RFA No.123 of 2009 Page 1 of 61 * HIGH COURT OF DELHI : NEW DELHI RFA No.123/2009 and C.M. No. 4775/2009 % Judgment reserved on:29th May, 2009 Judgment delivered on:21st August, 2009 1.Khatri Hotels Pvt. Ltd. Aruna Asaf Ali Road, 80/9, Kishangargh, Vasant Kunj, New Delhi Through its Director Harbir Khatri 2.Shri Lal Chand S/o Sh.Mam Raj R/o Vill. Kishangargh, Mehrauli, New Delhi. ….Appellants Through: Mr.V.P.Singh, Sr.Adv. with Mr.Ashish Aggarwal, Adv. Versus 1.Union of India Through its Secretary Ministry of Urban Development Nirman Bhawan, New Delhi. 2.Delhi Development Authority Through its Vice Chairman Vikas Sadan, INA, New Delhi. ….Respondents. Through: Mr.Parag Tripathi, Sr.Adv. with Ms.Shobhana Takiar, Ms.Indrani Ghosh and Mr.Amey Nargolkar, Advs. for DDA. RFA No.123 of 2009 Page 2 of 61 Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. Present appeal has been filed against judgment dated 28th March, 2009 of Additional District Judge, Delhi, vide which suit of the appellants was dismissed. 2. Brief facts of this case are, that appellant No.1 is a family company of sons of appellant No.2 and is incorporated under Companies Act, 1956. Harbir Khatri, is its Managing Director. 3. Appellant No.2 along with his brothers, is owner/ bhumidar of property forming part of Khasra No. 2728/1674/2 and 2728/1674/3, having purchased the same, vide registered sale deed dated 10.10.1963. The property is situated in Revenue Estate of village RFA No.123 of 2009 Page 3 of 61 Kishangrah, Tehsil Mehrauli, New Delhi. One Shri Ram Jas and others, including Shri Rattan Lal and Smt. Kasturi, purchased land bearing Khasra No. 2728/1674, measuring 13 bighas 17 biswas, from recorded owners, who were in the possession of the same, as per Revenue Records. Shri Rattan Lal and Smt. Kasturi, sold and transferred all their rights of ownership and possession in favour of S/Shri Parma Nand, Tej Nath, Tej Parkash, Gokal Chand and Ram Dhan in Khasra No. 2728/ 1674/2 (3 bighas 3 biswas), and Khasra No. 2728/1674/3 (1 bigha 1 biswas) out of Khewat No. 164, Khatoni No. 436, vide document registered, on 17.10.1959 with Sub Registrar. 4. Shri Om Parkash and Mahinder Pal sons of S/Shri Parma Nand, Tej Nath, Tej Parkash, Gokal Chand and Ram Dhan, sold and transferred all their rights in respect of above said land, in favour of S/Shri Ram Singh, Dhanu, Lal Chand and Surat Singh, sons of Mam Raj in equal share, vide documents registered on 15.10.1963 with Sub Registrar and actual physical RFA No.123 of 2009 Page 4 of 61 possession of this property was recorded in their favour in revenue record of 1964-65. 5. This property consists of two built up rooms with tin sheds bounded by a boundary wall of stones. 6. Appellant No. 2, continued to be in actual possession since date of purchase, i.e. 15th October, 1963 as rightful and lawful owner/bhumidar and part of same was used for his residence. Appellant No.2 having grown up sons and suit property being situated on a vantage place in the village towards a wide road, they floated a company in the name of appellant no. 1 and started business of restaurant in a part of the property, after obtaining all necessary sanctions from concerned authorities, under the name and style of "Sahara Restaurant". 7. In 1990, respondent no. 2 tried to dispossesses appellants and demolish the suit property on the ground that same belonged to it. Pursuant to it, appellant No.2, filed a suit (bearing no. 2576/1990 also numbered as 211/02/90) in this Court. During pendency of that RFA No.123 of 2009 Page 5 of 61 suit, appellants applied for copy of Khasra Girdwaris of above land and were shocked to learn that said land vest in Gaon Sabha and appellants were not recorded as owner/bhumidar in Khasra Girdwaris. 8. No notification under Section 7 of the Delhi Land Reforms Act 1954 (for short as „Act‟) has been issued in respect of the suit property. Since land of suit property did not vest in Gaon Sabha under any requisite or valid notification etc, nor its possession was ever taken by Gaon Sabha, nor any suit for ejectment was filed against predecessors in interest of the appellants. Gaon Sabha, thus did not acquire any right or interest, whatsoever in the suit property. This land never remained in possession of Gaon Sabha or Central Government and entries in revenue records are false, wrong and illegal. Respondent No. 1 had no power to issue notification under Section 507 of Delhi Municipal Corporation Act(for short as „DMC Act‟). Appellants requested halqa patwari and kanoongo, to make correct entries in respect of suit property but they RFA No.123 of 2009 Page 6 of 61 refused and asked the appellants to approach higher authorities. 