Guru Ravidas Jainti Samaroh ... vs Union Of India & Ors
2018 Latest Caselaw 6896 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  RFA No. 822/2018

%                         Reserved on :   13th November, 2018
                          Pronounced on : 20th November, 2018

GURU RAVIDAS JAINTI SAMAROH SAMITI (REGD.)

                                                            ..... Appellant

                          Through:       Mr. Anil Nauriya and Ms. Sumita
                                         Hazarika,             Advocates
                                         (9811979264)

                          versus

UNION OF INDIA & ORS .                                   ..... Respondents

                          Through:       Mr. Chiranjeev Kumar and Mr.
                                         Mukesh Sachdeva, Advocates for
                                         R-1/UOI (9971170154)

                                         Mr. Ajay Verma, Sr. Standing
                                         Counsel for DDA, Mr. Dhanesh
                                         Relan, Standing Counsel for DDA
                                         and Mr. N.B.Mani (Director Land
                                         Management I) with Ms. Gauri
                                         Chaturvedi and Ms. Mrinalini
                                         Sharma, Advocates. (9910247777)

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?





 VALMIKI J. MEHTA, J

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit

impugning the judgment of the Trial Court dated 31.07.2018 by which

the trial court has dismissed the suit for declaration and permanent

injunction filed by the appellant/plaintiff, and by which suit the

appellant/plaintiff had claimed rights in the land/property bearing

Khasra Nos. 123(4-6), 124/1(4-5) out of 45-14, 122 (2-17) and 124

min (0-19) said to contain 20 rooms and halls. The total area of the

land as stated above claimed by the appellant/plaintiff would be

approximately 12,350 sq. yds situated in Village Tughlakabad, New

Delhi.

2. The facts of the case are that the appellant/plaintiff filed

the subject suit pleading that one Sh. Roopa Nand, was the ancestor of

the appellant/plaintiff/society, who had occupied the suit lands about

160 years ago. Sh. Roopa Nand had dug out a pond/Johar in Khasra

No. 123 which was known as 'chamar wala johar'. A hut was built

by Sh. Roopa Nand in Khasra No.124/1. The land is pleaded to have

been shown as 'Shamlat' (village common land) belonging to Gaon

Sabha on the commencement of the Delhi Land Reforms Act, 1954.

The possession of the appellant/plaintiff is said to be in the revenue

records from the year 1959 till date. It was pleaded that the

appellant/plaintiff built a Guru Ravidas Mandir, Ashram and Samadhi

of Sh. Roopa Nand and other Saints as also four rooms as part of

Dharamshala. The society was pleaded to have been registered in

1959 and the Mandir is said to have been inaugurated by the Minister

Sh. Jagjiwan Ram on 01.03.1959. The appellant/plaintiff is also said

to have built a school in the name of Guru Ravidas. In terms of the

Delhi Land Reforms Act, it was pleaded that though the land was

formally transferred to the Central Government, the same was only a

book entry. It was further pleaded in the plaint that when the

possession of the land was taken by the Central Government, a barbed

wire fencing was constructed around the suit land and separate area

was provided by the respondents/defendants to access the subject

property and the structures therein. It was alternatively pleaded by the

appellant/plaintiff that they have become the owner by adverse

possession as they have been in possession of the suit land since over

30 years. It was pleaded that the respondents/defendants cannot

demolish the suit property without any notice. [At this stage, I may

note that essentially the contesting respondent is the respondent no.

2/defendant no.2/Delhi Development Authority (DDA)]. Accordingly

in the suit, reliefs of declaration of ownership of the suit land and

injunction against the DDA was claimed from interfering in the

occupation and enjoyment by the appellant/plaintiff of the suit land

and property situated thereon.

3. The suit was contested by the respondent no. 2/defendant

no. 2/DDA. It was pleaded that the land comprised in Khasra Nos.

123, 124/1 and 124/2 was acquired under the Land Acquisition Act

1894, and Awards were passed being the Award No. 1533/1962-1963

(Ex.PW1/DX1) and Award No. 1430/1962-1963 (Ex.PW1/DX2).

Vacant physical possession of the land under these two Awards was

taken by the DDA on 24.04.1963 in terms of possession proceedings

of even date. DDA pleaded that the appellant/plaintiff had time and

again sought to encroach upon the government land but such action of

the appellant/plaintiff was thwarted. A demolition programme was

undertaken by the concerned branch of DDA on 05.11.1992 with

respect to the unauthorized construction of Khasra No. 123 and 124/1,

and which action was also taken to prevent further unauthorized

construction. So far as the land situated in Khasra No. 122 is

concerned, the same was acquired by the Award No. 67/1986-1987

(Ex.PW1/DX4). Vacant, physical possession of this land was taken

on 22.09.1986 in terms of the possession proceedings of even date

(Ex.D2W1/1). Since the appellant/plaintiff had filed a writ petition in

this Court being W.P. (C) No. 2008/1986, though the respondent no.

