Delhi Development Authority vs Smt. Kamla Devi & Ors.
2016 Latest Caselaw 4757 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.186/2016

%                                        22nd July, 2016
DELHI DEVELOPMENT AUTHORITY                    ....Appellant
                Through: Mr. Sanjeev Sagar, Advocate with Mr.
                         Kamal Khandelwal, Advocate.

                  versus
SMT. KAMLA DEVI & ORS.                                          ..... Respondents

Through:

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 under Section 100 of the Code of Civil

Procedure, 1908 (CPC) is filed by the appellant/defendant/Delhi Development

Authority (DDA) against the concurrent Judgments of the courts below; of the

Trial Court dated 30.7.2011 and the First Appellate Court dated 29.2.2016;

whereby the suit filed by the respondents/plaintiffs was decreed and the

appellant/defendant was restrained from cancelling the allotment of the property,

being plot no.115, Block-C, Pocket-8, Sector no.17 in Dwarka Residential

Scheme, situated in Pappan Kala, Delhi, in favour of the respondents/plaintiffs.

2. The case of the appellant/defendant in the courts below was that

respondents/plaintiffs were granted allotment of the plot on the ground that there

is a policy of the government that if land of a person is acquired by the

appellant/defendant, then, an alternative plot is allotted to the person whose land

is acquired. The appellant/defendant, however, states that the allottee of the

subject plot cannot transfer or alienate the same but since the

respondents/plaintiffs transferred the plot to one Sh. Sudesh Chopra, hence the

allotment was cancelled. Appellant/defendant relied upon an interim Order dated

10.04.1997 passed by this Court in Suit No.736/1997 filed by the stated purchaser

Sh. Sudesh Chopra against the respondents/plaintiffs and on such basis it was

stated that the appellant/defendant had noted that the respondents/plaintiffs

violated the terms of allotment by transferring the allotted property to Sh. Sudesh

Chopra.

3. Both the courts below have held that the appellant/defendant has

failed to prove the transfer because the case of the respondents/plaintiffs is that

the documents were got executed by Sh. Sudesh Chopra from the

respondents/plaintiffs in blank and those documents had no legal validity. The

courts below have held that merely filing an interim order in suit no.736/1997

would not prove that respondents/plaintiffs have transferred the suit property

because onus of proof was upon the appellant/defendant but the

appellant/defendant had failed to prove the final outcome of the suit no.736/1997.

4. I have examined the judgments of the courts below and it is seen that

the appellant/defendant has filed no proof that respondents/plaintiffs transferred

the suit plot to Sh. Sudesh Chopra inasmuch as an interim order cannot be taken

as a final outcome of the suit filed by Sh. Sudesh Chopra. Learned counsel for the

appellant/defendant argues that the trial court was bound to summon the suit file

because in the appeal originally filed against the first judgment of the trial court,

this appeal was decided by remanding the matter to the trial court by allowing the

appellant/defendant/DDA to produce in terms of Order XLI Rule 27 CPC the

record of the suit no.736/1997, and that this record in spite of best efforts of the

appellant/defendant could not be traced although the same was summoned by the

courts below, however in my opinion, merely because the record is not traced

would not necessarily mean that the appellant/defendant has discharged the onus

of proof that there took place transfer of the suit plot by the respondents/plaintiffs

in favour of Sh. Sudesh Chopra, without there being a final judgment in suit

no.736/1997 being placed on record. I cannot raise a presumption either of facts

or law that merely because the suit file is not traceable, it should be presumed that

the suit was decreed in favour of the plaintiff and against the defendant of that suit

no.736/1997.

5. In view of the above, no substantial question of law arises for this

second appeal to be entertained under Section 100 CPC. Dismissed.

JULY 22, 2016                                             VALMIKI J. MEHTA, J
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