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DCM LTD. vs DDA

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 20th February, 2023
Pronounced on:20thDecember,2023
+ CS (OS) 1085/1991
DCM LIMITED
Kanchenjunga Building
18, Barakhamba Road
New Delhi. ….. Plaintiff
Through: Mr. Sanjeev Anand, Sr. Advocate with Ms. Neha Jain, Mr. Aman Gupta and Mr. Dheeraj, Advocates.
Versus
DELHI DEVELOPMENT AUTHORITY
Vikas Sadan
I.N.A
New Delhi ….. Defendant
Through: Ms. Shobhna Takiar, Standing Counsel.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T

NEENA BANSAL KRISHNA, J

“The right to life is the source of all rights — and the right to property is their only implementation. Without property rights, no other rights are possible.” Ayn Rand.
1. This is a classic case of the litigant with crystallized and documented rights in property created in its favour some eighty years back, being embroiled in litigation spanning over more than thirty years, by none other than the defendant itself merely because of the latter’s inaptness to maintain its house in order leading to its inability to trace its own documents conferring right to suit property on the plaintiff. It took three rounds of litigation for the plaintiff to retrieve the documents from National Archives and clear the dust, to establish its right in suit property.
2. The right to property which, once occupied the exalted status of “Fundamental Rights” and even now continues to occupy the privileged status of ‘Constitutional Right”, lies at the very foundation of securing all the basic rights of food, clothing and shelter. Any cloud on the Title and that too, on account of diffidence and indifference of the defendant to take decisions, can demolish the life and occupation of an individual.
3. Krishna Iyer J. in Dilbagh Singh v U.O.I. AIR 1974 SC 130 observed that “governmental disposition to litigation” is “symptomatic of a serious deficiency”. “It is not right for a welfare State like ours to be Janus faced” to defy its own National Litigation Policy by its diffident and indifferent attitude.
4. The defendant herein has “cantankerously” and “callously” resisted the rights of the plaintiff in the suit property that were conferred by itself on the plaintiff some eighty years back. One is reminded of the fight between diminutive David and mighty Goliath to marvel the perseverance of the plaintiff which against all odds, was still able to turn the table in its favour to defeat the defendant; only that this fight has lasted not for proverbial forty days but nearly thirty years and that too, in three rounds.
5. To now elucidate the backdrop of this litigation, the plaintiff has filed a suit seeking Declaration that it is the absolute owner of property being Khasra Nos. 1613/153, 1614/153 and 1615/153 Baghraoji, Delhi and for Permanent Injunction for restraining the defendants from entering the suit property and dispossessing them.
6. The plaintiff, a Public Limited Company, has claimed that it owned land comprising of Khasra Nos. 486, 487 and 488, Village Delhi, Patti Jahanuma, Tehsil Delhi, District Delhi. The Delhi Improvement Trust (hereinafter referred to as the Trust) incorporated under the United Provinces Town Improvement Act, VIII of 1919 commenced the execution of the Western Extension Scheme under which it had to provide for realignment of the Darhalia Nala passing through Village Delhi, Patti Jahanuma, Tehsil Delhi, District Delhi. A portion of the Darhalia Nala on realignment, passed through part of the lands owned by the plaintiff Company. The Trust sought the possession of these portions of land and in exchange offered other land to the plaintiff. Pursuant to the Trust’s approval on 19.04.1938, the Government issued a Notification under Section 4 of the Land Acquisition Act for acquiring the plaintiff’s aforementioned property. Since the Trust had agreed to hand over an alternate land in exchange to the plaintiff, it did not file any Objections to the acquisition of its land by the Government.
7. The plaintiff has asserted that various letters were exchanged between the plaintiff and the Trust for exchange of the land. The Trust vide its Letter dated 20.09.1938 sent a Blue Print in which the land marked in Green admeasuring 4455 sq. yds. belonging to the Government, was proposed to be given to the plaintiff in exchange. Again, vide Letter dated 06.08.1940, the Trust offered alternate land owned by the Trust and gave two alternatives for exchange namely: (a) 5882 sq. Yds. out of the area marked III on the attached plan, or (b) 2614 sq. Yds. out of area marked IV on the plan. The plaintiff had some reservations about the proposal of the Trust but in order to end the long drawn controversy, it agreed to the proposal of the Trust. Similar consent was again conveyed vide Letter dated 17/18.10.1940. Various letters were exchanged in respect of the area of the land to be given in exchange and for providing a service road. Eventually the Trust vide its Letter dated 26.01.1944 called upon the plaintiff to contact the Trust’s Overseer to take over the possession of the land allotted to it in exchange. The plaintiff vide its Letter dated 03. 02.1944 informed the Trust that the Trust’s Overseer Mr. Balmukund had already handed over the possession of the land in exchange to the plaintiff’s Company on 04.02.1942 and 15.03.1943.
8. The plaintiff has claimed that in lieu of its land in Khasra Nos. 487, 488, it was allotted land being in Khasra Nos. 1613/153, 1614/153 and 1615/153 in Baghraoji, Delhi and its actual physical possession was given to the plaintiff by the Delhi Improvement Trust on 04.02.1942 and 15.03.1943. Since then the plaintiff has claimed its possession to be continuous, exclusive, uninterrupted possession and that the enjoyment of the Khasras by the plaintiff has been in the capacity of the owner of the land, to the exclusion of all the others including the Trust and DDA.
9. The plaintiff has claimed that despite being the owner, it was served with a Notice dated 01.09.1955 by the Trust claiming Damages under Section 4 of the Government Premises (Eviction) Act, 1950 for being in unauthorised occupation. The plaintiff in its reply dated 04.10.1955 explained that the Trust has already allotted the said land on which the Building Plans had also been sanctioned for construction of the Boundary Wall and there was no question of any Damages payable by the plaintiff. Being satisfied with the reply of the plaintiff, the Trust dropped the proceedings for Damages.
10. On 19.03.1963, the defendant again wrongly initiated proceedings under Section 7 (2) of the Public Premises (Eviction of Unauthorized Occupations) Act, 1958 for Damages for the period 1.09.1953 to 31.03.1962 alleging unauthorised use and occupation by the plaintiff in the lands in question, which had been contested by the plaintiff who filed its objections before the Estate Officer alleging that the proceedings were barred by res judicata. Against one of the interim orders passed by the Estate Officer, the plaintiff preferred an Appeal before the District Judge which was dismissed on technical grounds. The plaintiff then, filed a petition under Article 227 of the Constitution of India before this Court, contesting the order passed by the Enquiry Officer (EO) and the District Judge and this Court stayed the proceedings before the EO and the Writ Petition is pending before this Hon’ble Court.
11. It is claimed that the plaintiff was running a Textile Mill in the name of Delhi Cloth Mills on its property at Kishanganj, Bara Hindu Rao, Delhi (including the suit property land). According to the Master Plan of Delhi, 1962 the running of the Textile Mill on the said land was a non-conforming use of the lands at Kishanganj which were earmarked for use as flatted factories and residential purposes.
12. In view of this Master Plan, the plaintiff drew up a Scheme for the re-development of its entire land in Kishanganj area which was duly approved by the defendant vide Resolution No. 26 dated 01.02.1983. The plaintiff, thus closed its Textile Mills namely, Delhi Cloth Mills on 1.04.1989 under the directions of the Full Bench of this Court and the Hon’ble Supreme Court of India and the order of the Lt. Governor of Delhi.