2/defendant no. 2/DDA took possession, but it did not carry out any

demolition with respect to some construction in the land of this

property. It was pleaded by the DDA that the appellant/plaintiff in the

garb of status quo order was trying to further encroach upon the land.

The structures on the land were pleaded to be completely

unauthorized. The suit lands were pleaded to have been handed over

to the DDA on 24.04.1963 qua Award Nos. 1533/1962-1963 and

1430/1962-1963 and on 22.09.1986 qua Award No. 67/1986-1987.

DDA is pleaded to have issued the necessary notification under

Section 22(1) of the Delhi Development Act 1957, on 03.01.1968 so

far as the two Awards are concerned, and on 10.10.1986 so far as the

third Award is concerned. It was pleaded that there is no entry in the

revenue record showing the appellant/plaintiff as the owner. The title

claimed by the appellant/plaintiff under the doctrine of adverse

possession was also denied. Suit was hence prayed to be dismissed.

4. After pleadings were complete, the trial court framed the

following issues:-

"1. Whether the suit without service of notice under Section 53B of the Delhi Development Act and Section 80 of the Code of Civil Procedure is maintainable?

2. Whether the suit is properly valued for the purposes of Court fees and jurisdiction?

3. Whether the plaintiff is a society registered under the Societies Registration Act and suit has been signed, verified and instituted by an authorized person on behalf of the plaintiff?

4. Whether the plaintiff has become owner by adverse possession of the property in khasra numbers 123,124/1,122 and 124 min? If so to what effect?

5. What is the effect of acquisition of the suit land by the defendant under the Provisions of Land Acquisition Act and issue of the notification under Section 22(1) of the Delhi Development Act?

6. To what relief, if any, is the plaintiff entitled."

5. The following aspects are required to be examined in this

appeal:-

(a) Whether the appellant/plaintiff was at all at any time the owner

of the suit land?

(b) Whether the suit lands were acquired by the government under

the Land Acquisition Act and possession thereof taken, whereby it

was the government which became owner of the suit lands, and which

land was transferred thereafter to the respondent no. 2/defendant no.

2/DDA?

(c) Whether the appellant/plaintiff has become owner by adverse

possession?

(d) Whether the appellant/plaintiff is entitled to the relief of

protection of its structures existing in the suit property, and which

essentially will be one small room painted in white used as Guru

Ravidas Mandir having a dome, with a small courtyard in front

thereof, two other small rooms and in which the Pujari is said to be

living. Essentially this is the construction which was found by the

Local Commissioner appointed in the suit, and who gave his report

dated 28.05.1997. Also, there exist about 4 samadhis on the suit land.

6. So far as the claim of the appellant/plaintiff to the

ownership is concerned, the appellant/plaintiff has not filed and

proved on record any document whatsoever that Sh. Roopa Nand or

the appellant/plaintiff society was ever the owner of the suit land. In

fact, the suit lands are subject matter of the Awards which have been

proved and exhibited by the respondent no. 2/defendant no. 2/DDA as

Ex.PW1/DX1, Ex.PW1/DX2 and Ex.PW1/DX4. Not only the land

was acquired, physical and vacant possession of the lands was also

taken in terms of the possession proceedings which have been proved

as Ex.PW1/DX5 and Ex.D2W1/1. Clearly therefore, the

appellant/plaintiff is not the owner of the suit land and the

appellant/plaintiff cannot succeed on the ground that the

appellant/plaintiff is the owner of the suit land. Once possession was

taken by the Central Government under Section 16 of the Land

Acquisition Act in terms of the possession proceedings proved, and

exhibited in the trial court, the Central Government became the owner

of the land, and which land has been thereafter transferred to the

DDA, and hence respondent no. 2/defendant no. 2/DDA is now owner

of the suit land.

7. Appellant/plaintiff also cannot claim ownership by

adverse possession because adverse possession has to be proved for

over a continuous period of 30 years. Also, the adverse possession has

to be proved to the satisfaction of the Court by clinching documentary

evidence. Courts look at disfavor to the claim of adverse possession

because the claim of adverse possession commences in a wrong and

continues against a right. In the facts of the present case, it is seen that

except making a self serving averment by a witness of the

appellant/plaintiff, Sh. Rishipal, who deposed as PW-1, no

documentary evidence whatsoever has been filed to show that the

appellant/plaintiff has been in continuous and uninterrupted

possession of the suit land for over 30 years. Trial court therefore was

completely justified in holding that the appellant/plaintiff cannot be

held to be the owner of the suit land by adverse possession. It is also

noted that an endeavour to encroach and commit illegal acts of

possession of government lands, are looked at disfavor by Courts, and

the trial court has in this regard rightly relied upon various judgments

in paras 26 to 29 of the impugned judgment, including the oft cited

judgment of the Supreme Court in the case of Premji Ratansey Shah

& Ors. v. Union of India & Ors JT 1994 (6) SC 585, and which

judgment holds that Courts should not grant injunction with respect to

government/public lands. Nothing could be argued before this Court

on behalf of the appellant/plaintiff by placing reliance of clinching

documentary evidence for 30 years to show that the appellant/plaintiff

had become owner of the suit lands by adverse possession.

