Delhi District Court
Union Of India vs Prem Singh & Ors. on 15 December, 2011
IN THE COURT OF SHRI ARUN BHARDWAJ: ADJ:
SOUTH WEST: NEW DELHI.
LAC No. 11/11/04
In the matter of :-
Union of India Versus Prem Singh & Ors.
1. Sh. Prem Singh ...Recorded Owner No. 1
S/o Sh. Bharat Singh
2. Smt. Mewa ...Recorded Owner No. 2
D/o Sh. Bharat Singh
3. Sh. Sultan Singh ...Recorded Owner No. 3
S/o Bharat Singh
4. Smt. Hukum Kaur ...Recorded Owner No. 4
Wd/o Sh. Dalip Singh
5. Gaon Sabha of Village Pochanpur ...Recorded Owner No. 5
6. Smt. Bharto ...Objector No. 1
Wife of Sh. Mam Chand
7. Sh. Harpal ...Objector No. 2
S/o Sh. Mauji Ram
8. Sh. Kehar Singh ...Objector No. 3
S/o Sh. Mauji Ram
9. Sh. Satbir Singh ...Objector No. 4
S/o Sh. Mauji Ram
10. Sh. Umed Singh ...Objector No. 5
S/o Sh. Mauji Ram
11. Sh. Chunni Lal ...Objector No. 6
S/o Sh. Mauji Ram (deceased)
Through his legal heirs:-
i) Smt. Barfi Devi - Mother of Sh. Chunni Lal
ii) Smt. Shanti - Wife of Sh. Chunni Lal
iii) Smt. Jyoti - Daughter of Sh. Chunni Lal
LAC No. 11/11/04 Page 1/25
iv) Smt. Roopa - Daughter of Sh. Chunni Lal
v) Master Sunil Kumar - Son of Sh. Chunni Lal
vi) Minor priyanka - Daughter of Sh. Chunni Lal
Both minors through their mother and natural guardian Smt. Shanti Devi.
12. Sh. Jagat Singh
S/o Sh. Mauji Ram ( deceased)
Through his legal heirs:-
i) Smt. Santra Devi
wife of Sh. Jagat Singh
through her legal heirs:-
(a) Smt. Seema D/o Late Sh. Jagat Singh
(b) Smt. Kavita D/o Late Sh. Jagat Singh
(c) Sh. Vikram S/o Late Sh. Jagat Singh
All R/o Village & P.O Pochanpur, New Delhi
...Objector No. 7
13. Sh. V.K. Paul
S/o Sh. H.R. Paul
R/o 71/126, Prem Nagar,
Janakpuri, New Delhi
...Objector No. 8
14. Smt. Indu Sharma
D/o Sh. Bal Kishan
R/o R-63, C, Dilshad Garden,
New Delhi
...Objector No. 9
Village : Pochanpur
Award No. : 30/2002-03
Filed on : 11.02.2004
Reserved on : 03.12.2011
Decided on : 15.12.2011
J U D G M E N T :-
1. This is a reference under Section 30-31 of the Land Acquisition Act, LAC No. 11/11/04 Page 2/25 1894.
2. Subject matter of this reference is land in Khasra No. 18//3 (1-18) and 18//3 (2-18) total measuring 4 bigha and 16 biswa in the revenue estate of village Pochanpur Tehsil Vasant Vihar District South-West, Delhi.
3. As per naksha muntzamin, so far as land in khasra No. 18//3 Min (1-18) is concerned, the same is shown recorded in the name of Sh. Prem Singh son of Sh. Bharat Singh, Smt. Mewa daughter of Sh. Bharat Singh, Sh. Sultan Singh son of Sh. Bharat Singh and Smt. Hukum Kaur widow of Sh. Dalip Singh. All the four are having 1/4th share in the said land.
4. So far as land in khasra No. 18//3 Min (2-18) is concerned, the same is recorded in the name of Gaon Sabha.
5. This land was acquired vide award No. 30/2002-03. The collector determined that the compensation payable for this parcel of land is Rs. 21,32,267.52 but did not release the same in the favour of recorded owners because objections were filed by objector No. 1 to 7 who are Smt. Bharto wife of Sh. Mam Chand, Sh. Chunni Lal, Sh. Harpal, Sh. Jagat Singh, Sh. Kehar Singh, Sh. Satbir Singh, Sh. Umed Singh, all sons of Sh. Mauji Ram and objector No. 8 and 9 who are Sh. V.K. Paul and Smt. Indu Sharma respectively.
