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$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 11th November, 2020
Date of decision: 18th December, 2020
+ CM (M) 416/2019
BAL BHAGWAN ..... Petitioner
Through: Mr. Y. K. Kapur and Mr. Manish
Vats, Advocates (M: 9811432428).
versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Mr. Rajiv Bansal, Senior Advocate
with Mr. Dhanesh Relan, Advocate
(M: 9717999789).
CORAM:
JUSTICE PRATHIBA M. SINGH
JUDGMENT
Prathiba M. Singh, J.
1. This judgment has been pronounced through video conferencing.

CM APPL. 14329/2020
2. This is an application seeking exemption from filing court fee and
duly attested affidavits. Binding the deponent of the affidavit to the contents
of the application, the exemption is granted. Insofar as the court fee is
concerned, the same be deposited within four weeks. Application is disposed
of. Registry to submit a report in case the court fees is not filed after a
month.
CM APPL. 241/2020
3. This application has been filed by the Petitioner for referring the
Khasra girdawari for the year 1983-88, which is in Urdu, for translation to
the translation branch of the Delhi High Court or for the true translated copy
filed by the Petitioner to be treated as the correct true translated copy of the

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girdawari. The translation of the Khasra girdawari filed by the Petitioner is

taken on record. Application is disposed of.
CM (M) 416/2019 & CM APPL.11534/2019 (for stay)

Brief Background
4. The present petition arises out of a suit for permanent injunction filed
by the Petitioner/Plaintiff (hereinafter, “Plaintiff”) - Mr. Bal Bhagwan
against the Delhi Development Authority (hereinafter, “DDA”) seeking
permanent injunction restraining the DDA from demolishing or forcibly
dispossessing the Plaintiff from three temple premises namely Mandir Kali
Mai, Mandir Bada Beer Dham and Mandir Shivji Maharaj situated on
private land bearing Khasra No. 1075/803/50 measuring 4 bigha 3 biswas
and a temple premises of Sankat Mochan Bajrang Bali on land measuring 2
bigha 11 biswas in Khasra No. 1074/803/50 of village Khampura Raya,
Delhi bearing MCD No.2151/18, Swami Onkara Nand Ashram, New Patel
Nagar, New Delhi (hereinafter, “suit property”).
5. The Plaintiff had moved an application for interim injunction under
Order XXXIX Rules 1 and 2 CPC before the Civil Judge. Vide order dated
10th December, 2018, the Ld. Civil Court dismissed the application for
injunction. Thereafter, the Plaintiff preferred an appeal, which was also
dismissed vide the impugned order dated 27th February, 2019. This Court, at
the time of admission of the present petition, on 12 th March, 2019, issued
notice and directed that no coercive steps be taken by the DDA against the
Plaintiff.
6. The case of the Plaintiff has been captured in brief in the plaint. The
Plaintiff claims that he is the Chela of Late Swami Onkara Nand who was
managing/running four temples situated on the suit property. The temples

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were located on two separate khasras, with three temples being located on
Khasra No. 1075/803/50 and one temple being located on Khasra
No.1074/803/50. It is claimed that the said four temples are in the
possession of the Plaintiff as they are managed by him and they have been
running at least since the 1960s.
7. Swami Onkara Nand expired on 10th May, 1982 and by way of a
registered Will dated 13th April, 1982, the Plaintiff was made the manager of
the entire temple complex. It is claimed that the DDA attempted to take
forcible possession of the suit property and dispossess the Plaintiff, leading
to the filing of the suit for permanent injunction. The DDA filed its written
statement and claimed that the entire land is government land and that the
Plaintiff is in illegal occupation of the same. It took the stand that the
Plaintiff, who has no rights in the suit property, cannot prevent the DDA
from taking over the land which is meant for rehabilitation of the Kathputli
Colony dwellers and had been vested in the DDA by the Ministry of
Rehabilitation way back in 1982. Both Courts have agreed with the DDA
and have dismissed the Plaintiff’s application for interim injunction.

Plaintiff’s Submissions
8. Mr. Kapur, ld. counsel appearing for the Plaintiff has urged before
this Court that insofar as the DDA is concerned, the issue only relates to 2
Bighas and 11 Biswas as the other land has been held to be Shamlat Deh
land. The stand of the DDA is that the land was acquired and was put at its
disposal. However, the Plaintiff claims that he himself is in settled
possession of the land in question. Reliance is placed on the Jamabandis
dating back to 1946-47 and the Khasra Girdawaris dating back to 1967-68,

