Full Text
RFA 540/2017
Date ofJudgment: 26"^ May, 2017 C.L. GUPTA Appellant
Through: Mr.Rajiv RanjanDwivedi, Advocate.
Throughj®^®"Nbne?«JSi>^ K !i y f S. /I
•i •{?;;! ijVi if If i
Exemptidh allowed, subjectito|all^ustexceptions. ^
The applie^ions stand dis^^e^lc^ |
U J-' .. - '• ,c,„
This is an ap^icMp)^ s^ldng 14 days'^del^ii^^ the appeal.
Heard. For the reasons Itated- ir'the^|j|c^^;tl^ delay in re-filing the appeal is condoned. The application is'Hisposed of.
-.i' A '.'t
This is an application seeking 07 days' delay in filing the appeal.
Heard. For the reasons stated in the application, the delay in filing the appeal is condoned. The application is disposed of
JUDGMENT
1. Challenge in this appeal is the judgment and decree dated 15.12.2016 in Civil Suit No. 182/2014 (new No. 7341/2016), by which the learned RFA 540/2017 Page 1of[7] 2017:DHC:8934 ADJ-05 (South District), New Delhi, dismissed the suit of the appellant/plaintiff for Declaration, Possession along with consequential relief of Mandatory and Perpetual Injunctions in respect of property bearing No. 189E (revised No. 189-D/l), Freedom Fighter Enclave/Colony, Neb Sarai, New Delhi, measuring 500 sq.yds. comprising of Khasra No. 24, Neb Sarai, New Delhi (in short "suit property").
2. Succinctly stated the appellant claimed that he was the owner in actual physical possession of the „suit-_pr(3gerty. He claimed to have purchased the suit^^property frpm jpne'^'S^^^ Kumar Tiwari on 13.09.1998 byoway ofe^ale documents as Gerika^Rower of Attorney, Agreement4o tSell, Affidavit, Receipts, etc. fof a tonsideration of Rs.45,000/-.,,lFlie vendor of the appellant alleged^o Kave purchased the suit property from one Sh. Surjan Singh on 18.12.1991.
3. Earlier tHe plaintiff had file.d^a,,pi^ili,Suit No. 90/2000 for declaration and permanent injunctionligafnM inrespect ofthesame subject matter in%^^poiteoMts^ The suit was transferred on B lO"2OO3''t04heJDistri6t^^ due to change in the pecuniary )unsdi^ion.^.^waS'-^^ as Suit No. 27/2004. However, the suit was dismissed in default on 18.09.2006. The application of the appellant for its restoration was dismissed on 28.07.2009 by the Trial Court. TheFAO No. 279/2010 filed in this Court was dismissed on 21.10.2010. Appeal against the order dated 21.10.2010 was also dismissed by the Apex Court in the year 2011.
4. It is also pleaded in the plaint that on or about 06.01.2000, certain officials of the respondents/defendants visited the suit property and threatened the appellant to face the consequences if he does not vacate RFA 540/2017 ^ 0/ 7 it. He also claimed that as per the Revenue records and report ofthe Halka Patwari dated 15.11.2003, the suit property is recorded in the name of the appellant and the colony has been declared to be an approved one. He pleaded that his representation dated 01.03.2004 was forwarded by the Minister of Development, Revenue, Food & Civil Supply, to the Divisional Commissioner on 03.03.2004 and 11.03.2004 for necessary action for allotment ofalternative plot in the Freedom Fighter Colony, New Delhi. The appellant has also made representation on 2S.02Development Officer, Mehrauli, Gram and'l^e Urban Development Ministry, NCJ^'of DeM for, allotment oCJaJtetaive plot. The appellant a^airi'seht another represeritation datfd 21.07.2005 to the Block Deyelopment Officer, Tis Hazari, Delhi. f^His representation was forwarded to the Deputy'Commissioner (South) on |8.12.2005 by the Blocl|Development Officer. -jhe appellant furthe| claimed that the society, where the suit'propeJy.|sJ,situated, is areg|!arized colony as per the notification published in the newspaper Nav Bharat Times on 03.02.2007. The app^ellant fijither'alleged in his plaint before the trial court that his eMief'smtNo: 27/2004,was not decided on merits. The appellant also pleaded that he filed aCivil Writ Petition in the High Court on 21.09.2004 and it was ordered that the appellant/petitioner might take out appropriate proceedings in accordance with law to estabUsh his claim. The appellant further pleaded that in view of the decision dated 21.09.2004 and the order passed by the respondent no. 1, which was published in the newspaper dated 12.12.2007, the possession of the suit property should be "1 delivered back to him or alternative property of the same measurement should be provided to him.
6. In its written statement, it is, inter-alia, pleaded by the defendants/respondents that the suit is not maintainable due to delay and latches; plaintiff is an encroacher on the government land, the RWA of the area in question filed Writ Petition No. 3338/2001 in the High Court, which was dismissed and the previous suit No. 24/2004 filed by the appellant/plaintiff, in which similar relief was claimed, had also been dismissed.
