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TMI Blog2022 (2) TMI 1479X X X X Extracts X X X X X X X X Extracts X X X X ..... cation 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim to have constructed a house bearing no. 20-B, Krishan Nagar, on a piece of land measuring 800 sq. yds. in the said Khasra. The suit property, as per the site plan exhibited as Ex. PW1/1 consists of nine rooms, an open courtyard and a tin shed. As per the site plan, there is only one property i.e., B-20, located on the western side of the suit property. On the northern and eastern sides, there are roads and the southern side has a service lane. The relevant paragraphs 1 and 2 of the plaint read as under: That the Plaintiffs are owners in possession of 2500 sq. yards in Khasra No. 48/7 in the revenue estate of village Humayunpur, New Delhi. This property is an ancestral property of the plaintiffs and the same is in their possession as owners since the time of their forefathers. The plaintiffs have constructed a house bearing No. 20-B Krishna Nagar New Delhi consisting of 9 rooms on a piece of land measuring about 800 sq. yards in the said khasra. The constructed house is bounded as under: East - Road West - House No. 20 Krishna Nagar North - Road South - Service Lane. In addition to the above construction of the house there is a grassy lawn in the courtyard and some plantation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 894 (hereinafter Land Acquisition Act ). 4. In view of these pleadings before the Trial Court, vide order dated 13th December, 1989, the Trial Court appointed the Tehsildar, Mehrauli as the Local Commissioner, to inspect the suit property and find out whether the suit property fell within Khasra No. 48/7 or 48/5 as also to ascertain the area of the suit property. The said Local Commissioner's report was submitted to the Trial Court. In the report, the Local Commissioner stated that he could not do the exact demarcation as the fixed points required for the same were not ascertainable. He relied upon a sale transaction of 1953 and 1959 in favour of a retired government servant whose property was located behind the suit property, and concluded that since in the said transaction, the property was described as having been located in Khasra No. 48/7, the suit property is also located in Khasra No. 48/7. The relevant extracts of the said report are as under: On 11.12.91 permanent point were searched but no permanent point was found. However, staff of DDA suggested another point saying that this point (Khasra No. 41) is situated on its correct position but after demarcation from this p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it property is located in Khasra No. 48/7. He also claimed that 2,500 sq. yds. of the suit property is with them, out of which, 800 sq. yds. has been constructed. He claimed that the said land was divided in 1951 by the Officer Mall and whoever was in possession remained in possession. Thereafter, he relies upon the khasra girdawaris and mutations-which are all marked documents and not exhibited, to state that the name of the concerned owners was substituted in the revenue record. He also stated that his uncles and predecessors had sold some portion of the land to three to four persons. He could not produce any house tax, electricity bill, I-card or ration card. He also confirmed that his signatures were not on the site plan and the said plan was unsigned. He stated that he was not aware of the location of Khasra No. 48/5. (ii) PW-2--Sh. Hari Singh, PW-3--Sh. Sultan Singh, PW-5--Sh. Om Prakash and PW-6--Sh. Sher Singh were all residents of the area who were produced by the Plaintiffs. All of them confirmed that until the late 1980s, there was only a chappar and a temporary construction on the suit property. It was converted into a pakka construction only 20 years prior i.e., late 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t brought the record of 1974 whereby the name of Surat Singh and Bhartu has been mentioned. It is correct that the name of son are mentioned only after the death of their father and thereafter mutation/substitution takes place. As per the record maintained by the revenue authorities the above mentioned persons are in actual physical possession of the property in question and they have been shown as agricultures in our record. xxxx by counsel for deft. DDA. There is no record of Kh. No. 48/5 in Kh. Girdawari of vill. Humayunpur which I brought today. I have no knowledge whether the Kh. No. 48/5 has been acquired or no as there is no entry in record which I have brought today in the court. There may be entry in the previous record of Jamabandi in respect of Kh. No. 48/5. The jamabandi record which I have brought today in court is in torned condition. However, I may be allowed to given some time to consult with my senior officer to ascertain the exact position of Kh. No. 48/5 village Humayunpur. Further cross deferred. 8.9.2000. PW7 Sh. Sunil Kumar--H. Patwari (recalled for further cross examination) On S.A. As per record brought by me the Kh. No. 48/5 (6-14) has been acquired vide aw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the suit land. I cannot say in which khasra number the suit land falls . He confirms that khasra girdawari is not the title document for title and ownership. He further states that he has no personal knowledge of the case or the suit property and he has never visited the suit property nor he is aware of the khasra number. He states that: It is correct that the record of jamabandi is prepared for entering the mutations and the khasra girdawaris are revised after every four years. Jamabandi is the record of ownership and the name of the owners is mentioned in the column no. 3 in the proforma. It is correct that the khasra girdawari is not the document of title and ownership. It is correct that since the suit land is stand acquired the entry in respect of details of kahsra numbers mentioned above have been record to be the land as Sarkar Daulta Madar . (further cross examination is deferred as it is lunch time). (vii) PW-9 and PW-10 appeared as witnesses to confirm the translation of the jamabandi record produced by PW-8, from Urdu