Delhi District CourtDelhi Development Authority vs Smt. Naresh Kumari on 12 September, 2018IN THE COURT OF SH. NAVEEN KUMAR KASHYAP
           SENIOR CIVIL JUDGE CUM RENT CONTROLLER(N-W)
                                       ROHINI COURTS:DELHI


                                                                                                      RCA NO. 21/16
             Delhi Development Authority
             Through its Secretary
             Vikas Sadan, INA,
             New Delhi.                                                                                            ... Appellant
                                      VERSUS


             1. Smt. Naresh Kumari
             W/o. Sh. Satish Sharma
             2. Sh. Satish Sharma
             S/o. Late Sh. Goverdhan Dass
             Both resident of :
             House No. 319, Haider Pur,
             Delhi.                                                                                            ...RespondentAppeal presented on                                                          :               11.02.2016

            Appeal decided on                                                            :               12.09.2018

            Decision                                                                     :             Appeal Allowed.


                      FINAL JUDGMENT IN 1st REGULAR APPEAL1. By this judgment, I would decide the present appeal which is filed
      by original defendant/ DDA against the final judgment and decreeRCA No. 21/2016                                                                                                    Page No..1 of   11DDA Vs. Naresh Kumari & Anr.dated 16.12.2015 passed by Ms. Chhavi Kapoor, Ld. Civil Judge-
      VI (West), Delhi, in original suit titled as "Naresh Kumari & Anr.
      Vs. DDA" bearing original civil suit No. 444/14.2. Originally the plaintiffs/respondents filed the suit for permanent
      injunction simplicitor way back in the year 1996. It is prayed in
      such suit that a decree of permanent injunction be passed in their
      favour and against the original defendant/appellant, their agents
      etc.,         thereby              restraining                them           from           entering,              interfering,
      demolishing and disturbing the peaceful possession of the
      plaintiffs and other occupants in the suit property.3. By such impugned judgment and decree dated 16.12.2015 such
      Ld. Civil Court was pleased to decree the suit of the original
      plaintiff/present                     respondent.                    It        was           ordered                that          the
      appellant/defendant/DDA can only evict the plaintiffs from the suit
      property by resorting to due process of law.4. In nutshell, it is stated in the present appeal by DDA/ defendant
      no.1 that Ld. Trial Court has committed grave error in appreciating
      the evidence. That mere suit for permanent injunction is not
      maintainable in the facts and circumstances of the present suit.
      That no Lal Dora certificate is filed or proved by the plaintiffs.
      That Ld. Trial Court wrongly held that plaintiffs are in settled
      possession of suit property. That the suit property is already stand
      duly acquired way back and same is already placed at the
      disposal of the appellant/DDA vide order dated 27.08.1980.5. As per record, no reply on merit is filed by the respondent side.But only a reply filed by the respondent to stay application of the
      appellant.In such reply, the plaintiffs/respondent repeated the
      stand taken by them in their original suit and during evidence inRCA No. 21/2016                                                                                                    Page No..2 of   11DDA Vs. Naresh Kumari & Anr.trial Court. It is further claimed that it is an undisputed fact that
      LAC or DDA has not paid or even offered compensation of
      alleged compensation of the land of the suit property in question.
      It is further claimed thatRight To Fair Compensation And
      Transparency                       In         Land             Acquisition,                   Rehabilitation                     and
      Resettlement Act, 2013has come into effect from 01.01.2014. It
      is further claimed that underSection 24 (2)of such Act, if five
      years have already passed prior to commencement of this Act
      and physical possession of the land/suit property has not been
      taken or the compensation has not been paid, the said acquisition
      proceedings shall be deemed to have lapsed. It is further claimed
      that in the present suit neither physical possession is taken nor
      compensation is offered or paid by the appellant to the plaintiffs.6. I have heard both the sides and gone through the record including
      case law filed by both sides. Further, I have gone through the trial
      court record including the evidence, impugned judgment and
      decree in question dated 16.12.2015.7. It is held by the Ld. Trial Court that there are no title documents in
      favour of the plaintiffs or their ancestors showing their ownership
      over the suit land. It is further held by the Ld. Trial Court that the
      plaintiffs and their family members failed to show any revenue
      record in their favour to show their valid title to the property. But it
      is held by the Ld. Trial Court that the plaintiffs and their family had
      been in continuous and settled possession of 520 sq. yards of
      land of khasra no. 15/1, village Haider Pur, Delhi/suit property.In
      fact, it is further held that even appellant/DDA has not denied the
      possession of the plaintiffs over the suit property, but their
      defence is that such land belongs to government and is alreadyRCA No. 21/2016                                                                                                    Page No..3 of   11DDA Vs. Naresh Kumari & Anr.stand acquired. In fact, it is further held that the plaintiffs have not
      denied that 3919 bigha and 2 biswa of land in such village was
      acquired by LAC on 06.12.1996, but plaintiffs claimed that their
      property was left out. But ultimately, Ld. Trial Court held that
      plaintiffs failed to prove that their land was not acquired by DDA in
      such acquisition proceedings. It was further held that the plaintiffs
      never challenged such land acquisition proceedings. It was further
      held that suit property/land has been placed at the disposal of the
      appellant/DDA vide such notification dated 27.08.1980.