9. The construction of suit property is old and except for making the same habitable and worthy of an eating house, no structural changes have been made therein. Even otherwise, construction at the site is well within building bye laws. On 11.2.2000, a police official from local Police Station, came to suit property for survey of same and appellants were shocked to learnt that respondents had passed orders for demolition of suit property on the ground that orders in pending suit did not cover the restaurant as name of „Sahara Restaurant‟ was not mentioned in the order and demolition was scheduled for 15.02.2000. 10. Appellants filed present suit seeking a declaration, that entries made by respondents in Revenue Records in respect of land comprised in Khasra No. 2728/1674/2 and 2728/1674/3 situated in Revenue Estate of Mehrauli, Village Mehrauli Kishangrah, Tehsil Mehrauli, New Delhi are wrong and illegal. A decree RFA No.123 of 2009 Page 7 of 61 of mandatory injunction directing respondents to correctly record ownership and possession of appellants in Revenue Records being maintained and in custody of respondent no. 2 is sought, as well as permanent injunction is also sought restraining respondents, their servants, agents and representatives from demolishing the super structure, sealing or interfering in any manner in possession of appellants or from running of Sahara Restaurant from property bearing Khasra No. 2728/1674/2 and 2728/1674/3 situated in Revenue Estate of Mehrauli, Village Mehrauli Kishangrah, Tehsil Mehrauli, New Delhi. 11. No written statement was filed by respondent No.1/ Union of India, despite opportunities and right of respondent No.1 to file written statement, was closed, vide order dated 1.2.2002. 12. Respondent No.2/DDA, in its written statement took preliminary objection that appellants have not come to the court with clean hands and have concealed material facts. There is no cause of action against RFA No.123 of 2009 Page 8 of 61 answering respondent due to which reason the suit is not maintainable and is liable to be dismissed, as this court has no jurisdiction to try the same. Further, the suit of appellants is barred by provisions of Specific Relief Act and also as per Article 58 of the Limitation Act, according to which a declaration can be sought within three years, from the date when the cause of action first arose. 13. On merits, it is stated that land in dispute belongs to Gaon Sabha and on urbanization of village Mehrauli(Kishangarh), land vested in Central Government. Central Government transferred the same at the disposal of answering respondent for the purpose of development and maintenance of the said land as green, vide notification No.S.O. 2190 dated 20th August, 1974, under Section 22 of the Delhi Development Act. 14. Appellants have no right, title or interest in property in question. There is no document or title in favour of Ramjas, Ratan Lal or Smt. Kasturi or their RFA No.123 of 2009 Page 9 of 61 alleged predecessors. No such persons exist or appears to have existed. Even name of alleged “recorded owners” are not mentioned. Entry as alleged in Revenue Records, if it exists, does not create or confer any right, title or interest. 15. It is denied that physical possession of property was handed over to Ram Singh, Dhanu, Lal Chand and Surat Singh. Appellant No.2, unauthorisely occupied the land in dispute shortly before filing (suit No.2576 of 1990) and illegally constructed a boundary wall with three temporary rooms. The licences obtained from various government authorities does not create any right, title or interest in the property. Since the land vested in Central Government, therefore, provisions of Act are not applicable. There was no construction on the land in 1954 or 1957 or till shortly, before filing of suit in 1990 by appellant No.2. There was no built-up abadi nor suit land fell in built-up abadi. As such, appellants have no right, title or interest in property. RFA No.123 of 2009 Page 10 of 61 Contentions of Learned Counsel for Parties 16. It is contended by learned counsel for the appellants that basic question involved is that, whether land comprised in Khasra No.2728/1674/2 (3 bigha 3 biswa) and khasra No.2728/1674/3 (1 bigha 1 biswa) measuring 4 bighas 4 biswas, situated in Village Kishangarh vested in Gaon sabha or not, under the provisions of the Act. Vesting of such land is provided under Section 7 of the said Act, provides the procedure for the same. Unless procedure as prescribed in the said Section is followed and the land duly vest in Gaon Sabha, a proprietor is not deprived of his proprietory rights. If the statute provides for in method and procedure to be followed, all the acts have to be done accordingly and no act can be performed in violation of the same. Admittedly, procedure as stipulated under section 7(2) of the Act, has not been complied with. No order of vesting was passed by RFA No.123 of 2009 Page 11 of 61 Deputy Commissioner and no compensation as is mandatorily required, was paid. On this point, learned counsel cited decision of Supreme Court, Meera Sahni v. Lt. Governor of Delhi & Ors. (2008) 9 SCC 170. 