13. However, on 23.01.1990, the Estate Officer, DDA issued a show cause notice on the plaintiff under Section 4(2)(b)(ii) of the Public Premises, (Eviction of Unauthorized Occupations) Act, 1971 wherein it was wrongly alleged that the plaintiff was in unauthorized occupation of the land being Khasra Nos. 1613/153, /1614/153 and 1515/153. The plaintiff on 08.02.1990 filed its Objections before the Estate Officer where the proceedings are still pending.
14. The plaintiff has claimed that defendant is wrongly disputing the title of the plaintiff. Hence, the present suit has been filed seeking a Declaration that he is the absolute owner and in rightful possession and for Permanent Injunction to restrain the defendants from taking possession of the suit property.
15. The defendant, DDA in its Written Statement took the preliminary objections that he suit is barred by provisions of Section 17 of the Indian Registration Act, 1908 (hereinafter referred to as the ‘Act, 1908’) as there can be no transfer of immovable property without a registered document of Title. Further, Delhi Improvement Trust had no authority in law to exchange/ transfer or agree to exchange/ transfer the suit property. The Delhi Improvement Trust was only authorised to manage and not to dispose of Nazul land.
16. Furthermore, the relief claimed is barred by Limitation. The defendant and its predecessor-in-interest, have always consistently disputed the possession of the plaintiff in respect of the suit land and have repeatedly initiated proceedings for Damages for unauthorised and unlawful use and occupation initially under The Government Premises (Eviction) Act, 1950 and subsequently under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The plaintiff was given several opportunities to adduce evidence but the plaintiff consistently sought adjournments which were finally declined on 11.04.1991 and the evidence of the plaintiff was closed and the matter was adjourned for the evidence of the defendants.
17. The Defendant has also challenged the locus of the plaintiff to institute the Suit by asserting that plaintiff, DCM limited is separate and distinct from Delhi Cloth and General Mills Limited which is now a and defunct entity Company and thus, the plaintiff cannot seek any relief on behalf of Delhi Cloth and General Mills Limited.
18. The suit is also asserted to be liable to be rejected as barred under Section 15 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 as the Civil Court has no jurisdiction to try the suit.
19. On merits, it is denied that plaintiff has any right, title or interest in the suit property and its possession is claimed to be illegal. It is further explained that the plaintiff had filed Writ Petition Civil No. 4068/90 before this Court with similar averments but the Writ was dismissed on 21.12.1990. The identical averments were made by the plaintiff in Writ Petition Civil No. 1253/1991 which was also disposed of vide Order dated 22.01.1993.
20. The plaintiff in its reply to the Show Cause Notice issued by the Estate Officer in the proceedings initiated under Public Premises (Eviction of Unauthorised Occupants) Act, 1971 had stated that the Company owned the land comprising of Khasra No. 486, 487 and 488 Bagraoji, Delhi. The plaintiff is therefore, bound by the averments and it cannot now take a contrary stand.
21. It is explained that Khasra Nos. 486/152, 487/152 and 488/152 and Khasra Nos. 1613/153, 1614/153 and 1615/153 in Baghraoji, Delhi are Government properties under the control and management of DDA which is reflected in Jamabandi Revenue Record for the year 1972-1973 wherein Delhi Improvement Trust (predecessor in interest of DDA) is recorded to be having the ownership and control since 1933-1934. Prior thereto, Khasra No. 486 is shown under the name of Mr. Amar Singh Nihal Singh, son of Mr. Veer Singh. Subsequent to 1933-1934, Khasra No. 486 has been shown as that of the Delhi Improvement Trust. In the Jamabandi for the years 1921-1922 and 1925-1926. Khasara nos. 487 and 488 are being shown in the name of Mr. Pyare Lal son of Mr. Girdhari Lal. In the year 1933-1934, the size of the Khasra Nos. 487 and 488 had undergone a change and are shown under the name of “Ganesh Floor Mill Company”.
22. The defendant has asserted that the properties of Delhi Cloth and General Mills were not eventually affected by the execution of Western Extension Scheme.
23. The Khasra Nos. 1613/153, 1614/153 and 1615/153 in Baghraoji, Delhi form part of original Khasra No. 5, Baghraoji, Delhi and have been reflected in the name of the Government and are under the control and management of Delhi Improvement Trust vide Nazul Agreement of 1937. Thereafter, it is shown in the name of DDA in accordance with the provisions of the Delhi Development Act 1957. No part of the said land had ever been leased out to Delhi Cloth and General Mills Limited or to the plaintiff. The Government of India is under duty to allot any land in lieu of land lawfully acquired. It is vehemently denied that the plaintiff is the owner of the suit property.
24. It is claimed that all the communications exchanged were with Delhi Cloth and General Mills Limited and not with the plaintiff, which is a separate and independent identity. The various correspondences relied upon by the plaintiff are also denied. It is however, claimed that assuming, without conceding, that there were any negotiations in regard to the exchange of land, the same never fructified into a concluded contract and the plaintiff had taken unauthorised possession of certain lands for which efforts have been consistently made by the defendant to evict the plaintiff.
25. It is further claimed that the suit properties are Government properties and have been shown under the control and management of “Makbuja Malik” right from the year 1944-1945 in the Jamabandi and record in favour of Delhi Improvement Trust and thereafter, in favour of the defendant. No part of the land at any point of time was either leased out to the Delhi Cloth and General Mills Limited or transferred by possession, as has been claimed by the plaintiff.
26. The defendant has further explained that Delhi Improvement Trust, (the predecessor in interest of DDA, the present defendant) had leased out 15.3 acres of land to the Delhi Cloth and General Mills for using the same for the ancillary use by the staff employed for running the Textile Mills. This 15.3 acres of land was included in the total of 63 acres of land part of which was Lease hold, under a separate lease. Certain lands were being used by Delhi Cloth and General Mills Limited in conformity to the Master Plan of Delhi for 1962. The Plan has since been amended. It is denied that the defendant vide Resolution no. 26 of 01.02.1983 approved wrongful and unauthorised occupation of the suit land by the plaintiff. The defendant has consistently claimed that the plaintiff is in unauthorised occupation of the suit land.
27. It is further contended that even the proceedings under Section 4 of the Public Premises Act were initiated against the plaintiff being the unauthorised occupant of the public land which belongs to the Government and placed under the control and management of DDA in terms of Nazul Agreement of 1937. It is therefore asserted, that the suit is liable to be dismissed.
28. In the interim, the proceedings were initiated before the Estate Officer. In I.A. No. 2691/1993 filed by the plaintiff, this Court vide Order dated 02.08.1993 directed that the proceedings before the Estate Officer may continue but no Final Order would be passed till further orders.
29. This case has checkered history in so much as the defendant moved an application bearing number I.A. No. 11206 of 1992 under Order VII Rule 11 CPC for rejection of plaint for want of Notice under Section 53 B was filed which was allowed and the plaint was rejected vide Order dated 08.08.1995. RFA (OS) 17/1995 was preferred against this Order. The Division Bench also allowed the proceedings before the Estate Officer to be continued but no Final Order to be passed, vide Order dated 15.05.1996. This Order was modified on 25.08.1999 wherein the Estate Officer was allowed to pass the Final Order and be sent to this Court under the sealed cover.
