Aditya Narula v. Delhi Development Authority

1. This second appeal is filed by the appellant/plaintiff impugning the concurrent judgments of courts below; of the trial court dated 26.2.2011 and the first appellate court dated 3.12.2012; by which the suit of the appellant/plaintiff for injunction with respect to the property bearing no.13, 14 and 14A, Harijan Basti, Village Palam, New Delhi situated in khasra nos.31/14-17, 31/24-25 and 31/7 has been dismissed.

2. Whereas the case of the appellant/plaintiff is that the appellant/plaintiff purchased the suit property by means of the 2014:DHC:2229 documentation dated 3.3.1990 and 24.3.1998 from the predecessors-ininterest of the appellant/plaintiff, and who are said to be owners of the suit property, the respondent/defendant laid out a defence that so far as property comprising khasra no.31/7 is concerned, the same was acquired vide Award no.157/86-87 dated 19.9.1980 and so far as khasra no.31/14 is concerned, the said land was Gaon Sabha land and not private land belonging to either the appellant/plaintiff or his predecessors-in-interest.

3. The disputed land can be divided, for the purpose of present judgment, into three parts. One is land comprised in khasra no.31/7, second is land comprised in khasra no.31/14 or 31/14-17 as per the case of the appellant/plaintiff and third is land situated in khasra no.31/24-25.

4. So far as first area of land comprised in khasra no.31/7 is concerned, it is not disputed on behalf of the appellant/plaintiff that the land comprised in this khasra was acquired by means of the Award no.157/86-87 and which has been proved by the appellant/plaintiff before the courts below as Ex.PW3/2. The respondent/defendant has also proved this Award as Ex.DW1/A. This khasra no.31/7 comprised an area of 5 bighas and 12 biswas. Out of 5 bighas and 12 biswas, there is no dispute that the respondent/defendant had taken possession under the land acquisition proceedings of an area of 5 bighas and 8 biswas leaving balance 4 biswas of land which is said to be otherwise acquired and falling within the subject Award no.157/86-87 but possession of this 4 biswas falling in khara no.31/7 was not taken by the land acquisition authorities. So far as 4 biswas is concerned, in order to test the bonafides of the appellant/plaintiff, I put a query to the counsel for the appellant that once the land is acquired, even if possession was not taken, now possession can always be taken by the acquiring authority at any time or its successors-in-interest, once the entire compensation for the acquired land has been deposited. In fact, I have also so held this in the judgment in the case of Hoshiar Singh and Ors. Vs.DDA RSA No.25/2002 decided on 22.1.2014.

5. Counsel for the appellant, on instructions from the appellant, states that the appellant does not claim possession with respect to 4 biswas of land forming part of khasra No.31/7 and if any part of property of which the appellant/plaintiff is in possession falls in any part of khasra no.31/7 of 5 bighas and 12 biswas, respondent/defendant is free to take action with respect to possession of the balance 4 biswas which is about 200 sq yds. It is further clarified that since it is not disputed on behalf of the appellant/plaintiff that the entire khasra no.31/7 has been acquired, the appellant/plaintiff will not object to taking over possession of any part of khasra no.31/7 by the respondent/defendant.

6. So far as the second track of land which is comprised in khasra no.31/14-17 is concerned, it is admitted by both the parties that this land is Gaon Sabha land. Once the land comprised in khasra no.31/14-17 is Gaon Sabha land, onus of proof was upon the appellant/plaintiff to show that the land in this khasra number was legally allotted by the Gaon Sabha to the predecessors-in-interest of the appellant/plaintiff, and from whom the appellant/plaintiff purchased the land. In the record of trial court, no evidence has been led as to any legal allotment made by the Gaon Sabha of the land comprised in khasra no.31/14-17 of village Palam and therefore so far as this land is concerned, again the appellant/plaintiff would have no right whatsoever, and the counsel for the appellant states that the appellant/plaintiff does not claim any right in the land comprised in khasra no.31/14-17 which belongs to Gaon Sabha.

7. That takes us to the third part of the land which is comprised in khasra no.31/24-25. There is no case of the respondent/defendant in these proceedings that this area has been acquired under any Award under the Land Acquisition Act or that the respondent/defendant claims any right in this particular khasra number. Therefore, so far as land comprised in khasra no.31/24-25 is concerned, respondent/defendant will have no right to dispossess the appellant/plaintiff of course provided the land comprised in khasra no.31/24-25 is not the subject matter of any Award passed under the Land Acquisition Act, 1894.

8. Accordingly, the sum and substance of the discussion with respect to the issues is that the appellant/plaintiff will have no rights whatsoever in the land comprised in khasra nos.31/7 and 31/14-17 and if the appellant/plaintiff is in actual possession of any part of these khasra numbers, respondent/defendant on demarcation so finds that the appellant/plaintiff is found on any part of khasra nos.31/7 or 31/14-17, the respondent can take possession of such land or that authority can which is entitled in law to take possession of the land in khasra nos.31/7 and 31/14-

17.

9. Accordingly, this appeal is disposed of by holding that if the property of the appellant/plaintiff is actually situated in khasra no.31/24-25 of village Palam, then the respondent/defendant will not be entitled to take possession of any part of the land comprised in khasra nos.31/24-25, since the respondent/defendant is not claiming any right to this particular khasra number. Both the judgments of the courts below are sustained subject to modification with respect to khasra no.31/24-25, village Palam, New Delhi by holding that so far as the land in this khasra number is concerned, respondent/defendant will not have a right to take land comprised in this khasra number from the appellant/plaintiff. Otherwise the impugned judgments of the courts below are sustained. It is clarified that before any steps are taken by the respondent/defendant pursuant to this order, the respondent/defendant will conduct demarcation as per the total station method to determine the area and khasra numbers where the appellant/plaintiff is actually in possession of, and only if the appellant/plaintiff is in possession of land other than the land comprised in khasra no.31/24-25 situated in village Palam, New Delhi, the respondent/defendant will be entitled to take possession of such land from the appellant/plaintiff. It is required to be noted that these observations in favour of the appellant/plaintiff are made only so far as khasra no.31/24-25 is concerned because there is no case of the respondent/defendant in these proceedings that there is any acquisition proceedings with respect to land comprised in khasra no.31/24-25.

10. No costs.

APRIL 29, 2014 VALMIKI J. MEHTA, J. Ne