HON’BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. A request for adjournment is made by the son of the appellant on the ground that the counsel for the appellant is down with fever.
2. This is a regular second appeal which has been pending for the last nearly ten years and till date no substantial question of law has been formulated.
3. A perusal of the order sheets show that repeated adjournments have been taken on behalf of the appellant on the ground that the WP(C) no.3503/1992 titled Rati Ram & Anr. Vs. DDA & Anr. is pending before the High Court in which the notification purportedly showing the vesting of land with ASI has been under challenge and the decision of the said writ petition will have a bearing on the present regular second appeal.
4. I found from the record that the said writ petition was decided by the High Court on 02.2.2012 against Rati Ram and in favour of the DDA.
5. The case set up in the writ petition was that the petitioners were claiming to be the owners of the land measuring 1127 sq. mtrs. (11 Bigha and 17 Biswas) which forms part of Khasra No.144/84 situated in the Revenue Estate of Village Sarai Sahaji, Delhi and the same was jointly purchased by various persons including their ancestors much prior to the year 1948-49. The petitioners in the said writ petition claimed to be in actual cultivatory possession and occupation of the said land. It was claimed to have constructed various structures including boundary wall to secure their parcel of land. They alleged that they have invested a huge amount of money and the respondent/DDA was threatening to dispossess them from the said land by taking the plea that the land in question was notified under Section 9 of the Ancient Monuments and Archaeological Sites & Remains Act, 1958 and accordingly, the provisions of the Public Premises Act and other statute were sought to be invoked by the DDA in the said case.
6. The matter was contested by the DDA and the High Court vide order dated 2.2.12 held that the petitioners in the said case had miserably failed to establish their lawful title of ownership of the land in question or that they were in cultivatory possession/occupation of the land in question and accordingly the writ petition was dismissed with costs which was quantified at Rs.20,000/-.
7. So far as the present second appeal is concerned, it emanates from a suit which was filed by one Jaipal S/o Late Shri Sardar Singh against the UOI through Secretary, Ministry of Culture and Human Resources, Dept. Of Archaeology for permanent injunction. In this suit, the appellant had claimed himself to be in occupation of a parcel of land measuring 500 sq. Yds. (10 Biswas) forming part of same khasra no.144/84, which was involved in the writ petition. It was alleged that on the said land, Jaipal had constructed a room measuring 12’x14’ with open land and a kitchen garden and the same is duly bounded by walls on all the sides. It was alleged since the defendant in the suit was threatening demolition and dispossession, therefore, the suit was filed for permanent injunction. The Department of Archaeology filed its written statement raising objections with regard to the maintainability of the suit on various grounds. A Gazette notification dated 12.11.87 was issued and published in part-II Section 3(ii) of the Gazette of India dated 5.12.87 expressing the intention to declare the monument which was situated on the land in question as a centrally protected monument and accordingly, the land around the same was acquired.
8. The monument was called ‘Sarai Shahji’ and described as unique piece of Mughal period. The land in question in respect of which injunction was claimed was stated to be forming a part of the land belonging to Archaeology Survey of India after following the due processes of law.
9. On the pleadings of the parties, the following 6 issues were framed:
“(i) Whether the suit is not maintainable for want of cause of action? OPD
(ii) Whether the suit is not maintainable for mis-joinder of unnecessary parties? OPD
(iii) Whether the suit is not maintainable in view of pre- objection no.4? OPD
(iv) Whether this court has no jurisdiction in view of pre- objection no.6 of the WS? OPD
(v) Whether the plaintiff is entitled to the relief as prayed for? OPP
(vi) Relief.
10. After the parties were permitted to adduce evidence, arguments were heard by the trial court and so far as issue nos.1 to 4 are concerned, they were decided in favour of the plaintiff on account of the fact that the defendant did not adduce any evidence seeking dismissal of the suit on the various preliminary objections raised by them.
11. So far as issue no.5, with regard to the grant of relief of permanent injunction is concerned, wherein a restraint order was sought against the defendant from demolition of the construction or dispossessing them, the trial court came to a conclusion that there was no documentary evidence on record to suggest that the plaintiff was in possession of the suit land since long, nor were they able to establish their right, title or interest in the land in question. Accordingly, the suit was dismissed.
12. The plaintiff/Jaipal feeling aggrieved by the said judgment preferred the first appeal which was decided by the appellate Court on 9.10.2003 upholding the judgment of the trial court. The appellate court observed that one of the documentary evidence which was sought to be relied upon by the appellant /Jaipal in order to prove his ownership was a record of Jamabandi of the year 1948-49 to show that the land belonged to him. But the appellate Court observed that the affidavit which was filed by Jaipal on 30.5.2003 showed his age as 53 years and accordingly, it was observed that he was not even born in the year 1948-49 and consequently, reference in Jambandi record of 1948-49 to one Jai Pal cannot be attributed to him.
13. Still feeling dissatisfied, the appellant has preferred the present regular second appeal.
14. I have gone through the substantial questions of law which are formulated in the appeal, and in my view, they are essentially questions of fact. There is also a concurrent finding of fact recorded by the Courts below that the appellant had failed to prove the ownership or even the possessory right of the land in question.
15. One of the questions which has been raised by the appellant is as to ‘whether the appellant could be deprived of his land without payment of compensation or whether it is not violative of his right under Article 300A of the Constitution of India? These questions do not arise in the instant case on account of the fact that there is a clear cut finding that the appellant is not the owner of the said land.
16. I am of the opinion that the present regular second appeal is without any merit and accordingly, the same is dismissed.
17. Trial court record be sent back.
V.K. SHALI, J.
FEBRUARY 07, 2013 RN