6. In view of objections of the objectors, the collector referred this reference for adjudication of title dispute as also dispute for apportionment.
7. Case of Gaon Sabha:- Gaon Sabha who is recorded owner of land in khasra No. 18//3 Min (2-18) has filed its claim petition on 27.07.2005 where it has stated that the Gaon Sabha is the sole and actual owner of the land in question and was in possession at the time of notification under Section 4 of L A Act and at the time of passing of award for the said land by Govt. of India. Gaon Sabha had handed over the peaceful vacant possession to the Govt. of India at the time of acquisition of the said land. It is stated that the khasra Girdawari and Khatoni show that Gaon Sabha is the bhumidar / owner of the land and is entitled to the compensation for land in question.
LAC No. 11/11/04 Page 3/258. For reasons known to the Gaon Sabha, another claim was again filed on 02.06.08 making similar averments as were already made in the earlier claim. This appears to be by oversight and therefore second claim filed by Gaon Sabha is liable to be ignored.
9. Case of recorded owners No. 1 to 4:- The recorded owners of land in khasra No. 18//3 (1-18) have also filed a joint claim. Their case is that a dispute had arisen during consolidation proceedings of village Pochanpur at the time of partition as Killa No. 18/15/1 (2-10) and Killa No. 14 (4-16) were allotted to the father and husband of claimants and Killa No. 18/3 (4-16) was allotted to late Sh. Mauji Ram and Killa No. 18/2/3 was alloted to Gaon Sabha.
10. It is stated that Sh. Mauji Ram filed objections and demanded that Killa No. 18/15/1, 14 and 18/2/3 be allotted to him.
11. It is stated that the consolidation officer after hearing Sh. Mauji Ram allowed Killa No. 18/2/3 (1-12) to Sh. Mauji Ram. However, his other claims / demands were rejected.
12. It is further stated that Sh. Mauji Ram had filed an appeal before Settlement Officer who withdrew Killa No. 18/15/1 (1-12) and Killa No. 14 (4-16) from Sh. Sultan Singh, Sh. Prem Singh, Smt. Mewa, Smt. Hukum Kaur (all descendants of late Sh. Bharat Singh) and allotted the same to Sh. Mauji Ram. However, claim qua Killa No. 18/3 (4-16) and 18/2/3 (1-12) was not allowed.
13. It is further stated that late Sh. Mauji Ram further filed an appeal before the Additional Collector who remanded the case to Settlement Officer and on remand the Settlement Officer further withdrew Killa No. 18/15/1 (1-12) and Killa No. 14 (4-16) from claimants and allotted the same to Sh. Mauji Ram and Killa No. 18/3 (4-16) and 18/2/3 (1-12) were withdrawn from Sh. Mauji Ram and allotted to claimant herein.
14. It is stated by Recorded owners No. 1 to 4 that Sh. Mauji Ram sold portion of Khasra No. 18/3 to one Sh. V.K. Paul and Smt. Indu Sharma though at that relevant time, Sh. Mauji Ram was not the bhumidar of the aforesaid khasra LAC No. 11/11/04 Page 4/25 because of proceedings referred above and even the mutations were effected in consequence of the void ab initio sale deeds.
15. It is further stated that the Recorded owners No. 1-4 preferred two appeals before Collector South-West, Delhi by virtue of appeal No. 123/97 and 124/97. The Recorded owners also filed writ petition before Hon'ble High Court. However, in the meantime, the orders of settlement Officer (consolidation) were sent to Tehsildar Mehrauli for implementation and the same were even implemented in the year 1986-87 and Sh. Mauji Ram was not the bhumidar but still he sold land to one Sh. V.K. Paul to the extent of 10 biswa and to Ms. Indu Sharma to the extent of 1 bigha out of Khasra No. 18/3 (4-16).
16. It is stated that the collector set aside the mutation orders and sent back the case to the concerned SDM / LAC for further hearing and decision afresh and the impugned orders of mutation and settlement were set aside.