30. The Estate Officer passed the Judgement dated 30.03.2001 and forwarded to this Court under the sealed cover. The RFA (OS) 17/1995 rejecting the suit under Order VII Rule 11, was allowed vide Order dated 29.05.2009 and the suit was restored to its original number.
31. The second round thus, commenced and the evidence as was recorded before the Estate Officer, both oral and documentary, was treated as the evidence in the present suit vide Order dated 12.11.2009. The suit was again dismissed vide Order dated 19.09.2013 by the learned Single Judge by observing that the Estate Officer had returned a finding that the plaintiff was an unauthorised occupant and directed that the property be vacated and the possession be handed over within 15 days from the date of issue of the Order. It was also held that the present suit was barred on the principles of res judicata.
32. RFA (OS) 104/2012 was preferred which was allowed vide Order dated 19.03.2013. The Order of dismissal dated 19.09.2012 was set aside and the suit was directed to be tried on merits.
33. Thence commenced the third round of litigation in this case. The issues were framed on 12.07.2013 as under:
1. Whether the plaintiff has acquired the ownership rights in the suit property and the suit is filed by the authorized representative? OPP.
2. Whether the suit is time barred? OPD.
3. Whether the suit is barred by virtue of provision of Section 17 of the Indian Registration Act, as alleged by the defendant? OPD.
4. Whether the suit is not maintainable in view of the preliminary objection No.6 taken by the defendant in written statement? OPD.
5. Whether the suit has been properly valued as alleged by the plaintiff, or it has not been properly valued, as alleged by the defendant? O.P. Parties.
6. Relief.

34. Vide I.A no. 13266/2013, the plaintiff sought additional evidence to be led to allow him to place on record the authorisation in favour of the person who had filed the suit. Accordingly, PW1, Mr. Ashwani Singhal, Executive Vice President (Finance and Accounts) led oral evidence and tendered the documents pertaining to Minutes and Resolution No. 24 which are Ex. PW1/1 to Ex. PW1/5.
35. On 21.11.2015, the learned counsel for the defendant stated before the JR that ‘she is not likely to lead any evidence as she has already led her evidence before the Id. Estate Officer and the present cross examination was required to be conducted only to the extent of competence of the person who has instituted the present suit.’ Thus, there was no evidence led on behalf of the defendant.
36. Learned counsel on behalf of the plaintiff in his Written Arguments as well as submissions in the Court, argued that the ownership of the plaintiff in Khasra Nos. 486,487 and 488, Village Delhi, Patti Jahanuma, Tehsil Delhi, District Delhi was proved from the Jamabandi, Ex. A1 for the year 1933-1934. The Register of Mutation, is Ex. D1 whereby the property was mutated in favour of the plaintiff followed by the Jamabandi for the year 1937-1938 and 1941-1942 which are Ex. B1 and Ex. C1. It is further argued that during the proceedings before the Estate Officer, the plaintiff got the demarcation done from the Revenue Department which prepared a Demarcation Report dated 01.05.1993 which is Ex. RW9/A. As per this Demarcation Report, the Darhalia Nala existed in some portions of Khasra No. 488.
37. The plaintiff has further argued that the various Notifications which are Ex. DW4/1 to Ex. DW4/3 and the letters Ex. DW5/1 to Ex. DW5/34 amply establish that the suit land was handed over to the plaintiff in exchange of their land which was taken over for the purpose of re-alignment of Darhalia Nala as part of the Western Extension Scheme. These documents are more than 30 years old and have been produced from the custody of the plaintiff as well as Delhi Archives which is the proper custody and therefore, there is presumption of correctness in respect of these documents under Section 90 of the Evidence Act. Reliance has also been placed on Section 81 of the Evidence Act. The plaintiff has relied upon Gangamma and Ors. Vs. Shivalingaiah (2005) 9 SCC 359, State of Andhra Pradesh and Ors. Vs. Star Bone Mill and Fertiliser Company (2013) 9 SCC 319 and Iqbal Basith and Ors. Vs. N. Subbalakshmi and Ors. (2021) 2 SCC 718 in support of his assertions.
38. It is further argued that DDA is the Successor in interest of Delhi Improvement Trust. It came to be constituted under the DDA Act, 1957 in terms of Section 60 (b) of the DDA Act, 1957. Anything done or any action taken by Delhi Improvement Trust under the United Provinces Town Improvement Act, 1919, so far as it was inconsistent with the provisions of DDA Act, continue to be in force and is deemed to have been done under the provisions of DDA Act, 1957. The defendant is therefore bound by the actions taken by the Delhi Improvement Trust, having stepped into its shoes.
39. It was explained on behalf of the plaintiff that United Provinces Town Improvement Act, 1919 (hereinafter referred to as the ‘Act, 1919’) was made applicable to Delhi under which Delhi Improvement Trust (hereinafter referred to as the Trust) was constituted. Under Section 23 of the Act, 1919 the Improvement Scheme prepared by Delhi Improvement Trust could provide for acquisition by purchase, sale or exchange of any property comprised in the Scheme {Section 23 (a) and (g)} and once the said Improvement Scheme was sanctioned under Section 41 of the Act, 1919 and notified under Section 42 of the Act, 1919, it had the requisite authorisation and power to permit the exchange of land. Even the Nazul Agreement relied upon by the defendant, authorised the Trust to sell or lease any land included in the Nazul Estate in terms of Section 42 of Act, 1919.
40. It is further explained that the exchange took place between 1938 to 1942 at which time oral Sale and oral exchange was permissible. Section 118 of the Transfer of Property Act, 1882 (hereinafter referred to as “TPA”) was not applicable to Delhi. In terms of Section 2 (c) of TPA, nothing contained in TPA was deemed to affect any right or liability arising out of a legal relation constituted before the said Act came into force or any relief in respect of such right or liability. The exchange having taken place before TPA was made applicable to Delhi, no provision of TPA can be invoked to challenge the validity of exchange. It has been further explained that a TPA was not applicable to province of Punjab of which Delhi formed a part at the relevant time. The Delhi Laws Act, 1915 mentions in Schedule A that what was formerly included within the province of Punjab, came to be known as province of Delhi under the administration of Chief Commissioner as per Section 2 of the said Act. Since TPA was not applicable to Punjab, it continued to be not applicable to the territory which subsequently formed the province of Delhi. Under the Delhi Laws Act, 1915, certain areas which were formed part of United Provinces of Agra and Oudh were included in the territory of province of Delhi with effect from 01.04.1915 Section 2 and 3 of the said Delhi Laws Act, 1915 clarified that to the territory so added, only the enactments mentioned in Schedule-III would continue to apply, one of them being the TPA and it would not apply to the areas which had come from Punjab in Schedule A of the Delhi Laws Act, 1912.
41. Only Sections 54,107 and 123 of the TPA were extended to Delhi with effect from 30.05.1939 and thereafter, only Section 129 of TPA was extended to certain areas of Delhi with effect from 16.11.1940 and to the remaining areas with effect from 01.12.1962. All the provisions were extended to Union Territory of Delhi with effect from 01.12.1962. The TPA did not apply to the suit premises at the relevant time for which reliance has been placed on Ralli Brothers of Karachi Vs. Punjab National Bank Limited and Ors. ILR (1930) 564, Shri Rattan Lal Vs. Shri Vardesh Chander and Ors. (1972) 2 SCC 103 and Som Dev and Ors. Vs. Rati Ram and Anr. (2006) 10 SCC 788.