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which show the existence of the temple. Mr. Kapur specifically relies upon
the various documents of the Revenue Authorities filed by the DDA to show
that these documents themselves establish the existence of the temple as also
the fact that the same was managed by Swami Onkara Nand. Vehement
reliance is also placed on an alleged copy of DDA’s City Planning Wing’s
document which shows the regularisation of New Patel Nagar area of which
the suit property is alleged to be forming part. It is claimed that the survey
which was conducted in this area on 15th September, 1977 itself shows the
existence of a temple on the said land.
9. Ld. counsel submits that once the Plaintiff has been shown to be in
settled possession on the basis of the Jamabandis, Khasra Girdawaries and
the DDA’s own plan, the possession of the Plaintiff cannot be disturbed
except in accordance with law. It is further urged that the documents which
are relied upon by the DDA show that the DDA had acquired this land from
the Ministry on an ‘as is where is’ basis. Thus, when the transfer took place
in 1982, since the temple was already in existence and the Plaintiff/his
predecessor was managing the said temple, the DDA was well aware of the
risk of taking over the said land. Further, it is argued that the Plaintiff has
been paying all the necessary charges to the local authorities, including
water, telephone, electricity and also the house tax. It is submitted that the
possession of the Plaintiff not being in dispute, the dismissal of the
application under Order XXXIX Rules 1&2 CPC is erroneous and is
contrary to law.
10. Ld. counsel also relies upon the relevant paragraphs of the written
statement to show that there is no denial by the DDA on the claim of settled
possession. The only claim of the DDA is that the Plaintiff is an encroacher.

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Ld. counsel urges that as per the provisions of Order VIII Rule 5 CPC any
denial which is not a specific denial is no denial in the eyes of law. The
DDA has not specifically denied the claim of settled possession and thus, the
stand of the Plaintiff that he is in settled possession should be deemed to be
admitted by the DDA.
11. Mr. Kapur, ld. counsel, specifically points out glaring errors in the
order of the Trial Court dated 10th December, 2018 which observes that the
existence of the temple is shown but the name of the Plaintiff is not shown.
This, according to the ld. counsel, is a completely incorrect and blatantly
wrong finding by the Trial Court which is clearly rebuttable from a plain
reading of the khasra girdawaris which show that Swami Onkara Nand was
managing the temple. It is further argued that the land being part of a bigger
block of land, unless and until demarcation is done, the Plaintiff cannot be
dispossessed.
12. Mr. Kapur submits that there is a difference between settled
possession and adverse possession. The Plaintiff in this case was only
pleading settled possession but the Court below has confused the same with
adverse possession. He refers to paragraphs 11, 16 and 26 of the plaint and
submits that the stand of the Plaintiff is very clear that it is one for settled
possession. Further, the Court below has confused the claim of the Plaintiff
to be one for title and ownership whereas the claim is only for an injunction
on the basis of settled possession.
13. Reference is made to the prayer in the plaint to argue that in respect of
both the portions of land i.e., 4 bighas and 3 biswas and 2 bighas and 11
biswas, the Plaintiff seeks an injunction against dispossession. The finding
of the Trial Court, insofar as the 2 bigha portion is concerned is that the

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Plaintiff is an encroacher. It is submitted that once the Plaintiff is admitted

to be an encroacher, he cannot be dispossessed except in accordance with
law as he is in settled possession.
14. It is submitted that the finding of the Trial Court that the Plaintiff has
no title to the land itself shows the misconception on the basis of which the
Trial Court has proceeded, as this was not a suit where the Plaintiff was
seeking declaration of ownership/title. This misconception has led to an
erroneous judgment by the Trial Court and the errors by the Trial Court have
just been perpetuated by the ld. District Judge.
15. Mr. Kapur, ld. counsel submits that the land in question has in fact
been handed over to the MCD/NrDMC as per the DDA’s own admission at
page 275. Ld. counsel relies upon the notice under Order XII Rule 8 CPC to
the DDA to produce certain documents. In response to the said notice, the
DDA has stated as under:

“8. In reply to para 6 of the Notice it is

submitted that the Kathputali Colonly Area
stands transferred to the Municipal
Corporation of Delhi since been succeeded
by the North Delhi Municipal Corporation
and the drawings/layout plan of the said are
not available with the D.D.A and can be
obtained from North Delhi Municipal
Corporation.”
16. It is submitted that since the land has now been transferred to the
MCD/NrDMC, the DDA has no right on the said land. In any event, insofar
as the 4 Bigha 3 Biswas portion of land is concerned, the same has been held
to be Shamlat Deh land and does not belong to the DDA.

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17. It is further submitted that both the Civil Judge and the Appellate
Court admit that the possession is with the Plaintiff. These findings are not
challenged by the DDA either by filing cross-objections or otherwise. It is
submitted that since the said findings are not challenged, the Court has to
proceed on the basis that the Plaintiff is in settled possession of the land. He
submits that the Trial Court has simply relied upon the judgment of the
Supreme Court in Jagpal Singh & Ors. v State Of Punjab & Ors. 2011 (11)
SCC 396 , which in his submission is per incuriam as is clear from a reading
of various judgments of the Supreme Court, including Rame Gowda v. M.
Varadappa Naidu, (2004) 1 SCC 769, Puran Singh v. State of Punjab,
(1975) 4 SCC 518, Munshi Ram & Ors. v. Delhi Administration, AIR 1968
SC 702, Maria Margarida Sequeira Fernandes & Ors. v. Erasmo Jack De
Sequeira (Dead) through LRs, (2012) 5 SCC 370 and finally, Poona Ram
v. Moti Ram (D) thr LRs and Ors., (2019) 2 SCALE 207.
18. Ld. counsel relies upon Government of AP v. Thummalla Krishna
Rao & Anr., (1982) 2 SCC 134 to argue that once a party is openly in
possession for an appreciable length of time, he cannot be dispossessed
except by impartial adjudication. It is submitted that an order under Order
XXXIX Rules 1 and 2 CPC is not an impartial adjudication. Reliance is also
placed on Krishna Ram v. Mrs. Shobha, (1989) 4 SCC 131. It is urged on
behalf of the Plaintiff that the Trial Court ought to honour the judgments. It
is submitted that the judgment in Jagpal Singh (supra) is completely
distinguishable as it was a case where the gaon sabha land was taken over
for commercial use and was encroached upon. Under those circumstances,
the Supreme Court held in favour of the State. It was also not a case of
settled possession.

