Ravinder Kumar Sejwal & Anr v. D.D.A

PRADEEP NANDRAJOG, J.

J.R. MIDHA, J. November 26, 2008 dk

* IN THE HIGH COURT OF DELHI Judgment reserved on : November 03, 2008 % Judgment delivered on : November 26, 2008 + RFA 234/2007 RAVINDER KUMAR SEJWAL & ANR. ..... Appellants Through: Mr.Ashim Vachher, Adv. VERSUS D.D.A. ..... Respondent Through: Mr.Pawan Mathur, Adv. for DDA. with Mr.Subhash Chandra, Director-LM. CORAM: Hon'ble Mr.Justice Pradeep Nandrajog Hon'ble Mr.Justice J.R. Midha 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J. 1. The present appeal under Section 96 of the Code of Civil Procedure 1908 has been preferred against the judgment and decree dated 21.02.2007 passed by the learned Additional District Judge, Delhi wherein the suit filed by the appellants was dismissed. 2. The backdrop facts leading to filing of the present appeal are that the appellants who are the joint owners of land comprised in Khasra No.225, Village Lado Sarai, New Delhi filed a suit registered as Suit No.103/05, praying for a decree of mandatory and permanent injunction against the respondent, Delhi Development Authority, requiring Delhi Development Authority to leave an approach road, as shown in Red in the site-plan annexed with the plaint, proved as Ex.PW-1/1, and to restrain Delhi Development Authority from interfering with the stated peaceful and uninterrupted use of the said road by the appellants to reach the land comprised in Khasra No.225, Village Lado Sarai, New Delhi. 3. The case set up by the appellants in the plaint was that they have an easementary right to access their land comprised in Khasra No.225 through the road in question and that they had openly, peaceably and uninterruptedly been using the said road since the days of their ancestors over the last 100 years. It was pleaded that the road is the only "approach road" and "motorable road" leading to the land of the appellants. It was pleaded that all of a sudden, the officers of Delhi Development Authority attempted to interfere with the peaceful enjoyment of the road. 4. The respondent resisted the suit by pleading in the written statement that the land on which the alleged road was stated to be in existence was acquired in the year 1980 vide Award No.36/80-81, together with other lands surrounding the same and was placed at the disposal of the Delhi Development Authority under Section 22 of the Delhi Development Act after possession thereof was taken over on 24.6.1980 and that the appellants were attempting to encroach upon the acquired lands comprised in Khasra No.224, 250, 699/253 and 700/253 of Village Lado Sarai. It was denied that any road or a path existed as claimed in the plaint, much less used by the forefathers of the appellants for 100 years. It was stated that, to protect the acquired land, when DDA was in the process of erecting a boundary wall to bound the acquired lands, the suit was filed with the intention of facilitating trespass on the land vested in DDA under the notification issued under Section 22 of the Delhi Development Act 1957. 5. On the basis of the pleadings of the parties, following issues were settled by the learned Trial Court:- "1. Whether the suit is maintainable? 2. Whether the plaintiff is entitled to the reliefs prayed for? 3. Relief." 6. Pertaining to the evidence led by the appellants, the appellants stepped into the witness-box as PW-1 and PW-2 respectively and reiterated the stand taken by them in the plaint. In addition to the evidence of the appellants, one Mr.Ram Singh was examined as PW-4 (said witness was wrongly numbered as PW-4 instead of PW-3) who stated that he was a neighbor of the appellants. He deposed on the lines as pleaded in the plaint. 7. In cross-examination, the appellant No.2 admitted the factum of acquisition of the land on which the alleged road was stated to exist and admitted that the appellants took no action when the land was being acquired. 8. The respondent examine