42. Since at the relevant time, Section 17 of the Act, 1908 was not applicable, the transactions of exchange could be done orally and the question of applicability of the Act, 1908 does not arise.
43. The learned counsel has further claimed that the plaintiff came in possession of the suit property in the year 1942-1943 through Delhi Improvement Trust in the capacity of the owner of the suit property. Their possession was hostile to the defendants for more than 12 years from the period 1942-1943. The plaintiff therefore, acquired ownership rights by way of adverse possession. The plaintiff even got the Plans approved for the construction of the Boundary Wall from Delhi Improvement Trust in the year 1952 and constructed the same. It also got the Plans approved for construction of an Officer’s Club in 1958 from Delhi Municipal Committee and constructed the same in 1958, and hence, it has been using the suit property as an owner since then, to the knowledge of Delhi Improvement Trust.
44. The continuous, uninterrupted hostile possession of the suit property by the plaintiff from 1942-1943 within the knowledge of Delhi Improvement Trust/DDA extinguishes any right, title and interest of Delhi Improvement Trust/DDA after the expiry of 12 years from 1942-1943. The reliance has been placed on Ravinder Kaur Grewal and Ors. Vs. Manjit Kaur and Ors. (2019) 8 SCC 729, Kshitish Chandra bose Vs. Commissioner of Ranchi (1981) 2 SCC 103, Collector of Bombay Vs. Municipal Corporation of the City of Bombay and Ors. AIR 1951 SC 469 and State of West Bengal Vs. The Dalhousie Institute Society 1970 (3) SCC 802.
45. The learned counsel on behalf of the plaintiff has further argued that the cause of action for filing the present suit arose only on 23.01.1990 when the Estate Officer, DDA issued notice under Section 4 (2) (b) (ii) of the Public Premises Eviction Act, 1971 alleging the plaintiff to be in unauthorised occupation of the suit property. Immediately thereafter, the present suit was filed on 03.04.1991 which is within limitation. It is only when the title of the plaintiff came to be challenged that the right to seek Declaration arose and the period of limitation has to be reckoned from the said date. Reliance has been placed on Bolo (Defendant) vs. Koklan (plaintiff) & Others (cross appeal) (1929-30) LR 57 IA 325, Pothukuchi Appa Rao and Ors. Vs. The Secretary of State for India in Council represented by the Collector of Guntur 1937 SCC OnLine Mad 215, MST Rukhmabai Vs. Lala Laxminarayan and Ors. (1960) 2 SCR 253, Daya Singh and Anr. Vs. Gurdev Singh by Lrs. And Ors. (2010) 2 SCC 194, C. Mohammad Yunus Vs. Syed Unnissa and Ors. (1962) 1 SCR 67 and State of Punjab and Ors. Vs. Gurdev Singh (1991) 4 SCC 1.
46. Learned counsel for the plaintiff has further argued that the plaintiff was earlier known as Delhi Cloth and General Mills Company Limited which was subsequently changed to DCM Limited, by passing necessary Resolution in terms of Section 21 of the Companies Act and approval thereof was accorded by the Central Government which is established by the Certificate issued by the Registrar of Companies dated 06.10.1983 which is Ex. PW1/3. It is therefore, argued that the plaintiff is entitled to be declared as the owner.
47. The learned counsel on behalf of the defendant has referred to the Jammabandi Revenue Records, Ex. D2/1 and Ex. D2/2 to argue that the suit property had been reflected in the name of DDA/Delhi Improvement Trust and it has always been under its control and management. The plaintiff has relied upon the Mutation entry in respect of Khasra Nos. 487-488 which was earlier in the name of Ganesh Floor Mills, to prove that it is the owner of the suit property. It is settled proposition of law that mutation entry does not confer any right, title or interest. DW 10, Shri Ram Swaroop has admitted in his cross examination that there are several patties in Moja Delhi and Jamabandi Ex. A, B, C Column no. 3 is blank and not filled up and there is no mention as to whom Patti Khasra No. 487 and 488 belonged. It is also admitted by him that it is mentioned in the Mutation Record that the documentary basis of mutation is not available.
48. Learned counsel has further argued that Western Extension Scheme did not affect Delhi Cloth and General Mills Limited in respect of Khasra Nos. 486, 487 and 488 Village Patti Jahanuma. Khasra nos. 1613/153, 1614/153 and 1615/153 formed part of the original Khasra No. 5 Bagraoji, Delhi and has been shown in the name of the Government and under the control of Delhi Improvement Trust vide Nazul Agreement of 1937 and thereafter in favour of DDA. It was never leased out to the plaintiff or to Delhi Cloth and General Mills Limited. This land was never affected on account of re-alignment of Darhalias Nala.
49. Various correspondences between Delhi Improvement Trust and plaintiff on which reliance has been placed, also do not prove the ownership of the plaintiff in the suit land. There was neither any registered document nor any Sale Deed ever executed. Moreover, Delhi Improvement Trust was never authorised to exchange any land in respect of any land acquired by the Government. No consideration was ever paid by the plaintiff for alleged allotment. Assuming though not admitting, that there were any negotiations in respect of exchange of land, it never fructified into a concluded contract and the unauthorised possession of certain lands was taken by the plaintiff for which Notices were issued by DDA and action was initiated under the Public Premises Act. It is claimed that the suit land continues to be a public land till date. It is also asserted that the right to sue first accrued in 1955 when Notice under Section 4 of Public Premises (Eviction) Act, 1950 was issued and the present suit is barred by limitation. Reliance has been placed on Khatri Hotels Private Limited Vs. UOI and Ors. AIR 2011 SC 3590.
50. Submissions heard. The issue-wise findings are as under:

Issue No.4: Whether the suit is not maintainable in view of the preliminary objection No.6 taken by the defendant in written statement? OPD.

51. A preliminary objection has been taken on behalf of the defendant about the locus of the plaintiff to institute the present suit. It asserted that the entire correspondence by Delhi Improvement Trust, the predecessor-in-interest of DDA was undertaken with Delhi Cloth and General Mills and not with DCM Limited, the plaintiff in the present suit. The plaintiff consequently has no locus to file the present suit.
52. PW1 Ashwani Singhal who appeared on behalf of the plaintiff, deposed that plaintiff DCM Limited is a Private Limited Company duly registered with the Registrar of Companies. The name of plaintiff Company was earlier Delhi Cloth and General Mills Company Limited which was incorporated on 26.03.1889 and the Letter of Incorporation is Ex.PW1/2. The name of the Company was changed to DCM Limited i.e. the present plaintiff which was duly recorded in the fresh Certificate of Incorporation dated 06.10.1983 which is Ex.PW1/3.
53. The two documents prove that originally the name of the Company was Delhi Cloth and General Mills Limited which was subsequently changed to DCM Limited i.e. the plaintiff. The present suit, therefore, has been rightly instituted by DCM as a successor in interest of Delhi Cloth and General Mills Company Limited. The preliminary objection taken by the defendant is, therefore, without merit.
