Delhi High Court
Babu & Ors vs Nain Singh & Anr on 22 March, 2018
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 22.03.2018
+ RSA 198/2015, C.M.9221-22/2015
BABU & ORS ..... Appellants
Through: Mr. J.K. Jain, Adv.
versus
NAIN SINGH & ANR ..... Respondents
Through: Mr. R.K. Shukla, Adv.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J (Oral)
1. This second appeal impugns the judgment and decree in Suit No.
30/2013 dated 11.12.2006 as well as the order of the First Appellate Court
upholding the same on 22.04.2015. The respondents (plaintiffs) had sought
permanent injunction against the appellants from being dispossessed by the
appellants from Khasra no. 185 admeasuring 1 bigha, 1 biswa situated in
revenue estate of village Sabhapur, Delhi. The suit was decreed vide
judgment dated 22.04.2015.
2. The plaintiffs had claimed that the suit land occupied by them formed
a part of Khasra no. 185. The defendants/appellants had contended that the
suit property fell in Khasra no. 186.
3. The Trial Court had considered the site plan filed by the plaintiffs and
had accepted it as sufficient evidence to conclude that the suit property fell
in Khasra no. 185. The judgment and decree was upheld by the first
Appellate Court.
4. This Court on 19.10.2015 was of the view that essentially the identity
of the suit land had to be ascertained and the impugned order was deficient
in reaching certainty in this regard. The Court observed:
"The submission of Mr. Jain, learned counsel
for the appellant is that the dispute between the
parties is with regard to the demarcation of
khasra Nos 185 and 186. It is not in dispute that
land falling in khasra No. 185 is claimed by the
plaintiff-respondents whereas land falling in
khasra No. 186 is claimed by appellant-
defendants. Before the trial court, both the
parties led in evidence their respective site plans.
The trial court and the first appellate court
accepted the site plan led in evidence by the
plaintiff on the premise that the plaintiff had
stated in his evidence that the plaintiffs‟ site plan
(Ex.PW1/2) had been prepared by a Draftsman.
However, the Draftsman himself was not
produced. The site plan (Ex.PW1/2) is also not
found to be containing any dimensions, though, it
says, „SCALE: 40 FEET TO AN INCH‟.
However, in the absence of dimensions, the mere
mention of the Scale is of no avail. The plan
produced by the appellant-defendant (Ex.DW1/1)
was rejected by the trial court on the premise that
the appellants/defendants had merely tendered the
site plan and had not stated that the same has
been prepared by a Draftsmen. It had also been
observed that the plan filed by the defendants did
not contain any dimensions. The position,
however, appears to be to the contrary as some of
the dimensions are indeed mentioned in Ex.
DW1/1.
The quality of evidence led by the parties with
regard to khasra numbers of the suit property is
extremely wanting. In these circumstances, I am
inclined to exercise my power under Order 41
Rule 27 CPC, since it is considered necessary by
this Court to ascertain the actual khasra number
of the suit property, to be able to pronounce
judgment. The same is considered essential to do
complete justice between the parties.
Accordingly, the Deputy Commissioner (East),
having jurisdiction over village Sabhapur,
Shahdara, is directed to cause the demarcation of
the suit property to be carried out by employing
the Total Station Method. The entire expense to
be incurred in this regard shall be borne by the
appellant in the first instance. The Deputy
Commissioner shall communicate the charges to
be deposited by the appellant and after deposit of
the same, within four weeks thereafter, the
demarcation shall be got carried out. The
demarcation report should also indicate the
existing boundary walls; the location of the fruit
bearing trees; and the location of the constructed
portions, namely, the rooms and the water head-
pumps."
5. The demarcation exercise carried out through the office of the
Tehsildar, Karawal Nagar, Delhi by employing the "Total Station Method",
the report shows that the suit land is situated in bay gosha of Khasra no. 191,
with part of the area falling in Khasra no. 186. In other words the report
concludes that the suit property does not at all fall in Khasra no. 185, Village
Sabhapur, Delhi as was pleaded by the respondents/plaintiffs. Therefore, the
injunction which covered the suit property purportedly falling in Khara no.
185 would be redundant and not operational apropos the land occupied by
the appellants.
6. The suit was structured on the basis of the suit property falling in
Khasra no. 185, however, this edifice crumbles in view of the aforesaid
demarcation report concluding that the suit property does not fall in Khasra
no. 185.
7. The fundamental issue that ought to have determined first i.e. whether
the suit fell in Khasra no. 185 or in Khasra no. 186 had not been determined.
The error in the impugned order is apparent inasmuch as the injunction
sought to cover lands/suit property purportedly falling in Khasra no. 185
whereas in reality the said land was not located in Khasra no. 185. The order
erred.
8. In the circumstances, the impugned order is set aside. The appeal is
allowed and the suit is dismissed. The pending applications stand disposed
off.
NAJMI WAZIRI, J
MARCH 22, 2018/acm
