9911796707
TMI Blog2010 (11) TMI 1140X X X X Extracts X X X X X X X X Extracts X X X X ..... suring 12 feet; on the east there was a pucca road. The contention of the plaintiffs was that on 10.3.1987 a demolition notice under Section 30(1) read with Section 30(1) of the Delhi Development Act, 1957 (hereinafter referred to as the Act) was served upon the plaintiffs restraining them from raising any construction in the land. On 8.9.1987 the officials of the DDA visited the site and threatened them with demolition. A decree for permanent injunction was accordingly prayed for by filing the present suit. 3. The Defendant/DDA had contested the suit; it was submitted that the land belongs to the department; suit was not maintainable. It was denied that the suit land forms a part of the Khasra No. 48/7, Village Humayunpur; contention was that the plaintiffs have illegally and unauthorized encroached upon the land of the Defendant which land falls in Khasra No. 48/5; they had illegally raised construction therein; Khasra No. 48/5 had been acquired by the government vide Award No. 1170 and has been placed at the disposal of the DDA under Section 22(1) of the said Act vide notification dated 3.11.1961. 4. Trial Judge had framed four issues. On 15.02.1989 the Patwari had been appointe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcation report has neither been exhibited nor proved by examining the persons who conducted the demarcation. Moreover, at the same time, plaintiffs cannot deny some part of demarcation and can relied upon on other part of the demarcation. The demarcation report cannot be relied upon partly in favour of plaintiffs and partly against them. SLO for DDA submitted that at least vacant land which falls in Kh. No. 48/5 be protected. But in my opinion as demarcation has not been carried out according to the rules as provided and it has not been proved in any manner, hence, cannot be relied upon to decide the question whether the suit land falls in Kh. No. 48/7 or 48/5. Suit of the plaintiff was dismissed. 8. The Appellate Court endorsed this finding. The first Appellate Court had also ignored the report of the Tehsildar. The finding on this issue inter alia reads as follows : The record of the learned trial Court would reveal that the court had directed the Nayab Tehsildar to carry out the demarcation in order to determine whether the suit property fell in khasra No. 48/7 or in khasra No. 48/5. The record of the learned trial Court contains one report of the Nayab Tehsildar, Attar Singh da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant land lying to the east of the constructed portion was clearly not part of the acquired land. Reliance has been placed on Ext.PW3/1 which is one Aks Shajra brought on record by the Patwari, PW3 examined by the plaintiffs. But it may be noticed that in this Aks Shajra whereas there are clear lines demarcating various khasras, only dotted lines seem to be delineate khasra No. 48/5 and 48/7 which itself leaves the demarcation uncertain. 48/7 is rather extensive, as also 48/5 unless these two khasras were clearly demarcated by straight line. In the absence of such division no conclusion can be reached that 48/5 was only towards the North of 48/7 and not towards the East of 48/7 as certain portions have been separated only by dotted line towards the East also. 9. The plaintiffs in the plaint have set out confusing claims in that whereas they claim that in khasra No. 48/7 the land belonging to Shri Nathu Ram, Har Narain owned 4 bighas and 4 biswas. They also claimed that there remained only 1500 sq. yard after disposing 2 bighas and 4 biswas by the forefathers but the extent of land belonging to Nathu Ram and Har Narain etc. is not clear at all. Moreover, the plaintiffs claim in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch as they had to prove that the entire suit property comprising of built up and vacant land fell in khasra No. 48/7 which belonged to the plaintiffs or their families as ancestral property. They have failed to discharge this onus. It is for the plaintiffs to prove their case as to their entitlement for an injunction and they have to stand on their own legs irrespective of how successful the Defendants are in proving their defense. 9. This is a second appeal. After its admission on 5.12.2003 the following substantial question of law were formulated which inter alia read as follows : Whether in view of the statement of DW-1, Gulfam Ahmed, Patwari, New Lease Section, DDA, who deposes to the effect that the house in question falls in Khasra No. 48/7, it would be proper for the courts below to have disregarded his evidence? 10. On behalf of the Appellant, it has been vehemently argued that the impugned judgment had illegally ignored the report of the Patwari. It is pointed out that the Patwari had been appointed under the orders of the Court. Admittedly no objection had been filed by either side to his report. In these circumstances, there was a patent illegality on the part of the two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven to the parties; local commissioner would inspect the suit property on 27.9.1989 at 1.00 P.M. Report dated 27.9.1989 is on record. This is the report of Attar Singh, Naib Tehsildar, Mehrauli. As per this report the disputed land falls in Khasra No. 48/7 in village Humayunpur. It further states that as per the directions of the Court the identification of the suit land as to whether it fell in Khasra No. 48/5 or Khasra No. 45/7 had to be determined and this was possible only after 'nishandehi'/identification of the permanent points; it stated that 'nisandehi'/identification of the permanent points was not feasible as there were houses located in the suit land; measurement in Khasra Nos. 29 and 30 was taken with approximation whereupon the aforenoted conclusion had been arrived at; site plan was also prepared at the spot. The rough site plan appended along with the report had depicted the houses of the two plaintiffs in red colour with a road on the east and the west side and a gali on the north. No further details or measurement had been depicted in this site plan. What was the built up area had not been explained and informed by the Patwari in his report except t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se instructions the Field Kanungo should with his scale read on the map, the position and distance of those points from a line of square, and then with a chain and cross staff mark out the position and distance of those points. If there is no map on the square system available, he should then find three points on different sides of the place in dispute as near to it as he can, and if possible, not more than 200 kadams, apart which are shown in the map and which the parties admit to have been undisturbed. Further, these instructions should be followed by the Revenue Officers of Field Kanungos whenever they are appointed by a Civil Court as a Commissioner in suits involving disputed boundaries. This is a mandate. 18. These instructions/guidelines had not been adhered to as is evident from the demarcation report. The Tehsildar had admitted that there is construction and houses have been raised in land in dispute; it is not possible to identify pucca/permanent points as a result of which the paimaish/measurement could not be taken. Only on approximations, the demarcation report had drawn a conclusion that the suit land falls in Khasra No. 48/7. This was not the answer which was require ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
