Delhi High Court
Delhi Urban Shelter Improvement ... vs Kanwar Singh & Ors. on 29 August, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 146/2013
% 29th August, 2016
DELHI URBAN SHELTER IMPROVEMENT BOARD .....Appellant
Through: Mr. Parvinder Chauhan and Mr. Nitin
Jain, Advocates.
versus
KANWAR SINGH & ORS. ..... Respondents
Through: Mr. Rampal Tokas, and Mr. Adan
Ahmed, Advocates for R-1 with R-1 in
person.
Mr. Rakesh Mittal, Advocate for D-
3/DDA.
Mr. Anuj Aggarwal and Mr. Shubhanshu
Gupta, Advocate for UOI
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The issue in the present second appeal filed under Section 100 of
the Code of Civil Procedure, 1908 (CPC) is crystallized in the Order of this
Court dated 13.2.2014 as to whether respondent no.1/plaintiff as per his case is
situated in land in Khasra no. 78/16/2 and 25 of Mauja Palam, now known as
Mahavir Vihar, New Delhi or respondent no.1/plaintiff is located in land in
Khasra no. 27/17 in village Mirzapur as is the case of the appellant/defendant
no.1.
2. By the Order dated 13.2.2014 demarcation was directed to be made
by total station method so as to determine the exact location of the land claimed
by respondent no.1/plaintiff.
3. Demarcation report has been filed in this Court pursuant to the said
Order dated 13.2.2014. The relevant portion of the demarcation report reads as
under:-
"After superimposing the demarcation survey over sizra map. The following
results appeared
i) Disputed land falls in Khasra No. 78/16/1 Palam village and Kh. No.
27/15/1 Village Mirjapur. These has been shown in the drawing as dark green
colour for village-Palam and pink colour for village-Mirjapur.
ii) The dispute area of Kh. No. 27/15/1 in village-mirjapur is 45.3 Sq. yd.
& the disputed area of Kh. No. 78/16/1 village-Palam is 47.1 Sq. yd.
iii) The disputed land is a vacant land."
4. A reading of the aforesaid portion of the demarcation report shows
that the disputed land falls not in Khasra no. 78/16/2 and 25 of village Palam as
was the case of respondent no.1/plaintiff, but the same falls in Khasra no.
78/16/1 of village Palam. Part of the disputed land also falls in Khasra no.
27/15/1 of village Mirzapur. The land area in village Mirzapur is 45.3 sq. yds.
whereas the land area in village Palam is 47.1 sq. yds.
5. In the present case, therefore, it is seen that parties have not gone to
trial with respect to the land in question falling in Khasra no. 78/16/1 of village
Palam (because as per the plaintiff/respondent no.1 he claims rights in Khasra
no. 78/16/2 and 25 of village Palam) or Khasra no. 27/15/1 of village Mirzapur
(as stated in the demarcation report), of areas of 47.1 sq. yds. and 45.3 sq. yds.
respectively. Really, therefore, the present case is a case of land which is not
the land in dispute as per the pleadings of the parties.
6. The issue will still however remain as to whether the land on which
respondent no.1/plaintiff is located, i.e 40 sq. yds. of land, falls or does not fall
in acquired land of land otherwise owned by the appellant/defendant no.1 or its
predecessor-in-interest. The right of the appellant/defendant no.1 would only be
if the land on which respondent no.1/plaintiff is in any manner owned by the
appellant/defendant no.1 or conversely if respondent no.1/plaintiff proves that,
as against the appellant/defendant no.1, he has a better entitlement to the land in
which he claims rights.
7. Since the respondent no.1/plaintiff had filed a suit with respect to
the suit property claiming to be situated in Khasra no. 78/16/2 and 25 of village
Palam, and the suit land is however not situated on this khasra number but on a
totally different khasra number of village Palam and also on land in village
Mirzapur, hence there is no defence of the appellant/defendant no.1 as regards
the non-ownership and non-entitlement of the respondent no.1/plaintiff to the
land which respondent no. 1/plaintiff claims in terms of the demarcation report
filed in this Court.
8. Accordingly, it is found that the judgments of the courts below do
not dwell on the issue of entitlement of the respondent no.1/plaintiff of the land
where respondent no.1/plaintiff is actually located as per the demarcation report
and which is in different areas in Khasra no. 27/15/1 of village Mirzapur and
Khasra no. 78/16/1 of village Palam. As regards this land, therefore, respondent
no.1/plaintiff will have to file an appropriate suit with appropriate pleadings and
in which suit the appellant/defendant no.1 herein will have all rights to contest
the same for denying the entitlement/rights which respondent no.1/plaintiff may
claim in the land in which respondent no.1/plaintiff is actually located upon
either in village Palam or in village Mirzapur.
9. This second appeal and the suit itself is accordingly disposed of in
terms of the aforesaid observations by setting aside the judgments of the courts
below and giving liberty to respondent no.1/plaintiff to file a suit with respect to
the land on which respondent no.1/plaintiff is found to be located and in which
rights including ownership rights are claimed by respondent no.1/plaintiff, and
in such a suit when filed it will be open to the appellant/defendant no.1 in this
second appeal/suit to take all appropriate defences as permissible in facts and
law.
10. Reference in this judgment to the appellant/defendant no.1 and
respondent no.1/plaintiff will include their respective predecessor-in-interest.
11. The Regular Second Appeal is disposed of in the aforesaid terms.
AUGUST 29, 2016 VALMIKI J. MEHTA, J
AK
