Khatri Hotels Private
Limited and another Vs. Union of India and another.
J U D G M E N T
G.S. Singhvi, J.
1.
Leave
granted.
2.
This
is an appeal for setting aside judgment dated 21.8.2009 of the learned Single Judge
of the Delhi High Court whereby he dismissed the appeal preferred by the
appellants against the judgment and decree passed by Additional District
Judge-13 (Central), Delhi (hereinafter described as, `the trial Court') in a suit
for declaration of title, mandatory and permanent injunction filed by them.
3.
The
suit land belonged to Gaon Sabha of village Kishangarh and formed part of the revenue
estate of that village. By notification dated 28.5.1966 issued under Section
507(a) of the Delhi Municipal Corporation Act, 1957 (for short, `the DMC Act'),
the Municipal Corporation of Delhi (for short, `the Corporation'), with the previous
approval of the Central Government, declared that the localities mentioned in
the Schedule forming part of the rural areas shall cease to be the rural areas.
The area of village Kishangarh (Mehrauli) was shown at serial No.37 under the
heading "South Zone Delhi". As a consequence of this and by virtue of
Section 150(3) of the Delhi Land Reforms Act, 1954 (for short, `the Land
Reforms Act'), the suit land stood automatically vested in the Central Government.
After 8 years, the same was transferred by the Central Government to the Delhi
Development Authority (for short, `the DDA') vide notification dated 20.8.1974
issued under Section 22(1) of the Delhi Development Act, 1957 (for short, `the
DD Act') for the purpose of development and maintenance as Green. The relevant
portions of that notification are extracted below:
"MINISTRY
OF WORKS & HOUSING
New
Delhi, the 20th August,1974
S.O. 2190 - - -Whereas
the terms and conditions upon which nazul lands specified in the schedule annexed
below will be taken over by the Delhi Development Authority have been agreed upon
between the Central Government and the Authority.
Now, therefore, in exercise
of the powers conferred by sub-section (1) of Section 22 of the Delhi Development
Act, 1957 (61 of 1957), the Central Government hereby places with immediate effect,
the lands which had vested in the Central Government on the urbanization of the
villages specified in the said Schedule at the disposal of the Delhi Development
Authority for the purpose of development and maintenance of the said lands as green
and for taking such steps as may be required to serve the said purpose, subject
to the condition that the Delhi Development Authority shall not make, or cause,
or permit to be made any constructions on the said lands and shall when
required by the Central Government so to do, replace the said lands or any
portion thereof as may be so required, at the disposal of the Central
Government.
SCHEDULE
|
Sr.No.
|
Name
of the Village
|
|
17.
|
Mehrauli (Kishangarh)
(F.No.13021/370-II)
S. CHAUDHARY
Jt. Secy."
|
1.
2.
3.
4.
Appellant
No.2-Lal Chand and his three brothers, namely, S/Shri Ran Singh, Dhannu and Surat
Singh, who claim to have purchased land comprised in khasra Nos.2728/1674/2 and
2728/1674/3 total measuring 4 bighas 4 biswas from Om Prakash and Mahinder Pal
(sons of Parma Nand), Tej Nath, Tej Prakash, Gokal Chand and Ram Dhan by
registered sale deed dated 15.10.1963 encroached upon the suit land, raised construction
and started a restaurant under the name and style "Sahara
Restaurant".
5.
With
a view to secure judicial approval of the illegal occupation of the suit land,
appellant No.2 - Lal Chand filed Suit No. 2576/1990 in the Delhi High Court for
grant of permanent injunction against the Corporation and the DDA by asserting
that he is the co-owner of house No.80,
Ward No.IX,
Kishangarh, Mehrauli, which forms part of khasra No.1674 and was purchased vide
registered sale deed dated 10.10.1963; that the suit premises comprise of 3
rooms and one hall surrounded by a boundary wall; that the entire
superstructure is in existence for last over 15 years; that he has been
residing in the suit premises and is paying property tax since 1968-69; that
the suit land has not been acquired; that the officials of the Corporation and
the DDA came to the suit premises along with the Tahsildar on 10.8.1990 without
serving any notice and threatened to demolish the superstructure on the ground that
the same is unauthorized. According to appellant No.2, when he questioned the
jurisdiction of the Corporation and the DDA to take action for demolition of the
structures, the officials went away with the threat that they will come again
with the police force and demolish the same.
Paragraph 10 of the plaint
and prayer (a), which have bearing on the decision of this appeal are
reproduced below: "10. That the cause of action accrued in favour of the
plaintiff against the defendants on 10.8.1990 when the officials of the defendants
came to the suit premises and threatened to demolish the same. The cause of
action is continuing till the threat of the defendants to demolish the suit
property persists." Prayer "(a) That a decree of permanent injunction
be granted in favour of the plaintiff and against the defendants restraining
the defendants, their officers, servants, representatives and agents from
dispossessing, interfering in the possession of the plaintiff and from
demolishing or sealing, any part of existing structure at House No.80, Ward IX,
Kishan Garh, Mehrauli New Delhi more particularly shown red in the plan annexed
to the plaint."
6.
In
the written statement filed on behalf of the DDA, it was averred that the suit
land belonged to Gaon Sabha and with the urbanization of rural areas of Kishangarh,
the same automatically vested in the Central Government. It was further averred
that vide notification dated 20.8.1974, the Central Government had transferred the
suit land to the DDA and the plaintiff has no right, title or interest in the
same. The relevant portions of the written statement are extracted below: "PRELIMINARY
OBJECTIONS:
1. That the suit as filed
is false, frivolous and not maintainable. The plaintiff has no legal right to
file the present suit. The land forms a part of Khasra No.1674 of Village- 6Mehrauli.