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19. Reliance is also placed on Ashwani Kumar Singh v. UP Public

Service Commission & Ors., AIR 2003 SC 2661 to argue that the Trial
Court cannot blindly follow a judgment without appreciating the factual
context of the same. Ld. counsel vehemently urges that the Plaintiff’s case is
not of adverse possession but settled possession. It is argued that the order of
the Trial Court is perverse and is liable to be set-aside due to non-application
of mind. It is also argued that if the settled legal position is not followed by a
judgment, then that judgment cannot stand in the eyes of the law. The
following cases were relied on for this proposition: Arulvelu & Anr. v. State
represented by the PP & Anr., 2009 10 SCC 206, S. R. Tewari v. UOI &
Anr., (2013) 6 SCC 602, and Associate Builders v. DDA, (2015) 3 SCC 49.

DDA’s Submissions
20. Mr. Rajiv Bansal, ld. senior counsel along with Mr. Dhanesh Relan,
ld. counsel appears for the DDA. He raises two preliminary objections. The
first preliminary submission is that the petition is under Article 227 of the
Constitution of India which is not an appellate remedy. The scope of judicial
review is limited in such a petition. The Court is not to act as an appellate
authority and neither is such a petition to be treated as a second appeal. The
Court cannot interfere unless there is flagrant miscarriage of justice or abuse
of principles of law. The Trial Court’s finding has to be perverse or patently
erroneous for the Court to exercise jurisdiction in such a petition. It is
submitted that the Court cannot re-appreciate the evidence and also cannot
reverse the finding on insufficiency of evidence. The Court also cannot
substitute the trial court’s finding with its own opinion in the matter. It is
further submitted that if there are two concurrent findings, the power under

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Article 227 ought to be sparingly exercised. Reliance is placed on the

following judgments:

a) Annad Kumar v. Dinesh Kumar, (2017) 125 ALR 75

b) Surender v. Roshani & Ors., 2010 SCCOnline Del 2482
c) Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97
d) Ouseph Mathai & Ors. v. M. Abdul Khadir, (2002) 1 SCC 319
e) Nawab Shaqafath Ali Khan v. Nawab Imdad Jah Bahadur,
(2009) 5 SCC 162
21. It is submitted that Article 227 basically deals with jurisdictional
errors. The question as to what constitutes a jurisdictional error is laid down
in S. Satnam Singh & Ors. v. Surender Kaur & Anr., (2009) 5 SCC 562. If
the Trial Court considers irrelevant facts or ignores relevant facts, the same
constitutes a jurisdictional error. It is submitted that in the present petition,
none of the grounds raised portray any jurisdictional error. Unless it can be
shown that the issue goes to the root of the matter, the Court does not
exercise jurisdiction under Article 227.
22. Mr. Rajiv Bansal, ld. senior counsel takes the Court through the plaint
to argue that in respect of 4 Bighas and 3 Biswas, the case is that the same is
a private land, however, no document is placed on record to establish title.
Insofar as 2 Bighas and 11 Biswas are concerned, it is submitted that the
acquisition proceedings were not challenged by the Petitioner. The finding
of the Trial Court is that the so called private land is only ‘shamlat deh’ land
i.e., it belongs to the common village community. He submits that in both
these parcels of lands, which are more than one and a half acres i.e. 6,700
sq. yards, the four Mandirs are in a very small portion and the remaining

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portion consists of a residence, shops and factories. Thus, the land is used
for commercial purposes and not for the purposes of Mandirs.
23. The plaint is referred to in order to show that in paragraph 25 there is
an implied admission that the land is Government land. The further
submission is that there are contrary pleas that are taken by the Plaintiff. On
the one hand, the Plaintiff claims settled possession but on the other hand
the Plaintiff pleads adverse possession.
24. The second preliminary submission raised is that the suit filed by the
Petitioner is a simpliciter suit for injunction and no declaration is sought.
Finally, the prayer in the plaint is referred to argue that the same is only for a
permanent injunction and there is no declaration which is being sought. It is
submitted that this is completely contrary to the settled legal position in
Anathula Sudhakar v. P. Buchi Reddy (Dead) By Lrs & Ors, (2008) 4 SCC
594 where the Supreme Court has made it clear that if the title to the
property is in dispute or under a cloud, the prayer for declaration is
mandatory to be sought by the Plaintiff. The relief of injunction is only
consequential in nature. Reliance is placed on paragraphs 13 and 21 of the
said judgment. It is submitted that the Plaintiff, while pleading ownership
has not placed a single document on record, except the Will of late Swami
Onkara Nand, to establish title.
25. Mr. Bansal thereafter refers to the Will dated 13th April, 1982 by
Swami Onkara Nand to canvas the proposition that in the Will, there are no
details as to on what basis the Plaintiff’s Guru claims to be the owner of the
suit property. Further, the Will only mentions one temple with a number of
living rooms. He thus submits that the prayer is in respect of the remaining
set of four temples, which are not mentioned in the Will.

