2022 (2) TMI 1479 - HC - Indian Laws

Suit for perpetual injunction - suit property forming part of which khasra? - plaintiff is owner in settled possession of the suit property or not - DDA alleged that the Plaintiffs had no right, title and interest in the suit property and the intention of the Plaintiffs was only to grab DDA's land by unauthorizedly constructing their house on the same - whether the Appellate Court's judgment deserves to be interfered with or not? - HELD THAT - Before examining the findings of the Courts below, this Court notes that there is an existing decision of a ld. Single Judge of this Court in respect of the same Khasra No. 48/7, as involved in the present second appeal. In the said case being RSA 28/2001 titled Subhadra Anr. v. D.D.A. 2010 (11) TMI 1140 - DELHI HIGH COURT , the ld. Single Judge was dealing with another portion of land falling in the same Khasra being residential house nos. 20-H and 20-I, in Khasra No. 48/7. Even in that case, the Trial Court and the Appellate Court had held that the demarcation which was done was not in accordance with law. The suit had been dismissed by the Trial Court and the Appellate Court had endorsed the same findings. Similarly, even in the present case, the Local Commissioner's report cannot be relied upon as the Local Commissioner clearly stated that he could not determine the points from where the demarcation had to be carried out. Thus, the plaintiffs in the said RSA 28/2001 would therefore be similarly placed to the Plaintiff in the present case. In the present case also, similar to the decision in Prabhagiya Van Adhikai 2021 (10) TMI 1447 - SUPREME COURT the manner in which the possession of Plaintiff/his family members is shown in some khasra girdawaris, that too as agriculturists and cultivators, for some sporadic periods but not continuously, does raise doubts as to whether they were in continuous possession or not. Therefore, the mere mention in some years of khasra girdawari showing possession, cannot by itself confer ownership and title in respect of such precious land. In so far as the Trial Court's finding stating that DDA cannot dispossess the Plaintiffs without due process of law, is concerned, this is clearly an erroneous approach inasmuch as even if the Plaintiffs are stated to be in settled possession, it is not necessary for the DDA to file a suit to take possession from them. The DDA can, as a Defendant, establish before the Court that the Plaintiffs are in possession of a government land and the same can result in dismissal of the suit. Due process of law, as is settled in several judgments of the Supreme Court and this Court, does not always require initiation of action by the owner/Government. Dismissal of a suit by a competent Court of law after affording proper opportunity to the parties, is also a recognized mode of following the due process of law. The mere sporadic or stray entries in the revenue records cannot confer title, and the facts mentioned above, this Court is of the opinion that the Plaintiff has failed to establish that there is any substantial question of law which deserves to be adjudicated upon in the present second appeal. In fact, from the evidence which has emerged from the record, it is clear that apart from some mention in khasra girdawaris, there are no other concrete documents which have been filed by the Plaintiff to discharge the heavy onus that is placed on him. This Court is also conscious of the fact that the suit property in question is stated to be near a South Delhi Colony, adjacent to Safdarjung Enclave/Green Park and is very valuable. The Plaintiff who is in possession of a large part of this suit property, cannot continue to remain in possession, as permitting the same would be a giving a premium to illegal encroachments and occupations on public land. The present second appeal accordingly deserves to be dismissed - appeal dismissed.

Summary

Issues Involved:
1. Whether the suit property forms part of Khasra No. 48/7 or Khasra No. 48/5.
2. Whether the plaintiff is the owner in settled possession of the suit property.
3. Whether the plaintiff is entitled to the relief of a perpetual injunction.

Issue-wise Detailed Analysis:

1. Whether the suit property forms part of Khasra No. 48/7 or Khasra No. 48/5:
The primary issue was the determination of the correct Khasra number for the suit property. The Plaintiffs claimed ownership of land in Khasra No. 48/7, while the Defendant, DDA, contended that the Plaintiffs were occupying land in Khasra No. 48/5, which had been acquired by the government. The Trial Court initially found in favor of the Plaintiffs, relying on the testimony of witnesses and revenue records indicating possession in Khasra No. 48/7. However, the Appellate Court overturned this decision, emphasizing that the Plaintiffs failed to provide concrete evidence, such as registered documents or continuous revenue records, to prove their claim. The Local Commissioner's report, which suggested the property was in Khasra No. 48/7, was not relied upon due to procedural deficiencies in the demarcation process.

2. Whether the plaintiff is the owner in settled possession of the suit property:
The Plaintiffs claimed settled possession of the property, asserting long-term occupancy and construction on the land. The Trial Court initially accepted this claim, noting the absence of evidence from DDA to prove encroachment on Khasra No. 48/5. However, the Appellate Court found that the Plaintiffs did not meet the burden of proof required to establish ownership or continuous possession, as their evidence was largely based on unexhibited documents and sporadic entries in revenue records. The Court emphasized that mere possession or entries in revenue records do not confer title, especially against government land.

3. Whether the plaintiff is entitled to the relief of a perpetual injunction:
The Plaintiffs sought a perpetual injunction to prevent DDA from demolishing the construction on the suit property. The Trial Court granted this relief, citing the Plaintiffs' long-term possession and the lack of evidence from DDA regarding encroachment. However, the Appellate Court reversed this decision, concluding that the Plaintiffs failed to prove their ownership and the exact location of the property within Khasra No. 48/7. The Court reiterated that due process of law does not necessarily require a separate suit by the government for possession; a competent court's dismissal of the Plaintiffs' suit suffices.

Conclusion:
The High Court, in the second appeal, upheld the Appellate Court's decision, emphasizing the importance of concrete evidence to establish ownership over government land. The Court noted the Plaintiffs' failure to provide legally recognized documents or continuous revenue records to substantiate their claims. It highlighted the need for vigilance in protecting public land from encroachments and clarified that the dismissal of a suit after a fair hearing satisfies the requirement of due process. The appeal was dismissed, allowing DDA to take appropriate legal steps regarding the property.