This land belong to the Gram Sabha and on the urbanization of Village-Mehrauli,
all the Gram Sabha land vested in the Central Govt. and the Central Govt., later
transferred this land at the disposal of the defendant-D.D.A. vide notification
No.S.O. 2190 dated 20.8.1974. Therefore, it is clear that the plaintiff has no right,
title or interest in the property. In this view of the matter, this suit may be
dismissed.
PARAWISE REPLY ON
MERITS.
1. That the contents
of para-1 are wrong and denied. It is denied that the plaintiff is a co-owner of
the premises commonly known as House No.80, Ward-IX, Kishan Garh, Mehrauli, New
Delhi forming part of Khasra No.1674. It is further denied that the plaintiff
purchased the suit property vide sale deed dated 10.10.63. It is submitted that
as per the sale deed dated 10.10.65 supplied by the plaintiff, the suit land
forms a part of Khasra No.1674 of Village-Mehrauli.
The Sale deed is in respect
of Khasra No.2728/1674/2(3-3) and 2728/1674/3(1-1) of Village-Mehrauli. Both
these Khasras are a part of the Gram Sabha land. On the urbanization of
Village-Mehrauli (Kishangarh), all the Gram Sabha land vested in the Central
Govt. and later on the Central Government transferred this Gram Sabha land at
the disposal of DDA for maintenance as green development vide notification No.S.O.
2190 dated 20.8.1974. In this view of the matter, the plaintiff has no right or
title in the land.
It is further submitted
that, recently the plaintiff has unauthorisedly occupied this land and
constructed a boundary wall on it with 3 temporary rooms. It is submitted that
the plaintiff has not annexed any site-plan to the plant, as alleged by him. 2.
That the contents of para 2 are wrong and hence denied. It is submitted that
the construction of the suit land is recent and unauthorized. It is denied that
the superstructure over the suit land has been in existence for the last 15 years.
It is further denied that the tin shed and 2 rooms over the land were
constructed sometime in the year 1959-60.
4. That the contents
of para-4 are again wrong and therefore denied. It is submitted that the suit
land belongs to the DDA. It is further submitted that previously, the land
formed a part of Khasra No.2728/1674/2 and 2728/1674/3, which was a part of the
Gram Sabha land. At the time of urbanization of Village- Mehrauli, the Gram
Sabha land vested in the Central Govt. and later, the Central Govt. transferred
this Gram Sabha land at the disposal of D.D.A. vide notification No.S.O.2190 dated
20.8.1974. It is submitted that there is no requirement of any acquisition
proceedings in respect of this land, the land being at the disposal of
defendant-D.D.A. In this view of the matter it is submitted that, no
notification for acquisition need be issued. It is further submitted that as the
land does not belong to the plaintiff, he is not entitled to be given any compensation
whatsoever."
7.
On
20.8.1990, the High Court granted interim injunction, which was confirmed vide
order dated 14.7.1998. Thereafter, the suit was transferred to District Judge, Delhi,
who assigned the same to Civil Judge, Delhi for disposal. After considering the
pleadings of the parties, the Civil Judge framed the following issues: "
i.
Whether
the plaintiff is co-owner of H.No.80, Kishangarh, Mehrauli (part of Kh. No.
1674) as alleged in para 1 of the plaint? OPP.
ii.
Whether
the plaintiff is in occupation of the suit premises for the last 15 years as
alleged? OPP.
iii.
Whether
the plaintiff has any legal right to file the present suit? OPP.
iv.
Whether
the suit is barred under Sections 477/478 of the DMC Act? OPD. 8
v.
Whether
the suit is bad for mis-joinder of parties? OPD.
vi.
Whether
this Court has jurisdiction to entertain and try the present suit? OPD.
vii.
Whether
the plaintiff is entitled for the relief claimed? OPP.
viii.
Relief."
8.
Appellant
No.2 did not appear in the witness box. Instead, one of his sons, namely, Vinod
Kumar Khatri gave evidence as PW-2 in the capacity of the power of attorney. Two
other witnesses examined in favour of the suit were Prem Prakash (PW-1) from
the office of Kanungo and Shri Kulwant Singh (PW-3), Assistant Zonal Inspector.
On behalf of the DDA, Prem Chand (Tehsildar) was examined as DW-1, Constable Prabhu
Singh of Police Station Vasant Kunj was examined as DW-2 and Khem Chand
(Patwari) as DW-3.
9.
After
considering the pleadings of the parties and evidence produced by them, the learned
Civil Judge dismissed the suit vide judgment dated 3.3.2003 by observing that
the plaintiff has failed to prove that he and his brothers were owners of the
suit land. The learned Civil Judge also held that the plaintiff was not
entitled to relief of injunction because the suit filed 9for determination of title
of the disputed land was pending adjudication. The findings recorded by the
learned Civil Judge on issue Nos. 3, 6 and 7 read as under: "12. Issue No.3,6
and 7:-
All these issues being
connected together are discussed together. PW1 has proved the khasra girdawari
but it may be mentioned that khasra girdawari is not the document of title. Even
these khasra girdawari are for the year 1957-59, which are prior to the
urbanization of vill. Kishan Garh and same also shows that the land is shamlat
land. DW1 deposed that vill. Kishan Garh was urbanized vide notification ExDW1/2
and land was placed at the disposal of DDA vide notification ExDW1/1. Nothing
material has come out of the cross examination of DW1. DW3 is another Patwari from
Halka Mehrauli who also deposed that as per khasrra paimaish it is the document
of title the land belongs to gaon sabha and same has been transferred to DDA.
He proved the certified
copy of record as ExDW3/1 which also shows that the land belongs to the gaon
sabha and has been placed at the disposal of DDA. PW2 who is the attorney of plaintiff
himself has admitted that in the correction of revenue record they have also filed
suit in the Hon'ble High Court of Delhi. Thus, there is admission on the part
of plaintiff himself that at present in the revenue record the plaintiff or his
predecessor interest have no right title and the land belongs to the gaon sabha
which has been transferred to DDA. Nothing material has come out of the cross
examination of DW3 and merely because the user of the land has been shown as gair
mumkin pahar and gair mumkin abadi does not make much difference as the main
controversy is regarding the ownership that the land belongs to the gaon sabha and
as such plaintiff has failed to prove his right, title over the same.