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26. Ld. Senior Counsel further refers to the order passed on 8th
November, 2011 in W.P.(C) 7200/2011 titled Richpal Singh & Ors. v.
MCD & Ors., which relates to the same property i.e. MCD No.2151 of
2018, where the Plaintiff herein ought to have been a party. He submits that
in the said writ petition, the ld. Single Judge had directed that if there was no
sanctioned plan and there was any unauthorized construction, MCD was
required to take action in accordance with law. On a query put by the Court,
Mr. Kapur, on instructions from his client, submits that the Plaintiff was a
party in the said writ petition i.e. Respondent No.4 but he was not served in
the said writ petition.
27. On the aspect of the DDA having taken over the land on ‘as is where
is’ basis, according to Mr. Bansal, ld. counsel, this only meant that the
Government of India was not giving any guarantees or warrantees in respect
of the land. The transfer of property to MCD/ NrDMC was for the purposes
of providing municipal amenities and facilities in the area concerned. He
also reiterated that Khasra Girdhawaris and other revenue records do not
confer any title. Insofar as settled possession is concerned, he relied upon
the judgment of Maria Margarita (supra) to argue that once the Court had
looked at the facts and passed an order sufficient compliance of due process
takes place.
28. Ld. counsel thereafter placed reliance upon the Appellate Court’s
judgment to argue that the Appellate Court has clearly come to the
conclusion that the acquisition of the property having been admitted by the
Plaintiff himself, he cannot claim any rights in respect of the acquired
property or slum.

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29. The award is thereafter relied upon to argue that the Plaintiff did not
have any claims and all the claimants were heard before the award was
passed almost 60 years ago. Even as per the demarcation report, relied upon
by the Plaintiff himself, the acquisition was upheld by the High Court in
W.P.(C) 7200/2011 titled Richpal Singh & Ors. v. MCD & Ors.
Rejoinder and Sur-rejoinder Submissions
30. Mr. Kapur has commenced his rejoinder submissions and submits that
in so far as the District Court’s findings are concerned, there are no cross-
objections filed by the DDA. Hence, the issue is only with respect to the 2
bighas and 11 biswas of land and not the other part of the land which has
been declared as shamlat deh land.
31. He thereafter relies upon the record of W.P.(C) 7200/2011 titled
Richpal Singh & Ors. v. MCD & Ors and Cont. Cas (C) 750/2012 titled
Richpal Singh & Ors. v. PK Gupta & Anr arising therefrom to argue that
the Plaintiff herein, who was Respondent No. 4 in the said writ, was never
served in the matter. Even the order dated 8th November, 2011 does not
record the appearance of Respondent No. 4, i.e. the Plaintiff. In the said
order, it has merely been directed that if there is no sanctioned plan,
demolition action can be taken in accordance with law. However, no
demolition was carried out by the Municipal Authorities. The contempt
petition also had an Action Taken Report filed by the DDA wherein the
DDA took the stand that the area marked in blue was construction made
prior to February, 2007 and was protected under the prevalent regulations.
Ld. counsel submits that the Plaintiff had no knowledge of these
proceedings and having acquired knowledge thereafter cannot be held to be
bound by the said order.

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32. Mr. Kapur, ld. counsel thereafter relies upon the photographs filed by
the DDA to argue that these photographs, in fact, establish settled possession
of the Plaintiff.
33. Ld. counsel further submits that the proposition that if a suit for
declaration is not filed, the suit for injunction is not maintainable is clearly
not the declared position of law. He also relies upon the judgments in Annad
Kumar v. Dinesh Kumar, 2017 SCC Online All 1889, Kishore Kumar
Khaitan & Ors. v. Praveen Kumar Singh, AIR 2006 SC 1474 and
Achutananda Baidya v. Prafullya Kumar Gayen & Ors., AIR 1997 SCC
2007 to argue that whenever there is a perverse or patently illegal finding or
the approach of the Trial Court is wrong, then the petition under Article 227
would be maintainable.
34. Mr. Bansal, ld. counsel concluding his submissions relies upon a
compilation of documents to argue that the project of the Kathputli Colony
was fully sanctioned as per the orders in the said writ petition. He submits
that in so far as the shamlat deh land is concerned, the villagers are the co-
sharers only till the land is organised and the village is urbanised. Once the
village is urbanised, under Section 407 of the Delhi Municipal Corporation
Act, 1957, the land vests with the Central Government. He relies upon the
Khasra Girdawari at page 48 to argue that even the Khasra Girdawari
relied upon by the Plaintiff clearly shows that ownership of the land is with
the Sarkar i.e. the Government. The possession of the land is with the
Mandir and Bal Bhagwan i.e. the Plaintiff is only the manager of the said
Mandir. The Khasra Girdawari cannot vest either ownership or possessory
interest in the Plaintiff.
35. Mr. Bansal, ld. counsel thereafter relies upon the orders in Suit No.

