Sanjay Dubey vs Delhi Development Authority

V.K. Shali, J.—This is a regular second appeal filed by the appellant u/s 100 CPC against the order dated 21.11.2012 passed by the learned Additional District Judge dismissing the appeal of the appellant being R.C.A. No. 5/2012. I have heard the learned counsel for the appellant and have also gone through the record. The plaintiff/appellant herein had filed a Civil Suit No. 141/2007 for permanent injunction against the respondent/DDA claiming himself to be the owner and in possession of property/land measuring 1000 square yards out of Khasra No. 143 situated in the Abadi of village Mandawali-Fazalpur, Delhi-110092. It was stated in the plaint that the aforesaid parcel of land was bounded as under:-

It was alleged that the plaintiff/appellant herein tried to construct the boundary wall but was refrained from doing so by the respondent which necessitated filing of the suit for permanent injunction. The defendant/respondent contested the suit.

On the pleadings of the parties, following issues were framed:-

(i) Whether the suit is barred by the provisions of 53-B of DD Act? OPD

(ii) Whether the land in dispute falls in Khasra No. 578, Village Mandawali Fazalpur and possession of same has been taken over by the DD on 3.3.1983? OPD

(iii) Whether the land in dispute was acquired vide award No. 49-C/1970-71? OPD

(iv) Whether the plaintiff is entitled for the decree of permanent injunction as prayed for? OPD

(v) Relief.

Since the defendant/respondent/DDA had taken the plea that the suit land falls in Khasra No. 578, accordingly, an issue in this regard was framed. The parties were permitted to adduce their respective evidence and the learned trial court dismissed the suit on 19.11.2011 by observing that the appellant was not able to prove either his title or possession in respect of the suit land bearing Khasra No. 143 measuring 1000 square yards. The trial court observed as under:-

The plaintiff has claimed ownership of the suit property on the basis of transfer documents executed by one Sh. Bhagwan Das in favour of the plaintiff that is GPA, agreement to sale, receipt, etc. all dated 23.3.1990. However, the originals of these documents were not produced before the court and only photocopies of these documents have been placed on record. These documents have clearly not been proved in accordance with law. The previous chain of documents has also not been produced. How Sh. Bhagwan Das acquired legal title in respect of the said property has neither been pleaded nor been proved. The plaintiff has, therefore, clearly failed to establish his ownership in respect of the suit property.

...

The plaintiff filed a layout plan of different properties adjacent to the suit property along with his written submissions. This layout plan has not been properly proved during evidence. The description given to the properties in the said layout plan is Khata Khatauni No. 143 whereas all throughout, in the pleadings, documents and evidence of the plaintiff the stand of the plaintiff has been that the suit property falls in Khasra No. 143. Now the plaintiff cannot be allowed to contend that the description was Khata Khatauni No. 143.

...

The suit property in question is vacant land and therefore, it cannot be said that the plaintiff is in actual de facto possession of the suit property. It has also not been established that the boundary wall over the suit property was raised by the plaintiff and it belongs to the plaintiff. The photographs placed on record clearly show that the plaintiff is not in actual physical possession of the suit property. In fact from the photographs it is clear that the board of the DDA is also installed on the suit property and the evidence shows that the boundary wall belongs to the defendant.

On the basis of the aforesaid observations, the trial court returned a clear finding on the basis of preponderance of probability of evidence adduced by the parties that the present appellant had miserably failed to establish his title to the land bearing Khasra No. 143 measuring 1000 square yards or that he was in possession of the land in question. As a matter of fact, the court was called upon to observe that there was no Khasra bearing No. 143 in the revenue estate of village Mandawali Fazalpur and there was only a Khata by the name of 143 and that was not the case of the appellant.

Feeling aggrieved, the appellant preferred the first appeal being R.C.A. No. 5/2012 in which also he was unsuccessful.

Still feeling dissatisfied, the present regular second appeal has been filed. During the course of arguments, the learned counsel for the appellant has contended that the demarcation of the land in question be got done which will establish that the appellant is in possession of a portion of Khasra measuring 1000 square yards situated in Khasra No. 143. It is further contended by him that all other surrounding residents are also on the said Khasra.

It has been pointed out by the learned counsel for the respondent/DDA that in his application u/s 340 Cr.P.C. which was filed by the appellant before the trial court, a stand contrary to the one taken by the appellant in the plaint was urged. In the plaint, as has been stated hereinabove, the case of the appellant was that his land falls in Khasra No. 143 while as in the application u/s 340 Cr.P.C., he changed his stand that the land in question falls partly in Khasra No. 603 and partly in 609 which further fortifies that the appellant himself is not clear about the identification of his land.

The question of demarcation is essentially a question of fact which is carried out for the purpose of identification of the property and it does not involve any question of law. In addition to this, demarcation of a property is essentially done in discharge of statutory duties by the revenue authorities under the Punjab Land Revenue Act as applicable to Delhi and the relevant rules framed there under. The appellant has not been able to prove his title documents as he was claiming to have purchased the land from one Bhagwan Das inasmuch as the original set of documents were not produced before the trial court or even the connected documents on the basis of which Bhagwan Das was claiming ownership of the land in question were not proved, therefore, by praying now before this court that the demarcation be got done with regard to the land in question in order to identify his land, the appellant is trying to put cart before the horse. The exercise of demarcation ought to have got done by the appellant before invoking the jurisdiction of the court in the adjudication of his rights or during the course of trial. The second appeal is entertainable only when a substantial question of law is involved. Since in the instant case, under such contingencies, no substantial question of law is involved, accordingly, the present appeal is totally misconceived and the same is dismissed. As the appeal itself stands dismissed, therefore, no orders are required to be passed in pending applications of the appellant.