* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO.No.170/2010
% Reserved On: 18.11.2010
Decided On: 29.11.2010
BAL KISHAN GUPTA & ORS. .... Appellants
Through: Mr. H.C. Mittal, Adv. with Mr. Manoj
Mang, Adv.
Versus
DELHI DEVELOPMENT AUTHORITY .... Respondent
Through: Mr. P.K. Mittal, Adv.
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be No
allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported in the No
Digest?
: MOOL CHAND GARG,J.
1. Briefly stating the facts relevant for disposal of this appeal are that
appellants filed a suit for mandatory injunction alleging that they are the
owners of the land comprised in Khasrano.1756/2, Khewat No.195,
situated in the revenue estate of Village Naraina, Delhi, measuring 1
Bigha,5 Biswas, which was their ancestral property. The suit property was
devolved upon the appellants on the death of their father and husband of
proforma defendant No.4 vide mutation No.3254 dated 21.09.1991. The
adjoining piece of land of the suit property comprised in Khasra No.1756/1
was acquired by the Govt. and was handed over to Horticulture Deptt. of
MCD for maintaining a park. In the year 1991, MCD made a fencing over
the portion of the suit land pertaining to appellants which is about 250
sq.yds. as shown in red in the site plan. Appellants stated that they went
pillar to post during 1992-1998 but the fencing was not removed.
2. Respondent filed their WS. It was alleged that suit was bad for non-
service of notice u/s 477 and 478 of DMC Act; that suit is barred by
limitation; that appellants are not owners of the land and they have no
right, title, or interest in the suit land; that the entire suit land belongs to
MCD which was handed over by DDA in the year1998. In its WS DDA
stated that suit land falls in Khasra No.1756/1 and not in Khasra
FAO No.170 /2010 Page 1 of 4
No.1756/2 of Village Naraina. The suit land is lying vacant at site and is
under the possession of DDA. It was further alleged that appellants want to
grab the Govt. land. It was also stated in the preliminary objections that
suit is bad for non-service of notice u/s 53B of DDA Act.
3. On the basis of pleadings and material on record, the following
issues were framed by the Ld. Civil Judge:-
1. Whether the suit is barred for want of notice u/s
477/478 of DMC Act, OPD?
2. Whether suit is bad for want of notice u/s 53B of DD
Act? OPD
3. Whether suit land falls in Khasra No.1756/1of village
Naraina which stands acquired and has been placed at
the disposal of DDA? OPD
4. Whether land falls in Khasra No.1756/2, Khewat No.195
situated in the R/E of village Naraina measuring (1bigha
5 biswa)which is the ancestral property of plaintiff
defendant No.4? OPP
5. Whether the plaintiff entitled for the relief of injunction?
OPP
6. Relief
4. After considering the entire evidence, all the issues were decided by
the Civil Judge in favour of the appellants vide judgment dated 31.01.2008
and the suit was decreed in favour of the appellants. Respondents were
directed to remove the fencing from the suit land and to vacate the suit
land for the peaceful enjoyment of the appellants as per the demarcation
proceedings dated 29.05.1992.
5. Before the learned ADJ, it has been contended on behalf of the
respondents that even as per the own case of the appellants, fencing was
done in 1992. The alleged action was completed and therefore, the period
of limitation starts from 1992 while the suit was instituted for the first time
on 27.1.1999 before Senior Civil Judge. As per Article 113 of Limitation
Act, the period of limitation was three years and thus, it was contended on
behalf of respondent, that suit was barred by limitation and delay could
not have been condoned as Section 5 is not applicable. Ld. Counsel for
respondent contended that cause of action arose in 1992 and this fact was
not disputed by DDA, no issue was required. Ld. Counsel for respondent
further submitted that issue of limitation can be raised even at appellate
FAO No.170 /2010 Page 2 of 4
stage. In support of his contentions ld. Counsel has relied on P.K.
Ramchandran Vs. State of Kerala, AIR 1998 SC 2276.
6. Reference has been made by the appellate Court to an observation
made by the appellants in para 10 of the plaint which was also taken note
of by the learned Civil Judge whereby the appellants pleaded that cause of
action arose in the year 1991/92 when the fencing was made by the
respondents. The plea of limitation was taken in the W.S. of defendants
No.1 and 2. In the WS of respondent herein the plea of limitation was not
specifically taken. However, it was alleged in the WS that the appellants
have no right, title or interest to claim the relief in the Suit. It was also
stated by DDA in the WS that suit land does not fall in Khasra No.1756/2
as claimed by the plaintiff. Trial Court record also shows that no issue
was framed on the question of limitation, though the plea of limitation was
taken in the WS of defendants No.1 and 2. The judgment of the learned
Civil Court has not dealt with the question of limitation. The First
Appellate Court thus observed:-
“8. In these circumstances, taking into consideration non-
framing of the issue of limitation which goes to the roots of the
case, the learned ADJ observed that that question of limitation
can be raised at any stage even though no specific issue has
been framed. I also find force in the contention of ld.counsel
for appellant/defendant that as it was admitted case of the
plaintiffs/respondents themselves that cause of action arose in
1991/92 and the fact was not disputeb dy the defendants,
there was no requirement of framing of issue and it could have
been dealt by the Ld.Trial Court in its judgment. In view of the
judgment cited by ld. Counsel for appellant, the law of
limitation has to be strictly followed. In my opinion, ld. Trial
Court has committed an error, firstly, by not framing the issue
on the question of limitation through a specific plea was taken
in the WS of defendants No.1& 2 and secondly, not dealt with
the question of limitation in its judgment. Generally the
question of limitation is a mixed question of law and fact which
should be decided after giving an opportunity of evidence to the
parties.”
7. Secondly, the learned ADJ also took note of the plea raised by the
respondent that without deciding the title, the directions could not have
been given in a suit for mandatory injunction to handover the possession
of the property. The right, title or interest of the appellants was disputed
by the respondent in the WS. Learned counsel for respondent relied on
Gurunath Manohar Pravaskar & Ors. Vs. Nagesh Siddappa Navalgund &
Ors., AIR 2008 SC 901. The learned ADJ was thus convinced that there
FAO No.170 /2010 Page 3 of 4
was a specific question in the suit in respect of the title of the suit property
which could not have been decided in a simplicitor suit of injunction and
also observed that the learned Civil Judge could give an opportunity to the
plaintiffs to amend the suit suitably.
8. The first appellate Court also observed that the Civil Judge even
erred in accepting the demarcation report which was not conducted by the
competent officials in accordance with Section 6/101 Punjab Land
Revenue Act relying upon the law laid down in Surender Kumar & Anr. Vs.
Madhubala & Ors., 151 (2008) DLT 521 DB.
9. It was, in these circumstances, the civil suit has been remanded
back to the learned Civil Judge.
10. Taking into consideration, the legal issues which have been raised
before the first appellate Court, decision whereof would go to the root of the
case and may have a bearing on the final outcome of the proceedings, I am
convinced that the order passed by the ADJ need not be disturbed. Parties
to appear before the Civil Judge on 14.12.2010.
11. Accordingly, the appeal is dismissed with no order as to costs.
12. TCR, if any, be sent back.
MOOL CHAND GARG,J
NOVEMBER 29, 2010
‘anb’
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