There is also a
judgment of the Hon'ble High Court in Rajender Kakkar v. DDA CW No. 3355/93 it is
also for the village Kishan Garh in the revenue estate of Mehrauli in that judgment
also the Hon'ble High Court has held that whole of vill. Kishan Garh was
urbanized and after urbanization as per sec. 150 of DLR Act the land whole of
gaon sabha ceases to be the rural area and the land belongs to gaon sabha in
vill. Kishan Garh vested with the Central Govt. and the Central govt. vide
notification dt. 20.8.74 placed same at the disposal of DDA. In this authoritative
pronouncement also the Hon'ble High Court held that petitioners have no right
title over the land and it was further held that : `Time has now come where the
society and the law abiding citizens are being held to ransom by persons who have
no respect of law.
The wheels of justice
grind slowly and the violators of law are seeking to the advantage of the laws
delays. That is why they insist on the letter of the law being complied with by
the respondents while at the same time showing their complete contempt for the
laws themselves. Should there not be a change in the judicial approach or
thinking when dealing with such problems which have increased in recent years
viz., large scale encroachment on public land and unauthorized construction thereon,
most of which could not have taken place without such encroachers getting
blessing or tacit approval from the powers that be including the municipal or
the local employees.
Should the courts give
protection to violators of the law? The answer in our opinion must be in negative.
Time has come when the courts have to be satisfied, before they interfere with
the action taken or proposed to be taken by the governmental authorities qua removal
of encroachment or sealing or demolishing unauthorized construction specially when
such construction like the present, is commercial in nature.'13. In the present
case also the plaintiffs have failed to show their right, title or interest over
the land in dispute. In such circumstances as the plaintiff has failed to show
his legal right over the land in dispute therefore, plaintiff is mere
encroacher upon the Govt. land.
It seems that under
the garb of present suit the plaintiffs are indirectly challenging the notification
by which the village Kishan Garh was urbanized or land was placed at the
disposal of DDA. But it may be mentioned that this court has no jurisdiction to
try cases challenging Govt. notification to place the land at the disposal of
DDA. 14. Furthermore, the plaintiff has already filed suit in the Hon'ble High
Court challenging the entries in the revenue records and therefore there is an admission
on the part of the plaintiff themselves that at present land is not shown in their
ownership.
Question of suffering
an irreparable loss or injury does not arise as plaintiff is already pursuing legal
remedy available to them by challenging the revenue record. It is well settled
principle of law that no injunction can be grand against a true owner. In the present
case as the plaintiffs are mere encroacher upon the DDA land as on todays date
therefore they are not entitled for any relief as prayed by them. As such, all these
issues are decided against the plaintiff and in favour of defendant."
10.
RFA
No.651 of 2003 filed by appellant No.2 was disposed of by the Division Bench of
the High Court vide order dated 24.11.2008, the operative portion of which
reads as under: "In that view of the matter, we are of the opinion that no
interference is called for as far as the impugned judgment and decree is concerned,
save and except to record that nothing stated in the impugned judgment and decree
dated 3.3.2003 pertaining to the issues of title would be construed as binding between
the parties; needless to state the title dispute would be adjudicated in the suit
filed by the appellant by the learned Judge who is seized of the suit as per evidence
before the learned Judge and law applicable."
11.
In
the meanwhile, Surat Singh, one of the brothers of appellant No.2, filed
another suit for injunction against the Corporation and the DDA. He claimed that
he is the co-owner of land measuring 1200 square yards forming part of khasra
No. 1674, village Kishangarh. He pleaded that the premises were surrounded by a
boundary wall and till January 1991 the same were being used for tethering
cattle by one Ved Prakash. He alleged that on 29.2.1992, the officials of the
defendants came to the suit land with large police force and illegally
demolished number of premises including the boundary wall of his property and on
the next date, i.e., 1.3.1992, the officials of the defendants again came and threatened
to take forcible possession of the property.
12.
The
suit of Shri Shri Surat Singh was dismissed by the Civil Judge vide judgment
dated 1.5.2004 with the findings that the suit land belonged to Gaon Sabha and with
the urbanization of the rural area of the village the same automatically vested
in the Central Government and that the plaintiff encroached the same. The appeal
filed by Surat Singh was dismissed by Additional District Judge, Delhi vide
judgment dated 5.8.2004. The lower appellate Court held that as per Khatoni
Paimaish Exhibit DW1/2, the suit land was a waste land being Gairmumkin Pahar
and the same belonged to Gaon Sabha and that after vesting of the land in it,
the Central Government had transferred the same to the DDA.
Paragraph 6 of that judgment
is reproduced below: 1"6. the Appellant claims himself the coowner of the land,
forming part of the khasra no.1674, Village Kishangar on the basis of the Sale Deed
dated 10.10.1963. A photocopy of the Sale Deed was placed on the record by the
Appellant through which the Appellant along with the others claims to have
purchased 4 bighas and 4 biswas of land bearing Khasra No.2728/167/4 and
2728/167/3. As per the scheme of the Delhi Land Reforms Act, 1954 (for short the
DLR Act) on coming into the force of the DLR Act the proprietor of the
agricultural land seized to exist. If any land was the part of the holding of a
proprietor, he became the Bhumidar of it, if it was the part of the holding of
some other person, such as a tenant or sub-tenant etc. he became either a
Bhumidar or an Asami whereupon the rights of the proprietor in that land
ceased.
land which was not holding
of either of the proprietor or any other person vested in Gaon Sabha. A perusal
of Kahatoni Paimaish, Ex.DW1/2 would show that the suit land was a waste land
that is Gairmumkin Pahar in Union of India v. Sher Singh & Ors. II (1997)
CLT 58, it was held by the Hon'ble Supreme Court of India that except the land
which for the time being comprised the holding or a grove whether cultivable or
otherwise, vests in Gaon Sabha from the date of commencement of the Act. The
onus was on the appellant to show that the suit land was a part of the holding
or a grove and the predecessors of the appellant had become a `Bhumidar' in
respect of the suit land on coming into force of the DLR Act.