to Hindi and did not have knowledge about the suit property. (viii) DW-1-Sh. Vijay Kumar, Patwari, LM South West Zone, PDA stated that the suit property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced by the Plaintiff to support their contention. (iii) The Trial Court thereafter relied upon the testimony of neighbours and other people who resided in the locality, i.e., PW-2, PW-3, PW-5 and PW-6, to hold that the Plaintiffs had been in possession of the suit property for a long time. (iv) As per the Trial Court, PW-7-the Halka Patwari established on the basis of khasra girdawari for the year 1998-2000, that the name of the Plaintiff and his sons appeared qua Khasra No. 48/7/3 min. Upon the DDA objecting that PW-7 had admitted in the cross-examination that the name of the Plaintiffs was not mentioned in the record of Khasra No. 48/7, the Trial Court held that name of one Sh. Jaipal Singh, Dharambir, Ranvir, Lakhpat Singh s/o. Nathu Ram was mentioned and since they are family members of the Plaintiffs, there was no force in the objection raised by DDA. (v) Consequently, it held that since the khasra girdawari and the revenue records showed that the Plaintiff and his family members were in possession of the suit property, the onus shifted upon the DDA to show as to which portion was encroached upon by the Plaintiffs. (vi) Finally, it held that the Plaintiffs had proved that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ettled possession can not be dispossessed without due process of law. 10. On the basis of the above finding, the Trial Court holds that the Plaintiffs are in settled possession of the suit property and a permanent injunction is therefore, liable to be granted. 11. This decision was appealed against by DDA. In appeal, the Appellate Court, in its judgment dated 19th June, 2020, observes that: (i) The report of the Local Commissioner was rightly not relied upon. (ii) PW-1 had relied only on seven documents, all of which are marked as mark A to G. None of these documents were exhibited before the Trial Court. Moreover, original documents for the same could not be produced by the witnesses. (iii) The Appellate Court analysed the evidence of the remaining witnesses i.e., PW-2, 3, 4 and 6 and held that none of these witnesses knew the exact location of Khasra No. 48/7 nor they were aware of the demarcation of the said Khasra from Khasra No. 48/5. (iv) It was also noted that no documents such as house tax, electricity bills, I-card or ration card were produced before the Trial Court. (v) Finally, the Appellate Court noted that vide government notification dated 3rd November, 2006, the land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pealed against by way of a second appeal before this Court. The prayer in this second appeal is as under: It is therefore, most humbly prayed to the Hon'ble High Court that the Impugned Judgment dated 19.06.2020 passed by the LD. SCJ, Tis Hazari Court, Delhi in reference Delhi Development Authority Vs. Nathu Ram now deceased represented by Legal Heirs in RCA No. 410/16 may pleased be set-aside and the order of the Trial Court may please be ordered of the Trial Court dated 24.09.2011 may be ordered to be maintained and the possession of the Appellants from Khasra No. 48/7 may please be not disturbed in view of the order passed by the Hon'ble High Court on 06.08.201(sic) which is still in force/existence as on date and has not been complied and is also concerning Khasra No. 48/7, in the facts and circumstances of the case and in the interest of justice. Or may pass such other order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice. It is prayed accordingly. Submissions 15. Mr. Ahuja, Id. Counsel for the Plaintiff, submits that the Plaintiff is residing in Khasra No. 48/7, which is not acquired. To suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hasra No. in possession of the plaintiff. He therefore submits that if the demarcation is not carried out, the Plaintiff cannot be evicted in this case. Moreover, he submits that the land in question is an urbanized village and the designation of khasra khatauni in any case had become irrelevant. (viii) He finally urges that the Plaintiff's family has been in possession for the last 60 years and currently they are paying House Tax and Electricity Bill and thus, he submits that the Plaintiff cannot be dispossessed in accordance with law. 16. On the other hand, Mr. Goel, ld. counsel for DDA, relies upon the following to argue that the Plaintiffs are in possession of land belonging to DDA. (i) In so far as the onus on the Plaintiff is concerned, he submits that the Plaintiff did not file any documents to prove their case which is clearly recorded in the Appellate Court's order. Even documents such as electricity bill, identity card, etc., were not placed on record by the Plaintiff. (ii) In support of DDA's submission, he places reliance upon the recording in the Trial Court's order, to argue that three witnesses appeared, DW-1, DW-2, DW-3, i.e., Naib Tehsildar, Tehsild ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/7 or 48/5. Both the Courts below had given concurrent findings of fact that the demarcation report not having followed the procedure relating enquiries to be made by Revenue Officers in boundary disputes the said demarcation report could not be relied upon. The demarcation report had clearly stated that since there were houses in the vicinity no pucca/permanent point could be established for the purpose of paimaish/measurement. 17. The Punjab Land Revenue Act, 1887 extends to the Union Territory of Delhi. Chapter VII deals with surveys and boundaries. Under Section 100, the Financial Commissioner has powers to make rules as to matters in which the boundaries of all or any estates in any local area are to be demarcated. Part C of the Delhi High Court Act 1966 relate to the instructions to Civil Courts. The procedure has been entailed for Hadd Shikni cases/boundary disputes under the aforenoted instructions which are binding instructions. As per these 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is answered accordingly. 21. There is no merit in the appeal. The appeal as also the pending application is dismissed. 