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2019 Supreme(Del) 2208
IN THE HIGH COURT OF DELHI AT NEW DELHI
Prathiba M. Singh, J.
Kashi Ram (Deceased) Thr. Lrs. – Appellant
Versus
Gaon Sabha Nasirpur – Respondent
Civil Miscellaneous (M) No. 844 of 2019; Civil Miscellaneous Application No. 25632 of 2019
Decided On : 28-08-2019
J.K. Jain, Adv., Hetu Arora Sethi, Adv., Anil Tomor, Adv.
The burden of proof to establish possession lies with the plaintiff, and demarcation cannot be directed without evidence.
Headnote:
Demarcation - Land Dispute - Delhi Panchayati Raj Act, Delhi Land Reforms Act, Specific Relief Act, Indian Evidence Act - The court dismissed the application for demarcation of land, holding that the burden of proof to prove possession falls on the plaintiff and demarcation cannot be directed without evidence.
Fact of the Case:
Plaintiff No. 1 sought demarcation of land claimed to be co-owned, but the Defendant resisted, claiming possession. The Trial Court dismissed the demarcation application, stating that it would amount to collecting evidence for the plaintiff.
Finding of the Court:
The Court held that the burden of proof to prove possession falls on the plaintiff, and demarcation cannot be directed without evidence. The Court left open the possibility of demarcation at a later stage, after evidence has been led by the parties.
Issues: The issues included the maintainability of the suit, jurisdiction of the court, and entitlement to a decree of permanent injunction.
Ratio Decidendi: The burden of proof to prove possession falls on the plaintiff, and demarcation cannot be directed without evidence. The Trial Court's discretion to allow demarcation at a later stage, after evidence has been led by the parties, is left open.
Final Decision: The petition and all pending applications are disposed of.
JUDGMENT :
Prathiba M. Singh, J.
The present petition challenges the impugned order dated 6th February, 2019 by which the application filed by the Plaintiff No. 1/Petitioner (hereinafter "Plaintiff No.1") seeking demarcation of the land was dismissed. The brief background is that Plaintiff No. 1 claims to be recorded as co-owner of the land measuring 4 bighas 14 biswas out of Khasra No. 365 and 8 bighas 11 biswas out of Khasra No. 366 in the revenue estate of village Nasiripur, Palam, Delhi, since 1948-49 (hereinafter "suit property"). However, it is further claimed that after 1954, though the land was shown as vested in the Gaon Sabha-Respondent/Defendant (hereinafter "Defendant"), no action has been taken by the Defendant to take possession of the said land and until the filing of the present suit, the possession of the land was with Plaintiff No.1. Plaintiff No. 1, in 1991 found that the Defendant started threatening to dispossess him and demolish parts of the suit property. Accordingly, the present suit was filed seeking the following reliefs:-
"It is, therefore, most respectfully prayed that the Hon'ble Court may kindly be pleased to pass a decree of permanent injunction in favour of the plaintiffs and against the defendant thereby restraining the defendant, its officials, servants, agents, etc. from taking the forcible possession of suit land measuring 4 bighas 14 biswas out of khasra no.365 and 8 bighas bighas 11 biswas out of khasra no.366 situated in the revenue estate of village Nasirpur, Palam, New Delhi-110045 by fencing the suit land with barbed wires, except with the due process of law. Cost of the suit be also awarded to the plaintiffs."
2. The case of the Defendant is that the land falling in Khasra No. 365/366 is in its possession.
3. The following issues were framed in the suit:-
"(1). Whether the suit of the plaintiff is not maintainable in view of the Section 99 of Delhi Panchayati Raj Act? OPD
(2). Whether the suit of the plaintiff is not maintainable for non-joinder of necessary party u/s 161 of Delhi Land Reforms Act? OPD
(3). Whether this court has no jurisdiction to try this suit? OPD
(4). Whether this suit is hit by section 41 (h) of Specific Relief Act? OPD
(5). Whether plaintiff is entitled to the decree of permanent injunction as prayed for? OPD (sic OPP)
(6). Relief."
4. The Court granted a status quo order on 17th August, 2013. Somewhere around 11th November, 2013, the DDA along with its officials, carried out demolition and it was claimed that the demolition was carried out in Khasra No. 393, though, according to Plaintiff No.1, the demolition was carried out in the property belonging to Plaintiff No.1. Accordingly, an application was filed by Plaintiff No.1 seeking appointment of a Local Commissioner to demarcate the land and delineate Khasra No. 365/366 and Khasra No. 393. The prayer in the said application reads as under:-
"It is, therefore, prayed that Tehsildar, Najafgarh, Delhi be appointed as Local Commissioner to demarcate the land in dispute and report whether the same falls in khasra NO.365/366 or 393 of village Nasirpur, Delhi.
Hon'ble court may pass such other and further order as deem fit and proper under the facts and circumstances of the case."
5. The said application was resisted by the Defendant on the ground that Plaintiff No.1 is trying to encroach upon government land in Khasra No. 393 which is not permissible. The Trial Court decided the said application and held that the exercise of appointment of a Local Commissioner and carrying out demarcation would amount to collection of evidence on behalf of Plaintiff No.1. It further held that such an exercise cannot be carried out and it is for Plaintiff No.1 to prove that it is in possession of Khasra No. 365/366. The observations of the ld. Trial Court read as under:-
"Thus, if the aforesaid legal principles regarding appointment of local commissioner are applied to the facts and circumstances of the present case, this court is of the opinion tha