A notification dated
3.6.1977 was issued by the government under Section 507 of the DMC Act whereby,
the area of Kishan Garh in the revenue estate of Mehrauli was urbanized, consequently
in accordance with the provisions of Section 150(3) of DLR Act, the land which
had vested in Gaon Sabha came to vest in the Central Government on urbanization
of the village. The Central Government, vide notification under Section 22(1)
of the DD Act Dated 20.8.1974 (Ex DW1/1) had placed the entire land which had
vested in the Central Government, on the urbanization of the village specified in
the schedule, at the disposal of the DDA for the purpose of development and maintenance
of the said land. Therefore, all land, including the suit land which had vested
in Gaon Sabha, came to vest in the Central Government and was ultimately placed
at the disposal of the DDA."
13.
During
the pendency of the aforementioned two suits, appellant No.1 which is said to
have been incorporated under the Companies Act, 1956 in 1994-95 with Harbir
Singh Khatri another son of Lal Chand as its Managing Director and appellant
No.2-Lal Chand filed third suit being Suit No.313 of 2000 (renumbered as Suit No.473
of 2004) for grant of a declaration that the entries made in the revenue
records in respect of land comprised in khasra Nos.2728/1674/2 and 2728/1674/3 situated
in the revenue estate of Mehrauli, village Mehrauli Kishangarh, Tehsil Mehrauli
are wrong and illegal.
The appellants further
prayed for grant of a decree of mandatory injunction directing the respondents
to correct the revenue record and enter their names in the columns of ownership
and possession. Another prayer made by the appellants was for restraining the respondents,
their servants and agents from demolishing the superstructures and sealing or
interfering with their possession of the suit property or running of the
restaurant.
14.
In
the written statement filed on behalf of the DDA, several objections were taken
to the maintainability of the suit including the following: (i) The plaintiffs
have not challenged notification dated 20.8.1974 vide which the Central
Government transferred the suit land to the DDA. 1 (ii) The suit was barred by
limitation because the same has been filed after 16 years of the accrual of
cause of action. (iii) The suit is barred by the provisions of Order II Rule 2
of the Code of Civil Procedure, 1908. (iv) The plaintiffs not only made
encroachment on the suit land, but also abused the process of Court by filing
different suits. On merits, it was pleaded that the suit land belonged to Gaon
Sabha and with the urbanization of village Kishangarh, the same automatically
vested in the Central Government. It was further pleaded that the appellants do
not have any right, title or interest in the suit land and they do not have the
locus to question the revenue entries. Another plea raised on behalf of the DDA
was that the suit was barred by limitation.
15.
On
the pleadings of the parties, the trial Court framed the following issues:
i.
"Whether
the plaintiff no.2 along with his brother is the owner and in possession of
suit land?
ii.
Whether
the suit land is a government land as alleged in para no.1 of the preliminary objections?
If so, whether the suit is liable to be dismissed on this ground?
iii.
Whether
the suit is within limitation?
iv.
Whether
the suit is barred under Order 2 Rule 2 CPC?
v.
Whether
the plaintiffs have not come to the court with clean hands and are not entitled
to the equitable relief of injunction as stated in para VI of the preliminary objections?
vi.
Whether
the suit land is a government land was placed at the disposal of the DDA under
Section 22(1) of the DDA vide notification dated 20.08.1974?
vii.
Relief."
16.
On
a comprehensive analysis of the pleadings and evidence of the parties, the trial
Court held that the plaintiffs (appellants herein) have succeeded in showing that
appellant No.2 and his brothers had purchased land comprised in khasra Nos.
2728/1674/2 and 2728/1674/3, but they could not prove that the land on which appellant
No.1 was running `Sahara Restaurant' is a part of those khasra numbers or that
they were otherwise in lawful possession of the suit land. The trial Court then
held that the suit was barred by time because cause of action had accrued 16
years ago when the suit land was transferred to the DDA. The trial Court also held
that the appellants had not approached the Court with clean hands inasmuch as
they suppressed material facts relating to the vesting of the suit land in the
Central Government and transfer thereof to the DDA and the documents like Aks
Sijra, site plan and demarcation report as also the facts relating to the 1acquisition
of an area of 1512 square yards forming part of khasra No.2728/1674/3 and receipt
of compensation at the rate of Rs.50/- per square yard. The trial Court
returned affirmative finding on issue No.4 and held that the suit was barred by
the provisions of Order II Rule 2 CPC.
17.
The
appeal preferred by the appellants was dismissed by the learned Single Judge of
the High Court, who relied upon the judgment of the Division Bench in Rajinder
Kakkar v. Delhi Development Authority 54 (1994) DLT 484 and held that with the issuance
of notification under Section 507, Gaon Sabha land of Kishangarh automatically vested
in the Central Government and transfer thereof to the DDA was valid. The
learned Single Judge also agreed with the trial Court that the suit was barred by
limitation and that the appellants had not approached the Court with clean
hands.
18.
