TaxTMI 
TaxTMI 
2022 (2) TMI 1479
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....ite plan, there is only one property i.e., B-20, located on the western side of the suit property. On the northern and eastern sides, there are roads and the southern side has a service lane. The relevant paragraphs 1 and 2 of the plaint read as under: "That the Plaintiffs are owners in possession of 2500 sq. yards in Khasra No. 48/7 in the revenue estate of village Humayunpur, New Delhi. This property is an ancestral property of the plaintiffs and the same is in their possession as owners since the time of their forefathers. The plaintiffs have constructed a house bearing No. 20-B Krishna Nagar New Delhi consisting of 9 rooms on a piece of land measuring about 800 sq. yards in the said khasra. The constructed house is bounded as under: East - Road West - House No. 20 Krishna Nagar North - Road South - Service Lane. In addition to the above construction of the house there is a grassy lawn in the courtyard and some plantation is there within the vacant area of the area. 2. That the area aforesaid and under the construction of the house No. B-20 Krishna Nagar New Delhi has not been acquired by the Land Acquisition Collect....
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....ehrauli as the Local Commissioner, to inspect the suit property and find out whether the suit property fell within Khasra No. 48/7 or 48/5 as also to ascertain the area of the suit property. The said Local Commissioner's report was submitted to the Trial Court. In the report, the Local Commissioner stated that he could not do the exact demarcation as the fixed points required for the same were not ascertainable. He relied upon a sale transaction of 1953 and 1959 in favour of a retired government servant whose property was located behind the suit property, and concluded that since in the said transaction, the property was described as having been located in Khasra No. 48/7, the suit property is also located in Khasra No. 48/7. The relevant extracts of the said report are as under: "On 11.12.91 permanent point were searched but no permanent point was found. However, staff of DDA suggested another point saying that this point (Khasra No. 41) is situated on its correct position but after demarcation from this point it was found that this point also could not be fixed. Besides, during demarcation from this khasra No. 41, measurements were not found according to xxx as provi....
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....it property is with them, out of which, 800 sq. yds. has been constructed. He claimed that the said land was divided in 1951 by the Officer Mall and whoever was in possession remained in possession. Thereafter, he relies upon the khasra girdawaris and mutations-which are all marked documents and not exhibited, to state that the name of the concerned owners was substituted in the revenue record. He also stated that his uncles and predecessors had sold some portion of the land to three to four persons. He could not produce any house tax, electricity bill, I-card or ration card. He also confirmed that his signatures were not on the site plan and the said plan was unsigned. He stated that he was not aware of the location of Khasra No. 48/5. (ii) PW-2--Sh. Hari Singh, PW-3--Sh. Sultan Singh, PW-5--Sh. Om Prakash and PW-6--Sh. Sher Singh were all residents of the area who were produced by the Plaintiffs. All of them confirmed that until the late 1980s, there was only a chappar and a temporary construction on the suit property. It was converted into a pakka construction only 20 years prior i.e., late 1970s/1980s. (iii) PW-4--Smt. Geeta--D/o. Sh. Surat Singh, stated that ....
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....ecord of 1974 whereby the name of Surat Singh and Bhartu has been mentioned. It is correct that the name of son are mentioned only after the death of their father and thereafter mutation/substitution takes place. As per the record maintained by the revenue authorities the above mentioned persons are in actual physical possession of the property in question and they have been shown as agricultures in our record. xxxx by counsel for deft. DDA. There is no record of Kh. No. 48/5 in Kh. Girdawari of vill. Humayunpur which I brought today. I have no knowledge whether the Kh. No. 48/5 has been acquired or no as there is no entry in record which I have brought today in the court. There may be entry in the previous record of Jamabandi in respect of Kh. No. 48/5. The jamabandi record which I have brought today in court is in torned condition. However, I may be allowed to given some time to consult with my senior officer to ascertain the exact position of Kh. No. 48/5 village Humayunpur. Further cross deferred. 8.9.2000. PW7 Sh. Sunil Kumar--H. Patwari (recalled for further cross examination) On S.A. As per record brough....
