Shri Phool Singh vs Delhi Development Authority

Indermeet Kaur, J.—This appeal has impugned the judgment and decree dated 23.10.2004 which had endorsed the finding of the trial judge dated 07.07.1999 whereby the suit filed by the plaintiff had been dismissed.

The plaintiff claims to be the owner of the premises forming part of khasra No. 1422/662/364 of Village Sadarakhurd, Delhi. Initially, he had filed two suits i.e. suit No. 581/86 and 418/89 claiming permanent injunction against the Defendants/DDA on the ground that they were interfering with the peaceful possession qua the suit property of the plaintiff. The said two suits had been consolidated and the following issues had been framed on 30.06.1994.

Whether suit premise form part of Kh. No. 723/665 Village Khampur Rai which has been placed at the disposal of DDA? OPD.

Whether the plaint is signed and verified and suit is instituted by a duly competent person? OPP

Whether plaintiff is entitled for the relief claimed for ? OPP

Relief.

Suits had been dismissed. The court had recorded a finding that the plaintiff has failed to show that the suit property forms a part of khasra No. 1422/662/364 of Village Sadarakhurd; Defendants claim that the suit land has been placed at the disposal of the DDA as the said land had been acquired in terms of an Award and forms the part of khasra No. 723/665 of Village Khampur Rai had also not been proved. Suit was dismissed. This was vide order dated 07.07.1999. This judgment has since attained a finality as neither party had admittedly filed any appeal against the said judgment and decree.

Thereafter, the present suit i.e. suit No. 11/2001 had been filed by the plaintiff seeking permanent injunction against the Defendant on the ground that the Defendant is interfering with the peaceful possession of his suit property. His averment is that he is in possession of the afore-stated suit land which forms a part of khasra No. 723/665 Village Khampur Rai since the last 45 years. The Defendant in his written statement has not disputed the fact that the plaintiff is in possession of the suit land. He has, infact, admitted the plaintiff''s possession in the suit land contending that he had illegally encroached upon it and made illegal construction thereon.

On the pleadings of the parties, issues were framed. The first issue related to the Section 11 of the CPC (hereinafter referred to as the `Code''). Five other issues were also framed. The trial judge disposed of the suit on the first issue itself i.e. holding thereby that the present suit is barred u/s 11 of the Code and the contention now raised by the plaintiff has already been dealt with while disposing of the first suit i.e. vide judgment and decree dated 07.07.1999.

This is a second appeal. After its admission on 27.07.2007, the following substantial questions of law were formulated which read as follows:

Whether the finding of issue No. 1 in Suit No. 418/1989 and Suit No. 518/1986 that the suit premises form part of khasra No. 723/665 village Khampur Raya which has been placed at the disposal of the DDA? OPD -

Decided in the above said case is not binding upon the DDA in the second suit bearing No. 111/2001-

Whether the Appellant is legally entitled to relief claimed in the suit?

On behalf of the Appellant, it has been urged that the plaintiff is admittedly in possession of the suit land and this has not been denied by the Defendant; infact, the Defendant has admitted this fact in the written statement. It is submitted that even a tress-passers cannot be dispossessed without due process of law and it was incumbent upon the courts below to have decided all the issues on merits and could not have dismissed the suit on issue No. 1 alone.

After hearing the submissions of the learned Counsel for the parties and the perusal of the record, it is borne out that the trial judge had dismissed the suit which finding was endorsed in the impugned judgment on the doctrine of res judicata itself alone.

It is not in dispute that the plaintiff is in possession of the suit land. His claim is that he is in possession of the suit land which comprises in khasra No. 1422/662/364 of Village Sadarakhurd, Delhi whereas the contention of the Defendant all along in the written statement and even before this Court is that the suit land is comprised in khasra No. 723/665 Village Khampur Rai. Neither party was able to prove their averments.

In these circumstances, it would be appropriate that the matter be remanded back to the Trial Judge to decide on the merits of the controversy and give issue-wise findings on all the issues. For the said purpose, the matter is remanded back to the Trial Court.

The parties are directed to appear before the learned District and Sessions Judge, Tis Hazari Courts who shall assign the matter to the concerned court. Parties to appear before the District and Sessions Judge on 1st March, 2011 at 10.30 am.

Record be sent back.

Appeal as also the pending application are disposed of in the above terms.