Delhi Development Authority v. Diwan Chand & Ors

RAJIV SAHAI ENDLAW, J.

SEPTEMBER 13, 2018 'pp'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 13th September, 2018. + RSA 253/2013 & CM No.17976/2013 (for stay) DELHI DEVELOPMENT AUTHORITY ..... Appellant Through: Mr. Nikhil Goel and Mr. Ashutosh Ghade, Advs. Versus DIWAN CHAND & ORS .... Respondents Through: Mr. Bhagwat Parshad Gupta & Mr. Priyanshu Aggarwal, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 17th May, 2013 in RCA No.74/11/11 of the Court of Additional District Judge-5 (West)] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellant Delhi Development Authority (DDA) against the judgment and decree [dated 30th March, 2011 in Suit No.172/2006 of the Court of Civil Judge (West)] allowing the suit filed by the four respondents/plaintiffs against the appellant DDA for permanent injunction restraining the appellant/defendant DDA from demolishing any part of property bearing Municipal No.128A and 128/1, Village Kilokri, New Delhi without due process of law. 2. The counsel for the appellant/defendant DDA states that it is the plea of the appellant/defendant DDA in its written statement that the property of the respondents/plaintiffs is situated in Khasra No.738 of Village Kilokri which is an acquired land and vests in DDA. It is stated that according to the respondents/plaintiffs, their property falls in Khasra No.1232/716/1 of Village Kilokri and to which the appellant/defendant/DDA does not lay any claim. 3. Notwithstanding the limited controversy aforesaid which was to be decided, the following issues were framed in the suit on 16th September, 1997:- "1. Whether the suit property forms part of abadi deh comprised in khasra no.1232/716/1 of village Kilokri, Delhi? OPP 2. Whether the suit is bad for want of notice u/s 53-B of DD Act? OPD. 3. Whether the suit is bad for non-joinder of Union of India as necessary party? 4. Whether the plaintiff is entitled to the relief as claimed for? OPP 5. Relief." and the Suit Court, on the basis of the reports of the commissions issued during the pendency of the suit and the evidence led in the suit, held that since the report of the commissions was in favour of the respondents/plaintiffs, onus had shifted upon the appellant/defendant DDA to show that the property falls in Khasra No.738 and which onus the appellant/defendant DDA had failed to discharge. Accordingly the suit was allowed and the appellant/defendant DDA restrained from demolishing, without due process of law, any part of property bearing no.128A and 128/1, Village Kilokri, New Delhi. 4. The First Appellate Court dismissed the first appeal preferred by the appellant/defendant DDA agreeing with the reasoning given by the Suit Court. 5. This appeal came up first before this Court on 13th November, 2013 when, notice only of the application for condonation of delay in filing the appeal was ordered to be issued. Vide order dated 6th July, 2015, the delay in filing the appeal was condoned and notice of the appeal was issued without expressing satisfaction that a substantial question of law arises and without framing any substantial question of law and the Trial Court record was requisitioned. 6. Vide order dated 15th October, 2015 in this appeal, it was found that the commissions issued by the Suit Court were carried out without intimation to the appellant/defendant DDA and behind the back of the appellant/defendant DDA and it was thus held that the reliance by the Suit Court on the reports of the commissions was misconceived; in view of the limited controversy aforesaid, observing that the dispute could be resolved by demarcation by the Revenue Authorities, demarcation by Total Station Method was ordered. 7. Since then the demarcation report was being awaited. 8. The demarcation report has been received. 9. The counsel for the appellant/defendant DDA states that the demarcation report does not repo