Delhi Development Authority v. Jagbir Singh & Ors.

Delhi High Court · 25 Feb 2014 · 2014:DHC:1058

Valmiki J. Mehta

RSA No. 182/2012

2014:DHC:1058

civil appeal_dismissed

AI Summary

The Delhi High Court dismissed the DDA's appeal, upholding the injunction protecting respondents' possession of disputed land based on an unchallenged Local Commissioner's demarcation report.

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RSA 182/2012
HIGH COURT OF DELHI
RSA No. 182/2012 25th February, 2014 DELHI DEVELOPMENT AUTHORITY ......Appellant
Through: Mr. Rohit Gandhi, Adv.

VERSUS

JAGBIR SINGH & ORS. ...... Respondents
Through: Mr. Umesh Mishra, Adv.

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)

JUDGMENT

1. This regular second appeal has been filed against the concurrent judgments of the courts below; of the trial court dated 22.10.2009 and the first appellate court dated 5.3.2012; by which the suit of the respondents/plaintiffs to the extent of injunction was decreed with respect to the suit land comprising of an area of 50’X201’ in village Samaspur Jagir, Delhi, however, the relief of declaration of ownership prayed by the respondents-plaintiffs with respect to this very land has been declined.

2. A reference to the impugned judgments shows that both the courts below have relied upon the demarcation report of the revenue official appointed as a Local Commissioner, and which is dated 7.1.2003, exhibited 2014:DHC:1058 as Ex.PW4/C, showing that the area of 50’X201’ does not fall in the acquired land falling in K.Nos.48 and 49 as per the case of the appellantdefendant. The plot in question is found to have been located in K.No. 37/2 as was the case of the respondent/plaintiff.

3. I may note that originally the suit was dismissed by the judgment dated 30.7.1996, but in an appeal the appellate court remanded the matter in terms of the order dated 17.2.1997 with direction to appoint a Local Commissioner to inspect the suit property. It is pursuant to such directions of the appellate court that the Local Commissioner was appointed for demarcation of the suit property.

4. The relevant observations of the first appellate court are contained in paras 8,18,22 and 23 of the impugned judgment and which read as under:-

“8. Upon remand, Sh. Suraj Prakash, Tehsildar, Preet Vihar was appointed as a Local Commissioner by the Trial Court with the direction to demarcate the suit property. The Tehsildar Sh. Suraj Prakash gave a report dated 07.01.2003 as per which the disputed suit property was found to be falling in khasra no. 37/2 and not in khasra no.48 min and 49 min(which had been acquired). 18. As per this report, Tehsildar M.H.Zaidi, Kanoongo Sh. Sunil Kumar Arora, Halka Patwari alongwith report and revenue record of village Samaspur Jagir and articles of measurements went to the site. Representatives on behalf of plaintiff Jagbir Singh and on behalf of defendant DDA Sh. Rajender Singh, Naib Tehsildar (LM/EZ) along with staff and on behalf of Electricity Department Sh. P.S.Varun AE (Civil) and Sh. Jagdev Singh (Architect)

were present during the inspection. It is reported that the demarcation proceedings were carried out in the presence of the above mentioned persons and it was found that the suit property fell in khasra no.37/2 of village Samaspur Jagir. Along with the report a site plain/map is also annexed which shows that the suit property was not part of khasra no.48 min and 49 min and the same was separated from khasra no. 37/2 by a road (Rasta).

22. Order 26 Rule 10(2) CPC provides that the report of the commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. However with the permission of the Court any of the parties to the suit may examine the commissioner personally in open Court touching on any of the matters referred to him or mentioned in his report. In the present case the appellant DDA has not taken any steps to examine the Local Commissioner Sh. Suraj Prakash in open court within the meaning of Order 26 Rule 10(2) CPC. In the absence of the same the Ld. Trial Court has rightly held that the report of the Local Commissioner Sh. Suraj Prakash Ex.PW4/C has to be read in evidence. As per the said report, suit property fell within Khasra no. 37/2 and not in khasra no. 48min and 49 min of village Samaspur Jagir. Case of the DDA/appellant was that the suit property fell in khasra no.48 min and 49 min.

23. Since as per the report of the Local Commissioner the suit property fell in khasra no.37/2, plaintiff being in possession of the same, Ld. Trial Court has rightly held that the plaintiffs were entitled to relief of permanent injunction to restrain the defendants from dispossessing them from the suit property. It is settled law that a person in possession is entitled to protect his possession from the entire would except the true owner. Since the DDA could not prove that the suit property fell in khasra no.48 and 49 min of village Samaspur Jagir, the plaintiffs were entitled to protect their possession of the suit property from the defendants. Findings on issue no.1 do not call for any interference.” (underlining added)

5. In view of the above, no substantial question of law arises under Section 100 CPC because the report prepared by the revenue official, and which pertains to the realm of appreciation of evidence and not to a substantial question of law, shows that the suit land is not situated in acquired land in K.Nos.48 and 49 as was claimed by the appellantdefendant.

6. In view of the above, this regular second appeal is dismissed, however, since the trial court has dismissed the claim for declaration of ownership of the suit land for falling in K.No. 37/2 as claimed by the respondents-plaintiffs, in case the appellant-defendant is able to show that the land in K.No. 37/2 belongs to government or to any other departments of the government, such department of the government or any statutory body or authority etc which owns the land can take action in accordance with law with respect to the suit land comprising in K.No.37/2, admeasuring 50’X201’.

7. The appeal is dismissed, subject to the aforesaid observations.

FEBRUARY 25, 2014 VALMIKI J. MEHTA, J. ib

Delhi Development Authority v. Jagbir Singh & Ors.

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