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478/2011 titled Balbir Singh & Ors. v. Bal Bhagwan, which, according to
him do not vest any ownership or title in the Petitioner. He submits that even
as per the plaint itself at page 92, the order was an order relating to Order VI
Rule 17 CPC and thus, the interpretation given by the Petitioner to the said
order is not tenable. Finally, Mr. Bansal relies upon the judgment in Ashok
Kapoor & Ors. v. MCD [CS (OS) 2045/2008, order dated 11th March,
2014] to argue that the view of the Supreme Court has completely changed
after the judgment in S.P. Chengalvaraya Naidu Vs. Jagannath, AIR 1994
SC 853 where the Supreme Court has held that land grabbers and other
illegitimate claimants to public land ought not to be encouraged. Moreover,
apart from the three principles governing the grant of temporary injunction,
a fourth principle of public interest can also be applied. He submits that the
interests of the Petitioner herein cannot be kept above the other citizens who
are now waiting for a developed colony.
36. Mr. Kapur concludes his submissions by arguing that the said
judgment in Ashok Kapur (supra) would be per incuriam as it does not
discuss Rame Gowda (supra)

Analysis & Findings

37. An application under Order XXXIX Rules 1 & 2 CPC, which was
rejected by both the Trial Court and the Appellate Court, is the subject
matter of the present petition, which has been argued extensively by ld.
counsels for the parties. This comes as no surprise as the land involved is
precious land located in the heart of Delhi in which the Plaintiff wishes to
continue to retain possession.
38. On 4th August, 2020, the photographs of the area were called for by

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this Court. They revealed that the temples are merely a minute portion of the
suit property, which is surrounded by residential and commercial properties.
The entire area has no sanctioned plan. The Plaintiff, obviously, does not
wish to be dispossessed from the suit property.
39. A perusal of the plaint shows that the Plaintiff claims ownership in the
suit property. Paragraph 10 of the plaint reads as under:
“10. That the plaintiff is owner in possession or
a transfree/successor from the original owner
of the suit property through documents in his
favour and is legal occupier of the suit
property.”
However, before this Court, the Plaintiff concedes that he does not have any
document of title in respect of the suit property. Thus, the only question is
whether the Plaintiff is entitled to interim relief from being dispossessed.
40. In the plaint it is admitted that the land is government land and that
the Plaintiff has rights in the same by way of adverse possession. The
relevant extract of the plaint reads as under:
“That no action to take forcible possession after
dispossessing the plaintiff from the suit land can
be taken as the same is barred by Section 27
read with Article 112 of Limitation Act, 1963.
The government can take action for eviction
and for possession against the alleged illegal
occupant on the government land within 30
years and the period of limitation had began to
run. under this act against a like suit by a
private person and hence the threat of alleged
action of dispossession/forcible dispossession by
the defendant is barred by time as the right of
the defendant has extinguished in respect of the
suit property.
Even otherwise the plaintiff is owner by adverse

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possession in view of notice of defendant issued

in the month of November, 1982 to the plaintiff
and other residents of the area site of New Patel
Nagar in respect of alleged acquired land of
village Khampur Raya, Delhi.”

41. However, before this Court the Plaintiff’s case has changed and is one
of settled possession and not of adverse possession. The issue, therefore, is
very short - Whether the Plaintiff claiming settled possession without any
ownership can be dispossessed or is entitled to injunction against
dispossession?
42. The suit seeks the following reliefs:
“It is, therefore, prayed that this Hon'ble
Court may graciously be pleased to pass a
decree of permanent injunction restraining the
defendant from demolishing the suit property
and forcibly dispossessing the plaintiff from the
suit property i.e. three temples premises namely
Mandir Kali Mai, Mandir Shivji Maharaj
situated on private land bearing Khasra No.
1075/803/50 measuring 4 bigha 3 biswas and a
temple premises of Sankat Mochan Bajrang Bali
on land measuring 2 bigha 11 biswas
comprising in Khasra No. 1074/803/50 of
village Khampura Raya, Delhi bearing MCD
No.2151/18, Swami Onkara Nand Ashram, New
Patel Nagar, New Delhi; without due process of
law.
It is further prayed that the costs of the
present suit may also be award in favour of the
plaintiff and against the defendant.
Any other order as this Hon'ble Court may
deem fit and proper may also be passed in
favour of the plaintiff and against the defendant
in the interest of justice.”

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Thus, the only relief claimed is permanent injunction against demolition and
forceful dispossession.
43. The case of the DDA is that the land was acquired by the government
and was placed with the DDA. The acquisition proceedings have acquired
finality. The land was also placed with municipal authorities in order to
develop municipal amenities/facilities in the area. The Plaintiff has been
argued to be a tress-passer and illegal occupant who has no ownership rights
whatsoever in the suit property.
44. The Trial Court vide its order dated 10th December, 2018 held as
under:
i. That one part of the suit property lies in Khasra No.1074/803/50
and another part lies in Khasra No.1075/803/50;
ii. Insofar as Khasra No. 1074/803/50 is concerned, the same is part
of acquired land, which was purchased by the DDA on 2 nd
September, 1982. The acquisition is not challenged and the same is
more than 60 years old. The Plaintiff, thus, encroached in Khasra
No. 1074/803/50.;
iii. Insofar as Khasra No.1075/803/50 is concerned, the same is
private land i.e. Shamlat Deh land. Following the judgment in
Jagpal Singh (supra), the Trial Court held that Shamlat Deh land
is meant for the common use of the village and no one person can
claim rights in the same.;
iv. That the Plaintiff does not have title on either part of the suit
property and, at best, he is an encroacher.;
v. The Plaintiff claims ownership on one hand and on the other hand,
claims rights by way of adverse possession.;