      It may be noted at this stage that the plaintiffs/present respondent
      have not challenged such findings of Ld. Trial Court. As such,
      same have attained finality.8. But it was held further by Ld. Trial Court that DDA/appellant has
      not taken physical possession of the land from the plaintiffs and
      they continued to be in long and settled possession thereof. As
      such, it was held that plaintiffs are entitled to protect their settled
      possession                    against               forceful             and            illegal           dispossession.
      Accordingly, it was held by the Ld. Trial Court that the
      DDA/appellant can only evict the plaintiffs from the suit property
      by resorting to due process of law.9. It is pertinent to note that the relief which is granted by the Ld.
      Trial Court is not exactly what is prayed by the plaintiffs. Plaintiffs
      sought a relief that a decree of permanent injunction be granted
      thereby restraining DDA/appellant from entering, interfering,
      demolishing and disturbing the peaceful possession of the
      plaintiffs and other occupants in the suit property.10.Further, in any case, in the considered view of this Court, it is
      proved on record, as also held by the Ld. Trial Court, the landRCA No. 21/2016                                                                                                    Page No..4 of   11DDA Vs. Naresh Kumari & Anr.where the suit property is situated is already acquired by the
      DDA.11.Thus, on the basis of material on record, it is concluded that
      appellant/DDA is the owner of the suit property in question. It is
      further held that no serious attempt is made by the plaintiff's side
      to challenge claim of ownership of DDA over such land.12.Under these circumstances, it must be remembered that
      possession follows the title and in any case, there can not be any
      injunction against the true owner, which is DDA as per evidence
      on record in the present suit.13. Further, it is fruitful to note at this stage that it is settled law that
      the relief of permanent injunction is an equitable relief and the
      person claiming it must come with clean hands.14.In fact in the landmark judgment ofAnathula Sudhakar vs P.
      Buchi Reddy (Dead) By Lrs & Ors[(2008) 4 SCC 594], the
      general principles as to when a mere suit for permanent injunction
      will lie, and when it is necessary to file a suit for declaration and/or
      possession with injunction as a consequential relief, were laid
      down.14.1 It was held that where a plaintiff is in lawful or peaceful
      possession of a property and such possession is interfered or
      threatened by the defendant, a suit for an injunction simpliciter will
      lie. A person has a right to protect his possession against any
      person who does not prove a better title by seeking a prohibitory
      injunction. But a person in wrongful possession is not entitled to
      an injunction against the rightful owner.14.2 But it was further held in such judgment that where the
      plaintiff is in possession, but his title to the property is in dispute,RCA No. 21/2016                                                                                                    Page No..5 of   11DDA Vs. Naresh Kumari & Anr.or under a cloud, or where the defendant asserts title thereto and
      there is also a threat of dispossession from defendant, as in
      present case, the plaintiff will have to sue for declaration of title
      and the consequential relief of injunction.15. Appellant/DDA in present case is seriously challenging the title of
      the plaintiff and instead claiming that it is the DDA, who is the
      owner of the land where suit property is situated, on the basis of
      Land Acquisition Proceedings proved by its witness DW-1. Under
      these circumstances on the basis of evidence on record, including
      the acquisition proceeding, it is held that the title of plaintiff is
      under a cloud.As such, necessarily the plaintiff was required to file a suit for
      declaration and injunction.16. It was further held by Hon'ble Supreme Court that a prayer for
      declaration will be necessary only if the denial of title by the
      defendant or challenge to plaintiff's title raises a cloud on the title
      of plaintiff to the property. A cloud is said to raise over a person's
      title, when some apparent defect in his title to a property, or when
      some prima facie right of a third party over it, is made out or
      shown. An action for declaration, is the remedy to remove the
      cloud on the title to the property.On the other hand, where the plaintiff has clear title supported by
      documents, which is not the case of the respondent as held
      above, merely denies the plaintiff's title, it does not amount to
      raising a cloud over the title of the plaintiff and it will not be
      necessary for the plaintiff to sue for declaration and a suit for
      injunction may be sufficient. But it is not the case at present.17.In fact in present suit, the appellant/defendant/ DDA, in theirWSRCA No. 21/2016                                                                                                    Page No..6 of   11DDA Vs. Naresh Kumari & Anr.already disclosed the details of the right or title claimed by it,
      which raises a serious dispute or cloud over plaintiff's title,
      therefore, then there was the need for the plaintiffs/ respondent to
      amend the plaint and convert the suit into one for declaration.
