Khatri Hotels P.Ltd.& Anr vs Union Of India & Anr

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), 4 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".

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."

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.

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 1 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:

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 1 acquisition 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.

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.

(emphasis supplied)

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.

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."

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:

(emphasis supplied) The trial Court then proceeded to observe:

(emphasis supplied)

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 3 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.