7. The appellant filedjliis replicMion th'e,wifteri statement denying the allegations andfeaffirniiiig the=-faets pleadedimthe'plaint. The learned:Al])J'#amed the^lHwm^sues on;01.lM015: preliminary OPD f|
2. Whether the Mdifor mis-joinder of||necessary parties as alleged in the^prelim^^ objection no. 4in|hewritten stateinent? OPPv,_
3. \Whetli6rJ^%e/'su alleged in the prelimihary^Gjjecfipn no. 5'inii[i'e%ritt^h st^ OPD
4. Wheth|Hhe|lainti^^^^ to d.eefee'ofpossession of the suit pro]^rt|'as^u|ied|ibr^!P^^
5. Whether tKe;^ainti#4s=entifM^^ ofdeclaration as claimed for? OP? •
6. Whether the plaintiff is entitled to mandatory injunction as claimed for? OPP
7. Whether the plaintiff is entitled to decree of permanent injunction as claimed for? OPP
9. In support of his case, the appellant filed his evidence by way of affidavit, which was taken on record. The defendants were proceeded exparte. However, the defendant joinedthe proceedings at the time of addressing the arguments.
8.
10. While deciding the issue no. 1, the trial court found that the appellant has filed the photocopy ofKhasra Girdawari for the year 2002-2003 in respect of the suit property, which is recorded in the name of Gram Sabha. Neither the name of the appellant nor his vendors are found mentioned therein. The appellant claimed his title having purchased property by way of General Power of Attorney, Agreement to Sell, Affidavit, Receipts etc. for consideration of Rs.45,000/- from one Sh.Hardesh Kumar Tiwari on 13.09.1998. The trial court found that these documents were executed^^ Sh. Hardesh Kumar Tiwari whose title could not^b^prclyed l|y tire, aj^H^t and the documents were not registered, the trial Court observed' that%en in the plaint, it is nowhere pleaded as to how Sh.^ Hardesh Kuniar Tiwari acquired any right, title dr'nnterest over the property, whicfc he, could have transferred in the name of t^Sfappellant/plaintiff. The trial court found "if;J ^'1 - • _y that regulkrization ofany unauthorized colony can neither change the status of the ownership sftthe occupier ofthe land therein nor the Govemmentus d^isted- ofSitsirjightPThelXrial Court found that the appellant was dilpossessBd^fi^^ property in the year 2000- ^ T,f|..'jj' 2001 and the writ petition'-olihe^ppeM admittedly dismissed by this court in the year 2004. the Ld. ADJ also found that the civil suit having been filed on 21.12.2011 for declaration and injunction is barred by limitation, delay and latches.
11. Under issue no. 4 to 7, the trial court found that the appellant was not having any title over the suit property and the land belongs to the government/Gram Sabha and the appellant was already dispossessed from the suit land and his earlier suit No. 27/2004 had also been dismissed in default. The learned ADJ found that the present suit RFA 540/2017 Page[5] of 7 having beenfiled on the same cause of action is barred under Order IX Rule 9 of the CPC. For its findings on issue no. 1 and 4 to 7, the suit ofthe appellant was dismissed by the trial court.
12. Learned counsel for the appellant/plaintiff submits that the learned ADJ has given a perverse conclusion by way of impugned judgment and decree. He submits that the learned ADJ has not appreciated that the respondents have notcomplied with therequirement of Section 86- A of the Delhi Reforms Act and Rule 170 thereof. He further submits that the learned ADJ has^^lailed^, to appreciate that by way of Notification published' in fthepn^sj^aper^ Nay Bharat Times dated 03.02.2017, the'lF.ree'dd^^^ \^here%e suit property is situated, is regiflarized one...,Hefurther stressed tnat as^per the revenue record and?report ofHalka Patwari dated 15.11.2O03ftlife suit property is recorded in the name oftheiappllaht.;I 'i i'
13. I have h^ard the learned cb)^nsel(f<Sr the appellant ang perused the, • •• record. a....... vfJA -v
14. The copy oRthe^-l^asrai^GiMw for the year 2002- 2003 ofVillag^^eJ^^7District-S6^ Die&ii^ifeflects that the suit property is recordedln^^he^amajD^^ It does not reflect the name either of the appellant or his alleged vendor Sh. Hardesh Kumar Tiwari. Learned counsel for the appellant admitted that no other revenue record was placed on record before the trial court. It is not disputed that the appellant had earlier filed a Civil Suit NO. 90/2000 in this Court on its original jurisdiction against the respondents in respect of the same subject matter, which was transferred to the District Judge due to change in pecuniary jurisdiction. The suit on transfer was registered as Suit No. 27/2004, RFA 540/2017 Page6of 7 which was dismissed in default. The application for restoration was dismissed upto the Apex Court. The present suit having been filed on the.same cause of action is barred under Order IX Rule 9 (1) ofthe CPC, which reads as follows: - "9 (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to setaside thedismissal aside, and if he satisfies theCourt thatthere was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinksj;flt;- and shall appoint a day for proceeding with the suit.".c;5^Q 'T \ J
15. The present s^it,^as'filed b;y the appellant soQmafter the dismissal of his SpeciaL;Lea#Petitidto|against the^y^ dated.21:^10.2010 passed in FAO No;^79/2017 d|inissing his appeal fol^rfesferation of his ••I %r^ ^ tr Hj earlier suil In his grounds^of appeal, the appellant has lipt challenged the findirik ofthe trial coukftfafiM-Was dispossessediifrom the suit property i%the year 2O(||^O0iepi^it|li^ tlie^it proj^rty belongs to Gram Sabh^Govermnent dr®f prove the title of his vendor Sb.'#ardQsH'Kumarti>¥ari.,,:;^^^^^ appellant has also failed to challengetlie^Siii|:^&l^ the cause ofaction to file the present suit was different than the cause ofaction pleaded in the plaint of the previous suit no. 90/2000 (new no. 27/2004). Therefore, there is nojustification to take a different view.
16. I find no merit in the appeal. The same is dismissed with no order as to cost.
VINOD GOEL, J.