Shri
Mukul Rohtagi, learned senior counsel appearing for the appellants extensively referred
to the evidence produced by the parties to show that the land in question was
Shamlat Thok and argued that such land does not vest in Gaon Sabha. Learned
senior counsel further argued that the notification issued under Section 507 of
the DMC Act and the provision 1contained in Section 150(3) of the Land Reforms
Act have no bearing on the appellants' case because the suit land did not
belong to Gaon Sabha and the trial Court and the High Court committed serious error
by recording a finding that the suit land automatically vested in the Central Government
and that the same was validly transferred to the DDA. Shri Rohtagi pointed out
that the suit land was owned by Smt. Kasturi widow of Jhuman Singh and Rattan
Lal son of Trikha Ram, who sold it to S/Shri Parma Nand, Tej Nath, Tej Prakash,
Gokal Chand and Ram Dhan by registered sale deed dated 7.10.1959 and legal
heirs of Parma Nand and other vendees sold the same to appellant No.2 and his brothers
vide sale deed dated 10.10.1963.
Learned senior
counsel assailed the concurrent finding recorded by the trial Court and the
High Court on the issue of limitation and submitted that the suit filed in the year
2000 was within time because the cause of action accrued to the appellants for
the first time in 1998 when they came to know about the entries made in the revenue
records in favour of the DDA. In support of this argument, Shri Rohtagi relied upon
the judgment of this Court in Rukhmabai v. Lala Laxminarayan (1960) 2 SCR 253.
19.
Shri
Harin P. Raval, learned Additional Solicitor General and Shri Amarendra Sharan,
learned senior counsel appearing for the DDA argued that the concurrent finding
recorded by the trial Court and the High Court that land on which the
appellants were running a restaurant does not form part of khasra Nos.
2728/1674/2 and 2728/1674/3 is a pure finding of fact based on correct analysis
of the pleadings of the parties and evidence produced by them and the same does
not call for interference under Article 136 of the Constitution. Shri Sharan submitted
that the suit filed by the appellants for declaration of title and injunction
was rightly dismissed by the trial Court because they had not produced any
evidence to prove that the suit land forms part of land purchased by appellant
No.2 and his brothers.
Shri Sharan then argued
that the suit filed in the year 2000 was barred by limitation because the cause
of action had accrued to the appellants on 10.8.1990 when the officials of the Corporation
and the DDA are said to have visited the suit premises and threatened to
demolish the superstructure and, in any case, the cause of action accrued to them
in December 1990 when the written statement was filed on behalf of the DDA with
a categorical assertion that with the urbanisation of the rural areas of
village Kishangarh, the suit land automatically vested in the Central Government,
which transferred it to the DDA vide notification dated 20.8.1974. Learned
senior counsel lastly submitted that the appellants are not entitled to any
relief because they had not approached the Court with clean hands and suppressed
material facts and documents.
20.
We
shall first consider the question whether the suit filed by the appellants on 14.2.2000
was within limitation and the contrary concurrent finding recorded by the trial
Court and the High Court is legally unsustainable.
21.
The
Limitation Act, 1963 (for short, `the 1963 Act') prescribes time limit for all
conceivable suits, appeals etc. Section 2(j) of that Act defines the expression
"period of limitation" to mean the period of limitation prescribed in
the Schedule for suit, appeal or application. Section 3 lays down that every suit
instituted, appeal preferred or application made after the prescribed period
shall, subject to the provisions of Sections 4 to 24, be dismissed even though
limitation may not have been set up as a defence. If a suit is not covered by any
specific article, then it would fall within the residuary article. In other
words, the residuary article is applicable to every kind of suit not otherwise
provided for in the Schedule.
22.
Article
58 of the 1963 Act, which has bearing on the decision of this appeal, reads as
under:
"THE
SCHEDULE
PERIODS
OF LIMITATION
[See
sections 2(j) and 3]
FIRST
DIVISION - SUITS
|
Description
of suit
|
Period
of limitation
|
Time
from which period begins to run
|
|
PART III - SUITS RELATING TO DECLARATIONS
|
|
58.
|
To
obtain any other declaration.
|
Three
years When the right to sue first accrues."
|
23.
Article
120 of the Indian Limitation Act, 1908 (for short, `the 1908 Act') which was interpreted
in the judgment relied upon by Shri Rohtagi reads as under:
|
Description
of suit
|
Period
of limitation
|
Time
from which period begins to run
|
|
120.
Suit for which no period of limitation is provided elsewhere in this
Schedule.
|
Six
years
|
When
the right to sue accrues."
|
24.
The
differences which are discernible from the language of the above reproduced two
articles are: (i) The period of limitation prescribed under Article 120 of the 1908
Act was six years whereas the period of limitation prescribed under the 1963
Act is three years and, (ii) Under Article 120 of the 1908 Act, the period of limitation
commenced when the right to sue accrues. As against this, the period prescribed
under Article 58 begins to run when the right to sue first accrues.
25.
Article
120 of the 1908 Act was interpreted by the Judicial Committee in Mt. Bolo v.
Mt. Koklan AIR 1930 PC 270 and it was held: "There can be no `right to
sue' until there is an accrual of the right asserted in the suit and its
infringement, or at least, a clear or unequivocal threat to infringe that right,
by the defendant against whom the suit is instituted."
26.
The
same view was reiterated in Annamalai Chettiar v. A.M.K.C.T. Muthukaruppan Chettiar
(1930) I.L.R. 8 Rang. 645 and Gobinda Narayan Singh v. Sham Lal Singh (1930-31)
L.R. 58 I.A. 125. In Rukhmabai v. Laxminarayan (supra), the three-Judge Bench noticed
the earlier judgments and summed up the legal position in the following words: "The
right to sue under Article 120 of the 1908 Act accrues when the defendant has
clearly or unequivocally threatened to infringe the right asserted by the plaintiff
in the suit. Every threat by a party to such a right, however ineffective or innocuous
it may be, cannot be considered to be a clear and unequivocal threat so as to
compel him to file a suit. Whether a particular threat gives rise to a compulsory
cause of action depends upon the question whether that threat effectively invades
or jeopardizes the said right."