20. In the above judgment relating to the same very land i.e., Khasra No. 48/7, the Court held that since the demarcation was not carried out in accordance with law, the dismissal of the suit against the parties who were occupying parts of Khasra No. 48/7, was in accordance with law. A special leave petition against this decision was also dismissed by the Supreme Court on 15th April, 2011, in SLP(C) No. 009230/2011 titled Smt. Subhadra v. DDA. 21. 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. 22. The Petitioner however relies upon an order passed subsequently in WP(C) 824/2012 titled Subhadra Anr. V. GNCTD, concerning the same parties as in RSA 28/2001, with identical Khasra No. Insofar as this order in WP(C) 824/2012 is concerned, the said proceedings are not civil procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not make him the sole and exclusive owner of the suit property. 27. The six yearly khatauni for the fasli year 1395 to 1400 is to the effect that the land stands transferred according to the Forest Act as the reserved forest. Such revenue record is in respect of Khasra No. 1576. It is only in the revenue record for the period 1394 fasli to 1395 fasli, name of the lessees find mention but without any basis. The revenue record is not a document of title. Therefore, even if the name of the lessee finds mention in the revenue record but such entry without any supporting documents of creation of lease contemplated under the Forest Act is inconsequential and does not create any right, title or interest over 12 bighas of land claimed to be in possession of the lessee as a lessee of the Gaon Sabha. 24. In the present case also, similar to the decision in Prabhagiya Van Adhikai (supra), 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 y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Now, this 'due process' or 'due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. 26. This position was reiterated by this Court in Bal Bhagwan v. Delhi Development Authority [CM (M) 416/2019, decided on 18th December, 2020] holding that the 'due process' condition would be sufficiently met if a person in settled possession is dispossessed by the dismissal of an application for interim injunction, as long as the rights of the parties are adjudicated upon and opportunity is given to them to present their case. On the question of 'due process', this Court has observed as under: The issue as to what constitutes 'due process' is thus settled beyond an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merit. 62. Several judgments on various propositions have been cited, which, according to the Court, do not require any consideration in the present case. The main question to be determined is whether the Plaintiff, who is in settled possession, can be dispossessed in an application under Order XXXIX Rules 1 2 CPC. The answer is a clear yes. 27. A special leave petition against this decision in Bal Bhagwan (supra) was also dismissed by the Supreme Court on 19th April, 2021, in SLP(C) No. 4247/2021 titled Bal Bhagwan v. DDA. 28. Recently in Mehvish Adil Ors v. Delhi Wakf Board Ors., [CRP 223/2019, decided on 15th December, 2021] this Court has observed in respect of Waqf land, which is also in the nature of a public land, as under: 33. As held in Maria Margarida Sequeira Fernandes Ors. v. Erasmo Jack De Sequeira (Dead) through LRs, (2012) 5 SCC 370, 'due process' need not always mean a process initiated by the owner it can be any judicial proceedings where the respective contentions of the parties are adjudicated in a free and fair manner and with proper opportunity being afforded to the parties. The observations of the Supreme Court in Maria Margarida (supra) are as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst government. This follows from Article 112 of Limitation Act, 1963 which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government. Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements. 16. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed, either ex parte or for want of proper contest, merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored. As noticed above, many a time it is possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the government. Be that as it may. 31. Thus, the Plaintiffs had a heavy onus to establish the following: (i) That they had acquired the suit properly through legally recognized documents such as registered sale d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver by DDA on 29.9.75. Copy of possession proceedings is ExDW2/1. The plaintiff has not right, title or interest in the disputed land and land belongs to DDA only. The plaintiff is in unauthorised occupation of DDA land, (all the document originals seen and returned.) xxx by Cl. Sh. Pramod Ahuja for Plff. I am is south west zone area for the last 2 years, appox. I have visited the site in question 10 days back. I cannot tell how many houses are constructed on kh. No. 48/5. But the area is built up. There also exists kh. No. 48/7, in the adjacent. I visited the site alongwith the patwari. I visited the site and it was noted in the file. The file is at presently lying with the advocate. As per our record, the site which I visited is in kh. No. 48/5...... It is wrong to suggest that plff. is not in occupation of kh. No. 48/5 and is in possession of kh. No. 48/7...... It is wrong to suggest that LR of Surat Singh are living in kh. No. 48/7, and not in kh. No. 48/5. Testimony of DW-3 685/87/84 DW3 Sh. Prem Chand-Tehsildar from L.M. Conference Hall, D.D.A. On S.A. I have seen the disputed land which falls in Khasra no. 48/5 min revenue estate of Humayunpur which has been acquired vide aw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as clearly on the Plaintiff, which the Plaintiff has failed to discharge. 36. In view of the above settled legal position, that 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. 37. 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. 38. The present second appeal accordingly deserves to be dismissed. Ordered accordingly. All pending applications are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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