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vi. The judgment in Rame Gowda (supra) has been considered by the
Trial court along with the judgment in Maria Margarida (supra).
The Trial Court holds that the moment the pleadings are filed by
the parties and the Court applies its mind to the matter and finds
that the Plaintiff has no title to the land, the requirement of due
process of law is complete. The Plaintiff was found to be an
unauthorised occupant who had no right to remain on the land.
Thus, the injunction application was dismissed.
45. The Plaintiff filed an appeal against the said order, which was heard
by the ld. ASCJ. The Appellate Court, vide its order dated 27th February,
2019, held that the land belongs to the DDA and the Trial Court has rightly
rejected the prayer for injunction.
46. The petition before this Court is under Article 227 of the Constitution
of India. Clearly, the extent of intervention in such cases is quite limited.
There are concurrent findings by the Trial Court and Appellate Court. All
the relevant facts have been considered by the Courts below. Thus, in view
of the settled legal position, no interference would ordinarily be called for in
the writ petition. However, in view of the extensive arguments which have
been made before this Court, the Court proceeds to deal with the issues
raised by the parties.
Scope of interference under Article 227
47. A faint attempt has been made by the Plaintiff to argue that the Trial
Court and Appellate Court have not rendered any findings in respect of the
case of the Plaintiff on the relevant issues. On the strength of Kishore
Kumar (supra) it is argued that the same constitutes a jurisdictional error
under Article 227 and hence the present petition is maintainable.

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48. The grounds raised for seeking interference under Article 227 of the
Plaintiff are devoid of any merits. The land admittedly is government land.
The Plaintiff has no title to the said land. The Plaintiff has also been
changing stances since the filing of the suit and has become wiser as the
litigation has progressed. Initially, after claiming ownership rights by way of
adverse possession, in the present writ petition the only argument of the
Plaintiff has been that he is in settled possession and cannot be dispossessed
except by due process of law. The Trial Court and the Appellate Court have
considered the Plaintiff’s case as pleaded in the plaint. The said forums
cannot therefore be faulted. The Trial Court has dealt with the pleadings and
documents in detail and cannot therefore be alleged to have failed in
rendering the necessary findings. In the opinion of this Court there is no
jurisdictional error. However, the Court has also examined the merits of the
matter in view of the various issues raised before it. Each of broad
submissions made on behalf of the Petitioner are dealt with hereinbelow.

A. The effect of property being vested with DDA on an ‘as is where is’
basis
49. The property in question has been vested vide letter dated 2 nd
September, 1982 by the Ministry of Settlement of Rehabilitation,
Government of India with the DDA. The said vesting would in effect mean
that the DDA is free to deal with it and take action in whatever manner it
deems appropriate, including taking action against any encroachment. This
Court agrees with the DDA’s submission that the DDA is the owner of the
land and the term ‘as is where is’ basis merely means that there are no
guarantees or warranties that are being given by the Government of India in

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respect of this land. The fact that the property was vested in the DDA on ‘as
is where is’ basis does not mean that the DDA cannot take any action to
remove an unauthorised occupant or encroacher.

B. The property being transferred to the MCD/NrDMC

50. Insofar as the transfer of the property to MCD/NrDMC is concerned,
once the land is urbanized, the land can be transferred to the Corporation for
the purpose of providing municipal amenities and facilities. This cannot be a
ground for the Plaintiff to argue that the DDA has no right in the suit
property. In any event, the suit filed by the Plaintiff is against the DDA and
not against the Corporation. Thus, the DDA is entitled to defend itself in the
present suit.

C. The legality and validity of Khasra Girdawaris and other revenue

records
51. The award by which Khasra No. 1075/803/50 was acquired was
passed more than 60 years ago and has not been challenged by the Plaintiff
herein. The Plaintiff claims to be in possession of the private land. Though
ownership is claimed, no documents such as sale deed etc. have been placed
on record. The land was acquired under the Resettlement of the Displaced
Persons (Land Acquisition) Act, 1948. The title of the land was vested in
community and the Plaintiff has no title in the said land.
52. The Petitioner relies upon these records to prove possession. Mr.
Kapur admits to the fact that the revenue records do not vest title with DDA
in the property but have been filed to show possession. Mr. Bansal submits
that the said documents do not confer any title and the settled position as

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laid down in Union of India & Ors. v. Vasavi Cooperative Housing Society
Limited & Ors. [(2014) 2 SCC 269] has been relied upon.
53. It is also well settled that jamabandis and khasra girdawaris do not
vest any ownership rights, as per the judgment of the Supreme Court in
State of A.P. v. Star Bone Mill and Fertiliser Company, (2013) 9 SCC 319.
In any event, even the khasra girdawari for the year 2000-01 to 2004-05,
clearly shows that the Plaintiff does not have any ownership rights.

