D.V. Singh v. Municipal Corporation of Delhi

4. Mr. Ravi Kant Chadha, the learned Senior Advocate for the Society and Ms. Shyel Trehan, learned counsel for the Municipal Corporation of Delhi („MCD‟), submit that the matter has been finally adjudicated upon by the Supreme Court, which vide judgment dated 27.07.2000 in CA No. 4246 of 2000 examined the matter and held as under:

5. Mr. Chadha submits that the plaint is not maintainable because it is barred by res judicata. He refers to the judgment of the Supreme Court (five Judges‟ Bench) in Gulab Chand Chhotala Parikh v. State of Bombay 1965 SCR (2) 547, with Justice Subba Rao‟s dissenting opinion, which observed that “principle of res judicata is not based on a rule of technicality but is based on high public policy to bring about an end to litigation by giving finality to judgments inter parties and to save a litigant from harassment a second time.” He also relies upon the decision of the Supreme Court (three Judges‟ Bench) in Ramachandra Dogdu Sonavane v. Vithu Hira Mahar which held that “if there is an issue between the parties that is decided, the same would operate as a res-judicata between the same parties in the subsequent proceedings.” Ramachandra Dogdu referred to Syed Mohd. Salie Labbai (Dead) by L.R.s and Ors. vs Mohd. Hanifa (Dead) by LRs & Ors. AIR 1976 SC 1569 wherein the Court had stated that “before a plea of res-judicata can be given effect the four conditions required to be proved. They are, that the litigating parties must be the same; that the subject matter of the suit also must be identical; that the matter must be finally decided between the parties; and that the suit must be decided by a Court of competent jurisdiction.” It also referred to the judgment of the Supreme Court in Swany Atmananda v. Sri Ramakrishna Tapovanam (2005) 10 SCC 51 which held as under: “26. The object and purport of the principle of res judicata as contended in Section 11 of the Code of Civil Procedure is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subjectmatter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought into the status-book with a view to bring the litigation to an end so that the other side may not be put to harassment.

27. The principle of res-judicata envisages that a judgment of a court of concurrent jurisdiction directly upon a point would create a bar as regards a plea, between the same parties in some other matter in another Court, where the said plea seeks to raise afresh the very point that was determined in the earlier judgment.”

6. The learned counsel for the respondents submit that in light of the above, the suit is not maintainable. All the arguments which plaintiffs are raising are covered by the principle of constructive res judicata. The learned counsel further submit that the Supreme Court itself has held that insofar as plot No.E-25 in Swatanter Cooperative Housing Building Society in Maharani Bagh, South-East Delhi was never made available to the defendant society, delivery of the same to the plaintiff was impossible, since that property never came into existence. The Revised Layout Plan subsequently approved by the MCD did not show the existence of the aforementioned plot, therefore, in terms of Clause 7 of the aforementioned Sale Deed, the plaintiffs could only get the refund of the money.

7. Refuting the said arguments, Mr. Yadav, the learned counsel for the plaintiff submits that Clause 1 of the Sale Deed in effect transfers an absolute right to the vendee of the aforesaid plot. Similarly, the vendee would also enjoy some common rights as per Clause 3 of the Sale Deed; possession of the property was handed over to the plaintiff who subsequently made construction thereon. Therefore, the right in the said plot has been transferred to the plaintiff as an absolute owner. He submits that the issue of ownership of the land was never framed and, therefore, it could not have been adjudicated upon; that the lis before the Supreme Court was entirely different as compared to the lis in the present suit, hence the issue regarding ownership in the land is still res integra.

8. Mr Yadav further submits that the defendant MCD has not filed any pleadings to substantiate its contention that the suit is barred by res judicata and, therefore, de hors any pleading the preliminary issue cannot be decided. He relies upon the dicta of the Supreme Court in Syed Mohd. Salie Labbai (supra) in paragraph 8, which reads as follows: “..... 8. In the instant case according to the plaintiffs / defendants the identity of the subject-matter in the present suit is quite different from the one which was adjudicated upon in the suits which formed the basis of the previous litigation. In our opinion the best method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suits, and then to find out as to what had been decided by the judgments which operate as res judicata. Unfortunately however in this case the pleadings of the suits instituted by the parties have not at all been filed and we have to rely upon the facts as mentioned in the judgments themselves. It is well settled that pleadings cannot be proved merely by recitals of the allegations mentioned in the judgment....”