      Alternatively, they might have withdrawn the suit for bare
      injunction, with permission of the court to file a comprehensive
      suit for declaration and injunction. But original plaintiffs/
      respondent failed to take any such actions.18. As such, it is held that when DDA is asserting its title/ ownership
      over the suit property, therefore, it was required on the part of
      plaintiffs/ respondent to seek relief of declaration also as there is
      cloud over their alleged title/ownership over the suit property in
      question. But despite that they failed to claim so. Thus, simplicitor
      suit for injunction is not maintainable in such facts and
      circumstances.19.Thus, the present appeal must succeed for such abovementioned
      findings itself.20. But it may be noted that at this appellant stage, respondent has
      taken an additional plea of protection underSection 24 (2)of the
      Right To Fair Compensation And Transparency In Land
      Acquisition, Rehabilitation and Resettlement Act, 2013.
      20.1 In this regard, the respondent/original plaintiff has also relied
      upon certain judgments passed by Hon'ble Supreme Court of
      India and our Hon'ble Delhi High Court. But it is pertinent to note
      that in the judgment titled as "Govt. of NCT & Ors. Vs. Jagjit
      Singh & Ors.(AIR 2015 SC 2683), relied by respondent/plaintiffs
      themselves, it was held that in any termination underSection 24
      (2)of such Act, firstly the factum of award underSection 11mustRCA No. 21/2016                                                                                                    Page No..7 of   11DDA Vs. Naresh Kumari & Anr.be clearly established. Further, such award must have been
      passed on or before 01.01.2009. Thereafter, it must also be
      established that compensation is not paid. Then only, proceedings
      shall be deemed to have lapsed.20.2 Further, another judgment titled as "Shyam Singh & Ors. Vs.
      Land Acquisition Collector & Anr. (WP (C) 8438/2014) passed by
      Hon'ble Delhi High Court on 17.08.2015 is also relied by the
      respondent/plaintiffs in this regard. But, as also pointed out by Ld.
      Counsel for appellant/DDA, which is clear from para 5 of such
      judgment, a declaration by the Hon'ble Delhi High Court is
      required as per such judgment which was so declared in that
      particular case before Hon'ble High Court.21.In any case, it may be noted that it is a cardinal rule that first of all
      there must be pleading and thereafter evidence relating to such
      pleading about a particular fact. But in the present appeal, such
      argument is taken by the appellant without any such pleading or
      evidence during trial. In fact, there is no pleading at all in this
      regard nor any amendment sought by the plaintiff side to add
      such pleading, although the Trial Court judgment is given after
      coming into force of such newLand Acquisition Act. Thus, in the
      absence of pleading and thereafter evidence in this regard, such
      plea of respondent can not be heard for the first time at this
      appellant stage, that to when they have not challenged the
      judgment in question at all.22. Further, it may also be noted, as argued by Ld. Counsel for
      appellant/original defendant/DDA that in number of cases, it is
      held by Hon'ble Supreme Court/High Court that challenge to Land
      Acquisition proceedings under the old Act can not lie before civilRCA No. 21/2016                                                                                                    Page No..8 of   11DDA Vs. Naresh Kumari & Anr.Court and same has to be preferred before Hon'ble High Court.
      22.1 It was held in similar facts in the case of "Bahadur Singh &
      Ors. vs. Union of India & Ors.(122(2005) DLT 586 (DB)), which
      was a regular first appeal, that the government is entitled to take
      possession of the land covered under the Act. It was further held
      that a detailed procedure is prescribed to challenge such
      acquisition and award, therefore, civil suit is not maintainable
      regarding the same.22.2 Further it was held in "Premji Ratansey Shah & Ors. Vs.
