HON’BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This petition is against the order of 1st June, 2010 whereby the appeal against the order of Learned Civil Judge dated 30.07.2009 on the application U/O 39 Rule 1 & 2 CPC was dismissed.
2. The petitioner had filed a suit against the respondent along with application U/O 39 Rule 1 & 2 CPC for grant of ad interim injunction in respect of land measuring Three Biswas situated in Khasra No. 38/16/1 in Revenue Estate of village Saffipur, Ranhola, Delhi. The injunction application U/O 39 Rule 1 & 2 CPC of the petitioner was dismissed vide order dated 30.07.2009 by the Learned Civil Judge. The petitioner preferred appeal against the said order before the Learned ADJ which was also dismissed vide the impugned order dated 1.6.2010. The said order has been assailed by the petitioner in the present petition.
3. The main grounds which have been taken by the petitioner are that the land measuring One Bigha and 14 biswas was notified for acquisition and awared was also made by the LAC. However, the possession was taken by LAC of One Bigha and 11 biswas and not of the entire awarded land of One Bighas and 14 bisws. In other words, the plea that since the possession of three biswas, which is subject matter of the suit, forming part of Khasra No. 38/16/1, was not taken by the LAC, the acquisition proceedings were not complete and he being in possession thereof, the interference therein by the respondent was unwarranted.
4. On the other hand, the plea of the respondent was that the possession of the entire land was taken and the boundary wall has also been constructed by the respondent for sewage treatment plant.
5. I have heard learned counsel for the parties and perused the records.
6 Site plan was filed by the petitioner along with the suit. The boundary wall starting from A to B admittedly was raised by the respondent. Plaintiff has stated that there is no boundary wall from point A to C and he continues to be in possession of this triangular portion measuring three biswas. On the other hand, the learned counsel for respondent stated that the possession of the entire land was taken.
7. It is seen from the certificate dated 20.3.1997 issued by the LAC that the compensation was paid by the LAC in respect of land measuring One Bigha and 11 biswas of Khasra No. 38/16/1 min. In the possession proceedings conducted on 6.9.1995 by the LAC also it is evident that it was only one bigha and 11 biswas of Khasra No. 38/16/1 of which the possession was taken by the LAC. On going ahead, in para (9) of the written statement, it is stated by the respondent that the possession of one bigha and 11 biswas of the land was taken and the remaining land admeasuring three biswas was with the plaintiff and lying vacant. From the above, it would be seen that respondent itself is showing the possession of three biswas out of Khasra No. 38/16/1, which was the subject matter of the suit filed by the plaintiff, was with the plaintiff and was lying vacant and of which the possession was not taken by the LAC and no compensation was paid to the plaintiff. It could not be disputed that though notified and even formed part of the award of acquisition, the possession of land measuring 3 biswa was not taken by the LAC. If that was so, the acquisition proceeding qua this land could not be said to be complete. In view of this the petitioner has interest in the suit land and could not be dispossessed without due process of law by the respondent. Consequently, the impugned order is set aside and status-quo is directed to be maintained in respect of the suit land by both the parties. It is clarified that the respondent will be at liberty to take further action qua this land as per law. The petition is disposed of accordingly.
M.L. MEHTA, J JULY 09, 2012/pkv