17. It is stated that the Recorded owners filed objections before the SDM/ LAC but the matter was referred to this court as there is a dispute of title qua khasra No. 18/15/1 (2-10) and Khasra No. 14 (4-16) and 18/3 (4-16), 18/2/3 (1-12) situated in the revenue estate of village Pochanpur.
18. The Recorded owners No. 1-4 claims themselves to be the owner of khasra No. 18/15/1 (2-10) and khasra No. 14 (4-16) which had originally come to the share of late Sh. Bharat Singh and therefore claimants claimed compensation for land falling in khasra No. 18/15/1 (2-10) and khasra No. 14 (4-16).
19. It is further stated by the Recorded onwers No. 1-4 that sale deed executed by late Sh. Mauji Ram in favour of Sh. V.K. Paul and Smt. Indu Sharma is in contravention and violation of provisions of Section 33 of the DLR Act and as such the sale deeds and mutation are of no consequence being void ab initio.
20. The recorded owners No. 1-4 have prayed that compensation of land bearing Khasra No. 18/15/1 (2-10), khasra No. 14 (14-16) and Khasra No. 18/16 (3-4) may be released to them.
21. It is to be noted that the parcels of land for which recorded owners LAC No. 11/11/04 Page 5/25 are claiming compensation are not subject matter of this reference as subject matter of this reference is land in khasra No. 18//3 Min (1-18) and 18//3 Min (2-18) and not khasra No. 18/15/1 (2-10), khasra No. 14 (14-10) and khasra No. 18/16 (3-5).
22. Case of objector No. 2 to 7:- Objector No. 2 to 7 have filed a joint claim.
23. Their case is that they were the owners / bhumidars of land bearing khasra No. 18//3 Min (1-18) and khasra No. 18//3 Min (2-18) total measuring 4 bigha 16 biswa. They were in actual physical cultivatory possession of the said land till its acquisition. It is stated that Sh. Mauji Ram never sold any land to anyone and after the death of Sh. Mauji Ram his LRs came in possession of the land in question.
24. It is their case that the sale deeds in favour of Sh. V.K. Paul and Smt. Indu Sharma are forged and fabricated sale deeds. The revenue record showing the name of alleged other claimants as bhumidar is illegal, improper and at the time of recording such entries notice was not given to objector No. 2 to 7 which was mandatory.
25. It is stated that objectors No. 2 to 7 came to know about the sale deeds when objector No. 8 and 9 filed their claims claiming themselves to be the bhumidar.
26. It is stated that as there was no sale of any kind, the land could not be vested in Gaon Sabha under Section 33 of Delhi Land Reforms Act. It is stated that Smt. Bharto objector No. 1 had executed a registered will in favour of Sh. Umed Singh on 09.04.1981 and on the basis of said will Sh. Umed Singh son of Sh. Mauji Ram became exclusive owner of the property of Smt. Bharto. Therefore, objector No. 2 to 7 claimed compensation for the land in question.
27. Case of objector No. 8:- Claim of objector No. 8 Sh. V.K. Paul is that he is a bonafide purchaser of land bearing khasra No. 18/3 measuring 475 sq. yards situated in the revenue estate of village Pochanpur and had purchased the said land for lawful consideration from Sh. Mauji Ram son of Sh. Budh Ram vide registered sale deed dated 25.07.84.
LAC No. 11/11/04 Page 6/2528. It is stated that after purchasing the land, its possession was handed over to objector No. 8 by Sh. Mauji Ram and on the application of objector No. 8 the land was mutated in the revenue records in his name on the basis of sale deed.
29. It is stated that the tehsildar had sanctioned the mutation on 02.05.89 in case No. 1171/88-89 after following due process of law.
30. It is stated that this objector was not served with any notice or summon by SDM/ RA before passing order dated 31.08.92 vesting the land in Gaon Sabha. Objector No. 8 claims that he had filed an application for setting aside vesting order on 19.11.01 but during the pendency of application the land was acquired and thereafter SDM /RA had no jurisdiction to entertain the application.
31. It is stated that there was no evidence before the SDM / RA to show that sale deed in favour of objector No. 8 was in violation of Section 33 of DLR Act and the Tehsildar had passed order dated 02.05.89 sanctioning mutation in favour of objector No. 8 after calling a report from the tehsildar and after making proper inquiries the mutation was sanctioned in favour of objector No. 8.
