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2015 Supreme(Del) 2385
IN THE HIGH COURT OF DELHI AT NEW DELHI
VIPIN SANGHI, J.
DELHI DEVELOPMENT AUTHORITY - Appellant
Versus
KAUSHALYA DEVI - Respondent
RSA 314/2015
Decided on : 24.08.2015
Ms. Kanika Agnihotri and Mr. Vaibhav Agnihotri, Advocates
The burden of proof lies with the defendant to show that the plaintiff is an encroacher upon the Government land beyond the specified portion. The demarcation report and objections raised by the defendant were crucial in determining the ownership of the disputed land.
Headnote:
Delay Condonation - Property Dispute - Order 26 Rule 9 CPC - Khasra No.28/11, 28/20/1 - The court discussed the demarcation report, objections raised by the defendant, and the second demarcation report. The court found that the defendant failed to discharge their burden and the plaintiff proved that only a portion of land was in the acquired portion. The Trial Court decreed the suit of the plaintiff in terms of the amended plaint. The first appeal preferred by the appellant/DDA has been rejected, and the First Appellate Court has concurred with the findings of the trial court.
Fact of the Case:
The respondent claimed ownership of a property and sought a permanent injunction to restrain the DDA from demolishing any part of the property. The DDA disputed the plaintiff's exclusive possession and claimed the plaintiff was an encroacher on their land. The demarcation report and objections raised by the defendant were discussed in the trial court.
Finding of the Court:
The Trial Court decreed the suit of the plaintiff in terms of the amended plaint. The first appeal preferred by the appellant/DDA has been rejected, and the First Appellate Court has concurred with the findings of the trial court.
Issues: The main issue was whether the plaintiff had encroached any portion of the land beyond the area of 6.6 sq yds in Khasra No.28/11. The court also considered the validity of the demarcation report and objections raised by the defendant.
Ratio Decidendi: The defendant failed to discharge their burden and the plaintiff proved that only a portion of land was in the acquired portion. The Trial Court decreed the suit of the plaintiff in terms of the amended plaint.
Final Decision: The Trial Court decreed the suit of the plaintiff in terms of the amended plaint. The first appeal preferred by the appellant/DDA has been rejected, and the First Appellate Court has concurred with the findings of the trial court.
VIPIN SANGHI, J. (OPEN COURT)
C.M. No.16617/2015
There is a delay in re-filing of the appeal by 11 days. For the reasons stated in the application, the same is allowed. The delay in re-filing is condoned. The application stands disposed of.
RSA 314/2015 & C.M. Nos.16614-16/2015
1. I have heard learned counsel for the appellant and perused the record. Since I am not inclined to issue notice in the appeal, there is no purpose of issuing notice in either application seeking condonation of delay or application seeking stay of the impugned judgment.
2. The present second appeal is directed against the judgment and decree dated 03.03.2015 passed by the learned ADJ (West) in RCA No.43/2013, titled DDA v. Kaushalya Devi, whereby the first appeal preferred by the appellant/DDA has been dismissed as being devoid of merit. The said first appeal had been preferred to assail the judgment and decree dated 31.10.2011 passed by the court of learned Civil Judge (W), Delhi in Suit No.1058/2006 preferred by the respondent Smt. Kaushalya Devi against the appellant/DDA to seek the relief of permanent injunction.
3. The respondent/plaintiff claimed that she was the owner of the built up property, built on land admeasuring 320 sq. yds out of Khasra No.28/11 and 28/20/1 situated in the Laldora of Village Mangolepur Kalan, Delhi. The plaintiff stated that she had purchased the land from the erstwhile owner Sh. Ajit Singh vide sale deed dated 24.05.1996. The plaintiff claimed exclusive possession of the property in which business being run by her family.
4. The plaintiff claimed that on 16.12.1998 at about 12:00 noon, the demolition squad of the DDA started demolishing the property adjoining the plaintiffs property. On enquiry, the plaintiff learnt that the DDA would also demolish her property after demolishing the adjoining property. She further stated that on 17.12.1998, the DDA started the demolition of her property as well, and demolished some portion thereof. The plaintiff offered resistance and, consequently, the remaining property was saved. Resultantly, the plaintiff preferred the suit in question to seek a permanent injunction to restrain the DDA and its officers from demolishing any part or parcel of the plaintiffs property which was demarcated in the site plan attached.
5. In the written statement, the DDA claimed that the entire land in dispute formed part of the land falling in Khasra No.28/11, Village Mangolepur Kalan, Delhi which had been acquired vide award no.42/82-83 dated 16.10.1982. The DDA claimed that after acquisition, the land had been transferred to the DDA and physical possession was taken on 18.11.1982. It was handed over to the engineering department of DDA for development of the Rohini residential scheme. The plaintiffs exclusive possession of the land was disputed. It was denied that the plaintiff was running her business in the property in question. It was stated that the plaintiff is an encroacher on the DDA’s land.
6. On an application preferred by the plaintiff under Order 26 Rule 9 CPC, a local commissioner was appointed by the trial court vide order dated 30.09.2003. Mr. M.K. Nauhihal, Naib Tehsildar, Saraswati Vihar was appointed as the local commissioner, who subsequently appeared as PW-1 and exhibited his demarcation report dated 09.12.2003 as Ex. PW-1/1.
7. In his demarcation report, PW-1 found the suit property as not falling in the acquired land, except a small portion thereof in one corner. Consequently, the plaintiff amended the suit. The plaintiff introduced the averment in the suit which, inter alia, reads as follows:
“That further the said land/ property is free from any acquisition etc. except the aforesaid portion of 10' from North West corner towards south of the suit property and 12' from the same North West corner towards east of the said property i.e. an area of only about 6.6 sq. yards out of the above suit property measuring 320 sq. yards.” The prayer clause in the amended plaint was tha
