The demarcation report played a crucial role in determining the actual location of the suit property, influencing the court's decision to dismiss the suit.

VALMIKI J. MEHTA, J.

C.M. Appl. No. 7515/2017 (for exemption)

Exemption allowed, subject to all just exceptions.

C.M. stands disposed of.

RSA No. 64/2017

1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning the concurrent judgments of the courts below; of the Trial Court dated 26.7.2013 and the First Appellate Court dated 17.11.2016; by which the suit for possession, injunction and damages filed by the appellant/plaintiff was dismissed. The suit property is situated as per the plaint in khasra no.3 of village Joga Bhai, Tehshil Mehrauli, New Delhi. The area of the subject khasra number which is in dispute is an area of 800 sq. yards.

2. Respondents/defendants filed their written statement pleading that appellant/plaintiff was not the owner of khasra no.3 as khasra no.3 was never allotted to the appellant/plaintiff. More importantly, it was pleaded by the respondents/defendants that the suit property was said to be situated in khasra no.3 and of which the appellant/plaintiff claimed ownership, but the suit property was actually located in khasra no. 52. It was further pleaded that one Shankar, Tulla and Banwari were owners of khasra nos. 52, 48 and 55 who had mutually partitioned their lands. This fact was duly informed to the concerned Patwari and who made the necessary notation in the revenue record on 7.12.1954. In March, 1962 a part of the land was acquired and compensation was awarded to the aforesaid three co-sharers and their land stood mutated in favour of Union of India. Part of the land which was an independent land was thereafter re-numbered as 52/1/1. Shankar died leaving behind three sons and who became owners of the unacquired land.

3. The suit was accordingly prayed to be dismissed as the respondent no.6/defendant no.6 was pleaded to be the owner of the land in question.

4. After the pleadings were complete the trial court framed the following issues:-

“1. Whether the suit is liable to be stayed under Order 10 CPC? OPD

2. Whether the suit is barred under Order II rule 2 CPC? OPD

3. Whether the suit is properly valued for the purpose of court fees & jurisdiction? OPP

4. Whether the plaint is signed & filed by duly authorised person? OPP

5. Whether the Defendants have occupied the land in dispute unauthorizedly? If so its effect? OPP

6. Whether the Plaintiff is lawful allottee of the land in dispute? OPP

7. Whether the Plaintiff is entitled to the damages. If so at what rate & for what period? OPP

8. Whether the Plaintiff is entitled to the relief of possession? OPP

9. Relief.”

5. Whereas appellant/plaintiff led evidence but the respondents/defendants failed to lead any evidence. As regards the relevant issue nos. 5, 7 and 8 these issues were decided in favour of the respondents/defendants by the trial court in terms of paras 25 to 34 of its judgment, and which paras read as under :-

“25. Onus to prove all these issues was placed on the Plaintiff.

26. To prove its case, the Plaintiff society had produced Mr. M.L. Jaggi to depose in the witness-box as PW3. He stated in his examination-in-chief that he was the President of the Plaintiff society on the date of his deposition. He further deposed that the Plaintiff is a Co-operative Society registered under the Registrar of Co-operative Society, Delhi. The Certificate of Registration dated 01.02.1955 was produced as Ex.PW2/1. The PW3 further deposed that the Plaintiff society was allotted land on lease-hold by the President of India, measuring 800 sq. yards, in the year 1963, in Khasra no. 3, village Jogabai, Tehsil Mehrauli, near 174, Sarai Julenna, Okhla Road. The certified copy of the lease deed dated 13.02.1963 is exhibited as Ex.PW3/3. It is further stated that the agreement bears the signatures of Sh. Ram Lal Jaggi, the then President of the plaintiff society and of Sh. Bal Mukund the then Secretary of the Plaintiff-society. The PW3 further goes on to depose that the Defendants have encroa