54. The issue is accordingly decided against the defendant.

Issue No.5: Whether the suit has been properly valued as alleged by the plaintiff, or it has not been properly valued, as alleged by the defendant? O.P. Parties.

55. The defendant took the preliminary objection that the suit had not been valued properly. The plaintiff has filed a suit for Declaration, Permanent Injunction and Mandatory Injunction. In paragraph 41 of the original plaint, the suit was valued at Rs.5,00,100/- for the relief of Declaration. Subsequently, vide Order dated 29.08.2016 the application under Order VI Rule 17 CPC filed on behalf of the plaintiff to amend the valuation of the suit to Rs.2,05,00,000/-, was allowed. The Court Fee of Rs 2,02,424/- for the relief of Declaration has accordingly been paid.
56. The defendant has not led any evidence whatsoever to show that the suit has not been valued properly for the relief of Declaration.
57. The issue is decided against the defendant.
Issue No.2: Whether the suit is time barred? OPD.
58. The defendant has taken an objection that the suit is barred by limitation as the right of the plaintiff to sue for the relief of Declaration first accrued when it was first asked for payment of damages in the year 1955 and in 1963. Thereafter, the plaintiff’s right to sue for the relief of Declaration stood extinguished in terms of Section 27 of the Limitation Act, 1963.
59. At the outset, it is pertinent to discuss the law on limitation and when the right to sue accrues.
60. The right to sue under Article 120 of the Limitation Act accrues when the defendant clearly and unequivocally threatens to infringe the right asserted by the plaintiff in a suit. The Apex Court in MST Rukhmabai vs. Lala Laxminarayan & Ors. AIR 1960 SC 335 explained that every threat by a party to such a right, however, ineffective and innocuous, cannot be considered to be a clear and unequivocal threat so as to compel it to file the suit.
61. In the case of Bolo (Defendant) vs. Koklan (plaintiff) & Others (cross appeal) (supra), it was observed that there can be no right to sue until there is an accrual of a right and its infringement asserted in the suit or that there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.
62. Likewise, in Kodoth Ambu Nayar vs. Secretary of State for India 47, Madras 527-20 LW 49 (P.C.), it was observed that it is only when there is an overt act of the defendant by way of issuing a patta (in that case) whereby the invasion of the right of the plaintiff is complained, that the cause of action would arise and would be the starting point for calculation of limitation.
63. In the case of Appa Rao & Ors. (supra) it was observed that the where the Government did nothing to disturb the plaintiff’s possession beyond merely passing an Order of bare repudiation of his title, it would be most unreasonable to hold that such an Order would make it incumbent upon the plaintiff to sue for Declaration of Title. Where there are several denials of the plaintiff’s rights, it is upon him to elect as to when he may bring a suit for vindication of his right as a fresh attack gives rise to a fresh cause of action.
64. The Apex Court in MST Rukhmabai (supra) observed that the cause of action arises only when a particular threat is given effectively invading or jeopardizing the right of the plaintiff.
65. Similar are the observations made in Daya Singh & Anr. Vs. Gurdev Singh (Dead) by LRs & Ors. (2010) 2 SCC 194 and in State of Punjab & Ors. Vs. Gurdev Singh (1991) 4 SCC 1.
66. Thus, from the above discussion it is evinced that it is when the action of the defendant clearly and unequivocally threatens to infringe or infringes the right of the plaintiff that the right to sue accrues. This is when the cause of action arises and each attack on the right of the plaintiff gives rise to a fresh cause of action.
67. In the present case, the plaintiff has claimed that he had been allotted the suit land in exchange of its own land which existed in the vicinity. The plaintiff has claimed its right and Title in the Suit property having received it from Delhi Improvement Trust (DIT) in 1940-1941.
68. It is seen from the material on record that the first challenge to the plaintiff’s possession of the suit property was made by DIT in 1955, by serving Notice dated 01.09.1955 Ex. DW3/1 for Damages under Section 4 of the Government Premises (Eviction) Act, 1950. However, after the plaintiff sent a reply dated 04.10.1955 Ex. DW3/2 explaining his ownership in the property, the proceedings were dropped, and no action was taken thereafter. Thus, though the title of the plaintiff was questioned then but the proposed challenge was dropped since the claim of the plaintiff was found to be correct.
69. It is pertinent to note that vide Notice dated 19.03.1963 under Section 7 sub-section 2 of Public Premises (Eviction of Unauthorized Occupants) Act, 1958, the plaintiff was asked to show cause as to why an order for Damages in lieu of unauthorized use and occupation of suit land shall not be made against it. This Notice was apparently issued pursuant to Master Plan, 1962 formulated under the DDA Act, 1957. Clause 5 of Chapter 1 of the Master Plan mentioned that “the Delhi Cloth Mills have to move out of the congested area to the extensive industrial Districts according to the time-schedule given for non-conforming users. The present site should be developed for Flatted factories in gradual stages.” The plaintiff has explained in his plaint that in view of this Master Plan, the plaintiff drew up a Scheme for the re-development of its entire land in Kishanganj area which was duly approved by the defendant vide Resolution No. 26 dated 01.02.1983.
70. It is evident from the Certificate of Incorporation dated 06.10.1983 issued by the Registrar of the Companies Ex. PW1/3 that the plaintiff, thus closed its Textile Mills namely, Delhi Cloth Mills. Thus, the controversy of the unauthorised use of suit land came to an end. In this proceeding initiated by the defendant as well, there was no challenge to the title of the plaintiff but was confined to non-conforming use of the suit property. There is again not a whisper by the defendant if any further action was taken after this Show Cause Notice for damages. The only conclusion that can be drawn is that on compliance by the plaintiff, this Notice was dropped.
71. Quintessential sleep of Kumbhkaran of six months, was surpassed by the defendant which perhaps by some unknown divine intervention was shaken out of its slumber after about thirty five years, on 23.01.1990 when the Estate Officer, DDA (the transformed avatar of the Trust) served a Notice under Section 4(2)(b)(ii) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 upon the plaintiff alleging that it was an unauthorized occupant and to Show Cause why the Eviction Order be not made. The plaintiff’s title was thus, challenged by this Notice of 1990. Before then, the title of the plaintiff in the suit property was accepted by the defendant.
72. It is observed that the title of the plaintiff as an owner in the suit property never came to be challenged by the defendant since 1942 till 1990. Thus, the cause of action arose on 23.01.1990 when the Notice was served and the present suit for Declaration of Title has been filed on 03.04.1991 which is within the period of limitation of three years as provided in terms of Section 58 of the Limitation Act, 1963 for a Declaratory suit. The suit of the plaintiff is held to be within the period of limitation.
73. The issue is accordingly decided in favour of the plaintiff.
Issue No.3: Whether the suit is barred by virtue of provision of Section 17 of the Indian Registration Act, as alleged by the defendant? OPD.
74. The defendant has claimed that as there is no document evidencing transfer/exchange of title of subject land in favour of the plaintiff; the mandatory requirement under Section 17 of the Act, 1908 has not been complied with. Thus, the suit is barred by virtue of provision of Section 17 of the Act, 1908.
75. To appreciate this contention of the defendant, the law on sale of property as was in force at the time of exchange or sale made in late 1930s needs to be considered.