D. Settled possession
54. The foundation of the Plaintiff’s case before this Court is one of
settled possession, which cannot be disturbed except by due process of law.
The core of the argument is based on the judgment of the Supreme Court in
Rame Gowda (supra). The vehement contention of ld. counsel for the
Plaintiff has been that this judgment, though considered by the Trial Court,
has not been properly applied. The judgment, having been delivered by a
three-judge bench, ought to have been followed instead of the judgment in
Jagpal Singh (supra), which is a division bench judgment.
55. In order to prove settled possession, the Plaintiff relies upon
jamabandis and khasra girdawaris. Both these documents merely show that
there was a mandir which was under the management of the Plaintiff. The
khasra girdawari for the year 2000-01 to 2004-05 records the following:

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1 2 3
Khasra No. Owner’s Name in Cultivator’s name in
short With short with khatauni
Jamabandi No. No. and Lagan

1074/803/50 Sarkar Daulat Under possession of

Min Madar khewat Mandir managed by
No.99 Bal Bhagwan jagat
Nirankar chela
Onkarananda R/o
Village

1075/803/50 Shamlat Deh Balbir Singh s/o

Min Khewat No.99 Harvans Singh,
Phool singh s/o
Khushhal Rajendra
Singh s/o Ram
Chandr, Jagan Singh
s/o Ghisa equal
Share Sewadar
Mandir

56. A perusal of these entries in the khasra girdawari clearly shows that
in respect of Khasra No.1074/803/50, the owner is Sarkar daulat i.e. the
government and insofar as Khasra No.1075/803/50 is concerned, it is shown
as Shamlat Deh land. Admittedly, the ownership of these lands does not vest
in the Plaintiff and the plea to the contrary in the plaint is false to the
knowledge of the Plaintiff himself.
57. All the rights that the Plaintiff is claiming is as the Manager of the
Mandir and chela of Swami Onkara Nand. Insofar as Khasra
No.1074/803/50 is concerned, firstly Swami Onkara Nand did not have any
ownership of the land. The Will dated 13th April, 1982 relied upon by the
Plaintiff is, thus, of no consequence. In any case, the Manager of the Mandir
cannot claim the right to remain in possession forever, especially when the

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land is government land. Even if the said possession is treated as settled

possession, the same can only be protected against forceful taking of
possession. The person in settled possession cannot question being
dispossessed in accordance with law after due process has been followed.
58. What constitutes ‘due process’ is now well settled in view of the
judgment of the Supreme Court in Maria Margarida (supra), wherein the
Court has observed as under:

“81. Due process of law means nobody ought to

be condemned unheard. The due process of law
means a person in settled possession will not be
dispossessed except by due process of law. Due
process means an opportunity for the Defendant
to file pleadings including written statement and
documents before the Court of law. It does not
mean the whole trial. Due process of law is
satisfied the moment rights of the parties are
adjudicated by a competent Court.
82. The High Court of Delhi in a case Thomas
Cook (India) Limited v. Hotel Imperial, 2006
(88) DRJ 545: (AIR 2007) (NOC) 169) held as
under:

“28. The expressions ‘due process of law’,

‘due course of law’ and ‘recourse to law’
have been interchangeably used in the
decisions referred to above which say that
the settled possession of even a person in
unlawful possession cannot be disturbed
‘forcibly’ by the true owner taking law in his
own hands. All these expressions, however,
mean the same thing – ejectment from
settled possession can only be had by
recourse to a court of law. Clearly, ‘due
process of law’ or ‘due course of law’, here,

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simply mean that a person in settled

possession cannot be ejected without a court
of law having adjudicated upon his rights
qua the true owner.
Now, this ‘due process’ or ‘due course’
condition is satisfied the moment the rights
of the parties are adjudicated upon by a
court of competent jurisdiction. It does not
matter who brought the action to court. It
could be the owner in an action for
enforcement of his right to eject the person
in unlawful possession. It could be the
person who is sought to be ejected, in an
action preventing the owner from ejecting
him. Whether the action is for enforcement
of a right (recovery of possession) or
protection of a right (injunction against
dispossession), is not of much consequence.
What is important is that in either event, it is
an action before the court and the court
adjudicates upon it. If that is done then, the
‘bare minimum’ requirement of ‘due
process’ or ‘due course’ of law would stand
satisfied as recourse to law would have been
taken. In this context, when a party
approaches court seeking a protective
remedy such as an injunction and it fails in
setting up a good case, can it then say that
the other party must now institute an action
in a court of law for enforcing his rights i.e.,
for taking back something from the first
party who holds it unlawfully, and, till such
time, the court hearing the injunction action
must grant an injunction anyway? I, would
think not. In any event, the ‘recourse to law’
stipulation stands satisfied when a judicial
determination is made with regard to the
first party’s protective action. Thus, in the

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present case, the Plaintiff’s failure to make

out of a case for an injunction does not
mean that its consequent cessation of user of
the said two rooms would have been brought
about without recourse to law.”
59. The issue as to what constitutes ‘due process’ is thus settled beyond
any doubt. The Plaintiff, who is claiming possession, can be dispossessed in
the suit for injunction filed by him. Due process does not always mean that
the owner has to file the suit to prove his title. So long as a Court of law has
examined the documents and has given a fair hearing to the parties
concerned, the compliance of due process has taken place. Moreover, due
process of law also does not mean the final adjudication after trial. It merely
means an opportunity being given to present the case before the Court of law
and the rights of the parties being adjudicated. It does not mean the whole
trial, as per Maria Margarida (supra).
60. The judgment of the Supreme Court in Rame Gowda (supra) is to the
effect that if a party is in settled possession, his possession cannot be
disturbed without due process of law being followed. The said case related
to a private land in dispute between two private parties. The lands of the
Plaintiff and the Defendant were adjoining in nature and there was a dispute
as to the demarcation thereof. Since the identification and extent of the land
itself was in doubt, the Court, in order to protect the Plaintiff, held that the
owner would have to assert his title in an independent suit. The facts of the
said case cannot be compared to the facts of the present case to permit an
encroacher and illegal occupant to retain possession of the suit property.
61. The plea of adverse possession, though pleaded in the plaint, has been
given up in the present petition and only settled possession is argued. The