8. In fact, learned counsel for the appellant/plaintiff during

the course of arguments did not very strenuously dispute the findings

of the trial court with respect to the ownership of the suit lands

presently vesting with the respondent no. 2/defendant no. 2/DDA and

that the appellant/plaintiff could not be the owner by adverse

possession, however, reliance was placed by the learned counsel for

the appellant on certain observations in para 21 of the judgment of the

Supreme Court in the case of Murari and Others vs. Union of India

and Others (1997) 1 SCC 15, to argue that the appellant/plaintiff,

since has a Guru Ravidas Mandir on the spot, as also some structures

and samadhis, the appellant/plaintiff be held entitled to make a

representation to the DDA and that the DDA should be directed to

consider the representation and take a decision as observed in para 21

of the judgment in Murari's case (supra).

9. Learned counsel for the respondent no. 2/defendant no.

2/DDA has very vehemently opposed the submission of the

appellant/plaintiff that the appellant/plaintiff should be allowed to

continue to retain the relevant illegal structures as existing on the suit

land because the ownership of the suit land indubitably belong to the

respondent no. 2/defendant no. 2/DDA. It was also argued on behalf

of the respondent no. 2/defendant no. 2/DDA that the suit lands are

green lands and therefore no structures can be allowed to exist on the

suit land.

10. As regards this last argument, I would like to note that it

is the admitted case of the respondent no. 2/defendant no. 2/DDA that

on account of the status quo Order dated 29.09.1986 passed by the

High Court in W.P. (C) No. 2008/1986 filed by the appellant/plaintiff,

no demolition of whatever structures as are presently existing in the

suit property, have been carried out. Whatever structures are existing,

are essentially a small temple with a courtyard, two small rooms, and a

few samadhis. Though the writ petition W.P. (C) No. 2008/1986

stands dismissed in terms of the Order dated 19.08.2004 passed by a

Division Bench of this Court, the aforesaid structures of the small

temple and other structures have not been demolished by respondent

no. 2/defendant no. 2/DDA till date. Though I do not agree with the

arguments urged on behalf of the appellant/plaintiff that the

appellant/plaintiff is entitled to the benefit of para 21 of the judgment

in the case of Murari (supra), inasmuch as in Murari's case (supra)

possession of the lands was not taken over by the government, and in

the present case possession of the lands has already been taken over by

the government in terms of possession proceedings which have been

proved and exhibited in the trial court, however in the opinion of this

Court, the respondent no. 2/defendant no. 2/DDA can consider that the

temple and the two rooms can be shifted from the existing location to

barely about 400 ft. at the boundary/periphery of this land (which is

green area as per DDA) and there would be an independent access to

the small temple with two rooms by the appellant/plaintiff society and

its members without the need to use or access any other area/land of

the respondent no. 2/defendant no. 2/DDA. In fact, to be fair to the

respondent no. 2/defendant no. 2/DDA, such an argument without

prejudice to the right of the respondent no. 2/defendant no. 2/DDA,

was made by DDA itself (and subject to this position permissible in

accordance with the law) and which stand the respondent no.

2/defendant no. 2/DDA took up only in the interest of justice, but the

counsel for the appellant/plaintiff on instructions from the office

bearers of the appellant/plaintiff rejected the offer to shift the temple

to a very nearby place at the periphery of this subject land which is a

green area. Therefore, in my opinion, though the appellant/plaintiff is

not entitled to the benefit of the observations in para 21 of the

Murari's case (supra) of making a representation to DDA for its

consideration, yet in case the appellant/plaintiff within a period of four

weeks from today makes a representation to the respondent no.

2/defendant no. 2/DDA that the present small one room temple called

as Guru Ravidas Samadhi with a small courtyard in front thereof, and

two small rooms, be allowed to be relocated a small distance away at

the boundary/periphery of the patch of the green land, then the

respondent no. 2/defendant no. 2/DDA will liberally consider such

representation. It is however clarified that the area to which the

temple and two rooms are shifted, will be an identical area to the area

where presently the small temple and two rooms are situated. I may

also note that as far as samadhis are concerned, they are very small

samadhis, and they can continue to exist in the green area, of course

without any legal right being granted to the appellant/plaintiff or its

members or anyone else for the said samadhis. Also, if the

appellant/plaintiff agrees to make a representation even to shift these

samadhis adjacent to the area to which the temple and the two rooms

are now to be re-located, the respondent no. 2/defendant no. 2/DDA

will consider such representation by giving some minor additional

land/area, similar to the area where few samadhis being approximately

4 in number are presently located.

11. In view of the aforesaid discussion, there is no merit in

the appeal which is dismissed, but liberty is given to the

appellant/plaintiff to make a representation subject to the terms as

stated above.

NOVEMBER 20, 2018                          VALMIKI J. MEHTA, J