9. The learned counsel for the plaintiffs further submits that what this Court would need to examine is whether the issue was directly or subsequently determined between the same parties, for which purpose the Court would need to look into the pleadings filed by the parties in Appeal NO. 237/ATMCD/91 before the Apellate Tribunal MCD, and since the pleadings were not filed, the issue could not have been decided.

10. The learned counsel for the plaintiff, contends that the MCD is only a caretaker of the common areas including the park and it does not have a right or title in the land; that after the initial rejection of the Layout Plan, 11 new plots were carved out after the boundary of the wall and were aligned with the co-operation of the CRRI, the neighbouring colony; that the right of the plaintiffs in the land was never extinguished because the Sale Deed still subsists and the purchaser continues to be the owner of the land, even in the absence of it being specified in the Layout Plan prepared by the MCD because the Layout Plan of the Society is the one which granted the rights to the plaintiff. Therefore, the rights of the plaintiffs will not be extinguished unless the Layout Plan is sanctioned by the MCD. He refers to the judgment of the Single Judge dated 22.11.2012 passed in CS(OS) 774/2001, which dismissed the suit by a person claiming plot nos. 40, 41 & 42 in the same colony; these plots, which have been carved out as per the revised Layout Plan, have been rejected by the MCD.

11. The Single Judge had referred to the judgment of the Supreme Court in the case of Poonam v. MCD (Supra). The court had reasoned that the aforesaid judgment was clear cut evidence of lack of ownership of the plaintiffs regarding plot nos. 40, 41 & 42, because the revised Layout Plan had never been sanctioned. Consequently, it was of the view that neither the plaintiffs nor the owner were in certain possession, therefore, no relief could be granted to those plaintiffs. In appeal, the said order was set aside by a consent order by the Division Bench vide order dated 03.01.2013. The order records as under: “....5. After some hearing, learned counsel for the parties agreed that since t he suit was at the stage of trial, t he interests of parties would be best sub-served having regard to the reliefs claimed and the issues struck, if the impugned order is set-aside and the regular trial is resumed and completed as expeditiously as possible.

6. Having regard to the statements made by the plaintiff and the defendants, who are represented by counsel, as well as the authorised representative of the concerned defendant society, i.e. Sh. P.S. Taneja, who had filed an affidavit in support of the application, I.A. No. 920/2012, this Court hereby sets-aside the impugned judgment and order dated 22.11.2012, which had the effect of dismissing the suit. Consequently, the suit is restored to the file of this court and the trial shall be subject to the following directions:...”

12. The learned counsel for the plaintiffs refers to the Sale Deed dated 7th October, 1965 whereby plot no. 25 New Category II Group B situated in Kalindi Colony in Village Kilokari, Delhi was allotted to him and has been shown in the revised Layout Plan of Kalindi Colony of Swatantra Cooperative House Building Society as annexed with the Sale Deed. He states that the plot no. 25 (New) is clearly shown and the plot no. 25 (Old) is also shown, which has gone to the CRRI. Therefore, as per the new boundaries, Plot No. 25 (Old) was shown as existing. He argues that it may well be the case of the defendants that plot nos. 36(c), 37, 38, 39, 40, 41 and 25 (New) may have been subsequently converted into a park because of nonapproval of the revised Layout Plan by the MCD but this non-approval will not take away the rights of the plaintiff under the Sale Deed.

13. The learned counsel further submits that the property is freehold and not leasehold; it belongs to the plaintiff/vendee and the non-approval of the plot by the MCD would be meaningless apropos the inherent proprietory right transferred to the plaintiff. The non-approval of the layout plan would not extinguish the right conferred and transferred to the plaintiff through the Sale Deed. However, the counsel for the MCD draws the attention of the Court to Clause 7 of the Sale Deed which premised on sale of a plot of land only on the approval by the MCD, failing which the plaintiffs would be entitled only to the refund of the money paid for the sale of the aforesaid plot. The said clause reads as under:- “7. That the Vendee further agrees that in case the Municipal Corporation of Delhi rejects the revised Layout Plan or passes it with modifications, the Vendee will be entitled only to the refund of his money after deduction of expenses entailed in this regard or will accept the plot as modified by the Municipal Corporation.”

