Delhi District Court
Shri Bhushan Lal Sawhney vs Shri Ram Richpal Sharma ( Deceased) on 17 January, 2015
IN THE COURT OF THE ADDITIONAL DISTRICT JUDGE:
SHAHDARA DISTRICT: KARKARDOOMA COURTS: DELHI.
Presided by : Shri A. S. Jayachandra, DHJS
RCA No. 82/2013
Unique I.D No. 02402C0163782012
Shri Bhushan Lal Sawhney,
Proprietor of M/s Sawhney Rubber
Industries,
B-1, Industries Estate,
Jhilmil, G. T. Road, Shahdara,
Delhi. ............... Appellant
Versus
1. Shri Ram Richpal Sharma ( Deceased)
Through LRs
i) Smt. Shanti Devi (Widow)
ii) Shri Raj Bir Singh Sharma (son)
iii) Shri Mahesh Sharma (son)
iv) Smt. Raj Kumari (daughter)
v) Smt. Kamla (daughter)
vi) Smt. Sushma (daughter)
All R/o 1086, Harsaran Niwas,
Railway Road, Shahdara,
Delhi-110032
2. Shri Net Ram ( Deceased)
Through LRs
i) Smt. Prem Wati (Widow)
ii) Shri Sukhbir Sharma (son)
iii) Shri Ashok Sharma (son)
iv) Shri Naresh Sharma (son)
v) Shri Raj Kumar Sharma (son)
vi) Shri Mahesh Sharma (son)
vii) Suresh Sharma (son)
vii) Surinder Sharma (son)
Smt. Bala ( Daughter)
All R/o 641-D/1, Loni Road,
Shahdara, Dlehi-110032 ......... Respondents
RCA No.82/2013 Bhusan Lal Shawney Vs. Ram Richpal Sharma & Ors Page No. 1/16
Date of Institution : 04.06.2012
Order reserved on : 09.01.2015
Order passed on : 17.01.2015
J U D G M E N T
1. The defendant no. 1 in the trial court challenges the judgment and decree passed in Suit no. 860/2006 dated 02.05.2012 whereby the ld. court below had granted a decree of possession in respect of certain property and also passed a decree of perpetual injunction against the defendant no.1 from alienating the suit property. The decree further directs the defendant no.1 to pay damages at rate of Rs. 500/- p.m. with effect from 01.09.1987 with annual increment of 15 % p.a. along with the simple interest on the arrears at the rate of 12 % p.a.
2. Case of the plaintiff in the trial court: One Ramrichpal-the plaintiff (since deceased by LRs) had filed a suit against defendant no.1 and his manager for recovery of possession of the immovable property bearing Khasra no. 2891/104, Chandrawali Village, Shahdara measuring 410 sq yards ( now bearing no. 641/D). Plaintiff contended that he is the owner in peaceful possession and enjoyment and raised boundary wall. The said property was initially declared as Evacuee property and was leased to him by an order dated 31.07.1972 by the authorities. It is contended that the defendants on 02.04.1983 forcibly broke open the lock on the main gate; when protested by the plaintiff, they threatened him. They occupied the property illegally on 04.04.1983. The plaintiff RCA No.82/2013 Bhusan Lal Shawney Vs. Ram Richpal Sharma & Ors Page No. 2/16 made a police complaint. A private complaint was also filed for various offences under IPC before the then ACMM, Shahdara. Plaintiff alleges that defendant no.1 is hand-in-gloves with the police and thus, counter case was filed against the plaintiff by the police for the offence under Section 448 of IPC. The plaintiff further contended that the defendants have no right, title or interest to continue in possession and that plaintiff is entitled for recovery of possession along with damages @ 500/- p.m. till delivery of possession. Plaintiff restricted his claim for damages from the period 1987 in the suit. He has sought for a decree of recovery of possession, the perpetual injunction and also the damages.