27.
While
enacting Article 58 of the 1963 Act, the legislature has designedly made a
departure from the language of Article 120 of the 1908 Act. The word `first'
has been used between the words `sue' and `accrued'. This would mean that if a suit
is based on multiple causes of action, the period of limitation will begin to
run from the date when the right to sue first accrues. To put it differently,
successive violation of the right will not give rise to fresh cause and the
suit will be liable to be dismissed if it is beyond the period of limitation counted
from the day when the right to sue first accrued.
28.
In
the light of the above, it is to be seen as to when the right to sue first
accrued to the appellants. They have not controverted the fact that in the
written statement filed on behalf of the DDA in Suit No.2576 of 1990-Lal Chand v.
MCD and another, it was clearly averred that the suit land belonged to Gaon Sabha
and with the urbanisation of the rural areas of village Kishangarh vide notification
dated 28.5.1966 issued under Section 2507 of the DMC Act, the same automatically
vested in the Central Government and that vide notification dated 20.8.1974
issued under Section 22(1) of the DD Act, the Central Government transferred
the suit land to the DDA for development and maintaining as Green. This shows
that that the right, if any, of the appellants over the suit land stood
violated with the issue of notification under Section 507 of the DMC Act and,
in any case, with the issue of notification under Section 22(1) of the DD Act. Even
if the appellants were to plead ignorance about the two notifications, it is
impossible to believe that they did not know about the violation of their
so-called right over the suit land despite the receipt of copy of the written
statement filed on behalf of the DDA in December, 1990. Therefore, the cause of
action will be deemed to have accrued to the appellants in December, 1990 and
the suit filed on 14.2.2000 was clearly barred by time.
29.
The
issue deserves to be considered from another angle. Although, paragraph 19 of Suit
No. 303/2000 was cleverly drafted to convey an impression that the right to sue
accrued to the appellants in November/December, 1998 when they learnt about the
wrong recording of entries in Khasra Girdawris/Revenue Records, but if the averments
contained in that paragraph are read in conjunction with the pleadings of the 2earlier
suits, falsity of the appellants' claim that the cause of action accrued to
them in November/December, 1998 is established beyond any doubt. In the first suit
filed by him, appellant No.2-Lal Chand had pleaded that the cause of action
accrued on 10.8.1990 when the officials of the respondents came to the suit
premises and threatened to demolish the same.
In the second suit filed
by Surat Singh (brother of appellant No.2-Lal Chand), it was claimed that the
cause of action accrued on 29.2.1992 when the officials of the respondents
demolished the boundary wall of the property on the ground that the same was Gaon
Sabha land. The appellants have not explained starking contradictions in the
averments contained in three suits on the issue of cause of action and in the
absence of cogent explanation, it must be held that the statement contained in
paragraph 19 of Suit No.313 of 2000 was per se false and, as a matter of fact,
the cause of action had first accrued to the appellants on 10.8.1990 when their
so called right over the suit land was unequivocally threatened by the
respondents. Therefore, the suit filed by the appellants on 14.2.2000 was clearly
beyond the period of limitation of 3 years prescribed under Article 58 of the
1963 Act and was barred by time.
30.
While
considering the question whether the suit was barred by time, the trial Court
noticed the averments contained in paragraphs 9 and 10 of the 2plaint that
during the course of preparation of the trial of Suit No. 2576/1990 - Lal Chand
v. MCD and another, the appellants applied for a copy of Khasra Girdawaris of
the suit land and they were shocked to learn that the revenue records have been
incorrectly maintained and they were neither shown as owners/bhumidars nor in possession
of the suit land, referred to the pleadings of the suit filed by appellant No.2
- Lal Chand in 1990 and observed: "Therefore, as per the pleadings that
the cause of action accrued when according to plaintiff he applied for the copies
of the Khasra Nos which was in Nov.-Dec, 1998 during the course of trial in the
earlier suit.
This claim of the plaintiff
however does not appear to be factually correct. It is evident from the judgment
dated 03.03.2003 that the detailed written statement had been filed by the DDA
before the Ld. Civil Judge when the suit filed by Lal Chand Plaintiff No.2 on 18.08.1990
wherein the DDA had specifically pleaded that the land form part of Khasra No.2728/1674/2
& 2728/1674/3 situated in the revenue estate of village Kishangarh, Teh Mehrauli,
New Delhi and the urbanization of village Mehrauli, all the Gaon Sabha land vested
in the central govt, but later on transferred this land at the disposal of the defendant
DDA for development and maintenance as green, vide notification dated 20.08.1974
and the plaintiff has no right, title or interest over the suit land.
It was further pleaded
that the plaintiff had wrongly and unauthorizedly occupied the land and
constructed the boundary wall alongwith three temporary room which construction
was unauthorized and it was denied that the suit property existed for the last 16
years. It is further evident from the said judgment that after the plaintiff filed
the replication continuing the aforesaid issue were framed by the Ld. Civil Judge
on 11.03.1997. This being so, it is unbelievable that the date of 2 knowledge by
the plaintiff was of Nov-Dec, 1998. Rather the plaintiffs were fully aware of
the land being at the disposal of the DDA from the proceeding in suit No.211/02/90
when the DDA filed its written statement when the limitation started to run more
so as the plaintiff No.2 had also filed replication continuing the aforesaid
and therefore as per the provisions of the limitation act, Article 58 of the
schedule, challenging to the same should have been made within the period of limitation
which is within 3 years from the date of knowledge and limitation which has
started running, it is not extended by the plaintiff by obtaining certified
copy or by giving notice to the defendants.
