TaxTMI 
TaxTMI 
2011 (9) TMI 1098
X X X X Extracts X X X X
X X X X Extracts X X X X
....ize:0; mso-style-priority:59; border:solid windowtext 1.0pt; mso-border-alt:solid windowtext .5pt; mso-padding-alt:0cm 5.4pt 0cm 5.4pt; mso-border-insideh:.5pt solid windowtext; mso-border-insidev:.5pt solid windowtext; mso-para-margin:0cm; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri",sans-serif; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-fareast-language:EN-US;} SINGHVI, G.S. DATTU, H.L., JJ. J U D G M E N T G.S. Singhvi, J. 1. Leave granted. 2. This is an appeal for setting aside judgment dated 21.8.2009 of the learned Single Judge of the Delhi High Court whereby he dismissed the appeal preferred by the appellants against the judgment and decree passed by Additional District Judge-13 (Central), Delhi (hereinafter described as, `the trial Court') in a suit for declaration of title, mandatory and permanent injunction filed by them. 3. The suit land belonged to Gaon Sabha of village Kishangarh and formed part of the revenue estate of that village. By notification dated 28.5.1966 issued....
X X X X Extracts X X X X
X X X X Extracts X X X X
....claim to have purchased land comprised in khasra Nos.2728/1674/2 and 2728/1674/3 total measuring 4 bighas 4 biswas from Om Prakash and Mahinder Pal (sons of Parma Nand), Tej Nath, Tej Prakash, Gokal Chand and Ram Dhan by registered sale deed dated 15.10.1963 encroached upon the suit land, raised construction and started a restaurant under the name and style "Sahara Restaurant". 5. With a view to secure judicial approval of the illegal occupation of the suit land, appellant No.2 - Lal Chand filed Suit No. 2576/1990 in the Delhi High Court for grant of permanent injunction against the Corporation and the DDA by asserting that he is the co-owner of house No.80, Ward No.IX, Kishangarh, Mehrauli, which forms part of khasra No.1674 and was purchased vide registered sale deed dated 10.10.1963; that the suit premises comprise of 3 rooms and one hall surrounded by a boundary wall; that the entire superstructure is in existence for last over 15 years; that he has been residing in the suit premises and is paying property tax since 1968-69; that the suit land has not been acquired; that the officials of the Corporation and the DDA came to the suit premises along with the Tahsildar on 10.8.1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....MERITS. 1. That the contents of para-1 are wrong and denied. It is denied that the plaintiff is a co-owner of the premises commonly known as House No.80, Ward-IX, Kishan Garh, Mehrauli, New Delhi forming part of Khasra No.1674. It is further denied that the plaintiff purchased the suit property vide sale deed dated 10.10.63. It is submitted that as per the sale deed dated 10.10.65 supplied by the plaintiff, the suit land forms a part of Khasra No.1674 of Village-Mehrauli. The Sale deed is in respect of Khasra No.2728/1674/2(3-3) and 2728/1674/3(1-1) of Village-Mehrauli. Both these Khasras are a part of the Gram Sabha land. On the urbanization of Village- Mehrauli (Kishangarh), all the Gram Sabha land vested in the Central Govt. and later on the Central Government transferred this Gram Sabha land at the disposal of DDA for maintenance as green development vide notification No.S.O. 2190 dated 20.8.1974. In this view of the matter, the plaintiff has no right or title in the land. It is further submitted that, recently the plaintiff has unauthorisedly occupied this land and constructed a boundary wall on it with 3 temporary rooms. It is submitted that the plaintiff has not annexed a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the power of attorney. Two other witnesses examined in favour of the suit were Prem Prakash (PW-1) from the office of Kanungo and Shri Kulwant Singh (PW-3), Assistant Zonal Inspector. On behalf of the DDA, Prem Chand (Tehsildar) was examined as DW-1, Constable Prabhu Singh of Police Station Vasant Kunj was examined as DW-2 and Khem Chand (Patwari) as DW-3. 9. After considering the pleadings of the parties and evidence produced by them, the learned Civil Judge dismissed the suit vide judgment dated 3.3.2003 by observing that the plaintiff has failed to prove that he and his brothers were owners of the suit land. The learned Civil Judge also held that the plaintiff was not entitled to relief of injunction because the suit filed for determination of title of the disputed land was pending adjudication. The findings recorded by the learned Civil Judge on issue Nos. 3, 6 and 7 read as under: "12. Issue No.3,6 and 7:- All these issues being connected together are discussed together. PW1 has proved the khasra girdawari but it may be mentioned that khasra girdawari is not the document of title. Even these khasra girdawari are for the year 1957-59, which are prior to the urbanizatio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....spondents while at the same time showing their complete contempt for the laws themselves. Should there not be a change in the judicial approach or thinking when dealing with such problems which have increased in recent years viz., large scale encroachment on public land and unauthorized construction thereon, most of which could not have taken place without such encroachers getting blessing or tacit approval from the powers that be including the municipal or the local employees. Should the courts give protection to violators of the law? The answer in our opinion must be in negative. Time has come when the courts have to be satisfied, before they interfere with the action taken or proposed to be taken by the governmental authorities qua removal of encroachment or sealing or demolishing unauthorized construction specially when such construction like the present, is commercial in nature.' 