Delhi High Court
Phool Singh vs Municipal Corporation Of Delhi ... on 27 October, 2016
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 25.10.2016
Judgment delivered on : 27.10.2016
+ W.P.(C) 3633/2012
PHOOL SINGH
..... Petitioner
Through Mr. Naresh Thanai, Advocate
versus
MUNICIPAL CORPORATION OF DELHI THROUGH ITS
CHAIRMAN (SOUTH) AND ANR
..... Respondents
Through Mr. Mini Pushkarna, Standing
Counsel, South MCD with Ms.
Namrata Mukim, Ms. Anushruti and
Ms. Vasundhara Nayyar, Advocates
Mr. Ajay Verma, Senior Standing
Counsel with Mr. Vaibhav Mishra,
Advocate for DDA
Mr. Rajiv Kumar Ghawana, aDvocate
for R-4 and R-5(a) to (f)
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1 The present writ petition has been filed by the petitioner namely Phool
Singh. In the course of these proceedings, Phool Singh had expired. His
legal representatives have been brought on record. They are now pursuing
this litigation.
2 At the outset, this Court had noted that prayers (a) and (c) cannot be
granted and the petition had been confined to prayer (b) alone which reads
herein as under:-
"Issue writ order or direction in the nature of declaration declaring that the
land use in respect of 13 biswas of land (admeasuring 650 square yards)
forming part of Khasra No.50/1, Humayunpur, New Delhi in possession of
the petitioner is residential and land use shown as park in the development
plan of Humayunpur is illegal and arbitrary."
3 The averments in the writ petition disclose that the petitioner is stated
to be in possession of property constructed on a plot of land measuring 13
biswas (admeasuring 650 square yards) forming part of khasra No.50/1,
Humayunpur, New Delhi. It is stated that the petitioner is in possession of
this plot of land since the last six decades.
4 A civil suit had been filed by one Khazan Singh and others in the year
1971 for possession against the petitioner qua 200 square feet of land. This
suit was decreed on 30.10.1976 but the decree has not been executed till
date. That decree has now become un-enforceable.
5 In the year 1985, the officers of the MCD and the DDA attempted to
interfere in the peaceful possession of the petitioner qua the said suit land.
Pursuant thereto, demarcation was ordered of the suit land which was
accordingly carried out.
6 In the year 1989, part of this khasra was notified under Sections 4, 6
and 17 (1) of the Land Acquisition Act for a public purpose. This
acquisition was challenged by the petitioner in a writ petition. This writ
petition was disposed of on 24.02.1999. The acquisition proceedings stood
quashed. An appeal filed against that judgment also stood dismissed by the
Division Bench on 16.05.2000.
7 In the year 1996, Khem Chand and residents of the area had filed a
suit for injunction against the petitioner. This suit was registered as Suit
No.85/1996. The interim application filed by the petitioner under Order
XXXIX Rules 1 & 2 of the CPC was dismissed by the Trial Judge on
09.10.1996. The appeal against that order was also dismissed. The
contention of the petitioner all along was that he is in settled possession of
the aforenoted land.
8 Thereafter in the year 2006, a suit was filed by Khazan Singh for
possession and damages against the petitioner. The application under Order
XXXIX Rules 1 & 2 of the CPC filed by them was allowed in their favour.
This was vide order dated 03.02.2009. The petitioner filed an appeal against
that order which was disposed of by a Bench of this Court on 11.09.2009.
The appeal was allowed. It was held that since the petitioner was in settled
possession of the suit property (legal or otherwise), he could not be
restrained from carrying out additions/alterations/construction in the suit
property. The appeal against that order stood dismissed by the Apex Court
on 11.02.2010.
9 In June, 2010, the petitioner had approached the office of the
respondents seeking a sanction of his building plan. This application was not
accepted by the respondents. The petitioner was constrained to file W.P. (C)
No.6348/2010. This writ petition was disposed off on 08.04.2010. A copy of
that order has not been placed on record but the further averments in the writ
petition disclose that pursuant thereto that the petitioner had again submitted
his application seeking a sanction of his building plan. This application was
rejected. Admittedly against the rejection of sanction of building plan, the
petitioner had a remedy of filing an appeal and as such prayer (a) was not
pressed before this Court. This was noted in the order dated 01.06.2012. At
the cost of repetition, it is only prayer (b) which is being pressed.
10 Vehement contention of the learned counsel for the petitioner is that
all these facts clearly show that the petitioner is in settled possession of the
land; he has become the owner by adverse possession. Accordingly, prayer
(b) which is to the effect that the land user as depicted in the layout plan of
the colony (shown as park) be permitted to be changed to a residential user.