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question as to whether the Plaintiff is in settled possession or not, in terms of

the test laid down in Puran Singh (supra) need not be gone into in the
present case, inasmuch as the fact that the Plaintiff is in possession, in
whatsoever capacity, to the knowledge of the authorities, is clear from the
khasra girdawari itself. The person in settled possession cannot continue to
remain in possession forever. Once a Court of law has arrived at the
conclusion that the person in possession has no rights, the possession can be
taken away. The Trial Court has not merely relied upon Jagpal Singh
(supra) but also considered various judgments of the Supreme Court
including Rame Gowda (supra) and Maria Margarida (supra). Thus, the
grievance against the Trial Court judgment that it followed Jagpal Singh
(supra) which is per incuriam is without any merit.
62. Several judgments on various propositions have been cited, which,
according to the Court, do not require any consideration in the present case.
The main question to be determined is whether the Plaintiff, who is in
settled possession, can be dispossessed in an application under Order
XXXIX Rules 1 & 2 CPC. The answer is a clear yes.
63. Insofar as the Shamlat Deh land is concerned, the Plaintiff cannot
claim any rights in the same as the same vests for the common interest of the
villagers. This Court agrees with the stand of the DDA that the land has
been urbanised and once urbanization takes place, the village owners have
no rights.
64. The plea that the suit itself is not maintainable due to absence of the
relief of declaration, in view of the judgment of the Supreme Court in
Anathula Sudhakar (supra) is not being gone into in this petition. The

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DDA is permitted to raise this plea before the Trial Court at the appropriate
stage. In this petition, only the application under Order 39 Rules 1 & 2 CPC
is being considered.
65. Mr. Bansal further submits that Kathputli Colony is one of the first
Public Private Partnership (PPP) model for redevelopment, which is taking
place for providing alternative accommodation to the dwellers in the colony.
More than 3000 dwellers have been moved out from there and that land,
which is the subject matter of the suit is situated in a very crucial position as
also in effect acting as a hindrance in the implementation of the project
itself.
66. Though the land in question was vested in the DDA several years ago,
the DDA is yet to obtain possession of the land. An important
developmental project has been derailed because of the present litigation as
the DDA continues to make valiant attempts to obtain possession in
accordance with law. The photographs in the present case are extremely
revealing. The mandir constitutes a miniscule portion of the entire land
which has various commercial shops and residences. The case of the DDA is
that the Plaintiff is earning huge revenues by collecting rent from these
occupants, however, this Court does not see the need to go into this aspect.
Clearly, the Plaintiff, or anyone occupying or claiming rights through the
Plaintiff, does not have any right to continue to remain in possession of the
suit property. Ld. counsel for the DDA has submitted that an alternative
accommodation has been given to the dwellers in the colony. It is for the
DDA to ensure that the same is provided to everyone in occupation, in
accordance with its policy.
67. Finally, this Court expresses grave concern over the fact that public

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land is sought to be encroached upon under the shelter of a place of worship.

As is seen in a large number of cases, rights are claimed by parties under the
garb of temples or other places of worship located on government land. This
trend has been repeatedly frowned upon by the Supreme Court and other
courts. The Supreme Court, in its judgment in Union of India v. State of
Gujarat & Ors., (2011) 14 SCC 62 has, in fact, taken cognizance of this
menace and directed State Governments and Union Territories to review the
situation and take appropriate action in an expeditious manner. The relevant
extract of the judgment reads as under:

“5. As an interim measure, we direct that

henceforth no unauthorised construction shall
be carried out or permitted in the name of
temple, church, mosque or gurdwara, etc. on
public streets, public parks or other public
places, etc. In respect of the unauthorised
construction of religious nature which has
already taken place, the State Governments and
the Union Territories shall review the same on
case-to-case basis and take appropriate steps as
expeditiously as possible.”

68. Such attempts by unscrupulous parties ought to be discouraged,

inasmuch as the occupants, under the garb of a place of worship, turn the
land into a completely unplanned encroachment by hundreds of people. The
authorities have an obligation to ensure that in public land, places of worship
are not created in this manner. Moreover, in the present case, an
infrastructure project is being completely crippled due to the pendency of
this litigation. This would be contrary to even public interest.
69. The land, being public land, the Plaintiff is not entitled to any relief.

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The petition is dismissed with costs of Rs.1 lakh to be deposited by the

Plaintiff with the High Court of Delhi (Middle Income Group) Legal Aid
Society. All pending applications are also disposed of.

PRATHIBA M. SINGH, J.
DECEMBER 18, 2020
Rahul/dj/dk/T

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