32. It is stated that sale in favour of objector No. 8 was never assailed by anybody and is a valid and subsisting sale. Therefore, this objector claimed compensation for 475 sq. yards of land out of khasra No. 18//3 which is subject matter of this reference.
33. Case of objector No. 9:- Objector No. 9 has stated that she had purchased 1000 Sq. Yards of land out of Khasra No. 18/3 from Sh. Mauji Ram vide registered sale deed dated 14.08.84. Thereafter, possession of land was handed over to her and she remained in possession till acquisition of above mentioned land by Government vide award mentioned above.
34. Objector No. 9 has stated that her application for mutation of purchased land in her name was misplaced in the office of Tehsildar and she applied again for mutation which was allowed by tehsildar vide Mutation Case No. 814/86-87 after following proper procedure as provided in Delhi Land Reforms Act LAC No. 11/11/04 Page 7/25 and rules framed thereunder.
35. It is stated by objector No. 9 that after land purchased by her was mutated in her favour, SDM/RA Patel Nagar on the earlier application moved by her for mutation before Tehsildar vested the land in Gaon Sabha on the ground that the land in question was in violation of Section 33 of Delhi Land Reforms Act. It is stated that she was not given any notice / summon before vesting order was passed in favour of Gaon Sabha.
36. Objector No. 9 has stated that she came to know about this vesting order in the month of August 2001 and after having come to know of this order she moved an application under Appendix 6 Rule 14 for setting aside the order of vesting in Gaon Sabha and during pendency of the case the suit land was acquired by the Government and jurisdiction of SDM/ RA ceased as per provisions of D.L.R. Act.
37. It is stated that there was no material before SDM / RA to pass vesting order against objector No. 9 as sale deed was not violative of Section 33 of D.L.R Act. It is stated that the tehsildar had awarded mutation in favour of objector No. 9 after making required enquiries and issue of violation of Section 33 of DLR Act is a question of fact and can not be decided without leading evidence.
38. Objector No. 9 has stated that order of vesting has been passed without giving proper opportunity of being heard and consequently said order is void ab initio and non est in the eyes of law.
39. Therefore, this objector has claimed compensation for 1000 sq. yards of land out of Khasra No. 18/3.
40. On 29.05.08, following issues were framed:-
(1) To what apportionment of compensation which of the IP is entitled for?
(2) Relief.
41. Evidence of Recorded owners:- On behalf of recorded owners, Shri Sultan Singh entered the witness box as CW-1 and deposed similar facts as LAC No. 11/11/04 Page 8/25 were already deposed by him in his evidence by way of affidavit. Two documents were exhibited by this witness which are:-
(1) Exhibit CW1/1: Certified copy of order dated 11.02.2000 passed by collector in an appeal of present recorded owners challenging mutation in favour of objector No. 8 and 9. Collector found that father of objector No. 2-7 Sh. Mauji Ram had sold the land to objector No. 8 and 9 and therefore his sons were left with no interest in proceedings and were proceeded exparte. He also found that Sh. Mauji Ram was the recorded owner at the time of execution of sale deeds on the basis of which sale deeds and mutations were recorded in favour of objector No. 8 and 9. He found that there are no certified copies to show that Sh. Mauji Ram was not the recorded owner of land in question but still chose to remand the matter to trial court and gave opportunities to parties to lead evidence to prove their case. Mutations in favour of objector No. 8 and 9 were set aside.
(2) Exhibit CW1/2: Certified copies of orders dated 28.11.78, 25.01.79 and 10.04.89 passed by Hon'ble High Court in CWP No. 1303/78. Vide orders dated 28.11.78, it was ordered by Hon'ble High Court that possession of present recorded owners shall not be disturbed in respect of Kh. No. 18/14 and 18/15/1 and this interim order was confirmed vide orders dated 25.01.79. Vide orders dated 10.04.89, writ petition filed by present recorded owners challenging order of Financial Commissioner refusing to interfere with orders of Settlement Officer where by Killa No. 18/14 (4 bigha 16 biswas) and 18/15/1 (1 Bigha 12 biswas) were withdrawn from them and Killa No. 18/2/3 (1-12) and 18/3 (4-16) were allotted to them was disposed of as abated holding that land was under Consolidation Act and that the shares of the properties LAC No. 11/11/04 Page 9/25 had not been mentioned.
