Delhi Development Authority vs Ratan Singh Vyamshala Samiti ...
2015 Latest Caselaw 2506 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

                       R.S.A. No.188/2013 & R.S.A. No.158/2014

                                       Decided on : 24th March, 2015

+      RSA 188/2013
       RATAN SINGH VYAMSALA SAMITI               ..... Appellant
                 Through: Mr.Sudhir Nagar, Advocate.

                            versus

       DDA                                                .... Respondent
                       Through:      Mr.Padam Kant Saxena and Mr.Deepak
                                     R.Dahiya, Advocates.
+      RSA 158/2014
       DELHI DEVELOPMENT AUTHORITY             ..... Appellant
                 Through: Mr.Padam Kant Saxena and Mr.Deepak
                          R.Dahiya, Advocates.

                            versus

       RATAN SINGH VYAMSHALA SAMITI (REGD)..... Respondent
                Through: Mr.Sudhir Nagar, Advocate.

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

V.K. SHALI, J. (ORAL)

1. These are two cross regular second appeals.

2. Before dealing with the appeals, it may be pertinent hereto give a

brief background of the facts of the instant cases.

3. Ratan Singh Vyamsala Samiti filed a suit for declaration and

permanent injunction against the DDA claiming that the Ratan Singh

Vyamsala Samiti is a society registered under the Societies Registration

Act on 16.01.1990 and Sh.Ratan Singh is the Chairman of the said

society. The society is situated at Dhaka Johar near Bhai Paramanand

Colony and it is owning a parcel of land falling in khasra No.737/45

where it is running an akhada for the benefit of the wrestlers. Apart from

akhada, there are three rooms, one chabutra, one latrine, bathroom,

handpump, mandir and mazar and the Central Government and the Govt.

of NCT of Delhi had issued notification dated 21.03.1994 for

regularization of the area, in which, the name of the plaintiff society had

appeared at Serial No.241. The society had also obtained electricity

connection from the then service provider DESU. It was alleged that the

DDA was threatening to demolish the structure and dispossess them and,

therefore, they filed a suit for declaration and permanent injunction.

4. The DDA filed its written statement and contested the claim of the

Ratan Singh Vyamsala Samiti. It was alleged by them that the aforesaid

akhara and the other premises fell in Khasra No.784/46 of the village

which was actually an acquired land vide notification No.F.8 (40)/74-

L&B dated 20.03.1974 and thereafter the physical possession of the

acquired land was also taken after removing the encroachment and the

same was put at the disposal of the DDA under Section 22 of the DDA

Act. It was alleged that the Ratan Singh Vyamsala Samiti has

re-encroached the land and was a trespasser.

5. In replication, Ratan Singh Vyamsala Samiti has contested the

same and on the pleadings of the parties, the following issues were

framed:

"1. Whether the plaintiff is entitled for the relief of injunction as prayed for? OPP.

2. Relief.

6. Both the parties adduced their respective evidence. A report of the

Tehsildar regarding demarcation was also obtained and the learned Civil

Judge though did not grant declaration to the Ratan Singh Vyamsala

Samiti holding that they were not able to prove their ownership qua the

land in question. However, it granted the injunction holding them to be in

possession of the parcel of land situated in khasra No.737/45. It was also

simultaneously observed that the Society shall not be dispossessed

without due process of law. While returning this finding, the civil court

had analyzed the evidence of the parties and also observed that though the

report of the Tehsildar was on record, however, that report was

completely discarded as in the said report the tehsildar had stated that part

of the land in question fell in khasra No.784/46 measuring around six

bighas as claimed by the DDA. It was also observed that in addition to

these two khasras, the land also fell in couple of other khasras also.

7. The DDA feeling aggrieved by the aforesaid grant of injunction in

favour of the appellant preferred an appeal to the court of the learned

ADJ bearing RCA No.30/13/11 titled DDA versus Ratan Singh Vyamsala

Samiti.

8. No corresponding appeal was preferred by Ratan Singh Vyamsala

Samiti against the rejection of their part of the relief with regard to

declaration. The appeal filed by the DDA challenging the grant of

injunction was heard and allowed by the learned ADJ on 14.03.2013 by

observing that the injunction ought not to have been given for the simple

reason that the civil court had fallen into an error in completely

discarding the report of the Tehsildar wherein he had specifically stated

that the land in question was not falling in one khasra alone as was

claimed by Ratan Singh Vyamsala Samiti and it fell into different khasras

including the khasra in which the DDA claimed it to be falling. It had

also observed that the entire case of the Ratan Singh Vyamsala Samiti

was premised on the ground that they are the owners of the suit property

and as they had failed to establish their ownership qua the suit property

consequently there was no question of grant of any injunction in their

favour.