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..../6 and 48/8 is recorded as Sarkar Daulat Madar i.e., as having been acquired. The Patwari also states that "I have not visited the suit land. I cannot say in which khasra number the suit land falls". He confirms that khasra girdawari is not the title document for title and ownership. He further states that he has no personal knowledge of the case or the suit property and he has never visited the suit property nor he is aware of the khasra number. He states that: "It is correct that the record of jamabandi is prepared for entering the mutations and the khasra girdawaris are revised after every four years. Jamabandi is the record of ownership and the name of the owners is mentioned in the column no. 3 in the proforma. It is correct that the khasra girdawari is not the document of title and ownership. It is correct that since the suit land is stand acquired the entry in respect of details of kahsra numbers mentioned above have been record to be the land as "Sarkar Daulta Madar". (further cross examination is deferred as it is lunch time). " (vii) PW-9 and PW-10 appeared as witnesses to confirm the translation of the jamabandi record produced by PW-8, from Urdu to Hin....
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....he suit property for more than 70 years and the same falls in Khasra No. 48/7, which is a private land. Khasra girdawaris for the year 1947-48 marked as Mark-A, and other revenue records were produced by the Plaintiff to support their contention. (iii) The Trial Court thereafter relied upon the testimony of neighbours and other people who resided in the locality, i.e., PW-2, PW-3, PW-5 and PW-6, to hold that the Plaintiffs had been in possession of the suit property for a long time. (iv) As per the Trial Court, PW-7-the Halka Patwari established on the basis of khasra girdawari for the year 1998-2000, that the name of the Plaintiff and his sons appeared qua Khasra No. 48/7/3 min. Upon the DDA objecting that PW-7 had admitted in the cross-examination that the name of the Plaintiffs was not mentioned in the record of Khasra No. 48/7, the Trial Court held that name of one Sh. Jaipal Singh, Dharambir, Ranvir, Lakhpat Singh s/o. Nathu Ram was mentioned and since they are family members of the Plaintiffs, there was no force in the objection raised by DDA. (v) Consequently, it held that since the khasra girdawari and the revenue records showed that the Plaintiff....
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.... Further even if for the sake of arguments, it is assumed that plaintiff is a encroacher of government land then DDA's witness himself viz. DW 3 has categorically admitted in his cross examination that plaintiffs are in possession of the suit property as on date. It is a settled law that even a trespasser in settled possession can not be dispossessed without due process of law." 10. On the basis of the above finding, the Trial Court holds that the Plaintiffs are in settled possession of the suit property and a permanent injunction is therefore, liable to be granted. 11. This decision was appealed against by DDA. In appeal, the Appellate Court, in its judgment dated 19th June, 2020, observes that: (i) The report of the Local Commissioner was rightly not relied upon. (ii) PW-1 had relied only on seven documents, all of which are marked as mark A to G. None of these documents were exhibited before the Trial Court. Moreover, original documents for the same could not be produced by the witnesses. (iii) The Appellate Court analysed the evidence of the remaining witnesses i.e., PW-2, 3, 4 and 6 and held that none of these witnesses knew the exact locat....
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....the above findings, since the Plaintiffs failed to prove their ownership over the suit property and also failed to prove that the suit property is situated in Khasra No. 48/7, the onus of the Plaintiffs to prove that the suit property was located in Khasra No. 48/7, was not discharged, hence the suit was dismissed. The Appellate Court did not further examine DDA's contentions or evidence. 14. This decision has now been appealed against by way of a second appeal before this Court. The prayer in this second appeal is as under: "It is therefore, most humbly prayed to the Hon'ble High Court that the Impugned Judgment dated 19.06.2020 passed by the LD. SCJ, Tis Hazari Court, Delhi in reference Delhi Development Authority Vs. Nathu Ram now deceased represented by Legal Heirs in RCA No. 410/16 may pleased be set-aside and the order of the Trial Court may please be ordered of the Trial Court dated 24.09.2011 may be ordered to be maintained and the possession of the Appellants from Khasra No. 48/7 may please be not disturbed in view of the order passed by the Hon'ble High Court on 06.08.201(sic) which is still in force/existence as on date and has not been complied a....