3. Case of the defendants in the trial court: In the joint written statement, the defendants contended that the market value of the property is more than Rs. 5 lakhs and thus, pleaded no pecuniary jurisdiction at the trial court. They further contend that if the land is agriculture one, the provisions of Delhi Land Revenue Act ousts the jurisdiction of civil courts. They also pleaded that the suit is barred under limitation. Defendant no.1 claims to be in adverse possession of the property continuous, uninterrupted for more than 30 years hostile to the interest of the plaintiff. They also contended that defendant no.2 is not a necessary party. The defendants denied the title, ownership of the plaintiff and further they denied that the plaintiff having fenced the property. Plaintiffs were never in possession. The defendants perfected RCA No.82/2013 Bhusan Lal Shawney Vs. Ram Richpal Sharma & Ors Page No. 3/16 the title by way of adverse possession. It is also contended that plaintiff in his efforts to take possession by unlawful means filed a complaint of trespass which was dismissed by the SDM on 01.10.1981. Defendant no. 1 also contended that during the year 1971, two ladies by names Ms. Y. R. Mathur and Ms. S. R. Mathur claimed that they are the title holders to the property and this defendant no.1 paid rents of Rs. 75/- and Rs. 100/- p. m. respectively to them and the rent receipts were issued. Rest of the allegations are denied by the defendants.
4. Issues before the trial court: Based on the pleadings, the ld. court below by an order dated 15.05.1991 had framed eight issues as under:
1. Whether jurisdiction of this court is barred under DLR Act? OPD
2. Whether the suit is bad for mis-joinder of defendant no.2? OPD
3. Whether the plaintiff has no locus standi to file the present suit? OPD
4. Whether the defendant no.1 has become owner of the suit property by adverse possession? OPD
5. Whether the plaintiff is entitled to the relief of injunction as prayed for in the suit? OPP
6. Whether the plaintiff is entitled for decree of possession of the suit property? OPP
7. Whether the plaintiff is entitled to damages or mesne profit if so at what rate? OPP
8. Relief.
5. Plaintiff examined four witnesses and the defendants examined RCA No.82/2013 Bhusan Lal Shawney Vs. Ram Richpal Sharma & Ors Page No. 4/16 four witnesses. After hearing the ld. counsel and perusal of the entire material available before it, the ld. court below passed the decree in favour of the LRs of the plaintiff against the defendants.
6. Grounds in the appeal: Aggrieved by the said judgment and decree, the defendant no.1 in the trial court challenges the same on the grounds concisely stated as here under:
a). The plaintiff in the trial court had not produced any title and the documents produced by him do not confer any lawful title. The plaintiff failed to examine the revenue officials.
b). The trial court erroneously held the plaintiff as the title holder, in fact the plaintiff had not approached the court with clean hands. The plaintiff- Ramrichpal had earlier complained before the revenue officials that the defendant-appellant as being in possession.
c). The trial court has no jurisdiction in view of the Land Revenue Act.
The Ld. court below ought to have held that the plaintiff in the trial court has no concern with the suit property and the suit ought to have been dismissed.
d). It is also urged that the findings of the court below is opposed to the law laid down by various superior courts. The other grounds at (f) &
(g) in the memorandum of appeal only concerns with the law of limitation and non-declaration in the plaint to the effect of having not filed any other petitions.
7. My Ld. Predecessor directed the issuance of notice to all the RCA No.82/2013 Bhusan Lal Shawney Vs. Ram Richpal Sharma & Ors Page No. 5/16 respondents. Upon notice, the LR no. 2 of respondent no.1 by name Mukesh Sharma appeared through counsel. Later the other LRs also appeared through their counsel Shri M. N. Khural. The LRs of respondent no.2 were served through publication in 'Dainik Jagran' issue dated 10.06.2014. Since they did not appear, they were placed ex-parte on 08.07.2014, the matter was heard. The detail written arguments also filed on both the sides which are perused.
8. In the backdrop of the lengthy arguments advanced and after perusal of the voluminous trial court records, the only issue that arises for determination in this appeal is "whether the impugned judgment and decree of the trial court is perverse, opposed to law and the fact situation based on evidence or not?"
9. In the written arguments filed by the appellant through the ld. counsel Shri Anurag Lakhotia, it is urged that the suit is barred under the Delhi Land Reforms Act. He points out that by an order dated 11.04.1990, the land is held to be agricultural land. This order has attained finality and operates as res-judicata following the ruling of Prahlad Singh Vs. Sukhdev Singh, AIR 1987 SC 145. He submits that in view of the above, the Civil Court has no jurisdiction under Section 185 of Delhi Land Reforms Act. To urge this point, he relies on Hatti Vs. Sunder Singh, 1971 SCR (2) p.163. He submits that while rendering the final judgment, the ld. court below had grossly erred by ignoring the earlier order dated 11.04.1990. He also submits that the impugned judgment based on the case law in Neelima Gupta Vs. RCA No.82/2013 Bhusan Lal Shawney Vs. Ram Richpal Sharma & Ors Page No. 6/16 Yogesh Saroha, 156 (2009) DLT 129 is not logical since the ruling does not apply to the present case. He argued that once the suit property is held as agricultural land, the entire judgment and decree suffers from lack of inherent jurisdiction.