This suit which has
been filed only on 11.02.2000 is clearly not within the period of limitation of
3 years from the date when the DDA filed its written statement in suit No.211/02/90
and the plaintiff No,2 is first assumed to have acquired knowledge and in attempt
to cover up this delay the plaintiff is trying to falsely create the cause of
action in Nov- Dec, 1998 attributing the advantage as during the trial when he applied
for the copies of the revenue record despite the fact that the period of limitation
started to run when the written statement was filed by DDA to which the plaintiff
No.2 filed replication pursuant to which the issue framed was, whether the plaintiff
has any legal rights to file the present suit. This being the case, I hereby
held that the present suit is clearly beyond the period of limitation and I decide
the issue No.3 against the plaintiff."
(emphasis
supplied)
31.
The
High Court agreed with the trial Court and held that the suit was barred by
time. The reasons assigned by the High Court for coming to this conclusion are
contained in paragraphs 38 to 45, which are extracted below: "38. First suit
filed by Lal Chand (Appellant no.2 in the present proceedings), being suit (no.
2576 of 1990), was suit for Injunction simplicitor. That suit was dismissed by judgment/
order dated 3.3.2001. As per findings given in that suit, the Plaintiff was
never the owner; the land was Government land; the land vested in Central Government
after issuance of notification under Section 507 of DMC Act and thereafter, the
land was transferred to DDA. 39.
Against dismissal of that
Suit for Injunction, an appeal bearing (No. RFA 651/2003) was filed and this
Court disposed of the Appeal, vide order dated 24th November 2008. 40. In that
suit, it was alleged in plaint that; "It was sometime in March 1990 that Tehsildar
along with officers of DDA came to the site of Plaintiff with dispossession and
demolition." 41. Now after 10 years, appellant being a co-owner, cannot
seek relief against alleged threat of demolition or dispossession and present
suit is clearly barred by limitation. 42. In that suit in written Statement, a
specific plea was taken by answering respondent herein, that land in question
by virtue of issuance of notification under Section 507 of DMC Act, on
urbanization, came to be vested with Union of India and thereafter, transferred
to answering respondent. Relevant preliminary objection taken therein the
written statement is as under;
"That the suit as
filed is false, frivolous and not maintainable. The plaintiff has no legal right
to file the present suit. The land forms a part of Khasra no. 1674 of Village- Mehrauli.
This land belong to the Gram Sabha and on the urbanization of village Mehrauli,
all the Gram Sabha land vested in the Central Government, later transferred
this land at the disposal of the defendant DDA vide notification No. S.O. 2190 dated
208-1974. Therefore, it is clear that the plaintiff has no right, title or interest
in the property. In this view of the matter, this suit may be dismissed.
"43. It is also contended that second suit was filed by Surat Singh, one of
the co-owners.
That was again a Suit
for 2 Injunction, which was dismissed and against this, an appeal (No. RCA No. 29/2004)
was preferred before Additional District Judge on 5th August 2004 and same was also
dismissed. 44. The appellate court, while dismissing the suit of Surat Singh,
referred to the pleadings made in the plaint, "That on 29-2-1992, police officials
along with the officials of DDA visited the site and proceeded to demolish inter
alia the boundary wall of the disputed land. Clearly, therefore, the cause of
action had matured and limitation, which necessarily commenced from the date of
the demolition of the premises." 45. That suit was filed in 1992 and
surely, a subsequent suit by another co-owner, cannot be maintained after a lapse
of 8 years."
32.
What
is most surprising is that even though appellant No.2 - Lal Chand was cited as the
first witness in Suit No.303/2000 (renumbered as 473/2004), he did not step
into the witness box. This appears to be a part of calculated strategy. He knew
that if he was to appear as a witness, it will not be possible for him to
explain the apparent contradictions in the pleadings of the three suits on the
issue of cause of action and falsity of the averments contained in paragraph 19
in Suit No.303/2000 will be exposed. This is an additional reason for holding
that the trial Court and the High Court did not commit any error by recording a
conclusion that the suit was barred by limitation.
33.
The
next question which requires consideration is whether the finding recorded by
the trial Court on issue Nos.1 and 2 is legally correct and the High Court rightly
declined to interfere with the same. The trial Court adverted to the pleadings
of the parties and evidence produced by them and observed: ".... The
plaintiff has not placed on record any document nor has examined any witness to
prove the location and boundaries of the said land.
It is unbelievable
that sale of the immoveable properties could have taken place without
identification of the property with regard to its location. As per existing
practice all such transactions of immoveable properties either bear the complete
details of the boundaries to assist location of the property sold along with
the site plan or is accompanied by aks- shijra. However, in the present case this
has not been done and the plaintiff has not adduced in evidence to prove
boundary of the suit land. Therefore, on the basis of the aforesaid, I hold that
the plaintiff No.2 had purchased the land falling in Khasra No. 2728/1674/2 &
2728/1674/3 but he has not been able to prove the location of the said land comprising
of Khasra No. 2728/1674/2 & 2728/1674/3.
The plaintiff has
further not been able to connect the land over which the plaintiff No.1 is
running Sahara Restaurant to the land comprise in Khasra No. 2728/1674/2 &
2728/1674/3 of which the plaintiff No.2 and his brother are stated to be the
owners. That the DDA has placed on record the complete area location plan Ex.D2W1/4
to which there is no rebuttal. Only simply suggestion has been given to the
witness of the defendant that the aforesaid plan is incorrect but the plaintiff
has not placed on record any other alternative plan which according to him, is according
to plan, therefore, in these circumstances I find no reason to discard the aforesaid
documents which shows that Sahara Restaurant has been constructed in front of the
community centre No.1, Nursery School No.2 and Group Housing Janta Flats - 952
on the road and is shown to be away from abadi of village Kishangarh, Mehrauli,
New Delhi.