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....roperty. (vii) In any event, he contends that the Plaintiff cannot be dispossessed unless a proper demarcation of the suit property is carried out. For this, he relies upon an order dated 6th August, 2014 in WP(C) 824/2012 titled Subhadra & Anr. V. GNCTD which was decided by a ld. Single Judge of the Delhi High Court in a case where demarcation of identical Khasra Nos. was sought. It was held therein that the plaintiffs were residing in Khasra Number 48/7 and demarcation had to be carried out by DDA to ascertain the Khasra No. in possession of the plaintiff. He therefore submits that if the demarcation is not carried out, the Plaintiff cannot be evicted in this case. Moreover, he submits that the land in question is an urbanized village and the designation of khasra khatauni in any case had become irrelevant. (viii) He finally urges that the Plaintiff's family has been in possession for the last 60 years and currently they are paying House Tax and Electricity Bill and thus, he submits that the Plaintiff cannot be dispossessed in accordance with law. 16. On the other hand, Mr. Goel, ld. counsel for DDA, relies upon the following to argue that the Plaintiffs ....
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.... & Anr. v. D.D.A., the ld. Single Judge was dealing with another portion of land falling in the same Khasra being residential house nos. 20-H and 20-I, in Khasra No. 48/7. Even in that case, the Trial Court and the Appellate Court had held that the demarcation which was done was not in accordance with law. The suit had been dismissed by the Trial Court and the Appellate Court had endorsed the same findings. In the second appeal, the Court vide judgment dated 11th November, 2010, held as under: "16. However, the question which has to be answered is as to whether the suit land falls in Khasra No. 48/7 or 48/5. Both the Courts below had given concurrent findings of fact that the demarcation report not having followed the procedure relating enquiries to be made by Revenue Officers in boundary disputes the said demarcation report could not be relied upon. The demarcation report had clearly stated that since there were houses in the vicinity no pucca/permanent point could be established for the purpose of paimaish/measurement. 17. The Punjab Land Revenue Act, 1887 extends to the Union Territory of Delhi. Chapter VII deals with surveys and boundaries. Under Section 100, ....
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.... It is not as if DW-1, the Patwari had made an independent factual enquiry himself and had drawn the said conclusion. Both the Courts below had appreciated the fact that the demarcation report not having adhered to the procedure and the requirements which have been set out under the Punjab Land Revenue Act, 1887 applicable to the Union Territory of Delhi as also the Delhi High Court Act 1966 and Rules framed thereunder, this report was only a piece of paper; it had based its conclusion on approximations alone; paimaish/measurements could not be taken by the local commissioner. This report was thus rightly ignored. Substantial question of law is answered accordingly. 21. There is no merit in the appeal. The appeal as also the pending application is dismissed." 20. In the above judgment relating to the same very land i.e., Khasra No. 48/7, the Court held that since the demarcation was not carried out in accordance with law, the dismissal of the suit against the parties who were occupying parts of Khasra No. 48/7, was in accordance with law. A special leave petition against this decision was also dismissed by the Supreme Court on 15th April, 2011, in SLP(C) No. 009230/2011....
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....ld (2019) 10 SCC 259 as under: "5. The contention raised by the appellants is that since Mangal Kumhar was the recorded tenant in the suit property as per the Survey Settlement of 1964, the suit property was his self-acquired property. The said contention is legally misconceived since entries in the revenue records do not confer title to a property, nor do they have any presumptive value on the title. They only enable the person in whose favour mutation is recorded, to pay the land revenue in respect of the land in question. As a consequence, merely because Mangal Kumhar's name was recorded in the Survey Settlement of 1964 as a recorded tenant in the suit property, it would not make him the sole and exclusive owner of the suit property. " 27. The six yearly khatauni for the fasli year 1395 to 1400 is to the effect that the land stands transferred according to the Forest Act as the reserved forest. Such revenue record is in respect of Khasra No. 1576. It is only in the revenue record for the period 1394 fasli to 1395 fasli, name of the lessees find mention but without any basis. The revenue record is not a document of title. Therefore, even if the name of the l....