10. The appellant's counsel further would urge that the alleged order of the custodian dated 31.07.1972 and the alleged title put up by the respondents in the trial court does not match with the suit property. Thus, he says that the suit property is not properly described. He points out that the order of the custodian only speaks of a piece of land being Half of the Khasra No. 2891/104 and not in pieces whereas there are other properties between the Khoti of Ramrichpal and Netram and the suit plot. He submits that the plaintiff in the trial court misled the court to show the title of the property. He further would urge that the appellant has been in possession of the suit property for the past 60 years. He relied on AIR 1991, Patna 99 in the matter of Laxmi Narayan Barnawl Vs. Jagdish Singh.
11. On the other hand, the ld. counsel for the respondents filed the detailed written argument claiming that the suit property was purchased for valuable consideration as per the title deed at Ex. PW1/1. The same alongwith the other property was declared as evacuee property and released in favour of the actual owners by an order dated 31.07.1972. The facts of the case and the issues are reiterated in the written argument. It is submitted by him that the DLR RCA No.82/2013 Bhusan Lal Shawney Vs. Ram Richpal Sharma & Ors Page No. 7/16 Act was only to regulate the agricultural land and section 13(3) of the Act defined the land which includes non- agricultural incidental usage of the land also. He submits that once the land loses the agricultural character, the dispute can be resolved by the Civil Courts. He relied on Neelima Gupta ( Supra). The findings of the trial court dated 11.04.1990 is only with regard to the decision about the pecuniary jurisdiction and both the issues are separate and different. Therefore the res-judicata is not applicable according to him. He submits that the valuation of the property according to section 7 clause-V (b) of the Court Fee Act is rightly decided by the court below. The ld. counsel had also stated in the written arguments that the evidence is cogent to sustain the reliefs. He further submits that the unauthorized occupant cannot show or demonstrate the better title than that of the true owner. The appellant failed to establish the possession since 1950 and that the appellant usurped the possession illegally in and around April 1983. Therefore, it cannot be said that the law governing adverse possession would be applicable in favour of the appellant herein.
12. The contention of the appellant that Ms. Yashoda Rani Mathur and Ms. Swaraj Rani Mathur were the owners of the property is not proved on record and they were not examined. Having failed to prove the said contention, the only option left with trial court was to hold the respondent no.1 as the true owner of the property since the appellant had no right, title or interest- as contended in the written RCA No.82/2013 Bhusan Lal Shawney Vs. Ram Richpal Sharma & Ors Page No. 8/16 arguments filed by the respondents. It is further canvassed that the suit was filed for evicting the unauthorised occupant within the period of limitation prescribed under Article 65 of the Limitation Act. It is submitted that the appellant is pleading contradictory. At one hand, appellant claimed ownership by adverse possession and on the other hand, he claimed to be the tenant under M/s Yashoda Rani Mathur and Ms. Swaraj Rani Mathur. The issues were never sought to be amended or recasted. According to the respondent, the possession prior to 1983 is proved with the evidence of DW-2 and the impugned order does not suffer from any illegality of perversity. Therefore, he submits the appeal be dismissed.
13. Shri M. N. Kural apart from filing the written arguments had also submitted in his oral arguments that the preliminary issue was decided only with regard to the purposes of court fee and pecuniary jurisdiction. Therefore, he states that there has been no conflicting opinion as regards the order dated 11.04.1990. He further submitted that the proper court fee is not paid on the appeal and the appeal is liable to rejected. The adverse possession is never proved. There was no cross examination of the witnesses of the plaintiff by the appellant- defendant in the trial court as regards the revenue records. The appellant having not filed the site plan to contradict the site plan of the respondent-plaintiff in the trial court, the site plan furnished by the appellant is to be held as correct deeming it so. The respondents urge RCA No.82/2013 Bhusan Lal Shawney Vs. Ram Richpal Sharma & Ors Page No. 9/16 that the appeal be dismissed.