17. It is further contended that Shri Ratan Lal and Smt. Kasturi were the bhoomidars/owners in possession of the said property and were duly shown so in revenue records. The suit land was „Shamlat Thok land‟ and same was duly shown as „Shamlat Thok Chana‟ and in possession of the owner in the Register of Mutation for year 1953, as per Ex.PW3/5. The said land was again shown as abadi area in Khasra Girdawari for the year 1957-59 as per Ex.PW3/5A. 18. Above said Ratan Lal and Smt. Kasturi, executed sale deed dated 07.10.1959 (Ex.PW1/4) in favour of S/Shri. Parmanand, Tej Nath, Tej Prakash, Gokal Chand and Ram Dhan. These persons, then further executed a sale deed dated 10.10.1963 (Ex.PW1/3) in RFA No.123 of 2009 Page 12 of 61 favour in appellant no.2 and his brothers and handed over the possession of suit land, including entire built up structure existed on the suit land. 19. Other contention is that, notification under Section 507 of DMC Act, is a general notification concerning 48 villages. Similarly, notification u/s 22 of Delhi Development Authority Act, is also general notification. Section 150 of the Act, envisages that properties of Gaon Sabha would vest in Central Government only, when area is declared urbanised under Section 507 of the DMC Act and this Section, is not a Section vesting land in Central Government, it only transfers land to Central Government, if such land is already vested in Gaon Sabha. 20. Further, land in question was never „Shamlat Deh/Gaon Sabha Land‟ but was „Shamlat Thok Land‟ which means, it was owned by a section of proprietors of the village. The said land which is „Shamlat Thok Chana‟ initially, measured 13 Bighas 17 Biswas. RFA No.123 of 2009 Page 13 of 61 Revenue assistant, passed an order of Taksim (Partition) on 14.12.1951, thereby separated, the suit land from „Shamlat Thok‟. Therefore, on 14.12.1951, suit land became individual land of proprietors. Khasra No.2728/1674/2 measuring (3 Bighas 3 Biswas) was recorded in register of mutation in the name of Smt. Kasturi and Khasra No.2728/1674/3 measuring (1 Bighas 1 Biswas) was recorded in the name of Shri Ratan Lal. As the land in question being a private land, it could not be vested in Gaon Sabha. 21. It is further contended that appellants purchased the said land on 15.10.1963 and Gaon Sabha which came in existence on coming in force of the Act, never claimed this land. The question, therefore, of Central Government or DDA, claiming any right in the land does not arise. 22. On this point, learned counsel for appellants cited following judgments; (1) (2000) 10 Supreme Court Cases 644 Gram- RFA No.123 of 2009 Page 14 of 61 Panchayat of Village Mundhal Khurd V. Amar Singh (2) 1976 P.LJ. 489 Ajaib Singh & Kaka Singh V. The Sub-Divisional Officer, Civil, Kharar (3) (1997) 3 Supreme Court Cases 555 Union of India & Anr. V. Sher Singh & Ors. (4) 44 (1991) DLT 713 (DB) Sher Singh & Ors. V. Union of India & Anr. (5) 1991 (4) Delhi Lawyer 375 Union of India & Ors. V. Mamleshwar Prasad & Ors. 23. Trial Court while holding that appellants have proved that they had purchased the land which fell in Khasra No.2728/1674/2 and 2728/1674/3 further held, that appellants have not been able to prove that land on appellant No.1 is running „Sahara Restaurant‟, fell in the said Khasra Numbers. There is no plea in the written statement, disputing the location and Khasra Numbers, wherein suit property is located. Moreover, in written statement filed by DDA, (in suit No.2576/90), it has been admitted by them that land forms part of Khasra No. 1674 of Village Mehrauli. (Khasra No. 1674 is the number of old Khasra Nos.2728/1674/2 & 2728/1674/3). RFA No.123 of 2009 Page 15 of 61 24. Trial Court also erred in holding that Land in Khasra No.2728/1674(1.01) has been acquired vide award Ex.PW4/l and compensation to be awarded with respect to the same to the appellant no.2 and his brothers as shown at S. No.66 of the Award. A bare perusal of the award in question shows, that only Khasra Numbers mentioned at pages 2 to 14 of the award, were acquired vide the said award. The land in question bears Khasra Nos.2728/1674/2 and 2728/1674/3 and the said list does not contain the