VALMIKI J. MEHTA, J.

C.M. Appl. No. 5035/2018 (for exemption)

1. Exemption allowed, subject to all just exceptions.

C.M. stands disposed of.

RFA No. 125/2018 and C.M. Appl. No. 5036/2018 (for stay)

2. This Regular First Appeal is filed by the plaintiff under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugning the judgment of the trial court dated 31.10.2017 by which the trial court has dismissed the suit filed by the appellant/plaintiff seeking recovery of compensation of Rs.15,20,380/- as also allotment of an alternative site in lieu of acquired land/property.

3. The facts of the case are that appellant/plaintiff pleaded that he was the owner in possession of property/plot no.3 admeasuring 107.5 sq. yards, falling in Khasra no.5/25/1 Village Nangloi Jatt, Delhi-41 abadi known as Friends Enclave Part-II, New Delhi, Sultan Puri Road. Appellant/plaintiff claimed to have purchased the suit property in terms of registered sale deed dated 1.3.2006. Appellant/plaintiff pleads that he is the doctor who ran his clinic from the suit property. On 2.1.2012 it was pleaded that officials of Municipal Corporation of Delhi (MCD) came and demolished and took possession of 28 sq. meters from the suit property for the purpose of widening of a road and construction of a flyover over the Delhi-Rohtak railway track. It was pleaded in the plaint that possession was illegally taken of the said 28 sq. meters without issuing any notice and it was further pleaded that inspite of forcibly taking away the land of the appellant/plaintiff the respondent/defendant neither paid any compensation nor has allotted any alternative site and therefore through the suit appellant/plaintiff claimed compensation and allotment of an alternative site.

4. Respondent/defendant contested the suit by filing written statement and pleaded that appellant/plaintiff was encroacher of public land which was a public road and such encroachment was on a Right of Way of 100 feet road and therefore the encroachment on the main road was removed for constructing road over bridge and road under bridge between Sultan Puri and Nangloi Jatt. The cost of construction of the bridge was to be shared between Indian Railways and the respondent/defendant. It was pleaded that the property of the appellant/plaintiff, of which 28 sq. meters was taken over by the respondent/defendant, was a part of unauthorized colony being Friends Enclave till the year 1977 and this colony was regularized in terms of the circular dated 16.1.1977 of the Lieutenant Governor subject to the existing structures being regularized in accordance with the layout plan prepared after getting clear spacing for roads and community facilities. Appellant/plaintiff is pleaded to have encroached upon a part of the main road, being 100 feet wide road, which was to be constructed in front of the property of the appellant/plaintiff, and as duly provided in the regularization plans. In terms of the Resolution no.1030 of the respondent/defendant dated 11.1.1984 regularization of Friends Enclave took place where it was clearly shown that there would be construction of 100 feet wide road being the Right of Way of Sultan Puri Road. The suit was prayed to be dismissed as it was stated that there was no right in an encroacher to illegally occupy Government land and therefore there was no need of any notice to the appellant/plaintiff who was illegally encroaching part of the Right of Way/road, over which road over bridge and road under bridge was to be made by the respondent/defendant jointly with the Indian Railways.

5. After pleadings were complete the following issues were framed:-

“1.Whether defendant has not been served with notice under Section 477 and 478 of the DMC Act? If so, then its effect? OPD

2. Whether the plaintiff is entitled to a decree for a sum of Rs.15,20,380/- against the defendant as prayed in the para (I) of prayer clause of the plaint? OPP

3. Whether the plaintiff is entitled to pendente- lite and future i