Radhey Shyam Dang and Another vs D.D.A. and Another

B.A. Khan, J.—Appellant''s suit No. 65/99 for permanent injunction to restrain respondents from interfering in his alleged possession of the suit land has been dismissed by impugned order dated 27.8.2001. Hence this appeal. Appellants filed the suit claiming that they were collectively and exclusively in physical possession of the land measuring 29 bighas 3 biswas comprising Khasra No. 651 (renumbered 1267) situated in the Revenue Estate of Village Mehrauli. They also asserted that they were in its continuous and uninterrupted physical possession since 1988 and has also constructed a wall around it but officials of respondents were harassing them and threatening to dispossess them for which they had also lodged a complaint with the police and on which no action was taken. They supported their claim to possession by annexing an attested copy of a purported khasra girdawari with the plaint and prayed for a decree of permanent injunction to restrain respondents from interfering in their possession and from demolishing some structure on the suit land.

R1(DDA) resisted Appellants'' claim on the plea that the suit land was placed under its disposal by notification No. F.35 (76)-L&B u/s 22 of DDA Act dated 12.7.1996 by Delhi Administration and was in its possession and was being developed for Vasant Kunj Residential Scheme.

R2(MCD) also claimed that the suit land was under its control and denied that it was posing any threat to Appellants'' alleged possession.

Trial court framed as many as seven issues in the suit. The material issue No. 5 read thus:-

Whether plaintiffs are in possession of the suit property ? If so, in what capacity?

Suit record shows that appellants examined only two witnesses including appellant No. 1 to support their claim in the suit. Appraising the evidence on record, trial court found that appellants had neither proved their possession nor ownership on the land and accordingly dismissed their suit.

Appellants challenge this in present appeal and have obtained a stay order which has remained in force for the last few years. Their counsel Mr. Vashisht has attacked the dismissal order on the sole ground that trial court had overlooked the Khasra Girdawari attached to the plaint which supported Appellants'' possession of the land. He contended that there was a presumption of correctness attached to the contents of this attested copy of Khasra Girdawari and Trial court ought to have decreed the Appellants'' suit on this basis alone, coupled with the testimony of PW 1 Raghubir Singh. No other issue was canvassed by him nor any other contention raised to persuade us to revive the suit. Proceeding on the premise that Trial court had not specifically dealt with the import of attested copy of Khasra Girdawari attached to the plaint, we still feel convinced that Appellants'' claim was unsupported by any evidence worth the name. The total evidence on record comprised of an attested copy of purported Khasra Girdawari and statements of two witnesses including that of Appellant No. 1. It is not the Appellants'' case that they had at any stage taken steps to prove their correctness of the copy of Khasra Girdawari or its genuineness for that matter. No revenue official was examined by them to prove this document. Nor was any effort made to summon the original revenue record to support the claim of possession on the suit land. It may be true that there is a presumption of correctness attached to the entries of the original revenue record maintained by the authorised revenue agency on being proved under the rules of evidence but no such presumption could be raised for an attested copy of a claimed Khasra girdawari unless its contents were proved in reference to the original record by the revenue official who had executed and issued it. An attested copy of a revenue document does not give rise to automatic presumptions. Nor could such document constitute an automatic and irrefutable proof for that it contained. It was necessarily to be proved according to rules of evidence to furnish a proof of whatever worth to support the claim. This document was, therefore of no evidentiary value and, therefore, its non-consideration by the Trial court becomes inconsequential. What is worse is that Appellant''s claim of possession is not supported even by their oral evidence. Even testimony of appellant No. 1 also does not make out any case of his being in possession of the land in question, not to speak of PW-1 Raghubir Singh. This Appellant had even admitted that the wall raised by him was demolished and that he was no more residing in the land and that there was no living room in existence on such land leaving the Trial Court with no option but to return a finding against his possession. The other witness had not touched the issue of Appellants'' possession at all. That being so, appellants'' claim was not backed up by any evidence whatsoever. It was a classic case of absence of evidence in respect of a claim which had thrived on the strength of the stay orders passed by the court and to the impedement of the development process of the land for the public welfare. The Trial court was, therefore, justified in dismissing their suit for want of proof in respect of their ownership and possession. This Appeal also meets the same fate and is dismissed. Interim order dated 3.12.2001 shall stand consequently vacated.