42. CW-1 aged 92 years stated in his cross-examination that he was in possession of land in question but could not answer it's khasra numbers. He could not recall whether any document was filed by him to show his possession. He denied that Sh. Mauji Ram was never owner of land in question. He did not remember any facts with respect to land in question.
43. Smt. Hukam Kaur entered witness box as CW-2 and filed her evidence by way of affidavit similar to the one filed by Sh. Sultan Singh, CW-1. Almost similar answers were given by this witness in her cross examination as were given by CW-1 Sh. Sultan Singh. No document was proved by this witness.
44. Shri Prem Singh entered witness box as CW-3 and his evidence by way of affidavit as well as his cross-examination was also similar to evidence of CW-1 Shri Sultan Singh.
45. Fourth and the last witness examined on behalf of recorded owners was CW-4 Shri Ombir Singh Pnachayat Secretary who exhibited following documents:-
(1) Exhibit CW4/1: Khatoni for the year 1975-76. This is a detailed khatoni for Khasra No. 18/3 (4-16) showing Bhimidari rights since 1954-55 showing 11 mutations which were recorded from time to time and are as under:-
Sl. No. Mutation Date Case No. Order Khasra From To
No. passed Number
by and area
1. 167 27.02.87 814/86-87 Tehsildar 18/3 Sh. Mauji Smt.
(1-0) Ram Indu
Sharma
2. 188 20.11.87 850/86-87 Nil - -do- LRs of
Sh. Mauji
Ram
3. 208 02.05.89 1171/88-89 Naib 18/3 Sh. Sh. V.K.
Tehsildar (0-10) Umed Paul
Singh
LAC No. 11/11/04 Page 10/25
etc.
4. 211 - CWP. Hon'ble 18/3 Sh. Mauji Sh. Prem
1303/78 Mr. (4-16) Ram Singh
Justice
M.K.
Chawla
5. 233 31.01.92 620/85-86 SDM 18/3 Sh. Mauji Gaon
Patel (0-15) Ram Sabha
Nagar
6. 247 23.10.92 685/85-86 -do- 18/3 Sh. Mauji Gaon
(0-10) Ram Sabha
7. 248 23.10.92 660/85-86 -do- 18/3 Sh. Mauji Gaon
(0-4) Ram Sabha
8. 13 21.06.02 - Teh. 18/3 Sh. Dalip Smt.
Vasant (1-18) Singh Hukum
Vihar Kaur
9. 249 - 661/85-86 SDM / RA 18/3 Smt. Gaon
(0-10) Neelu Sabha
Chand
10. 229 31.01.92 664/85-86 RA 18/3 Smt. Gaon
(1-0) Indu Sabha
Sharma
11. 336 09.12.02 Award No. - 18/3 - Union of
30/02-03 (4-16) India
(2) Exhibit CW4/2:- The second document exhibited by
this witness is khasra girdawari for the years 2001-02 and 2002-03.
As per khasra girdawari for the year 2001-02, name of Sh. Dalip Singh etc. is noted in column No. 4 and in remarks column it is noted that out of Khasra No. 18/3 (3-6) land measuring (1-18) has vested in Gaon Sabha. In Khasra No. 18/3 (1-0) name of Smt. Indu Sharma objector No. 9 is shown in column No. 4 who is shown to have cultivated crop Jawar in Kharif reason and wheat in Rabi. In khasra Girdawari for the year 2002-03, land in khasra No. 18/3 (2-18) is shown in the name of Gaon Sabha in column No. 4 LAC No. 11/11/04 Page 11/25 and Khasra No. 18/3 (1-18) in the name of Smt. Hukum Kaur etc.
46. Evidence of IP No. 2-7:- On behalf of objectors, Sh. Umed Singh one of the LRs of Shri Mauji Ram entered witness box and in his evidence by way of affidavit he has deposed similar facts as were stated in the claim petition. This witness sought to exhibit as Exhibit RW1/1, Khatoni Paimaish of Kh. No. 18/3 (4-16) to show rights over said land. Will dated 09.04.81 executed by Smt. Bharto wife of Shri Mam Chand in favour of Shri Umed Singh was sought to be exhibited as Exhibit RW1/2. (However, none of these documents are exhibited documents).
