RSA 96/2014

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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RSA No. 96/2014

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2^nd April, 2014

SH. RAM CHANDER & ANR.

......Appellant

Through:

Mr. Dinesh Kr. Gupta and Mr. Vidit

Gupta, Advocates.

VERSUS

SH. KRISHAN KUMAR SHARMA

...... Respondent

Through:

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This second appeal is filed under Section 100 CPC, 1908 impugning

the concurrent judgments of the courts below; of the trial court dated

27.2.2013 and the first appellate court dated 1.2.2014; by which the suit filed

by the respondent no.1/plaintiff was partly decreed and the counter-claim

filed by the appellants/defendants no.2 and 3 was dismissed.

2. Disputes in the present case pertain to entitlement of construction of

plaintiff/respondent no.1 on plot bearing no. 24-A, Road No.4, Jai Dev Park,

Punjabi Bagh, New Delhi admeasuring 114 sq. metres and situated in K.No.

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2434/236, Khata No. 401, Khewat No. 129. The issue with respect to

entitlement to construct on this plot was related to the issue as to whether the

subject plot did fall or did not fall in the sanctioned lay out plan of the MCD

with respect to Jai Dev Park Colony. If the plot is a part of a sanctioned lay

out plan, then MCD will have control over this plot for its management, but

if the plot is not a part of the sanctioned lay out plan, then, MCD will have

no control over this plot, inasmuch as, the plot will be a privately owned plot

originally of the private colonizer, and belonging to the successor-in-interest

to whom the plot was sold.

3.

In my opinion, the following 17 and 18 paragraphs of the

judgment of the first appellate court crisply and correctly summarize the

factual position as also the legal conclusions and these paras read as under:-

“17. It is pertinent to note here that the MCD has not claimed

the suit property as an open space or a waste land. The

contention of the appellants that the suit property cannot

be constructed as per the report dated 19.07.1988 of

J.E.(Build.), West Zone, MCD, is contrary to the plea

that the Town Planner in its Report dated 30.03.1999 has

stated that the plot adjoining to the Plot No.24, Road

No.4 does not form part of the approved Lay-Out Plan.

Ld. Trial Court, in order to resolve this controversy, has

examined the witness from the Town Planner and Sh.

Roop Singh, Assistant Town Planner appeared on

14.02.2013 and gave a statement that the plot situated

adjacent to Plot No. 24 in the south direction is not under

the Jaidev Park and the number of this Plot as 24-A has

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not been given in the Lay-Out Plan by MCD. Therefore,

the suit property is situated outside the Lay-Out Plan of

Jaidev Park Colony and it cannot be said that the suit

property is within the Lay-Out Plan of the colony. Ld.

Trial Court has also rightly observed that the Resolution

of the Standing Committee Ex.DW3/A and the Lay-Out

Plan Ex.DW2/A do not mention anything about the

nature of use of the suit property. Hence, the findings

arrived at by Ld. Trial Court that the suit property

situated in southern side of Plot No. 24 is not included in

the Lay-Out Plan of the Jaidev Park Colony and

therefore, has not been ear-marked by MCD or Colonizer

for any specific purpose, is re-affirmed and it is also re-

affirmed that the suit property is a private property.

18. The contention of the appellants, that respondent no.1 has

failed to prove the title of the suit property, is also

without any merits. Once, it is held that the suit property

is a private property and there is no dispute about the fact

that Jaidev Colony Park was developed by Pandit Jaidev

Sharma and Property No. 24 and the suit property were

owned by him. It is also an admitted fact that Property

No.24 was purchased by defendant no.3 from the