Point of Law : Grant of temporary injunction - Demarcation report - Demarcation report included determination of location of suit premises. A modern method of TSM has been used to demarcate land. Claim of petitioner/plaintiff that suit premises fall in Khasra has been found incorrect.

JUDGMENT :

[VIA VIDEO CONFERENCING]

CM (M) 304/2021, CM APPL.13683/2021 (by the petitioner u/S 151 CPC for stay)

1. This petition has been filed by the plaintiff before the learned Trial Court under Article 227 of the Constitution of India praying that the impugned order & judgment of the Additional District Judge/Appellate Court dated 30th January, 2021 be set aside and as a consequence thereof, allow the application under Order XXXIX Rule 1 & 2 CPC filed by the petitioner/plaintiff and grant temporary injunction against the respondent No.1/Delhi Development Authority (‘DDA’) restraining it from demolishing the premises in question till the suit was decided.

2. The facts as are relevant for the disposal of the present petition are that the petitioner/plaintiff had filed a suit against the respondent No.1/DDA and respondent No.2/Delhi Waqf Board (‘DWB’) for a decree of permanent injunction against respondent No.1/DDA from illegally dispossessing the petitioner/plaintiff from the suit property which he described as T-35/10, Ward No.8, Pankhe Wali Masjid, Khasra No. 1151/3 (Min.), Mehrauli, New Delhi.

3. The case setup by the petitioner/plaintiff was that the suit property was a Muslim religious place constituting a Masjid and an old Qabristan on a part of Khasra No.1151/3 Min. (Old Khasra No.1665) which was included as a Waqf property in the notification dated 18th October, 1998. The petitioner/plaintiff claimed that the suit property had been with the forefathers of the petitioner/plaintiff since long. Moreover, in the year 2010, a survey carried out by the Zonal Officer, South Delhi of the respondent No.2/DWB, recorded the fact that the petitioner/plaintiff was residing in a portion of the suit property alongwith his family. The petitioner/plaintiff had even submitted an application to the respondent No.2/DWB to be recognized as its tenant.

4. As noticed, alongwith this plaint, an application under Order XXXIX Rule 1 & 2 CPC was also filed which the learned Trial Court dismissed vide orders dated 11th September, 2019 (Annexure P-8). Against this order, an appeal was filed and the learned Additional District Judge, South District Saket, dismissed the said appeal vide the impugned order dated 30th January, 2021.

5. Mr. Syed Hasan Isfahani, learned counsel for the petitioner/plaintiff submitted that the learned Trial Court and the learned Appellate Court had denied interim protection on the ground that the suit property on demarcation was not found to be located in Khasra No.1151/3 (Min.), but rather in Khasra No. 216. However, the respondent No.1/DDA had claimed that the suit property fell in Khasra No.217 and that was acquired land and, therefore, they had a right to remove the encroachments, but the demarcation report completely falsified their stand. Learned counsel further submitted that once it was clear that the suit property did not fall in Khasra No.217 which was acquired land, respondent No.1/DDA could not interfere with the rights of the petitioner/plaintiff in another Khasra number whether it be 216 or 1151/3 (Min.). Since the petitioner/plaintiff had been in possession of the suit property for a very long period, from the time of his forefathers, the petitioner/plaintiff was entitled to a protection of his possession till the suit was decided.

6. Ms. Mrinalini Sen, learned Standing Counsel for respondent No.1/DDA, on the other hand, submitted that even if it was considered that the suit property fell in Khasra No.216, Ladha Sarai, New Delhi and not in Khasra No.217, the petitioner/plaintiff still could not claim a right in the said land since the land bearing Khasra No.216 ad-measuring 27 bighas 8 biswas of land in village Ladha Sarai had been transferred to the respondent No.1/DDA by the Ministry of Rehabilitation vide Book Transfer dated 31st December, 1968. It may be mentioned here that on directions of this Court, an affidavit has been filed by the Deputy Director/LM/South, an officer of the respondent No.1/DDA to this