76. In the year 1930, to which these transactions relate back to, oral sale and exchange of land was permissible and valid as Section 118 of TPA was not applicable to Delhi. In terms of Section 2(c) of TPA, nothing contained in TPA was deemed to affect any right or liability arising out of a legal relationship constituted before the said Act came into force or any relief in respect of any such right or liabilities. TPA was not applicable to the province of Punjab of which Delhi was a part, at the relevant time. The Delhi Laws Act, 1912 defined the territory mentioned in Schedule A to the said Act which was formally included within the province of Punjab, which later came to be known as the province of Delhi under the Administration of Chief Commissioner as per Section 2 of the said Act. TPA was not applicable to Punjab and, therefore, was not applicable to Delhi being the territory mentioned in Schedule A of Delhi Laws Act, 1912.
77. Certain areas which were part of United Provinces of Agra and Oudh came to be included in the territory of province of Delhi vide Delhi Laws Act, 1912. Section 2 & 3 of the Act, 1912 clarified that to the territory so added, the enactments mentioned in Schedule 3 would continue to apply, one of them being the TPA, but it shall not apply to the areas which had come from Punjab in Schedule A of Delhi Laws Act, 1912.
78. Way back in the case of Ralli Brothers of Karachi vs. Punjab National Bank Limited AIR 1930 Lahore, 920, it was observed that up to the year 1912, the TPA was not in force in Delhi as Delhi was included in province of Punjab to which provisions of that Act did not apply.
79. Vide Notification dated 30.05.1939 published in Gazette of India, only the provisions of Section 54, 107 and 123 of TPA were extended to Delhi w.e.f 30.05.1939. Section 129 was extended to certain of areas of Delhi w.e.f 16.11.1940 vide Notification dated 16.11.1940. The remaining provisions including Section 118 of the TPA were extended to Union Territory of Delhi w.e.f 01.12.1962. The TPA, therefore, did not apply in the present case at the relevant time.
80. The transactions of exchange of land done orally were valid. Therefore, there being no requirement of execution of any document, the question of its registration did not arise. Section 17 of Act, 1908 that relates to registration of document, was not applicable to the transactions of oral exchange of land which was recognized prior to the applicability of TPA to Delhi.
81. Section 17 (1A) of the Act, 1908 which provides for registration of the document of transfer of a property valued more than Rs.100/-, was introduced w.e.f 24.09.2001 by the Registration and Other Related Laws (Amendment) Act, 2001, Act 48 of 2001, and hence, Section 17 (1A) was not applicable to the transactions which had taken place before the said date.
82. In light of the above discussion, it is concluded that the oral agreement whereby there is an actual exchange of two immoveable properties between the parties to the suit followed by delivery of possession, was not a transaction required to be documented and therefore, there is no question of any registration.
83. The issue is, therefore, decided against the defendant.
Issue No.1 : Whether the plaintiff has acquired the ownership rights in the suit property and the suit is filed by the authorized representative? OPP.

84. Having held in issue No.3 that oral exchange of Land was valid to acquire ownership in the property, it may be further considered whether the defendant DDA/Trust had indeed exchanged the suit land with the plaintiff, thereby conferring in it the ownership rights in the suit land.
85. At the outset it may be noted that in the present case vide Order dated 21.11.2015 the evidence of PW1 Ashwani Sehgal was recorded to the extent of proving the authority to institute the present suit and no further evidence was led, since defendant DDA made a statement that the entire evidence has already been adduced in the proceedings before the Estate Officer, which may be read in this case.
86. Pertinently, the various letters and documents which form the basis for the claim of the plaintiff have been admitted and not challenged by the defendant. Furthermore, all the documents from 1938 to 1942 had also been summoned vide Order dated 19.03.2013 by the Division Bench while considering the RFA (OS) No.104/2013 arising out of the final Order of the learned Single Judge and the authenticity of these documents is not under question. Moreover, these documents have been produced by an Authority which was lawfully in possession and being more than 30 years old are per se admissible under Section 90 of the Indian Evidence Act. These are the documents which have also been relied upon by the defendant DDA.
87. The plaintiff has claimed that it was the owner of the land comprising of Khasra No.487-488, Delhi Patti Jahanuma, Tehsil Delhi, District Delhi having purchased the same from the erstwhile owner Ganesh Mills, which was thereafter mutually exchanged by the plaintiff with the suit property being Khasra No.1613/153, 1614/153 and 1615/153, Baghraoji, Delhi, belonging to the defendant, making him the owner of the suit property.
88. To ascertain the ownership of the plaintiff in the suit property, the various documents and letters exchanged between the plaintiff and the DIT are discussed below.
89. The plaintiff had asserted that it was the owner of Khasra 486, 487 and 488 village Delhi, Patti Jahanuma, Tehsil Delhi, District Delhi. This fact is corroborated by the Jamabandi of the year 1933-34 Ex.A1 which reflects that the erstwhile owner of the property was Ganesh Floor Mills Company Limited. In the Register of Mutation Ex.D1 it is recorded that Ganesh Floor Mills had sold the entire Khevat No.123 situated at Patti Jahanuma measuring 15 Bigha 4 Biswas for a sum of Rs.2,20,000/- as was informed to the Revenue Officer vide Letters dated 13.11.1930 and 26.11.1930 in favour of Delhi Cloth and General Mills Limited. On the basis of the letter so written, the property was mutated in the name of DCM which is established from the Jamabandi for the year 1937-38 Ex.B1 and Jamabandi of the year 1941-42 Ex.C2. The defendant itself has admitted the ownership of Ganesh Floor Mills in its Written Statement.
90. The Trust addressed a letter dated 20/21st April, 1938 to the plaintiff to indicate that the proposed Nala passed through the ‘Ganesh Mills’ land dividing it into two separate pieces. A request was made for exchange of the land wanted for the Nala located on the left bank with the Nazul land on the right bank near their own land. They also indicated that for the surplus land they were prepared to pay a reasonable price. A combined plan of Delhi Mills and Nazul land was enclosed for their perusal.
91. In furtherance of this proposal of exchange of land, the first letter in the series of correspondence is of the Trust dated 30.05.1938 Ex.DW5/14 addressed to the Secretary, DCM stating that a Notification No. 4534-LSG dated 19.04.1938 under Section 4 of the Land Acquisition Act, 1894 has been issued in respect of the land belonging to DCM which is proposed to be acquired for realignment of “Darhalia Nala”. No Objection has been received from the Mill Authorities to the acquisition of land and the Chief Commissioner is being approached to issue a Notification under Section 6 of Land Acquisition Act, 1894 in respect to it. The question of settlement by exchange of Nazul land is also under consideration. As final negotiations may take time, information was sought if the plaintiff herein was prepared to handover the possession of this land in anticipation of the final settlement.
92. The Letter dated 14.01.1943 Ex.DW4/1 written by Chairman, Delhi Improvement Trust to the Chief Commissioner, Delhi recapitulates the factual background that existed then and states that the land was notified for acquisition under Section 6 of the Land Acquisition Act, 1894 vide Notification No.8493-L.S.G. dated 30.07.1938. An area of 1631 square yards out of the area notified was occupied by the Trust for the realignment of the “Nala” and a further area of 5,000 Square Yards was taken over from the Mills to square up the plot.