13. In the present case also the plaintiffs have failed to show their right, title or interest over the land in dispute. In such circumstances as the plaintiff has failed to show his legal right over the land in dispute therefore, plaintiff is mere encroacher upon the Govt. land. It seems that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dary wall of his property and on the next date, i.e., 1.3.1992, the officials of the defendants again came and threatened to take forcible possession of the property. 12. The suit of Shri Shri Surat Singh was dismissed by the Civil Judge vide judgment dated 1.5.2004 with the findings that the suit land belonged to Gaon Sabha and with the urbanization of the rural area of the village the same automatically vested in the Central Government and that the plaintiff encroached the same. The appeal filed by Surat Singh was dismissed by Additional District Judge, Delhi vide judgment dated 5.8.2004. The lower appellate Court held that as per Khatoni Paimaish Exhibit DW1/2, the suit land was a waste land being Gairmumkin Pahar and the same belonged to Gaon Sabha and that after vesting of the land in it, the Central Government had transferred the same to the DDA. Paragraph 6 of that judgment is reproduced below: "6. the Appellant claims himself the coowner of the land, forming part of the khasra no.1674, Village Kishangar on the basis of the Sale Deed dated 10.10.1963. A photocopy of the Sale Deed was placed on the record by the Appellant through which the Appellant along with the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t No.2-Lal Chand filed third suit being Suit No.313 of 2000 (renumbered as Suit No.473 of 2004) for grant of a declaration that the entries made in the revenue records in respect of land comprised in khasra Nos.2728/1674/2 and 2728/1674/3 situated in the revenue estate of Mehrauli, village Mehrauli Kishangarh, Tehsil Mehrauli are wrong and illegal. The appellants further prayed for grant of a decree of mandatory injunction directing the respondents to correct the revenue record and enter their names in the columns of ownership and possession. Another prayer made by the appellants was for restraining the respondents, their servants and agents from demolishing the superstructures and sealing or interfering with their possession of the suit property or running of the restaurant. 14. In the written statement filed on behalf of the DDA, several objections were taken to the maintainability of the suit including the following: (i) The plaintiffs have not challenged notification dated 20.8.1974 vide which the Central Government transferred the suit land to the DDA. (ii) The suit was barred by limitation because the same has been filed after 16 years of the accrual of cause o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... demarcation report as also the facts relating to the acquisition of an area of 1512 square yards forming part of khasra No.2728/1674/3 and receipt of compensation at the rate of Rs. 50/- per square yard. The trial Court returned affirmative finding on issue No.4 and held that the suit was barred by the provisions of Order II Rule 2 CPC. 17. The appeal preferred by the appellants was dismissed by the learned Single Judge of the High Court, who relied upon the judgment of the Division Bench in Rajinder Kakkar v. Delhi Development Authority 54 (1994) DLT 484 and held that with the issuance of notification under Section 507, Gaon Sabha land of Kishangarh automatically vested in the Central Government and transfer thereof to the DDA was valid. The learned Single Judge also agreed with the trial Court that the suit was barred by limitation and that the appellants had not approached the Court with clean hands. 18. Shri Mukul Rohtagi, learned senior counsel appearing for the appellants extensively referred to the evidence produced by the parties to show that the land in question was Shamlat Thok and argued that such land does not vest in Gaon Sabha. Learned senior counsel further ar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....demolish the superstructure and, in any case, the cause of action accrued to them in December 1990 when the written statement was filed on behalf of the DDA with a categorical assertion that with the urbanisation of the rural areas of village Kishangarh, the suit land automatically vested in the Central Government, which transferred it to the DDA vide notification dated 20.8.1974. Learned senior counsel lastly submitted that the appellants are not entitled to any relief because they had not approached the Court with clean hands and suppressed material facts and documents. 20. We shall first consider the question whether the suit filed by the appellants on 14.2.2000 was within limitation and the contrary concurrent finding recorded by the trial Court and the High Court is legally unsustainable. 21. The Limitation Act, 1963 (for short, `the 1963 Act') prescribes time limit for all conceivable suits, appeals etc. Section 2(j) of that Act defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suit, appeal or application. Section 3 lays down that every suit instituted, appeal preferred or application made after the prescri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....words: "The right to sue under Article 120 of the 1908 Act accrues when the defendant has clearly or unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective or innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right." 27. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word `first' has been used between the words `sue' and `accrued'. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued. 28. In the light of the above, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... was Gaon Sabha land. The appellants have not explained starking contradictions in the averments contained in three suits on the issue of cause of action and in the absence of cogent explanation, it must be held that the statement contained in paragraph 19 of Suit No.313 of 2000 was per se false and, as a matter of fact, the cause of action had first accrued to the appellants on 10.8.1990 when their so called right over the suit land was unequivocally threatened by the respondents. Therefore, the suit filed by the appellants on 14.2.2000 was clearly beyond the period of limitation of 3 years prescribed under Article 58 of the 1963 Act and was barred by time. 30. While considering the question whether the suit was barred by time, the trial Court noticed the averments contained in paragraphs 9 and 10 of the plaint that during the course of preparation of the trial of Suit No. 2576/1990 - Lal Chand v. MCD and another, the appellants applied for a copy of Khasra Girdawaris of the suit land and they were shocked to learn that the revenue records have been incorrectly maintained and they were neither shown as owners/bhumidars nor in possession of the suit land, referred to the plea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n statement in suit No.211/02/90 and the plaintiff No,2 is first assumed to have acquired knowledge and in attempt to cover up this delay the plaintiff is trying to falsely create the cause of action in Nov- Dec, 1998 attributing the advantage as during the trial when he applied for the copies of the revenue record despite the fact that the period of limitation started to run when the written statement was filed by DDA to which the plaintiff No.2 filed replication pursuant to which the issue framed was, whether the plaintiff has any legal rights to file the present suit. This being the case, I hereby held that the present suit is clearly beyond the period of limitation and I decide the issue No.3 against the plaintiff." (emphasis supplied) 31. The High Court agreed with the trial Court and held that the suit was barred by time. The reasons assigned by the High Court for coming to this conclusion are contained in paragraphs 38 to 45, which are extracted below: "38. First suit filed by Lal Chand (Appellant no.2 in the present proceedings), being suit (no. 2576 of 1990), was suit for Injunction simplicitor. That suit was dismissed by judgment/ order dated 3.3.2001. As per findin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hich necessarily commenced from the date of the demolition of the premises." 45. That suit was filed in 1992 and surely, a subsequent suit by another co-owner, cannot be maintained after a lapse of 8 years." 32. What is most surprising is that even though appellant No.2 - Lal Chand was cited as the first witness in Suit No.303/2000 (renumbered as 473/2004), he did not step into the witness box. This appears to be a part of calculated strategy. He knew that if he was to appear as a witness, it will not be possible for him to explain the apparent contradictions in the pleadings of the three suits on the issue of cause of action and falsity of the averments contained in paragraph 19 in Suit No.303/2000 will be exposed. This is an additional reason for holding that the trial Court and the High Court did not commit any error by recording a conclusion that the suit was barred by limitation. 33. The next question which requires consideration is whether the finding recorded by the trial Court on issue Nos.1 and 2 is legally correct and the High Court rightly declined to interfere with the same. The trial Court adverted to the pleadings of the parties and evidence produced by them ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that he has deliberately no placed on record any site plan, aks-shijra, demarcation report made in plan document to prove the khasra numbers. In view of the above I hereby hold that the plaintiff has proved that he has purchased the land falling in Khasra No. 2728/1674/2 and 2728/1674/3 but has not been able to prove that the land on which the plaintiff No.1 is running Sahara Restaurant is comprise of Khasra No. 2728/1674/2 and 2728/1674/3 or that he is in legal possession of the suit land over which the Sahara Restaurant is constructed." (emphasis supplied) The trial Court then proceeded to observe: "Vide my above findings with regard to issue No.1, I have already held that the plaintiff has not been able to prove that the land on which a large restaurant is made falls in Khasra No. 2728/1674/2 and 2728/1674/3 and that in fact Khasra No. 2728/1674/2 and 2728/1674/3 is a part of old abadi which is situated at distance and away from the place where the Sahara Restaurant is constructed. The notification u/s. 22(1) of the DDA dated 20.8.1974 which is Ex.DWW1/2 is not disputed by both the parties. Firstly the plaintiff has not produced any document in the form of demarcati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on by which village Kishangarh was urbanized and the land was placed at the disposal of the DDA without specifically challenging the same as the entries made in the revenue record are only pursuant to the said notification. Therefore, in view of the aforesaid, I hereby decide this issue No.2 against the plaintiff and in favour of the defendants." (emphasis supplied) 34. Though, the High Court did not examine the issue in detail as was done by the trial Court, the learned Single Judge did make a note of the two notifications, the judgment in Rajinder Kakkar's case and held that by virtue of Section 150(3) of the Land Reforms Act, the suit land automatically vested in the Central Government and the same was transferred to the DDA under Section 22(1) of the DD Act. In our view, the conclusion recorded by the trial Court that the appellants have failed to prove that the suit land formed part of khasra Nos. 2728/1674/2 and 2728/1674/3 does not suffer from any error because they did not adduce any evidence to establish that the land on which restaurant was being run formed part of those khasra numbers. 35. We also approve the findings and conclusions recorded by the trial Court....