14. For deciding the issue arising in the appeal, this court has gone through the entire judgment and the order sheet of the ld. court below. From the record, this court finds that there is an order dated 11.04.1990 passed by the then sub-judge, first class, Delhi on the issue "Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD"
This issue does not find reference in the order sheet dated 15.05.1991 whereby the issues were framed, which are already mentioned at para-4 (supra). But in the order sheet dated 31.05.1989, the court below has framed the preliminary issue mentioned as above.
While deciding this issue after hearing both the parties, ld. court below has held as under:
" Thus, the jamabandi Ex. P-1 which was issued in 1987, the land is subject to land revenue. No evidence to the contrary has been placed on record by the defendant. This document itself is sufficient to show that the property is agricultural land and it is subject to payment of land revenue........ there is unanimous finding that section 7 (v) (b) is applicable."
15. The ld. counsel for the appellant vehemently argued that this finding that the land (subject matter of the suit) being agricultural in nature, would oust the jurisdiction of the the civil courts. He points RCA No.82/2013 Bhusan Lal Shawney Vs. Ram Richpal Sharma & Ors Page No. 10/16 out to section 185 of DLR Act. He relied on the ruling of Usha Gupta Vs. Subhash Chand Tyagi (O. S. No. 2191/2007, D.D. on IA dated 28.11.2011) wherein our Hon'ble High Court held as under:-
"8. In Hatti Vs. Sunder Singh, AIR 1971 SC 2320, Supreme Court has held that with regard to the suits for possession, under Section 84 read with item 19 of the First Schedule gives jurisdiction to the Revenue Assistant to grant decree for possession and a suit for possession in respect of agricultural land, after the commencement of the Act, can only be instituted either by a Bhumidar or by an Asami or the Gram Sabha and not by any person claiming to be a proprietor because the Act does not envisage a proprietor as such continuing to have rights after the commencement of the Act.
9. A Single Judge of this Court in Sri Kishan (supra) has held that a suit for declaration and partition of agricultural land shall be barred under Section 185 of the DLR Act. In the context of Section 185 of the DLR Act, Supreme Court in Gaon Sabha and Anr Vs. Nathi and Ors. (2004) 12 SCC 555 has held as under:-
"The legal position is therefore absolutely clear and there cannot be even a slightest doubt that the civil court had no jurisdiction to entertain the suit which was filed seeking a declaration that the order of vesting of land in Gaon Sabha is illegal. It is indeed surprising that in spite of the aforesaid Division Bench decision of the Delhi High Court which was rendered in 1973 which had settled the legal position and was a binding precedent and the decision of this Court in Hatti Vs. Sundar Singh RCA No.82/2013 Bhusan Lal Shawney Vs. Ram Richpal Sharma & Ors Page No. 11/16 (supra) which was also brought to the notice of the learned Single Judge hearing the second appeal (RSA No. 73 of 1972), he chose to bye-pass the same be some queer logic and went on to hold that the civil suit was maintainable. Once we come to the legal position that the civil court had no jurisdiction to entertain the suit, the inevitable consequence is that the decree passed in the aforesaid suit including that of the High Court is wholly without jurisdiction......."
10. Judgment in Rajender Singh Vs. Vijay Pal @ Jai Pal and Others, 2008 (148) DLT 596, reliance whereupon has been placed by the plaintiff's counsel is in the context of different facts and is of no help to the plaintiff. Reliefs claimed in the said suit were with regard to declaration and permanent injunction. The scope of Section 84 DLR Act read with item 19 (i) of Schedule-I which proviso a remedy of possession under the said Act, was not in issue nor it has been held that suit for declaration and/ or possession is maintainable in a civil court in respect of an agricultural land governed under the DLR Act."
16. Having found an answer with regard to the nature of land as in the order dated 11.4.1990, the further finding in the impugned judgment based on the ruling of Neelima Gupta Vs. Yogesh Saroha (supra) holding that the civil court would have the jurisdiction of the dispute appears contradictory with the ruling in Usha Gupta (Supra). The impugned judgment held " the land beneath the suit property has lost its basic character as agricultural land". In the cross examination RCA No.82/2013 Bhusan Lal Shawney Vs. Ram Richpal Sharma & Ors Page No. 12/16 of PW-1 dated 05.05.1992, PW-1 had admitted that " it was previously agricultural land but not after that. It is not agricultural land for the last 30 years". According to the plaintiff himself in the trial court the land is not agricultural one. If that is so the valuation of the property only on the basis that it is agricultural by accepting the valuation of the suit for relief of possession at 30 times the land revenue ( land revenue being 56 paisa and paying court fee of Rs. 5 and 60 paisa) is highly unjustified. The land ought to have been assessed at the market value of the price as on the date of filing of the suit. This court is of the firm opinion that in the circumstances the finding arrived in the final judgment is in total conflict with the findings of the very court dated 11.04.1990. Hence, the matter is to be dealt again to find out the true nature of the land as on the date of filing of the suit as to whether it was indeed agricultural land ( as held in the order dated 11.04.1990) or whether it has lost its agricultural character or not as held in the final judgment dated 02.05.2012. Hence, both the findings are to be nullified by keeping open the question to arrive at a fresh decision by the court below.