said Khasra numbers. Further, the list of owners whose lands were covered under the said award, are listed at page Nos.15 to 29 of the said Award. The said list also does not contain names of appellant no.2 and/or his brothers. Name(s) of appellant no.2 and/or his brothers, appear only in the list of claimants shown at pages 30 to 48 of the said award. The said list does not imply that land is acquired or compensation has been paid with respect to the land in question, after acquisition. Appellant no.2 and his brothers, may have RFA No.123 of 2009 Page 16 of 61 filed their claim under misconception, as the said land was notified U/Sec.4 of the Land Acquisition Act. A bare reading of said award shows that no award was passed with respect to land bearing Khasra No.2728/1674/2. Further, land bearing Khasra No.2728/1674/3, is shown in the list attached as Annexure „A' with the award, which lands were not acquired as there is/was old abadi on the said lands and it was stated in the said award, that said lands would be acquired through another supplementary award. 25. It is also contended that vide letter dated 22.09.2004 (Ex.PW4/2) issued by Sh. J.S. Sharma, SDM (Head Quarter), it was duly admitted that land in question was to be included. PW4 Sh. G.S. Meena, Record Keeper, LAC South, also in its deposition clearly stated, that land in question has not been acquired vide said award. 26. Another argument is that, it is the case of respondent no.2 that, said land was transferred to RFA No.123 of 2009 Page 17 of 61 respondent No.1 and respondent No.2 was a maintaining agency, with respect to the suit land. As such, onus to prove alleged transfer was on respondent No.1, who failed to file any reply to the averments of the suit. 27. It is also argued that trial court erred in holding that suit is beyond period of limitation. Cause of action in the present suit is continuing and the same arises again and again, when respondents threatened to demolish and/or takeover the possession of the suit property. Present case is covered under Section 22 of the Limitation Act, whereby a fresh period of limitation begins to run at every moment of time during which the said threat continues. Moreover, appellants came to know of the wrong entries in the revenue records only in November/December 1998, when appellants learnt about the said wrong recordings. The suit in question was filed on 14.02.2000, within a period of three years from the date of the said knowledge. RFA No.123 of 2009 Page 18 of 61 28. Another contention is that, trial court erred in holding that entire Kishan Garh Village belonged to Gaon Sabha and consequently to Central Government and thereafter, to respondent No.2, vide notification dated 03.06.1966 and 20.08.1974 respectively. Admittedly only „Shamlat Deh/Gaon Sabha Land‟ was/could have vested in Gaon Sabha and consequently, became property of Central government on urbanization, vide Notification dated 03.06.1966. The suit property does not fall within the definition of „Shamlat Deh land‟ and is a private land. It is admitted case of respondent no.2, as admitted by Sh. Puran Singh (D2W2), that land in question was not a Gaon Sabha Land. Further, Sh. Ramesh Chand, Patwari (D2W1), admitted in his cross examination, that the said notification pertains to Nazul Lands and not to lands belonging to the individuals. As such, there was no occasion for land in question vesting in Central Government or same being transferred to respondent No.2. Further, Sh. Bhanwar Singh, Patwari (PW1), RFA No.123 of 2009 Page 19 of 61 deposed that, as per records, land in question was initially owned by „Shamlat Thok Cheena‟ and same is not „Shamlat Deh land‟. Trial Court, however, failed to return any finding on said issue and instead, erred in holding that entire village-Kishan Garh belonged to Gaon Sabha. Trial Court also failed to appreciate that any change in Khasra Girdawari & Khatoni cannot be done without prior notice to the affected parties as per section 66 of the Delhi Land Revenue Rules 1962. No notice of change in khasra entries was ever received by the appellants. Moreover, mutation/ revenue entries, do not create any title and are not evidence of title. On these points, learned counsel for appellants cited following judgments; (1) AIR 1996 SC 2786 Durga Das V. The Collector & others. (2) AIR 1997 SC 2089 Baleshwar Tewari (Dead) by LRs. V. Sheo Jatan Tewari & others. (3) AIR 1997 Allahabad 122 Miss Talat Fatma Hasan V. His Highness Nawab Syed Murtaza Ali Khan Sahib Bahadur & others. RFA No.123 of 2009 Page 20 of 61 (4) AIR (35) 1948 PC 210 Durga Prasad & Anr. V. Ghanshiam Das & others. (5) AIR1961 Andhra Pradesh 361 Pernumarthy Veera Panasa Ramanna V. Pemumarthy Sambamoorthy & others. 