      Union of India & Ors. (JT 1994(6) SC 585), by Hon'ble Supreme
      Court :"In view of the finding given by the trial court that the
                         petitioners were in possession, unless they are lawfully
                         dispossessed, no interference with their possession was
                         called for and, therefore, they are entitled to the
                         injunction sought for. We find no substance in the
                         contention."It was further held :"It is equally settled law that injunction would not be
                          issued against the true owner. Therefore, the Courts
                          below have rightly rejected the relief of declaration and
                          injunction in favour of the petitioners who have interest
                          in the property. Even assuming that they had any
                          possession, their possession is wholly unlawful
                          possession of a trespasser and an injunction can not be
                          issued in favour of a trespasser or person who gained
                          unlawful possession as against the owner."22.3 Further it was held in "State of Bihar Vs. Dhirendra Kumar &
      Ors.( AIR 1995 SC 1955), by Hon'ble Supreme Court :"The question is that whether a civil suit is maintainable
                          and whether ad interim injunction could be issued where
                          proceeding under theLand Acquisition Actwas takenRCA No. 21/2016                                                                                                    Page No..9 of   11DDA Vs. Naresh Kumari & Anr.pursuant to the notice issued underSection 9of the Act
                          and delivered to the beneficiary. The provisions of the
                          Act are designed to acquire the land by the State
                          exercising the power of eminent domain to serve the
                          public purpose. The State is enjoined to comply with
                          statutory requirements contained inSection 4andSection 6of the Act by proper publication of notification
                          and declaration within limitation and procedural steps of
                          publication in papers and the local publication
                          envisaged under the Act as amended by Act 68 of 1984.
                          In publication of the notifications and declaration underSection 6, the public purpose gets crystallised and
                          becomes conclusive. Thereafter, the State is entitled to
                          authorize the Land Acquisition Officer to proceed with
                          the acquisition of the land and to make the award.
                          Section 11-A, now prescribes limitation to make the
                          award within two years from the last of date of
                          publication envisaged underSection 6of the Act. In an
                          appropriate case, where the government needs
                          possession of the land urgently, it would exercise the
                          power underSection 17 (4)of the Act, and dispense
                          with the enquiry under Section 5-A. Thereon, the State
                          is entitled to issue notice to the parties underSection 9and on expiry of 15 days, the State is entitled to take
                          immediate possession even before the award could be
                          made. Otherwise, it would take possession after the
                          award underSection 12. Thus, it could be seen that the
                          Act is a complete Code in itself and is meant to serve
                          public purpose. We are, therefore, inclined to think, as
                          presently advised, that by necessary implication the
                          power of civil Court to take cognizance of the case
                          underSection 9of C.P.C stands excluded and a civil
                          Court has no jurisdiction to go into the question of the
                          validity or legality of the notification underSection 4, and
                          declaration underSection 6, except by the High Court in
                          a proceeding underArticle 226of the Constitution. So,
                          the civil suit itself was not maintainable."23. Thus, such land acquisition proceedings are neither
      challenged nor can be challenged before the civil Court. Further,
      there can not be an injunction against a true owner.RCA No. 21/2016                                                                                                    Page No..10 of   11DDA Vs. Naresh Kumari & Anr.24. For these reasons, this court is of the considered view that
      there are grounds to interfere with the impugned final judgment
      and decree. This appeal is found not to be devoid of merits. The
      impugned judgment and decree dated 17.10.2016 passed by Ms.
      Chhavi Kapoor, Ld. Civil Judge (West), Delhi, in original suit titled
      as "Smt. Chanchal Devi Vs. DDA" bearing original civil suit No.
      559/14,              is       hereby              set         aside           and           present              appeal             by
      Appellant/DDA/original Defendant is allowed.25. In the given facts & circumstances of this case, parties are left
      to bear their own costs qua this appeal. Decree sheet be
      prepared accordingly. A certified copy of this judgment, along with
      certified copy of decree of this court, be attached with the Ld. Trial
      Court Record (in short TCR) to be returned back to the Ld. Trial
      Court forthwith as per rules against due receipt. The appeal file be
      consigned to Record Room as per rules, after necessary
      compliance.Digitally signed byNAVEEN       NAVEEN KUMAR
                                       KUMAR        KASHYAP
                                                    Date: 2018.09.13
      Announced in the Open Court      KASHYAP      14:51:12 +0530
           th
      on 12  September, 2018        (NAVEEN KUMAR KASHYAP)
                                    SCJ­RC(N/W) : ROHINI : DELHI
                                     12.09.2018RCA No. 21/2016                                                                                                    Page No..11 of   11DDA Vs. Naresh Kumari & Anr.