Learned counsel for the petitioner in support of his submission has placed
reliance upon Section 55 of the Delhi Development Act, 1957. Submission
being that even where a land situated in an area is required by the Master
Plan or the Zonal Development Plan to be kept as an open space and the
same has not been acquired, after the expiry of 10 years from the date of the
operation of the plan, user of the land is deemed to be changed. Learned
counsel for the petitioner in support of his submission has also placed
reliance upon a judgment of the Apex Court in (2005) 11 SCC 222 Raju S.
Jethmalani and Others Vs. State of Maharashtra and Others; submission is
that in this case where the land in question had been sought to be acquired
but could not be successfully acquired, the open park and the garden was
permitted to be allowed to be personally used by the petitioner of that case.
Submission being that in the instant case as well, the site which has been
designated as a park be permitted to be converted to a residential user.
11 The counter affidavit has been perused. The stand of the Department
(respondents No.1 & 2) all along was that the land in question as per the
development plan is earmarked as a park in the village plan of Humayunpur
as approved by the DDA vide its order dated 08.01.1986. Since the site
under reference forms a part of the earmarked area for a park, the contention
of the petitioner that he should be permitted to use it for his residential
activities and his building plan be sanctioned was accordingly rejected on
04.11.2011. The development plan cannot be changed. It has been approved
by the DDA.
12 The stand of the DDA/respondent No.3 was brought to the notice of
this Court through its counter affidavit. Submission is that the petitioner has
claimed his right by adverse possession which can be set up as defence and it
cannot be used as a shield. Disputed questions of facts are involved.
Submission being that this area now vests with the MCD and the land user
only be confirmed by the Corporation. Admittedly the layout plan of village
Humayunpur was approved by the Vice-Chairman, DDA on 08.01.1986; it
has been earmarked as a park and it cannot be converted to a residential user.
13 Arguments have been heard. Record has been perused.
14 The petitioner does not have any acquired title on the land. He is
claiming right over this land by adverse possession; a suit qua this land is
pending between the petitioner and the alleged owner namely Khazan Singh
and others who have claimed title over this land. That suit is yet to decide
the fate of the parties. The petitioner claims title by way of adverse
possession. Adverse possession, (as rightly pointed out in the counter
affidavit of respondent No.3), can only be used as a defence; it cannot be set
up as a claim. There is no document of title in favour of the petitioner. Even
presuming that he is in settled possession since the last six decades, it would
only be possessory rights and no title accrues thereto in favour of the
petitioner which at the cost of repetition is yet pending adjudication.
15 Admitted position qua the layout land is also that the area in dispute
has been shown as a park. The Zonal Development Plan has also recorded
this and so also the layout plan of village Humayunpur. This is the stand of
respondents No. 1 & 2 as also of respondent No.3. The change of the land
user cannot be made at the asking of the petitioner. He does not qualify as an
owner.
16 Recourse to provisions of Section 55 of the Delhi Development Act
also do not come to his aid; at best it would apply qua the deemed status of
an owner. The judgment of Raju S. Jethmalani (supra) is of help to the
petitioner. This was a case where the owner had set up a plea that the
garden/park which had been de-notified by the Government should be
permitted to be used by the owner.
17 The facts of the instant case are clearly distinct. The whole case of the
petitioner is bordered on his plea of adverse possession and at the cost of
repetition, is a plea where can be used as a defence and not as a shield to
protect himself; the details of his claim for adverse possession are also
missing.
18 The Supreme Court in (2006) 7 SCC 570 T Anjappa and Others Vs.
Somalingappa and Another in this context had noted herein as under:-
" The concept of adverse possession contemplates a hostile possession i.e. a
possession which is expressly or impliedly in denial of the title of the true
owner. Possession to be adverse must be possession by a person who does
not acknowledge the other's rights but denies them. The principle of law is
firmly established that a person who bases his title on adverse possession
must show by clear and unequivocal evidence that his possession was hostile
to the real owner and amounted to denial of his title to the property claimed.
For deciding whether the alleged acts of a person constituted adverse
possession, the animus of the person doing those acts is the most crucial
factor. Adverse possession is commenced in wrong and is aimed against
right. A person is said to hold the property adversely to the real owner when
that person in denial of the owner's right excluded him from the enjoyment of
his property."
19 The question of a person perfecting his title by adverse possession is a
mixed question of law and fact. Admittedly the suit filed by Khazan Singh
for possession and damages against the petitioner is yet pending. This Court
is of the view that it is this suit which will decide the title of the parties.
Claim of adverse possession set up by the petitioner has not been perfected.
20 This petition is without any merit. Dismissed.
INDERMEET KAUR, J
OCTOBER 27, 2016
A