14. The learned counsel for the plaintiffs submits that there is no clause regarding the reversion of the Sale Deed and therefore, the property would not revert back to the Society and the reference to non-sanction was only to obviate any claim of damages against the Society.

15. In Suit No.771/1979 an injunction was granted restraining the MCD from sanctioning any building plan apropos the unutilised land. Subsequently, in appeal the said order was vacated. In the said order it was also recorded as:

16. The learned counsel for the MCD, Ms. Shyel Trehan, submits that there was no determination as to the ownership or any right of the present plaintiffs in the said property, however, the concluding paragraph of the aforesaid order has to be read in its context. The reference to admitted owners of plots is something in future, i.e. apropos such persons, who may be admitted to be its owners. It was also the MCD‟s stand in its Written Statement that plot no.25 (new) did not exist.

17. The learned counsel further submits that the plot of land to which the plaintiffs lay a claim was never carved out and was never sanctioned. Hence, there will be no declaration to that effect and it has been so held by the Supreme Court in Poonam vs. MCD (supra). Ms Trehan, the learned counsel for the MCD, however argued that when the judgment relied upon, i.e. Poonam v. MCD (Supra), itself clearly frames the issue and returns a finding thereon, no further hearing on the same issue would be required. She relies upon a judgment of this court in RSA 243/2006 between the same parties pertaining to the same plot, which held as under: “.....12. The plaintiff has prayed for a decree of permanent injunction restraining the defendant from taking possession of plot No. E25 (new) in Kalindi Colony. Positive finding had been returned that there is no plot bearing E-25 (new) in Kalindi Colony; question of granting permanent injunction qua this land does not and would not arise; plaint was right rejected under Order 7 Rule 11 of the Code. This view was correctly appreciated and endorsed by the first appellate Court. There is no perversity. The impugned judgment calls for no interference on this count...”

18. Relying upon the judgment in Syed Mohd. Salie Labbai (supra), Mr. Yadav contends that in the earlier proceedings the only issue was the nonsanctioning of the building plan and not whether the plaintiff had a right, title or interest or possession of the aforesaid plot or in a plot of that size in the land leased out to the defendant no. 3 – Society. He submits that the issue has to be substantially and materially the same in both cases for applicability of the rule of res judicata. It is his argument that in the present case, the right of the plaintiff in a plot of land of the aforesaid size is in issue and not about the correctness and justifiability of the non-issuance of a building plan or of sanctioned Layout Plan.

19. To fortify the argument, he relies upon a suit filed by one Mr. R.S. Taneja bearing Suit No. 77 of 79, before a Civil Court, Delhi in which (i) a restraint was sought against the MCD from sanctioning the building plan or from permitting any activities to be carried out in the land allotted to the Society; and (ii) by a decree of permanent injunction the defendants may be restrained from approving any building activities or raising any construction or any vacant site, park as shown in plan in red colour in Kalindi Kunj. He contends that in this Suit the MCD had taken different stand. It is submitted that in the WS, the MCD has averred as under:

20. Mr. Yadav contends that in the present suit, the MCD has completely changed its stand from what it had in previous proceedings leading to the SLP. Furthermore, he contends that in the same WS, the MCD had stated that they had not taken possession of the property concerned. He submits that the corporation has specifically stated that: “16. Para 16 of the plaint as stated is not admitted. However, it is true that the sites earmarked for parks, community facilities, roads etc. vest in the Corporation on the sanctioning of the Layout Plan and they are taken over by the Corporation at the time of taking over the services. The Corporation has nothing to do with other vacant plots lying unutilized in the area. Rest of the para is denied.”

21. He further contends that the MCD has nothing to do with other vacant plots lying unutilized in the area; that possession of unutilised areas was never taken over by the MCD. In para 18 of the same WS it has been averred that the civic amenities were taken over by defendant No. 1 and with it sites earmarked for parks and community facilities etc. were also taken possession of. In the immediately subsequent paragraph, the MCD has averred “that the sites earmarked for parks, community facilities, roads etc. are meant for the common use of the residents of the colony but un-built area in the colony are not for common use.” It also averred that: “20. It is however true that park sites are to be kept reserved and usually the building activities are not allowed on the sites reserved for parks. However, in this case defendant No. 1 has received a request from individual owners of lands for sanction of plots alleged to be owned by them and their request is under consideration.”

21. That para 21 of the plaint as stated is denied. As already submitted above the proposal to sanction the plots over the land described in this para is still under consideration by defendant No.1. It is vehemently denied that defendant No. 1 cannot sanction the plots or building activities on such lands.

