross-examination, it is categorically stated that report is correct as per site and the revenue record.

The witness, in his cross-examination, has categorically revealed the three permanent points which were considered by him i.e. corners of Village Firni, the corner of khasra no. 15/18/4 towards South West direction and corner of khasra no. 16/20/1 towards Eastern South which falls in khasra no. 28/1. The witness has staunchly denied the suggestion given by Ld. counsel for defendant and has stated that officials of defendant/ DDA did not raise any objection during the demarcation and in fact were totally satisfied with the same. It is further stated that the said Local Commissioner was accompanied by the field staff, Kanungo and Halqa Patwari who were well aware about the rules and regulations of demarcation and same was carried out in the presence of the Local Commissioner in terms of the prescribed procedure. It is also stated, in his cross- examination, that he had considered the aks sijra, Massavi and field book of the suit property which were brought by the revenue staff. There is nothing brought-forth in his cross-examination which could shatter his testimony. Thus the plaintiff, from the demarcation report dated 09.12.2003 as well as testimony of PW1, has categorically proved that 10 ft from North-West corner towards south of the suit property and 12 ft from the same North-West corner towards East of the suit property, falls in khasra no. 28/11 which has been acquired by the DDA and rest part of suit property falls in khasra no. 28/20 which is un-acquired.

Even PW2 and PW3 supports the testimony of PW1. PW2 is Sh. Sarvender Pal Singh from the SDM Office, in whose presence, demarcation report dated 09.12.2003 was prepared and he was posted as Halqa Patwari in the year 2003-04 qua the suit area. He further testified that he had produced the revenue record before the Local Commissioner and has relied upon the demarcation report already Ex. PW1/1. He categorically testified that the official of defendant/ DDA were also present at the site and were further satisfied with the demarcation report and did not raise any objection. PW3 is Sh. Sunehra Singh, Kanungo. He testified that demarcation was carried out in his presence and bears his signatures at point X. He reiterated that the official of defendants were further satisfied with the demarcation report. Hence the plaintiff proved that the said land/ property is free from any acquisition etc. except the portion of 10' from North West corner towards south of the suit property and 12' from the same North West corner towards east of the said property i.e. an area of only about 6.6 sq. yards out of the above suit property measuring 320 sq. yards.

Thus the onus had shifted upon the defendant/ DDA to show that plaintiff is an encroacher upon the Government land beyond 6.6 sq. yards of land in khasra no. 28/11.

The defendant, in their evidence, has produced only one witness who is DW1 Sh. Subhash Chand Gupta, Kanungo, LM (Rohini) and who relied upon the documents Ex. DW1/1 to Ex. DW1/5. Ex. DW1/1 is the copy of the award, Ex. DW1/2 is the possession proceedings and Ex. DW1/3 is the notification, Ex. DW1/4 is the aks sijra and Ex. DW1/5 is the demarcation report prepared by the revenue staff of DDA itself under order of the CLM.

Ex. DW1/1 is the copy of the award, Ex. DW1/2 is the possession proceedings and Ex. DW1/3 is the notification. In neither of the said documents, the location of the suit property can be inferred. In fact the only thing which is revealed from the said document is that only khasra no. 28/11 stands acquired. Thus, it is duly proved that khasra no. 28/20/1 is an un-acquired piece of land. The defendant has also filed the aks sijra which is exhibited as Ex. DW1/4. Perusal of the said document shows that it is merely a copy. Further, it does not bear the stamp or seal of the concerned official from the department. Even the concerned official who must have prepared this aks sijra after comparing the same with the original sijra, has not been brought in the witness box by the defendant/ DDA. Accordingly, defendant/ DDA has failed to prove the document Ex. DW1/4 as per law. Further as is already discussed DW1 has categorically admitted in his cross-examination that the demarcation dated 18.01.2005 was ordered by the concerned official, DDA and no notice of the same was sent or served upon the plaintiff before carrying out the demarcation. It is further admitted that even the officials from the concerned SDM office were also not present on the said site.