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....RJ 545: (AIR 2007) (NOC) 169) held as under: "28. The expressions 'due process of law', 'due course of law' and 'recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same things:-ejectment from settled possession can only be had by recourse to a court of law. Clearly, 'due process of law' or 'due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner. Now, this 'due process' or 'due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether ....
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.... not, in terms of the test laid down in Puran Singh (supra) need not be gone into in the present case, inasmuch as the fact that the Plaintiff is in possession, in whatsoever capacity, to the knowledge of the authorities, is clear from the khasra girdawari itself. The person in settled possession cannot continue to remain in possession forever. Once a Court of law has arrived at the conclusion that the person in possession has no rights, the possession can be taken away. The Trial Court has not merely relied upon Jagpal Singh (supra) but also considered various judgments of the Supreme Court including Rame Gowda (supra) and Maria Margarida (supra). Thus, the grievance against the Trial Court judgment that it followed Jagpal Singh (supra) which is per incuriam is without any merit. 62. Several judgments on various propositions have been cited, which, according to the Court, do not require any consideration in the present case. The main question to be determined is whether the Plaintiff, who is in settled possession, can be dispossessed in an application under Order XXXIX Rules 1 & 2 CPC. The answer is a clear yes." 27. A special leave petition against this decision in Ba....
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.... difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963 which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always....
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....rds, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession-authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title). 17. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government. To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Un....
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.... It falls in kh. No. 48/5, vill, Humyunpur.... It is incorrect that disputed land falls in kh. No. 48/7... XXX 11.9.2002. DW1 Sh. Vijay Kr.-Patwari (recalled for cross examination by Cl. Pramod Ahuja For plff.) On S.A. ........It is correct that Jaipal Singh is in possession of the site in dispute unauthorisedly....... I cannot produce any document from my deptt. to show the possession of Jaipal Singh in kh. No. 48/5. The land or kh. No. 48/7 is unacquired. It is wrong to suggest that the plff. is in possession of 48/7 and not in kh. No. 48/5......." Testimony of DW-2 "DW2 Hari Om-Naik Tehsildar, LM Southwest Zone DDA. On S.A. I have seen the disputed land. It falls in kh. No. 48/5 min in revenue estate or vill, Humayunpur which has been acquired vide award No. 1170. Copy of award is already EXPW1/2. Disputed land does not falls in kh. No. 48/7...... The disputed land shown by red portion in the Aks Sajra which is already ExDW1/2. The possession of land was taken over by DDA on 29.9.75. Copy of possession proceedings is ExDW2/1. The plaintiff has not right, title or interest ....
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....yard of property. It is incorrect that DDA has carried partly demolition during the pendency of the case. It is wrong to suggest that plaintiffs are in occupation of Khasra No. 48/7. Vol. They are in possession of Khasra No. 48/5. The plaintiff is still in possession of property in question as on data. The possession of the plaintiff has not been shown in our record in Khasra No. 48/5. It is correct that when the land is acquired, the occupation and area in respect of respective person is mentioned in the land acquisition record..." 34. The evidence on record also shows that the construction in the suit property was just prior to the institution of the suit itself in 1984 i.e., in the late 1970s and early 1980s. The relevant portions of the testimonies of PW-3 and PW-5, confirming this fact, is as under: Testimony of PW-3 "Earlier kacha chapar were existing over the land. Now from 20 years back plaintiffs built 8 or 9 rooms on the said property. The said house was built 20 years back." Testimony of PW-5 "At present there is pucca structure over the land which have been constructed about 25 yrs. Ago. Earlier there was kacha chapar over the land....