DDA v. Captain Bhika Ram

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. (Oral)

1 This appeal has impugned the judgment and decree dated 03.05.2008 which has endorsed the finding of the trial Judge dated 01.11.2006 whereby the suit filed by the plaintiff Bhika Ram seeking a perpetual injunction (to the effect that the defendant/Delhi Development Authority (DDA) be restrained from making construction on the suit land i.e. 1 bigha 10 biswas of land shown as raasta in khasra No. 368/2, Village Ghazipur, Delhi) had been decreed. 2011:DHC:2826

2 The case of the plaintiff is he is residing in an ancestral house in khasra Nos.386/1 & 386/2. It is contended that a large part of this land had been acquired but some part of it was retained by him for his cattle and selling milk from there. The houses are built on a large piece of land and in front of the said houses there is an old „raasta‟ measuring 1 bigha 10 biswas; this raasta falls in khasra no. 368/2. The doors of the houses of the plaintiff open upon this raasta and this raasta is necessary for ingress or egress and in fact is the only means of access to their house. On 20.08.1974 the Central Government had with immediate effect placed this land at the disposal of the DDA; in terms of this notification, the defendant had been restrained from making any construction on this land. The access of the plaintiff is being threatened as defendant proposes to raise construction on his „raasta‟; present suit was accordingly filed.

3 In the written statement, it was contended that pursuant to the acquisition proceedings the land in khasra no. 386 has since been acquired; however under the garb of a writ petition, the plaintiff encroached upon this land; in para 3 of the written statement it has not been denied that this land was used for housing cattles. Contention of the defendant is that since this land has been acquired, the plaintiff is an unauthorized and unlawful occupant. The raasta which is in khasra no. 368/2 is a government land; nothing prevents the department from carrying out any activity therein; the plaintiff is not entitled to the relief of injunction.

1. Whether the defendant is entitled to make constructions as proposed?

2. Whether the plaintiff is entitled to use „RAASTA‟ being the Kadim Raasta? If so, to what effect?

3. Whether the plaintiff is entitled to the injunction prayed for?

4. Relief.

5 Oral and documentary evidence was led. Ex. P-8 is the khasra girdawari for the year 1991 qua khasra no. 386/2 showing the prima-facie possession of the plaintiff in the suit land. Even in the written statement, it has been admitted that the plaintiff is in possession of this portion of the land although the contention of the defendant is that this khasra now stands acquired; however; admittedly no proof of actual taking over of possession of this land has been led by the defendant. Khasra No. 368/2 is admittedly a Government land; this comprises of 1 bigha and 10 biswas; it is a raasta; in Ex. P-5 which is the khasra girdawari for khasra no. 368/2, it has been shown as a „gair mumkin raasta‟. The notification dated 20.08.1974 (Ex. DW-1/3) is also an admitted document. This document shows that the raasta which is comprised in khasra no. 368/2 has been placed at the disposal of the DDA under Section 22 of the Delhi Development Act, 1957; this is after the urbanization of the villages; it is however subject to the condition that the DDA will not make or cause or permit any construction to be made on the said land. This is specified in Ex. DW-1/3 itself.

6 All this aforenoted documentary evidence was correctly appreciated by both the two courts below. Both the two courts below noted that the primafacie proof of possession of the plaintiff in the suit land i.e. khasra no. 386/2 has been established. The „gair mumkin raasta‟ is admittedly a Government raasta; it is comprised in khasra no. 368; vide Ex. DW-1/3 dated 20.08.1974 no construction would be carried out by the DDA on the said land. The impugned judgment had noted that if the DDA wants to construct a wall to preserve the land from encroachment and to maintain its green, nothing prevented it from doing so; at the same time, the plaintiff and other residents of the village should not be deprived of this „raasta‟ i.e. from accessing the main highway no. 56. This finding in the impugned judgment had endorsed the finding of the trial Judge. This was after a detailed scrutiny of the documentary evidence discussed supra as also the oral testimony of the witnesses. This finding in no manner calls for any interference.

7 This is a second appeal. It has been admitted and on 26.11.2010, the following substantial question of law was formulated:- “Whether the finding in the impugned judgment dated 02.5.2008 permitting the plaintiff to use the disputed “raasta” which had admittedly being placed at the disposal of the DDA for development and maintaining the same as green is a perverse finding? If so its effect?”

8 Reliance by learned counsel for the appellant on the judgment reported in Civil Appeal No.6191/2001 Anathula Sudhakar Vs. P. Buchi Redday is misplaced. The plaintiff in this case is not asserting title to the suit land; prayer is simplicitor a suit for injunction. Para 11 which has been vehemently highlighted of the said judgment would thus become inapplicable. The judgment reported in 60 (1995) DLT 474 Essex Farms Pvt. Ltd. & Anr. Vs. Delhi Transport Corporation is also of no help to the appellant. In this case, reliance by the plaintiff on the entries in the revenue records to establish his possession had been dispelled in view of the defence of the DDA that the land stood acquired; the present case is a case where the defendant in his written statement has himself admitted that the plaintiff is in possession of the suit land. Ratio of this judgment is also inapplicable.

9 In view of the aforenoted discussion, the substantial question of law is answered in favour of the respondent and against the appellant. There is no merit in this appeal. Appeal as also pending application are dismissed.