In view of the aforesaid discussion, it can safely be concluded that the defendant/ DDA has failed to discharge their burden and plaintiff on the other hand has duly proved that only a portion of land which is measuring 10' from the North-West Corner towards South of the suit property and 12' from the same North West Corner towards East of the suit property which amounting to merely 6.6 sq. yards of land is in the acquired portion out of total suit property admeasuring 320 sq. yards and that the remaining portion apart from 6.6 sq. yards of land is in the un-acquired khasra no. 28/20/1."

(emphasis supplied)

11. The Trial Court, therefore, decreed the suit of the plaintiff in terms of the amended plaint. The first appeal preferred by the appellant/DDA has been rejected, and the First Appellate Court has concurred with the findings of the trial court.

12. The submission of counsel for the appellant/DDA is that the findings returned by the courts below are perverse inasmuch, as, they have been rendered in ignorance of, and contrary to the evidence led by the parties. In this regard, reference has been made to the cross examination of PW-1 - the local commissioner. It is submitted that the said witness had, inter alia, admitted that demarcation was carried on the guidance of the revenue staff of Saraswati Vihar Sub Division and DDA. It is further submitted that the local commissioner had not even mentioned the areas of Khasra No.28/11 and 20/1 in his report Ex. PW-1/1. He had also admitted that he had not written the demarcation report himself, and stated that the same had been written under his instructions. He had admitted that he was not aware of the rules and regulations to carry out the demarcation. He had stated that Kanungo and Halka Patwari were fully aware of the rules and regulations who accompanied him.

13. He stated that, of the three reference points to commence demarcation, he had taken the corner of Khasra No.15/18/4 towards South West direction, and corner of Khasra No.16/20/1 towards East and South as two reference points. However, he could not locate any other point as the area is urbanised. In answer to the query as to what are the fixed points as per the revenue records, he stated that "may be firani, temple or school".

14. Thus, it is argued that the local commissioner did not have the knowledge, expertise or experience to carry out the demarcation, and his report was not worthy of reliance. Reference is also made to the statement of PW-3, Sunehra Singh. In his cross examination, this witness had, inter alia, stated "It is correct that for carrying out demarcation, the consent of other persons present was not being taken by the LC nor the objections were being considered by LC. Reply to the query of the court, I do not know as to whether or not the objections raised by any person".

15. Having heard learned counsel, I am of the view that there is no merit in the aforesaid submissions of the learned counsel. The Trial Court has considered the evidence led by all the plaintiffs witnesses, in particular PW- 1, PW-2 and PW-3 - of which PW-2 and PW-3 were officers/officials present at the time of demarcation being carried out by PW-1. They had supported the demarcation report. Pertinently, when the demarcation itself was being carried out, no objection was evidently raised by any representative of the appellant/DDA, even though the officers of the DDA were present. If the officers of the DDA had any issues with the manner in which the demarcation was carried out, nothing prevented them from recording their objections on the spot when the report was prepared, or, at least, soon thereafter by moving their objections before the Court. Pertinently, the objections were raised only on 03.02.2005 on the basis of a unilaterally obtained demarcation report behind the back of the plaintiff and without any intimation to the court, or involvement of the SDM. It was not necessary that PW-1 should have himself been aware of the nitty-grities of the manner in which demarcation had to be carried out. PW-1 was the Naib Tehsildar and was assisted by Patwari and Kanungo. The officers of the DDA were also present to ensure that the demarcation is carried out in accordance with the rules, procedure and in a fair manner. On a query by the Court, learned counsel for the appellant has stated that no departmental action has been taken against the officers of the DDA who participated in the demarcation proceedings carried out by PW-1 on the basis that they had either acted negligently or in collusion with the plaintiff.

16. The findings returned by the Trial Court are premised on evidence, and I do not find any illegality in the approach of the courts below, much less any perversity in the concurrent findings returned by the courts below. No substantial question of law arises for consideration by this Court.

17. Dismissed.

VIPIN SANGHI, J AUGUST 24, 2015 sr