JUDGMENT
Devinder Gupta, J.
(1) The defendant in this application has prayed tor rejection of the plaint on a number of grounds.
(2) The plaintiff is a public limited company incorporated under the Companies Act, 1913 and has filed the suit for grant of decree for declaration with consequential relief of injunction pertaining to property comprised in Khasra Nos-1613/153, 1614/152 and 1615/153, situated in Baghraoji, Delhi. In nutshell plaintiff’s case is that in lieu of land comprised in Khasra Nos. 487 and 488 (part), owned by it, which was taken over by the Delhi Improvement Trust for public purposes for re-alignment of the Daryai Nala, plaintiff-company was allotted in exchange the suit land. Actual physical possession of the suit land was given to the plaintiff by the Delhi Improvement Trust on 4th February, 1942 and 15th March, 1943 and ever since the plaintiff-company has been in continuous, exclusive, uninterrupted possession and enjoyment of the suit land in exercise of its right as the owner thereof to the exclusion of all concerned including Delhi Improvement Trust and Delhi Development Authority. After narrating some facts, the plaintiff has challenged the legality and validity of the proceedings initiated against it under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, alleging that proceedings are without jurisdiction since plaintiff is in occupation of the property as an owner thereof or in any case plaintiff’s possession over the suit property has ripened into ownership by adverse possession, due to the plaintiff’s remaining in occupation of the same uninterruptedly in assertions of its right openly and peacefully for a period of more than 12 years prior to the commencement of the proceedings, when the defendant for the first time sought to challenge and dispute the plaintiff’s ownership. In this background, plaintiff has sought a decree for declaration that it is the absolute owner and in rightful possession of the suit property and defendant has no right, title or interest therein; the plaintiff having been allotted the same in exchange of its land acquired by Delhi Improvement Trust for the re-alignment of Daryai Nala under the Western Extension Scheme. Further declaration prayed for by the plaintiff is that the plaintiff has otherwise become the absolute owner of the property by adverse possession. Consequential relief has been prayed for restraining the defendant from dispossessing the plaintiff or interfering in its possession.
(3) Defendant seeks the rejection of the plaint on the ground that : (i) the suit is barred under Section 15 of the Public Premises (Eviction of Unauthorised Occupant) Act, 1971 particularly when proceedings for eviction are pending before the Estate Officer; (ii) the non-mentioning in the plaint of the fact that a notice under Section 53B of the Delhi Development Act, 1957 was sent and delivered to the defendant prior to the institution of the suit; (iii) suit is barred by limitation; and (vi) since there is no transfer deed in favor of the plaintiff, the suit is barrel under Section 17 of the Registration Act.
(4) Parties Counsel have been heard at length. The application has been vehemently opposed by the plaintiff.
(5) So far as the third and fourth ground for rejection of the plaint are concerned, the same at this stage is not tenable. Plaint cannot be rejected at this stage on the ground of there being no deed of transfer or the alleged exchange being not evidenced by a registered instrument. This objection is dependent upon factual aspect for which it will be necessary to take evidence.Clear distinction must always be drawn between two aspects, namely, plaint disclosing no cause of action and the plaintiff having no cause of action to sue. In the former case the plaint is liable to be rejected but in the later, the suit might fail on non-proof of the facts by the plaint if fourth ground falls in the later category. Even the third objection at this stage is not tanable. Prima fade as per the averments in the plaint, suit is not barred by limitation. Objection of defendant as regards limitation will have to be decided during trial, namely, that on facts proved on record, the plaint ought to have been filed either within a period of twelve years or within a period of three years from the date of the alleged exchange or of the date of alleged handing over of possession to the plaintiff. The plaint as drafted on allegation is prima fade in time.