9. I have heard the learned counsel for the Ratan Singh Vyamsala

Samiti as well as the learned counsel for the DDA. The learned counsel

for the Ratan Singh Vyamsala Samiti has not been able to make out any

substantial question of law involved in the matter. The question as to

whether the land of the appellant was falling in Khasra No.737/45 or not

in its entirety or partially (though they were claiming that entire land falls

in its entirety in the said khasra) is essentially a question of fact and not a

question of law and this finding having been given by the court below

that the Ratan Singh Vyamsala Samiti has not been able to prove its

ownership in respect of the parcel of land in question where the akhara

and the premises is situated apart from the fact that the entire land as

claimed by them was not falling in khasra No. 737/45 clinched the issue

and thus allowed the appeal of the DDA, which was partially decided in

their favour by the learned Civil Judge. This being a question of fact

cannot be treated to be a question of law. It is admittedly not the case of

the Ratan Singh Vyamsala Samiti that the finding returned by the first

appellate court is suffering from any perversity inasmuch as there is no

evidence on record. Therefore, the present appeal is totally misconceived

and the same deserves to be dismissed.

10. The second appeal is an offshoot or a consequence of the appeal

having been filed by the DDA before the first appellate court. In the

second appeal, which is now preferred by the DDA before this court i.e.

bearing No.158/2014 which was filed by Ratan Singh Vyamsala Samiti

against the order of the learned Civil Judge dated 28.05.2011 refusing

them the relief of declaration, the first appellate court vide order dated

09.05.2013 had set aside the finding returned by the learned Civil Judge

while rejecting the claim of the Ratan Singh Vyamsala Samiti with regard

to declaration and remanded the matter back to the trial court to be

decided afresh after giving the parties an opportunity to adduce their

evidence. This finding has been returned by the learned ADJ on the

assumption that an opportunity to adduce evidence on the issue of

declaration was not given to the Ratan Singh Vyamsala Samiti.

11. The contention of the learned counsel appearing for the DDA is

that it was the same ADJ who vide order dated 14.03.2013 had taken note

of the fact that Ratan Singh Vyamsala Samiti had not filed any appeal

against rejection of their prayer of seeking declaration with regard to

ownership of land in question and therefore the said finding returned by

the Civil Judge had become final inasmuch as it was affirmed by the ADJ

also as having not been challenged by Ratan Singh Vyamsala Samiti and

the matter itself having been finally disposed of on 14.03.2013 had

attained finality. The order dated 09.05.2013 passed by the learned ADJ

after almost two months from the date of the earlier order passed in first

appeal suffers from perversity because the same ADJ in the second

appeal filed by Ratan Singh Vyamsala Samiti now remanded the matter

back to the Civil Judge by directing them to give an opportunity to

adduce evidence and decide the question of grant or non-grant of

declaration afresh which cannot be permitted to be done and accordingly

the aforesaid order is prayed to be set aside.

12. The learned counsel for Ratan Singh Vyamsala Samiti has

contested the prayer of the learned counsel for the DDA by contending

that what has been done by the first appellate court is only to remand the

matter back to the trial court and, therefore, the remand of the matter to

the trial court does not constitute passing of a decree and, therefore, could

not be subjected to second appeal.

13. I have carefully considered the submission made by the learned

counsel for the parties and also gone through the appeal. Now, the

remand of the matter by the first appellate court vide order dated

09.05.2013 would not constitute passing of a decree but nevertheless if it

is seen in the context of the earlier order which had been passed on

14.03.2013 by the same ADJ which has taken note of the fact that refusal

to grant declaration has not been assailed by the Ratan Singh Vyamsala

Samiti and, therefore, the finding on that score had become final and it

was not open to him to have remanded the matter back to the trial court

for adjudication. In addition to this, the Ratan Singh Vyamsala Samiti

had already preferred a second appeal and so has the DDA. Therefore,

both these appeals are interconnected and are being decided together.

Therefore, inasmuch as the second order of the judgment passed on

09.05.2013 becomes contrary to what learned ADJ has observed vide

order dated 14.03.2013. This cannot be permitted to stand.

14. I find merit in the contention of the learned counsel for the

respondent/DDA that the order dated 09.05.2013 cannot be permitted to

stand.

15. I accordingly set aside that order and allow appeal of the DDA

being RSA No.158/2014 and dismiss the appeal being RSA No.188/2013

holding that it does not involve any substantial question of law.

V.K. SHALI, J.

MARCH 24, 2015 dm