JUDGMENT
J.M. Malik, J.
1. The principal question involved in this appeal is whether the house and Gher belonging to the appellant since the time of his fore-fathers, situated in Lal Dora abadi of village Badarpur, New Delhi falls in Khasra No. 48 or Khasra No. 31 or 31/27. Khasra No. 31 has been acquired by the DDA. The DDA claims that the above suit property falls in Khasra No. 31 whereas the case of the appellant is that it falls in Khasra No. 48, which is not an acquired land. The following substantial question of law was formulated by brother Mr.Justice B.N. Chaturvedi on 19.07.2007. The same is reproduced as follows:
Whether the learned trial court and the first appellate court were justified in overlooking the local commissioner’s report dated 28.02.1995 for arriving at a finding that the suit land did not fall in Khasra No. 48 rather it fell in Khasra No. 31 of revenue estate of village Badarpur, Delhi
2. There can be no conflictions on the point that if the property in dispute falls in Khasra No. 48, the appellant/plaintiff would be entitled to get the relief of permanent injunction prayed by him in the plaint, otherwise not.
3. The order sheet dated 04.01.1991 pertaining to the trial court reveals that tehsildar Mehrauli was appointed as Local Commissioner vide order dated 09.05.1994 with the specific directions to visit the suit property after giving the notices to both the parties and report in which Khasra No. the above said land falls. On 16.11.1994, Tehsildar Mehrauli reported that he was busy in the election duties and was unable to demarcate the suit premises. Consequently, Nayab Tehsildar Mehrauli Mr. M.N. Sharma was directed to demarcate the suit land as per directions given on 09.05.1994.
4. The Local Commissioner filed the report Ex.PWI on 06.03.1995 and was examined as PW2. According to his report, the suit property is a “part” of Lal Dora situated in Khasra No. 48. He stated that Lal Dora of the village for Khasra No. 48 extends up to 10 feet towards the north of the site plan but the suit property extends up to 18 feet from wall A to A in Lal Dora. In his cross-examination he stated that disputed land along with structure falls partly in Khasra No. 48 and partly in Khasra No. 31. He further explained that all the structure constructed on the disputed land are lying in Khasra No. 48 up to 10 feet from the wall of the fort and the remaining portion beyond 10 feet falls in Khasra No. 31 or 27/31. M.N. Sharma stated that notices were given to all the parties for demarcation of the land but deposed that he had not brought the record of such notices. He deposed that the walls of the fort marked A-A1 and B-B1 are constructed in Khasra No. 48 and that total dimension of Khasra No. 48 is shown as point C-C1 and point B-B1, C0, C1 and D1. He stated that as per field book the Khasra No. 27/31 measuring 19 biswa is shown as gairmumkin rasta. He admitted that disputed land along with structures falls partly in Khasra No. 48 and partly in Khasra No. 31. He explained that the width of the suit land is about 17 to 20 feet. He deposed that all the structures constructed on the disputed land are lying in Khasra No. 48 up to 10 feet from the wall of the fort and the remaining portion beyond 10 feet falls in Khasra No. 31 or 27/31. The English translation of the report (in Urdu) submitted by the appellant runs as follows:
These permanent spots are accepted by the present persons. Now Khasra No. 48, in the West South Corner, from the North of the Door and platform Along with the way marked the sign(point) after measuring the 126 Gatha as per field. This point the 10 feet ahead from the North West Corner’s door and platform with the wall of fort the Northern side of the Khasra No. 48. After this in the Khasra No. 33/27 the general way to the wall of fort in the North marked a point after measuring 88 Gatha as per field. This point is also 10 feet ahead in the North of wall of the fort. As per this from the North side of the wall of the fort, East-North Corner to West North Corner (up to the door) as per length side the 10 feet field belongs to Khasra No. 48. Khasra No. 48 belongs to Lal Dora of village Badarpur. In the north of this 10 feet field a general way is in the Khasra No. 31. The present persons are satisfied by this demarcation. The demarcation done unopposed.
5. There are other witness produced by appellant. Sunil, Halqa Patwari, DC Office, PW3 proved Aks Sijra but could not say anything about it as it was in Urdu language. Appellant PW-I and his neighbour PW-4 deposed orally.