22. That 22 of the plaint is admitted to this extent only that ownership of parks, roads etc. vests in the MCD. Rest of the para is denied.

23. That para 23 of the plaint is stated is denied. Defendant No. 1 is within its rights to utilize the land vesting in them in any manner according to the provisions of the Act and Bye-laws and Zonal Regulations. Rest of the para is denied.

22. The learned counsel for the plaintiffs submits that in the proceedings originating from the sanction of plot plan filed by the plaintiff No. 2, the stand of the MCD has changed; that it has taken over possession of all the unutilised areas including those which were not shown as common amenities other than a part of the park; that till such time that the Layout Plan shows the unutilised area as a sanctioned park, possession of the same could not have been taken over by the MCD; that in the revised Layout Plan the plaintiff‟s area/plot was not shown as a park but only as unutilised area which is in consonance with the stand taken by them in the suit. Therefore, for the MCD to contend that they have taken possession of park or any area including the unutilised area which were shown as having been put to any sanctioned use such as parks etc. is contrary to the stand taken by the MCD in the Written Statement. He submits that otherwise they would have no right to take over possession of such areas which were not sanctioned as common amenities/areas.

23. In this suit the plaintiffs seek to restrain the defendant no. 1 MCD from dispossessing the plaintiffs and the defendant no. 2 from the plot of land bearing No.25 (new), Category II, Group B, measuring 399.93 sq. Yds., Kalindi Colony, Village Kilokri, Delhi and/or from interfering in the possession of the plaintiff thereof. On 29.05.2013, it was observed by this Court that since it was not in dispute by either party that the property was an open piece of land and possession whereof in law is deemed to be of the title holder thereof, the status quo was directed to be maintained qua title, possession and construction over the said plot of land with a further direction that even if the same was developed as a park by the defendant no. 1 – MCD, it was without prejudice to the rights of the plaintiffs and subject to the findings in the present suit.

24. The issue to be determined is whether there exists any plot of land bearing No. E-25 (New), Category-II, Group B, measuring 399.93 square yards, Kalindi Colony, Village Kilokari, Delhi, and if so, whether the plaintiffs are owners thereof. This issue had been finally addressed and decided by the Supreme Court in an earlier round of litigation between the same parties, regarding the same plot of land. The adjudication was in the context of Sale Deed of 21.07.1965, which recorded the background of the conditional sale. The first two Recitals record that the Vendor had offered for sale to members, plots of lands situated in the residential colony vide its Circular on 21.07.1965, on the understanding that the revised Layout Plan had not been sanctioned thus far by the Municipal Corporation of Delhi and should such Layout Plan be rejected, or passed with modification, the intending purchaser would be taking the risk in this regard and the Society had agreed to return the money back after reducing all expenses entailed in this regard. The Layout Plan prepared by the Society had identified plot NO. 25 (New) in the revised layout plan. This plot was not sanctioned for construction of a plot. Hence, there was no transfer of rights in such lands to the Vendor/present petitioner.

25. It was categorically held in Poonam v. MCD (Supra) that plot no. E- 25 (New) did not exist since it was not sanctioned in the revised Layout Plan. Therefore, the issue has been conclusively answered. The Court had also clarified that it did not say that “the appellant or her mother have a right to challenge auction of Plot C-35 and/or C-36”. The plaintiff seeks to agitate a right in the sanctioning of such a plot or any equivalent land. The Court is of the view that insofar as the Supreme Court has conclusively held that no such plot existed or was sanctioned, therefore, the said issue is barred by resjudicata and the plaintiff cannot seek fresh determination of the same in this suit.

26. The Court would further note that in Clause 7 of the Sale Deed dated 07.01.1965, between the parties, i.e., the plaintiff and the Cooperative Group Housing Society (defendant no.3), the Society clearly limited entitlement of the plaintiff to refund of money after deduction of expenses etc. in the event the MCD rejects the revised Layout Plan or passes it with modifications. The plaintiff‟s ephemeral and expected right in the land stood extinguished the moment the MCD did not sanction plot No. E-25. Accordingly, the preliminary issue is answered in favour of defendants. The suit is dismissed as being not maintainable.

27. No orders as to cost.

NAJMI WAZIRI, J NOVEMBER 03, 2016