47. Shri Umed Singh also filed his additional evidence by way of affidavit and contrary to his claim also claimed compensation for land in Khasra No. 18/15/1 (2-10) and 18/14 (4-16). He sought to exhibit khatoni for the year 1975-76 for Khasra No. 18/14 (4-16) and 18/15/1 (1-12) as Exhibit RW1/3 ( But the same is not an exhibited document). Copy of order passed by Hon'ble High Court of Delhi in CWP 1303/78 which was already exhibited as Exhibit CW1/2 was sought to be exhibited as Exhibit RW1/4.
48. In cross-examination, this witness denied that his father had sold any land out of khasra No. 18/3. He stated that land in Khasra No. 18/3 (4-16) did not belong to them and they have no concern with the same. He further stated that the land in khasra No. 18/3 though initially belonged to his father Sh. Mauji Ram, it was later on in the year 1978 allotted to present recorded owners. He went on to state that he has no objection if the compensation of land in khasra No. 18/3 Min measuring 2 bigha and 18 biswas is disbursed in favour of Gaon Sabha. He further stated that present recorded owners were in possession of land in khasra No. 18/3 measuring 2 bigha and 18 biswas since 1978 till its acquisition as Gaon Sabha never took possession of this land.
49. Evidence of objector No. 8:- On behalf of objector No. 8 Sh. V.K. Paul, said objector entered witness box as CW-5 and stated similar facts in his evidence by way of affidavit as were stated by him in his clam petition. Sale deed dated 25.07.1984 executed by Sh. Mauji Ram in favour of this objector for 475 sq. LAC No. 11/11/04 Page 12/25 yards of land out of khasra No. 18/3 situated in village Pochan Pur was exhibited as Ex.R-1/1. Khatoni of the year 1975-76 as per which 10 biswa of land was mutated in his favour was exhibited as Ex.CW5/2.
50. In cross examination objector No. 8 stated that after purchasing the land from Sh. Mauji Ram he had not visited the said property at all. He stated that he does not have much knowledge about execution of sale deed by Sh. Mauji Ram in his favour as his father used to deal with Sh. Mauji Ram. He had no knowledge of transaction of payment of sale consideration. He stated that he never used the land in dispute for cultivation and was not aware of any mutation proceedings with respect to land in dispute as his father used to deal with the same. However, he stated that Sh. Mauji Ram had executed the sale deed in his favour in the office of Sub-Registrar. He stated that he was not aware whether at the time of acquisition of land the possession was taken from Gaon Sabha and not him. He could not say whether Sh. Mauji Ram had violated the provisions of Section 33 of Delhi Land Reforms Act while selling the land to him.
51. Evidence of Objector No. 9:- Objector No. 9 Smt. Indu Sharma also filed her evidence by way of affidavit and stated similar facts as were stated by her claim petition. Sale deed dated 14.08.84 executed by Sh. Mauji Ram for 1 bigha of land out of khasra No. 18/3 of village Pochanpur was exhibited as Ex.R-1/1. She also filed Khatoni of the year 1975-76 showing mutation of 1 bigha of land in her favour, khasra girdawari of 1991-92 showing her possession and her name as tenure holder in column No. 4, khasra girdawari for the year 1995-96 and 1999-2000 showing similar facts as are shown in khasra girdawari of the year 1991-92. These are laminated documents and exhibits are blurred and are not legible.
52. In cross-examination she stated that she had got the land cultivated after its purchase. She stated that she has visited the plot twice or thrice after its purchase but was not present at the time of registration of sale deed in her favour. She deposed that she was getting the work of cultivation through some person. She further stated that she had applied for mutation in her favour after purchasing the LAC No. 11/11/04 Page 13/25 land in the year 1983-84.
53. On behalf of objector No. 8 and 9, a witness was summoned from office of Sub-Registrar, Kashmere Gate who produced the summoned record which is sale deed executed by Sh. Mauji Ram in favour of Sh. V.K. Paul as well as in favour of Smt. Indu Sharma.