93. In the Letter No.46 (13)-38 dated 09.08.1941, Ex. DW5/10, the Trust confirmed that the total area of land taken by it for widening of Nala and making plots was 6,631 Sq. Yds. as per the letter of the plaintiff dated 16.05.1941 Ex.PW5/19. In response, vide letter dated 11/12.08.1941 Ex. DW5/20, the plaintiff acknowledged this confirmation and it was further requested that the completion of formalities regarding the exchange of land be done early. This correspondence further clarifies that 6,631 Sq. yards of the land belonging to the plaintiff was acquired by the DIT.
94. From the above referred correspondence it is established that the plaintiffs were owners of huge chunk of land out of which some land was the subject matter of acquisition for which requisite Notifications under Sections 4 and 6 of the Land Acquisition Act, 1894 were issued. The land so acquired was proposed to be compensated by exchange with the proposed Nazul land.
95. In response, the plaintiff vide letter dated 13.09.1938 Ex.DW5/25 asked the Trust to send them the Plan of the land proposed to be given to the plaintiff in exchange of its land from the Old Ganesh Mills Building required for the Nala. In compliance thereto, the Trust through its Letter dated 20.09.1938 Ex. DW 5/1 sent the Blue print marking in Red and Green respectively, the land belonging to the plaintiff that was proposed to be exchanged and the land of the same area (4455 Sq. Yds) belonging to the Government.
96. The most significant correspondence is the letter dated 06.08.1940 of the Trust, Ex. DW5/5, which explained the entire proposal for exchange of land. It reads as under :
“ Delhi Improvement Trust
REGAL BUILDINGS,
No.46(13)-38
New Delhi, 6th August, 1940

Dear Lala Shankar Lall,
Will you please refer to my D.O. letter No.36(13)-38, dated the 6th April 1940. I now send you a blue print showing two alternative proposals for the settlement of this matter.
2. The Trust have occupied 1,631 sq. Yards of Delhi Cloth Mills property for the Darhalia Nala. This is marked I on the plan. The Trust have also developed 2,824 sq. Yards immediately adjoining and to the south of the above. This is marked II on the plan. Area I is notified for acquisition. The Trust claim proprietory title in the area marked III on the plan, in which the Delhi Cloth Mills have sardarakhti rights.
3. For the purposes of acquisition I value area I at Rs.4/- a sq. Yard. I value area II after development at Rs.6/- a sq. Yard. The total values of these two areas therefore amounts Rs.23,468/- to which I would add the sardarakhti rights in plot B bringing the total to Rs.23,528/-.
4. I value plot III at Rs.4 sq. Yards and I value plot IV at Rs.9/- a sq. Yard. Therefore on a proportionate value basis I would offer the following alternatives in exchange for plots I and II:
Alternative A – 5,882 sq. Yards out of area III; or
“B – 2,614 sq. Yards out of area IV as indicated on the plan
I should be glad to know if you accept on or other of these alternatives. In the event of your accepting alternative B, the condition would be that the Delhi Cloth Mills authorities relinquish all claims, other than the recorded sardarakhti rights in the area marked III on the plan and deliver possession to the Trust.
Yours sincerely,
Sd/-
Lala Shankar Lall
Delhi Cloth & General Mills, Delhi.”

97. Many letters were exchanged between the parties by way of negotiations in respect of this proposal and eventually vide Letter dated 18.11.1940 Ex. DW5/7, Trust proposed to retain Plot No. I, II and III over which the plaintiff was not to exercise any proprietary rights and 3073 Sq. Yd. Land out of Plot No. IV belonging to DIT was agreed to be handed over to the plaintiff. This land of 3073 Sq. Yds was revised to 3149 Sq. Yds out of Plot No. IV on re-measurements vide Letter dated 21.04.1941 Ex.DW5/8.
98. The plaintiff in its Letter dated 16.05.1941 Ex.PW5/19 clarified that the total area of the Mill given by the Trust was 15 Bighas 4 Biswas or 15327 Sq. Yds. while the remaining area of the Mill as on 13.05.1941, was 8696 Sq. Yds. The total area of the Mill land acquired by the Trust for diversion and widening of the Nala and for making plot was 6631 Sq. Yds and a confirmation was sought from the DIT to confirm acquisition of 6631 Sq. Yds. of Mill’s land has been acquired by the Trust and to do the needful in the matter of exchange of land.
99. In furtherance of this proposal for exchange, the plaintiff vide Letter dated 24/25th October, 1941 Ex.5/21 claimed that in lieu of the 6,631 Sq. Yards of land acquired by the DIT, it was entitled to 4065 Sq. Yds of land in exchange, but the Trust vide Letter dated 28.10.1941 Ex. DW 5/11 clarified that on a “value to value” basis, the total land the plaintiff was entitled to was only 4040 Sq. Yds. for which approval was granted vide Board’s Resolution No.284 dated the 30th October 1941.
100. The plaintiff thereafter, vide Letter dated 30.01.1942 Ex. DW5/22 requested DIT to complete the formalities regarding the exchange of land.
101. From the letter dated 21.04.1942 Ex. DW 5/23 the possession of the land by the plaintiff is established. The letter of the plaintiff reads as under:-
“The Chairman,
Delhi Improvement Trust,
New Delhi.
Dear Sir,
With reference to the correspondence resting with your letter no. 46(13)38, dated the 31st January, 1942, I write to say that when my overseer went to take the possession of the land under reference on the 4th February, 1942, he found that no service road had been provided at the back of the plot so that the houses to be constructed on this land cannot be properly serviced. Will you kindly, therefore, provide a service road at the back of this plot at an early date and in lieu of that allot equivalent land contiguous to the land earmarked to us,
Yours faithfully, Sd/
Agents”

102. From this letter, it emerges that the Overseer of the plaintiff took possession of the land under reference on 04.02.1942, but noticed that there existed no Service Road at the back of the plot so the houses to be constructed on this land could not be properly serviced. A request was made that a Service Road be made at the back of this road at an early date and in lieu of that equivalent land contiguous to the land earmarked to the plaintiff be allotted.
103. The Trust sent a Letter dated 5/6th November, 1942 Ex. DW 5/12 wherein it was reaffirmed that the exchanged proposal on “value for value basis” has already been agreed between them. It was then proposed to allow a 10 feet wide service road and further area of 533 sq. Yds. as was shown in the plan annexed with the letter, was agreed to be allotted to the plaintiff. It was however, added that the proposed Service Road was to be constructed by the plaintiff at its own cost. The plaintiff in response through its letter dated 11.11.1942 Ex. DW5/24 sought a plan reflecting the exact position of land to be given to them.
104. The request of the plaintiff for the Service Road was approved by the Board Resolution of Trust dated 27.11.1942 Mark B and the approval was conveyed by the Chairman of DIT to the Chief Commissioner, Delhi vide Letter dated 14.01.1943 Ex.DW4/A. The DIT in its Letter dated 26.01.1944 Ex. 5/13 informed DCM that the acquisition of the entire Industrial Area Scheme was likely to be completed by mid-February by which time the land allotted to the plaintiff shall be given at the same time. It was further stated that the plaintiff may take the possession of the land agreed to be allotted to them in exchange, to which the plaintiff responded through its Letter dated 03.02.1944 that the possession of the land has already been taken on 04.02.1942 and 15.03.1943 and the matter may be considered settled.
