Delhi Development Authority v. Kamla Devi & Ors.

1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the appellant/defendant/Delhi Development Authority (DDA) against the concurrent Judgments of the courts below; of the Trial Court dated 30.7.2011 and the First Appellate Court dated 29.2.2016; whereby the suit filed by the respondents/plaintiffs was decreed and the appellant/defendant was restrained from cancelling the allotment of the property, being plot no.115, Block-C, Pocket-8, Sector no.17 in Dwarka Residential Scheme, situated in Pappan Kala, Delhi, in favour of the respondents/plaintiffs.

2. The case of the appellant/defendant in the courts below was that respondents/plaintiffs were granted allotment of the plot on the ground that there is a policy of the government that if land of a person is acquired by the 2016:DHC:5156 appellant/defendant, then, an alternative plot is allotted to the person whose land is acquired. The appellant/defendant, however, states that the allottee of the subject plot cannot transfer or alienate the same but since the respondents/plaintiffs transferred the plot to one Sh. Sudesh Chopra, hence the allotment was cancelled. Appellant/defendant relied upon an interim Order dated 10.04.1997 passed by this Court in Suit No.736/1997 filed by the stated purchaser Sh. Sudesh Chopra against the respondents/plaintiffs and on such basis it was stated that the appellant/defendant had noted that the respondents/plaintiffs violated the terms of allotment by transferring the allotted property to Sh. Sudesh Chopra.

3. Both the courts below have held that the appellant/defendant has failed to prove the transfer because the case of the respondents/plaintiffs is that the documents were got executed by Sh. Sudesh Chopra from the respondents/plaintiffs in blank and those documents had no legal validity. The courts below have held that merely filing an interim order in suit no.736/1997 would not prove that respondents/plaintiffs have transferred the suit property because onus of proof was upon the appellant/defendant but the appellant/defendant had failed to prove the final outcome of the suit no.736/1997.

4. I have examined the judgments of the courts below and it is seen that the appellant/defendant has filed no proof that respondents/plaintiffs transferred the suit plot to Sh. Sudesh Chopra inasmuch as an interim order cannot be taken as a final outcome of the suit filed by Sh. Sudesh Chopra. Learned counsel for the appellant/defendant argues that the trial court was bound to summon the suit file because in the appeal originally filed against the first judgment of the trial court, this appeal was decided by remanding the matter to the trial court by allowing the appellant/defendant/DDA to produce in terms of Order XLI Rule 27 CPC the record of the suit no.736/1997, and that this record in spite of best efforts of the appellant/defendant could not be traced although the same was summoned by the courts below, however in my opinion, merely because the record is not traced would not necessarily mean that the appellant/defendant has discharged the onus of proof that there took place transfer of the suit plot by the respondents/plaintiffs in favour of Sh. Sudesh Chopra, without there being a final judgment in suit no.736/1997 being placed on record. I cannot raise a presumption either of facts or law that merely because the suit file is not traceable, it should be presumed that the suit was decreed in favour of the plaintiff and against the defendant of that suit no.736/1997.

5. In view of the above, no substantial question of law arises for this second appeal to be entertained under Section 100 CPC. Dismissed. JULY 22, 2016 VALMIKI J. MEHTA, J Ne