6. On the other hand, the respondent DDA produced Jagpal Singh, Patwari in support of its case. He deposed that the land in dispute falls in Khasra No. 27 mustkil and 31 kh. No. and the land in question stands acquired by the Government vide notification dated 13.03.1974, Ex. DW1/3. He admitted that Satya Narain, Patwari and Ramesh Yadav, Kanungo, who are the witnesses to the report of Mr. M.N. Sharma Ex-PW1, are still working in DDA. He stated that he visited the land about seven days prior to making deposition in the court and before that period he had not seen the land in question. He could not tell what was the area of Khasra Nos. 47 & 48. He admitted that the possession proceedings of the land in dispute were not taken in his presence and that he was deposing on the basis of the record. He explained that an area with the dimension of 9 feet wide and 160 feet long approx. is under unauthorised occupation where the jhuggies have been constructed. He explained that some jhuggies are covered with chappers, tin sheds and cemented sheets etc. He testified that Panni Lal runs shops over the land under dispute. He explained that he had made inquiries from the persons, who, were present at the time of his visit and there it came to light that land in dispute belongs to Khasra No. 31 and they also told him that the number of abadi is besides the wall of the village. It is interesting to note that he could not say whether the jhuggies of appellant are constructed in Khasra No. 48. He deposed that some of unauthorised occupants have constructed boundary wall of bricks and the width of road is approximately 9 or 10 feet, which is linked with the main road. He testified that there is a boundary wall in existence towards another side of road constructed by DDA.
7. The trial court did not accept the report of the Local Commissioner, Sh. M.N. Sharma on the ground that he had made a contradictory statement in the case of Shish Ram v. DDA. This witness was not confronted with his own statement made in the case of Shish Ram. The evidence of the case of Shish Ram is not a part of record of this case. Consequently, that ground is not legally tenable. The trial court also observed that tehsildar was directed to demarcate the land but the demarcation was carried out by Mr. M.N. Sharma, who was the Nayab Tehsildar at that time. This is no ground for rejection of the report of Sh. M.N. Sharma because the subsequent order reveals that local commissioner was changed and M.N. Sharma was directed to do the needful, by the court itself.
8. The first appellate court did not accept the report of Sh. M.N. Sharma on the ground that no notice at all was given to DDA. Although, it is not clear whether notice was given to DDA, yet, one thing is very much clear. The first portion of the report read as follows:
Translated from Urdu to English
Regarding demarcation under Lal Dora and Khasra No. 31 of village Badarpur, I reached at the spot as per programme as a Local Commissioner. Shri Prem Singh Patwari Halqa (ward) Badarpur and Rati Ram, Field Kanungo are also present there with their relevant record. Shri Satya Narain Patwari and Shri Ramesh Yadav, Kanungo from DDA and Shri Shish Ram, Baljeet, Ghanshyam etc. are also present at the spot from the side of plaintiff. In the presence of all above the measurement started.
9. This is thus clear that both the courts below did not give, convincing and coherent reasons for rejecting the report of the local commissioner. Both the courts below slurred over this important aspect. It must be borne in mind that the respondent DDA did not choose to file objections against the report of local commissioner. Their own employees Satya Narain Patwari and Ramesh Yadav Kanungo were present and report of local commissioner bear their signatures. They were still working in DDA when Jaspal Singh Patwari, DW-I was examined in the court on 15.02.2001. Their production in the dock would have gone a long way in bringing to the fore the reality of the day. Their evidence would have shed more light to the hazy evidence produced through the mouth of DW-I. The DDA did not take the trouble to explain their presence. The court is intrigued and baffled by the bizarre conduct of DDA as it did not make any effort to straighten out the problem. It appears that it has thrown up its hands in despair at its inability to ferret out the truth. The concerned officers are terribly remiss in discharge of their duties. A doubt creeps in whether they were working in cahoots with the opposite party. The higher authorities are prone to turn a Nelson’s eye to indiscipline in the branches rather than taking the bull by horns. It must be borne in mind that it is for the DDA to carry the ball in proving that the premises in dispute falls within the acquired land.
10. The report of the surveyor / Local Commissioner clearly goes to show that some portion of the premises in dispute falls in part of Khasra No. 48. His report is further supported by the evidence of DW-I.
11. I accordingly allow the appeal partly. The respondent is restrained from dispossessing the plaintiff from above said part/ portion falling in khasra No. 48 but stay granted in other part falling in khasra number 31 or 31/27 which stands acquired, stands vacated. In case the matter comes before the Executing Court, it will execute the decree as per law and will direct an officer not below the rank of Sub-Division Magistrate to demarcate the land as stated above.
CM No. 496/2002
In view of the disposal of the appeal, no further orders are required to be passed in the application, the application stands disposed of.