Delhi High Court
Delhi Development Authority vs Sh. Ashok Kumar on 26 October, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.20/2013
% 26th October, 2016
DELHI DEVELOPMENT AUTHORITY ..... Appellant
Through: Mr. Dhanesh Relan, Advocate.
versus
SH. ASHOK KUMAR ..... Respondent
Through: None.
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 defendant/Delhi Development
Authority (DDA) in the suit impugning the concurrent Judgments of the
courts below; of the Trial Court dated 28.7.2010 and the First Appellate
Court dated 27.7.2012; by which the suit for mandatory and permanent
injunction filed by the respondent/plaintiff was decreed and the
appellant/defendant was directed to allot an alternative plot to the
respondent/plaintiff. The appellant/defendant was restrained from
dispossessing the respondent/plaintiff from the suit property except with the
due process of law.
2. The limited issue for consideration in the present Regular
Second Appeal is that whether the respondent/plaintiff was in
possession/occupation of jhuggi no.C-S-02/H-122, Dr. Ambedkar Camp,
New Delhi prior to 31.12.1998 inasmuch as only those persons who were in
possession of the jhuggi situated on the government land prior to 31.12.1998
were to be granted alternative allotment on being dispossessed from the
jhuggi.
3. The respondent/plaintiff pleaded a case of his possession and
occupation of the jhuggi in question prior to 31.12.1998 and accordingly led
evidence. In the evidence, three documents are proved by the
respondent/plaintiff to support his case and which are ration card Ex.PW1/1
dated 24.5.1999, election identity card Ex.PW1/2 dated 7.1.2003 and an
identity card issued by the Delhi Administration Ex.PW1/3 dated 15.2.1990.
4. So far as the ration card and election identity card are
concerned, the same would not help the respondent/plaintiff because they
are dated post 31.12.1998 and occupation/possession has to be shown prior
to 31.12.1998. However, the document Ex.PW1/3 being the identity card
issued by the Delhi Administration helps the respondent/plaintiff to show
that the respondent/plaintiff was in occupation of the subject jhuggi as on
15.2.1990. In fact, even the survey report Ex.DW1/2 conducted by the
appellant/defendant showed that the respondent/plaintiff was in possession
of the subject jhuggi but the admitted case of both the parties is that the
jhuggi was found locked on that date. The courts below have therefore
concluded that even if the jhuggi was found locked it does not mean that the
respondent/plaintiff was in possession and occupation of the jhuggi because
the name of the respondent/plaintiff is found as against the subject jhuggi
no.H-122.
5. When this RSA was admitted on 13.3.2015, the following
substantial question of law was framed:-
"Whether finding of fact returned by the trial court and confirmed by the
first appellate court suffers from any perversity in the light of the
evidence produced by the parties?"
6. Appreciation of evidence when two views are possible would
not mean arising of a substantial question of law. A civil suit is decided on
the balance of probabilities and as per the balance of probabilities in view of
the evidence led, especially the documents being the identity card issued by
the Delhi Administration Ex.PW1/3 and the survey report of the
appellant/defendant itself Ex.DW1/2, respondent/plaintiff is shown to be in
possession of the jhuggi prior to 31.12.1998, and accordingly was entitled to
allotment of an alternative plot as per the policy of the appellant/defendant.
7. Learned counsel for the appellant argued that the suit was bad
for want of notice to the appellant/defendant under Section 53B of the Delhi
Development Act, 1957, however, this issue is squarely covered against the
appellant/defendant by a Division Bench judgment of this Court in the case
Yashod Kumari and Anr. Vs. MCD & Ors., AIR 2004 Delhi 225 and in
which judgment it is held that the object of giving notices prior to the filing
of the suit is to ensure a settlement before filing of suit, but, once the suit is
contested to the hilt, the requirement of the prior notice pales into
insignificance.
8. In view of the above discussion, the substantial question of law
is answered in favour of the respondent/plaintiff and against the
appellant/defendant. Judgments of the courts below are upheld and
appellant/defendant is directed now to give an alternative plot to the
respondent/plaintiff in accordance with the policy taking the occupation of
the subject jhuggi by respondent/plaintiff from 1990. Appeal is accordingly
dismissed, leaving the parties to bear their own costs.
OCTOBER 26, 2016 VALMIKI J. MEHTA, J
Ne