54. On behalf of objector No. 8 and 9 Sh. Rameshwar Singh was examined as CW-8. This witness deposed that he is one of two attesting witnesses of sale deeds executed in favour of Sh. V.K. Paul and Smt. Indu Sharma. He stated that Sh. Mauji Ram had affixed his thumb impression on the said document in his presence.
55. This witness was cross-examined thoroughly on behalf of LRs of Sh. Mauji Ram.
56. This witness stated that he knew Sh. Mauji Ram 10 years prior to the execution of sale deeds. He stated that he was aware that vide the two sale deeds Sh. Mauji Ram was selling his property to Smt. Indu Sharma and Sh. V.K. Paul. He stated that he was working in the office of a property dealer and therefore had attested several documents during his employment.
57. The last witness who was examined in the court was Sh. Rajesh Sharma, Patwari as CW-9. He exhibited khatoni of the year 1975-76 with regard to land in Khasra No. 18//14 (4-16) and 15/1 (1-12) which was mutated in the names of LRs of Mauji Ram. Ex.CW9/2 and Ex.CW9/3 are same documents which show that on 31.01.1992 nine biswa of land of Khasra No. 18/3 had vested in Gaon Sabha for violation of Section 33 of D.L.R Act.
58. Arguments were addressed by Sh. Vikram Singh Girsa, learned counsel for Gaon Sabha, Sh. D.S. Lakra, learned counsel for recorded owners, Sh. S.K. Solanki, learned counsel for objector No. 2 to 7 and Sh. B.D. Sharma, learned counsel for objector No. 8 and 9. Written arguments were also filed on behalf of all the parties. Issue wise findings are as under:-
ISSUE NO. 1:-LAC No. 11/11/04 Page 14/25
Order dated 19.08.1975 passed by Settlement officer (Consolidation) though not a proved and exhibited document but is an admitted document by all the parties. As per this order following changes were ordered by the Settlement Officer ( Consolidation):-
Sl Name of Bhumidar Area Area given
No. withdrawn
1. Sh. Mauji Ram etc. 18/2/3 (1-12) 18/14 (4-16)
18/3 (4-16) 18/15/1 (1-12)
Total = (6-8) Total = (6-8)
2. Sh. Dalip Singh etc. 18/14 (4-16) 18/2/3 ( 1-12)
18/15/1 (1-12) 18/3 (4-16)
Total= (6-8) Total= (6-8)
59. The Settlement Officer (Consolidation) also gave 18 biswa of land in Killa No. 18/15 to Sh. Dalip Singh & Ors.
60. It is an admitted position that Sh. Mauji Ram was the recorded owner of Khasra No. 18/3 (4-16) as per Khatoni Paimaish of the year 1969-70.
61. Present recorded owners were not satisfied with the orders of Settlement Officer ( Consolidation) and assailed the said order upto Hon'ble High Court of Delhi by way of Writ Petition No. 1303/78. The Hon'ble High Court vide orders dated 28.11.1978 granted interim relief in favour of present recorded owners and it was directed that the possession of the petitioners ( present recorded owners) shall not be disturbed in respect of land in question till the pendency of writ petition.
62. This interim order was confirmed vide orders dated 25.01.1979. By virtue of this order land in Khasra No. 18/3 (4-16) remained with Sh. Mauji Ram.
63. In view of interim orders of Hon'ble High Court noted above Sh.
Mauji Ram executed two sale deeds. One sale deed was executed on 25.07.1984 and the second sale deed was executed on 14.08.1984.
64. On 25.07.1984 Sh. Mauji Ram had executed sale deed in favour of Sh. V.K. Paul with regard to land measuring 475 sq. yards out of khasra No. 18/3.
65. On 14.08.1984 he executed sale deed in favour of Smt. Indu LAC No. 11/11/04 Page 15/25 Sharma with regard to 1000 sq. yards of land out of Khasra No. 18/3.
66. The case of LRs of Sh. Mauji Ram is that the sale deeds are forged and fabricated. This objection of the LRs of Sh. Mauji Ram is liable to rejected as the sale deeds were executed in the year 1984 but were never challenged by the LRs of Sh. Mauji Ram within a period of three years and the LRs of Sh. Mauji Ram cannot be allowed to challenge the legality and validity of the sale deeds after lapse of more than two decades of their execution.
