DELHI DEVELOPMENT AUTHORITTY Vs. SIS RAM

JUDGEMENT

(1.) THE order impugned before this court is the order dated 27.01.2010 vide which the application filed by the petitioner under Order 41 Rule 27 of the Code of Civil Procedure (hereinafter referred to as `the Code') before the First Appellate Court had been dismissed; the prayer made in the said application was to the effect that the demarcation conducted by the petitioner/DDA on 20.02.1985 be permitted to be taken on record. This prayer had been declined by the impugned order. This order is the subject matter of the present petition.

(2.) RECORD shows that a suit for declaration and permanent injunction had been filed by the plaintiff against the DDA; his contention was that the disputed land falls in khasra number 33/3 of Village Basant Nagar, New Delhi; this was disputed by the DDA; contention of the DDA was that the disputed land forms a part of khasra number 33/10. After evidence, the suit was decreed in favour of the plaintiff on 21.01.1981. In the Regular First Appeal filed by the DDA, on 27.05.1982 the First Appellate Court passed an order whereby a Consolidation Officer-cum- Tehlisdar, namely, Sh. Chander Bhan Sharma was appointed as a Local Commissioner to carry out fresh demarcation. Matter had been remanded back to the Trial Court. The said Consolidation Officer i.e. Sh. Chander Bhan Sharma had submitted the report before the Trial Court after the demarcation had been conducted by him pursuant to an inspection carried out by him on 06.05.1983; he was examined and cross-examined; thereafter the suit of the plaintiff was again decreed on 08.05.1984. A Regular First Appeal was again filed against that decree and judgment and in this pending appeal the present application under Order 41 Rule 27 of the Code had been filed by the DDA. The averments made in the said application have been perused. It is reiterated that the land in dispute falls in khasra number 33/10 and a Naib-Tehsildar had in fact been appointed by the DDA who has carried out a demarcation on 20.02.1985 and permission had accordingly been sought by the DDA to place on record the said report. Admittedly this demarcation report dated 20.02.1985 was a report which was prepared unilaterally by the DDA on its own without any order from the court; this was the primary reason why this report was not permitted to be taken on record and rightly so.

(3.) THE contention of the defendant all along i.e. right from the inception of the suit as is evident from the written statement was that the suit property falls is a part of khasra no. 33/10; the plaintiff has obtained a decree on this issue; in fact two decrees as aforenoted in favour of the plaintiff had been passed; in this intervening period a fresh demarcation carried out by the Consolidation Officer-Chander Bhan Sharma had been given. THE DDA however did not allow the controversy to rest; his submission that the controversy again be raked up in suit proceedings which had been initiated in 1973 cannot be allowed; the issue of demarcation has finally stood settled. Impugned order disallowing the application under order 41 Rule 27 of the Code by virtue of which a unilateral report prepared by the DDA of the demarcation of the same land which already stood settled by a demarcation carried out under the orders of the court on 25.05.1982 thus suffers from no infirmity. Petition is without any merit; it is dismissed.