(6) Civil Court will have no jurisdiction to entertain and decide the plaintiff’s suit in case the suit property is held to be covered by the definition of the public premises as defined in the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. In the suit the plaintiff is seeking declaration of its title also on the basis of having acquired tile same by adverse possession for which prima fade, on the basis of the averments made in the plaint it cannot be said that the jurisdiction of the Civil Court would stand ousted. Ultimately on evidence being led, in case it is found that plaintiff had acquired no title by adverse possession, it might be held that the property falls under the definition of public premises and in that eventuality Civil Court will have no jurisdiction. The Court at this stage has to look only at the averments made in the plaint and nothing else. Defendant must be taken to admit, for the sake of arguments, the allegations as made in the plaint that are true in the manner and form in which those are made. In case allegations in the plaint are taken as a whole, it would be seen that plaintiff’s claim is that it has remained in continuous possession of the suit property without any interruption, openly, peacefully and in assertion of its right as an owner for a period of more than 12 years before proceedings were commenced under the Public Premises Act. Since title has been acquired by holding adversly, its possession cannot be disturbed. This objection also is not sufficient to reject the plaint.
(7) On the second ground of non-mentioning of service of notice, it is not in dispute that there is no averment made in the plaint that notice under Section 53B of the Delhi Development Act, 1957 had been sent or delivered to the defendant before institution of the suit. Section 53B of the Act says :
“(1)No suit shall be instituted against the Authority, or any member thereof, or any of its officers or other employees or any officer or other employee of the Authority in respect of any act done or purporting to have been done in pursuance of this Act or any rule or regulation made thereunder until the expiary of two months after notice in writing has been, in the case of the Authority, left at its office, and in any other case, delivered to, or left at the office or place of abode of, the person to be sued and unless such notice states explicitly the cause of action, the nature of relief sought, the amount of compensation claimed and the name and place of residence of the intending plaintiff and unless the plaintiff contains a statement that such notice has been so left or delivered.
(2) No suit such as is described in sub-Section (1) shall, unless it is a suit for recovery of immoveable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises. (3) Nothing contained in Sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit.” Admittedly, the suit is for declaration of title as regards immovable property and as per provisions of Sub-section (2) of Section 53B of the Act, such a suit can be instituted only after expiry of six months from the date on which cause of action to the plaintiff has arisen, for which as per the provisions of Sub-section (1), plaintiff is bound to serve a notice staling therein the cause of action, the nature of relief sought, the amount of compensation claimed and the name, and place of residence of the plaintiff and must state in the plaint that such a notice, as envisaged under Section 53B of the Act has been so left or delivered at the office of the defendant two months prior to the institution of the suit.
(8) The contention of learned Counsel for the plaintiff is that no such objection was raised as regards the service of notice, in the written statement which was filed on 6th May, 1992, therefore, such an objection will be deemed to have been waived. No doubt the objection as regards the legality and validity of service of notice can always be waived. The objection is not as regards the legality or validity of notice. The objection is that in the absence of allegation as regards non-mentioning the plant is liable to be rejected. The notice which is required to be served on the defendant as is contemplated in Section 53B of the Act is similar to the notice, which is required to be served under Section 80 of the Code of Civil Procedure, in case a suit is to be filed against the Government or public authority. Section 53B of the Delhi Development Act like Section 80 of the Code of Civil Procedure is mandatory and its compliance is imperative. The suit not complying with such like provisions cannot be entertained by any Court and if instituted must be rejected under Order 7 Rule 11 Civil Procedure Code . Reference in this regard may be made to a decision of the Supreme Court in Gangappa Gurupadappa Gugwadv. Rachawwa and Others, and Bichari Chowdhary v. State of Bihar, . Mere failure to raise objection in the written statement cannot per se be regarded as a waiver. An objection was raised by the defendant in this application, which was moved on 29th August, 1992. Since plaint in this case was allowed to be amended, the defendants were permitted to file written statement to the amended plaint, in which there admittedly is a specific objection taken as regards the maintainability of the suit in the absence of service of notice under Section 53B of the Delhi Development Act.
(9) Since admittedly, no notice was served before the institution of suit and no averment has been made in the plaint as regards plaintiff’s having served notice upon the defendant before the institution of the suit, the plaint is liable to be rejected under order 7 Rule Ii Civil Procedure Code . Accordingly, the application is allowed and the plaint stands rejected under Order 7 Rule Ii Civil Procedure Code .