105. This exchange of land gets corroborated by the testimony of PW5 Sh. Vinod Agarwal, who was working with the Plaintiff from March 1970 to August 1997. He deposed before the Estate Officer, that the plaintiff undertook to construct the Boundary Wall on its exchanged land for which it submitted the plans for approval vide Letter No.CLU/IT/90 dated 04.09.1952 which was sanctioned vide Letter Building Permit No.BG-1(14552) dated 22.10.1952. No objection whatsoever, was taken by the Trust at the time of sanction of the plans for construction of Boundary Wall, thereby confirming the ownership of the plaintiff in the suit land.
106. The plaintiff’s long peaceful possession of the land since 1942 is established from the letter dated 21.04.1942 Ex. DW 5/23 of the plaintiff wherein it was mentioned that the overseer of the plaintiff took possession of the land under reference on 04.02.1942.
107. The Trust had sent a Notice under Section 4 of Government Premises (Eviction) Act, 1950 dated 01.09.1955 Ex. DW3/1 to the plaintiff for Damages for allegedly being in unauthorized possession of suit land. The plaintiff in objections dated 04.10.1955 Ex.DW3/2 to the Notice so received, explained its ownership and also referred to the sanction accorded by the defendant to the construction of the Boundary Wall.
108. DW3 Chetan Singh, Superintendent, Land Section, DDA, whose statement was recorded on 22.04.1993 admitted in his cross-examination that on receiving the response from the plaintiff, Halka Patwari was deputed for reporting whether the land in question was given to D.C.M. for realignment of the Dariyai Nala, vide Note Ex. Dw3/3. He further deposed that the Report received from the Patwari was not available and the noting Ex. DW3/4 mention about the report of the Patwari. He further admits that after calling for the Report, no action was taken against the Company.
109. From the documents and the admissions on behalf of the defendant, it is well established that the ownership of the plaintiff in the suit land was admitted and acknowledged and proceedings initiated under the Government Premises (Eviction) Act, 1950 were not pursued further. It is observed that the title of the plaintiff as an owner in the suit property never came to be challenged by the defendant since 1942 till 1990 when the Notice dated 23.01.1990 under Section 4 under the Public Premises Eviction of Unauthorised Occupants Act, 1971 was issued. Though the defendant had asserted that the land belonged to it, but the overwhelming documentation as discussed above, proved the title of the plaintiff as an owner of the suit property. Pertinently all the correspondence as referred above was done with the plaintiff in its capacity of the owner; it does not now lie with the defendant to suddenly challenge its title to the suit property.
110. Similar facts as in present case, were considered in the case of Bhagwan Kaur And Others vs Ranjit Singh And Another AIR 1990 P H 89, where the plaintiff had acquired the suit land in exchange for his Haveli which was followed by delivery of possession which was evidenced by the entries in the Khasra Girdawari for the years 1958 to 1963 Ex. P8, Jamabandis for the year 1962-63 Ex. P5, for the year 1968-69 Ex. P-6 and for the year 1973-74 Ex. P7. The defendants were held to be estopped from challenging the title of the plaintiff whose possession was never disturbed for more than two decades. It was observed that the suit of the plaintiff could not be dismissed merely because the exchange was not effected by a registered deed.
111. Similarly in the case of Dada Vaku Nikam vs Bahiru Hingu Nikam (1927) 29 BOMLR 1419, the Division Bench of the Bombay High Court observed that in cases where there has been an actual exchange of land in pursuance of an oral agreement and the parties have remained in possession ever since that date without there being any question raised, the doctrine of part performance applies and, therefore, bar under Section 54 of TPA is removed.
112. These cases were referred to in the case of Balkrishna vs Prakash, MANU/MH/0046/2014, wherein it was observed by the Bombay High Court that the exchange of immoveable properties is required to be compulsorily registered unless followed by possession.
113. Learned counsel on behalf of the defendant has argued that DIT had no powers of sale or acquisition of the land and, therefore, any act done by DIT for sale or exchange was not tenable. For this reference may be made to the Nazul Agreement of 31.03.1937 EX. DW3/5, wherein the Government land had been handed over to Trust which included the suit land belonging to the Government. The Agreement specifically provided that Trust for the purpose of improvement and development could sell the land in pursuance of the Improvement Scheme sanctioned under Section 42 of the United Provinces Town Improvement Act,919.
114. Therefore, it is established that DIT had a right of sale/exchange of the properties handed over to it by the Government for the purpose of re-development. This contention of the defendant is, therefore, not tenable.
115. From the above discussion, it is proved that Trust while executing the Western Extension Scheme, Darhalia Nala required certain lands which belonged to the plaintiff. Consequently, some land belonging to the plaintiff was acquired by way of acquisition by taking out requisite Notices under Section 4 and 6 of Land Acquisition Act, 1894, while certain land i.e. 4040 Sq. Yds of Nazrul land and additional land of Service Road of which the Trust was the owner, was handed over to the plaintiff in exchange of their acquired land, the possession of which was taken by DCM vide letter dated 21.04.1942 Ex. DW 5/23 on 04.02.1942 and 15.03.1943 and since then the suit property is in the possession of the plaintiff. The entire chain of events as documented in the Letters discussed above, therefore, prove that plaintiff became the owner of the suit land by virtue of it be given to it in exchange of its land of same value which was taken by DIT.
Plea of Adverse Possession:
116. The plaintiff has further asserted that in view of its long, uninterrupted, settled and open possession of the plaintiff in the capacity of owner since 1942. The plaintiff’s status was never challenged by the Trust, the predecessor in interest of DDA for over 50 years and hence, its ownership is perfected on the principle of adverse possession.
117. The Apex Court in the case of Amrendra Pratap Singh vs Tej Bahadur Prajapati, (2004) 10 SCC 65, observed that, “the nature of the property, the nature of title vesting in the rightful owner, the kind of possession which the adverse possessor is exercising, are all relevant factors which enter into consideration for attracting applicability of the Doctrine of Adverse Possession. The right in the property ought to be one which is alienable and is capable of being acquired by the competitor. Adverse possession operates on an alienable right. The right stands alienated by operation of law, for it was capable of being alienated voluntarily and is sought to be recognized by doctrine of adverse possession as having been alienated involuntarily, by default and inaction on the part of the rightful claimant, who knows actually or constructively of the wrongful acts of the competitor and yet sits idle. Such inaction or default in taking care of one’s own rights over property is also capable of being called a manner of ‘dealing’ with one’s property which results in extinguishing one’s title in property and vesting the same in the wrong doer in possession of property and thus amounts to ‘transfer of immovable property’ in the wider sense assignable in the context of social welfare legislation enacted with the object of protecting a weaker section.”
118. In the case of Karnataka Board of Wakf v Government of India & Ors, (2004) 10 SCC 779 the court had ruled that the inherent nature of a plea of adverse possession is that someone else is the owner of the property. Therefore, a plea of title and adverse possession are mutually inconsistent as adverse possession does not begin to operate until a claim to good title is renounced.
119. The Apex Court in the case of Narasamma & Ors vs A. Krishnappa (Dead) Through LRs (2020) 15 SCC 218, considered the question of whether simultaneously a plea can be taken of title and adverse possession, i.e., whether it would a