Annexure-A of the award
Ex.PW4/1 shows that Khasra No.2728/1674 falls in old abadi of village Kishangarh
and in these circumstances it is not possible to believe that the aforesaid
khasra No.2728/1674 would be located away from the main village abadi. There it
appears that the plaintiff has deliberately tried to create confusion with
regard to the khasra No.2728/1674 and as admitted, to show that the land on
which the Sahara Restaurant is constructed is bearing khasra No. 2728/1674/2 and
2728/1674/3 which is no the case and apparently it was for this reason that he has
deliberately no placed on record any site plan, aks-shijra, demarcation report
made in plan document to prove the khasra numbers.In view of the above I hereby
hold that the plaintiff has proved that he has purchased the land falling in Khasra
No. 2728/1674/2 and 2728/1674/3 but has not been able to prove that the land on
which the plaintiff No.1 is running Sahara Restaurant is comprise of Khasra No.
2728/1674/2 and 2728/1674/3 or that he is in legal possession of the suit land
over which the Sahara Restaurant is constructed."
(emphasis
supplied)
The trial Court then
proceeded to observe: "Vide my above findings with regard to issue No.1, I
have already held that the plaintiff has not been able to prove hat the land on
which a large restaurant is made falls in Khasra No. 2728/1674/2 and 2728/1674/3
and that in fact Khasra No. 2728/1674/2 and 2728/1674/3 is a part of old abadi which
is situated at distance and away from the place where the Sahara Restaurant is constructed.
The notification u/s. 22(1) of the DDA dated 20.8.1974 which is Ex.DWW1/2 is
not disputed by both the parties.
Firstly the plaintiff
has not produced any 3document in the form of demarcation report or aks-shijra
which show that the land on which Sahara Restaurant is situated false in Khasra
No. 2728/1674/2 and 2728/1674/3 and is same land which has been purchased by
the plaintiff No.2. The sale deed so relied upon by the plaintiff is Ex.PW3/4
does not show the boundaries and identification of the land initially sold by
Ratan Singh and Kasturi Devi so purchased by the plaintiff No.2 later vide
Ex.PW3/3. Secondly no explanation is forthcoming with regard to the acquisition
award/proceedings placed before this court which are Ex.PW4/1, showing that Khasra
No.1673 min(0-12) and Khasra No. 2728/1674/3 min plus 2(14-14) then the area of
1512 sq. yards has been acquired with the rte of claim as Rs.50/- per sq. yard
and the compensation is awarded at Rs.1,55,600/- in all which is in respect of
acquisition of land of Ran Singh, Dhan Singh, Lal Chand, Suraj Singh all sons
of Mam Raj as shown in sl. No.66..............
Annexure-A to the
award Ex.PW4/1 shows Khasra No. 2728/1674 to be falling in old village abadi
and no explanation is forthcoming as to how the land on which Sahara Restaurant
has been constructed is situated away from the Abadi which according to
Dx.D2W1/4 is constructed on the road in front of the Group Housing Janta
Flats-952, Nursery School-II and community center-I. It is unbelievable that khasra
No.2728/1674 which falls in old village abadi can be situated away from the said
award. Fourthly, in the earlier suit filed by the plaintiff No.2 in the year
1990 before Ld. Civil Judge the plaintiff No.2 had claimed that he is in
possession of two rooms and tin shed which he is using for residential purpose
and no explanation is forthcoming as to how this huge construction of a big
restaurant was made which is being used by the plaintiff No.1 for commercial
purposes.
It is evident from
the order dated 24.11.2008 in RFA No.651/03 that the High Court was apprised of
the earlier report of the local commissioner in suit No.211/02/90 and the large
scale construction raised by the plaintiff over the said land despite the
status quo order without the sanction of the municipal authority. Even
otherwise no permission can be granted by the DDA for any been uncontroverted by
the plaintiff, has constructed restaurant by encroaching upon the govt. land
meant for road. Under the garb of the present suit the plaintiff are indirectly
challenging notification by which village Kishangarh was 3 urbanized and the
land was placed at the disposal of the DDA without specifically challenging the
same as the entries made in the revenue record are only pursuant to the said notification.
Therefore, in view of the aforesaid, I hereby decide this issue No.2 against
the plaintiff and in favour of the defendants."
(emphasis
supplied)
34.
Though,
the High Court did not examine the issue in detail as was done by the trial
Court, the learned Single Judge did make a note of the two notifications, the judgment
in Rajinder Kakkar's case and held that by virtue of Section 150(3) of the Land
Reforms Act, the suit land automatically vested in the Central Government and the
same was transferred to the DDA under Section 22(1) of the DD Act. In our view,
the conclusion recorded by the trial Court that the appellants have failed to
prove that the suit land formed part of khasra Nos. 2728/1674/2 and 2728/1674/3
does not suffer from any error because they did not adduce any evidence to
establish that the land on which restaurant was being run formed part of those
khasra numbers.
35.
We
also approve the findings and conclusions recorded by the trial Court that the appellants
had not approached the Court with clean hands inasmuch as they withheld Aks
Sijra, site plan and the demarcation report and award Exhibit PW4/1. Not only this,
they raised illegal construction despite the injunction order passed by the
High Court and that too without obtaining permission from the competent
authority.
36.
In
view of the above discussion, we do not consider it necessary to deal with the
question whether the suit filed by the appellants was barred by Order II Rule 2
CPC.37. In the result, the appeal is dismissed. The appellants, who have not
only made encroachment on the public land, but also abused the process of the
Court are saddled with cost, which is quantified at Rs.5 lacs. Of this, Rs.2.5
lacs be deposited with the Supreme Court Legal Services Committee within two months
from today. The balance amount of Rs.2.5 lacs be deposited with the Delhi State
Legal Services Committee within the same period. If the appellants fail to
deposit the cost, the Secretaries of the two Legal Services Committees shall be
entitled to recover the same as arrears of land revenue.
.............................J.
[G.S. Singhvi]
.............................J.
[H.L. Dattu]
New
Delhi
September
09, 2011.
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