29. Even otherwise, there is a presumption in regard to correctness of the registered documents and following judgments have been relied upon by learned counsel for the appellants; (1) (2006) 5 Supreme Court Cases 353 Prem Singh & Ors. V. Birbal & others. (2) 1973 (9) DLT 13 Parmeswari Das V. G.R. Kohli (deceased) by his legal representatives (3) 2007 (14) SCALE 627 Asokan V. Lakshmikutty & others. (4) 2004 VII AD (Delhi) 241 Subhash Chander Ahuja & others V. Shri Ashok Kumar Ahuja and others 30. Another contention is that case of Rajinder Kakkar & others vs Delhi Development Authority, 54 (1994) DLT 484, is not applicable to the present RFA No.123 of 2009 Page 21 of 61 case, as no copies of documents showing that vendor had any title, right or interest in the property or the documents of title in favour of the petitioners therein, were placed on record in the said case, whereas in the present case, appellants have placed Revenue Record and Sale deeds on record. Moreover, none of the petitioners in the said case, had a registered sale deed in his/her favour. While in the present case, there is a duly registered sale deed in favour of appellant no.2 and his brothers. Moreover, issues raised in the present suit have not been considered in the said judgment. The said judgment does not set up a precedent and cannot act as an authority and the said judgment was with respect to Gaon Sabha Land, whereas, present case relates to private land. Even otherwise, appellants cannot be dispossessed, where title to the property is seriously contested. Principle of natural justice are to be followed. Respondent No.2 is under obligation to observe the compliance with law before ejecting the appellants or before demolition of RFA No.123 of 2009 Page 22 of 61 any super-structure belonging to them. On this point , learned counsel relied upon following judgments; (1) (2003) 10 Supreme Court Cases 349 Muddanna & Ors. V. Panthanagere Group Panchayat (2) 54 (1994) Delhi Law Times 401 Amrik Singh Sabharwal V. Kanta Devi 31. Lastly, it is contended that judgments in the suit titled Lal Chand Vs. MCD and Surat Singh vs. DDA, do not act as res judicata in the present case. Judgment passed in the case of Lal Chand, stands merged with present case, vide judgment of this Court in (RFA No.651/2003), dated 24.11.2008. Whereas, the case of Surat Singh Vs.MCD was decided without the plaintiff therein, having led any evidence and thereby failing to prove his case. As such, the same cannot act as res judicata. Moreover, proceedings in said case, were not considered at the stage of trial and respondents cannot now raise same for first time at this stage. RFA No.123 of 2009 Page 23 of 61 32. On the other hand, it is contended by learned counsel for respondent No.2 that principle issue is, whether land in question is public land or not, and answer to it, would settle the entire controversy. Before dealing with this aspect, it is to be noted that land in question is in Village Kishangarh, in revenue estate of Mehrauli. 33. Factual matrix need not be travelled any further, whatsoever, for simple reason as issue about status of the land in Village Kishangarh is no longer res integra but was subject matter of detailed judgment, of Division Bench of this Court, in case of Rajendra Kakkar v. DDA (Supra). 34. It is further contended that it is established that the land was Government land and Appellants were neither „Bhoomidars‟ or „Asamis‟ nor owners of the land, at any point of time. The very document, which is foundation of the present suit, i.e., Khasra Girdawari for year 1957-59, shows the land to be entirely "Shamlat" RFA No.123 of 2009 Page 24 of 61 i.e. public land and as „Gair Mumkin‟ i.e. non-cultivable. It also shows the land and position of occupiers therein, as „Gair Mourasi‟. Expression „Gair Mourasi‟ is defined in revenue dictionary. Nonetheless, trial court examined the matter afresh and came to specific conclusion that factually, land never belonged to appellants, as owners and even their predecessors in interest, never had any ownership rights for this purpose. 35. It is further contended that as per Khatuni of village Mehrauli; Tehsil for 1964-65, it clearly shows land in question to be as “Uncultivable Rock” i.e. „Gair mumkin pahar‟. As per Jamabandi records (Ex.CW1/1), it shows land to be "Gaon Sabha land” and “Sarkar Daulat Madar”. Even Halka Patwari who was summoned as a Court witness, stated that land in question to be “Gaon Sabha land”. Thus, trial court after re-examining facts all over again, gave a well reasoned judgment, that land is indeed a public land/ RFA No.123