17. It is also urged by the ld. counsel for the appellant that the suit property is not properly described in the suit and annexure A in the red colour. The said annexure A is Ex. PW1/2. This is a site plan for the property measuring 45 ft. towards South to West on both the sides and 72 ft. towards East to West on the Southern side and 93 ft on the RCA No.82/2013 Bhusan Lal Shawney Vs. Ram Richpal Sharma & Ors Page No. 13/16 Western side with a road towards the East. This is stated to be bearing no. 641/D of the Khasra no. 2891/104. The title deed relied by the plaintiff to show that the property belonged to them is the sale deed Ex. PW1/1. Though it is contended by the appellants that suit property is described ambiguously, the claim to be in possession adverse & hostile in their W/S to the very property. Hence, they can not plead otherwise. The appellants have not shown better title and proved before the ld. court below.
18. Further more, the ld. counsel for the appellant argued that he has taken a definite contention in para 1 of the written statement. It is specifically stated in the written statement " the said land is not out of khasra no. 2891/104, Village Chandrawali, Delhi, Shahdara" ( para 1 on merits in the W.S). The defendant ( appellant) has not stated in the trial court as to what is the correct khasra number of the plot. Defendant himself is unable to say definitely the khasra number of his possession. Therefore, the identity of the property cannot be disputed since the defendant has no title to the property.
19. The only point that can be considered in the appeal is with regard to the maintainability of the suit and the decree on the ground that the ld. court below having held the property to be agricultural in nature vide its order dated 11.04.1990, by an interim order had treated the same as having lost the agricultural character in the final judgment. If it has lost the character of agricultural nature, the plaintiff ought to RCA No.82/2013 Bhusan Lal Shawney Vs. Ram Richpal Sharma & Ors Page No. 14/16 have paid the court fee as per the market value on the suit and not as valued in para 16 of the plaint by paying Rs. 5 and paise-60 for the main relief, though court fee is paid on the damages/mesne profits. This aspect needs to be looked into afresh by the court below to answer the following two aspects of the matter:-
a) Whether the suit property as on the date of filing of the suit was agricultural land or not?
b) If not whether the suit of the plaintiff is under valued and whether proper court fee is paid or not?
These above issues are imperatively to be decided since in case the court holds it to be an agricultural land, the ruling of our Hon'ble High Court in Usha Gupta Vs. Subhash Chand Tyagi (supra) would come into play. If this ruling is to be followed then the suit before the Civil Court would not be maintainable. On the other hand, if it has lost the agricultural character, the civil court is empowered to entertain the suit following the ruling in Neelima Gupta (supra) but upon the payment of the court fee on the market value of the suit property as on the date of filing of the suit.
20. In view of the above conclusion, this court is of the opinion that the matter requires a reconsideration at the hands of the ld. court below, which shall decide only the above two issues. Consequently, the appeal is being disposed of by the following order:
RCA No.82/2013 Bhusan Lal Shawney Vs. Ram Richpal Sharma & Ors Page No. 15/16
ORDER The appeal stands disposed by setting aside the judgment and decree in Suit No. 860/2006 dated 02.05.2012 on the files of Ld. SCJ-cum-RC (N/E), Karkardooma Courts with a direction to render its findings on the above two issues also by receiving evidence on either side intimated the above two issues only and render. Thus, the matter is remitted back to be dealt in accordance with law.
Parties to appear before the ld. court below on 18.02.2015.
Trial court records be sent alongwith the a copy of this judgment. File be consigned to Record Room.
Pronounced in the open court ( A.S. JAYACHANDRA) 17.01.2015 Addl. District Judge:
Shahdara District:
KKD Courts Complex:Delhi RCA No.82/2013 Bhusan Lal Shawney Vs. Ram Richpal Sharma & Ors Page No. 16/16