67. Moreover, in Appeal No. 123/1997 which was filed by present recorded owners before the collector South-West where objector No. 2 to 7 were also impleaded as respondents, vide Ex.CW1/1 the collector has held that 'I find that the father of respondent No. 2 to 6 in both the appeals sold the land and are left with no interest in the proceedings and are not appearing before the court. Hence, they are proceeded ex-parte'.
68. The above shows that by principle of constructive resjudicata LRs of Sh. Mauji Ram cannot take this plea in this reference that the sale deeds are forged and fabricated because they had failed to take this objection before the collector in the order referred above.
69. Forgery means making a false document to cause damage or injury to any person or to support any claim or title.
70. A person is said to make a false document who dishonestly executes a document with the intention of causing it to be believed that such document was executed by a person by whom he knows that it was not executed.
71. The initial burden of proof was on the objectors to prove forgery and fabrication in sale deed in view of Section 101 of the Evidence Act, which reads as under:-
"Section 101. Burden of Proof-Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies LAC No. 11/11/04 Page 16/25 on that person".
72. In terms of the said provision, the burden of proving the facts rests on the party who substantially asserts affirmative issues and not on the party who denies it. Objections of objectors will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act.
73. In terms of Section 102 of the Evidence Act, the initial onus was always on the objectors and if they discharge that onus and make out a case which entitle them to a relief, the onus would have shifted to the vendees to prove those circumstances, if any, which would dis-entitle objectors to the relief. Reliance can be placed on Anil Rishi Vs. Gurbaksh Singh : AIR 2006 SC 1971 where order recasting earlier issue "whether sale deed dated 26.03.91 is forged and fabricated? to "whether the alleged sale deed dated 26.03.91 is valid and genuine document"
was set aside.
74. Forgery is not proved by a mere statement in the claim petition or by repeating the same in evidence.
75. Onus was on objectors to prove that the thumb impressions on the sale deed were made by some other person and not by Sh. Mauji Ram. Minimum that was expected of objectors was to prove specimen thumb impression of Sh. Mauji Ram on any document and then such proved thumb impression of Sh. Mauji Ram should have been compared with disputed thumb impression on the sale deed.
76. Some expert witness should have been examined to support the case of objectors that disputed thumb impression on sale deed is not of Sh. Mauji Ram.
77. In absence of evidence of expert witness or report from forensic laboratory, objectors have failed to rebut presumption that the sale deed was executed by Shri Mauji Ram or that vendees forged and fabricated sale deed.
78. Sale deed is a registered document. There is a presumption in LAC No. 11/11/04 Page 17/25 favour of due execution of a sale deed. It is presumed that the officer registering the document had satisfied himself about identity of executor and that execution is with free will.
79. The deed of sale being a registered one and apparently containing stipulations of transfer of right, title and interest by the vendor in favour of the vendee, the onus of proof was upon the objectors to show that the said sale deed was, in fact, not executed or otherwise does not reflect the true nature of transaction. (Vimal Chand Ghevar Chand Jain and Ors. Vs. Rama Kant Eknath Jadoo 2009 (5) SCC 713).
80. Original sale deed was produced before the court during recording of evidence. Records were also summoned form the office of sub- registrar, Kashmere Gate which proves due registration of sale deed. No reason is assigned/ proved for objector No. 8 and 9 to single out Sh. Mauji Ram for forging and fabricating sale deeds.
81. Objector No. 8 and 9 have examined Sh. Rameshwar Singh who is one of the two attesting witnesses of the sale deeds who has proved that Sh. Mauji Ram had executed the sale deeds in his presence and he knew Sh. Mauji Ram for more than 10 years. He stated categorically that vide sale deeds Sh. Mauji Ram was selling his property to Smt. Indu Sharma and Sh. V.K. Paul. This witness was cross-examined at length by counsel for LRs of Sh. Mauji Ram but he could not elicit anything from this witness to show that the sale deed was forged and fabricated.
82. Therefore, allegation of objectors that sale deed is forged and fabricated is rejected.
83. The writ petition filed by present recorded owners before the Hon'ble High Court was disposed of as having abated on 19.04.1989. Therefore, although the order of Settlement Officer (Consolidation) dated 19.08.1975 attained finality and LRs of Sh. Mauji Ram are entitled to relief of compensation as per changes ordered by Settlement Officer (Consolidation) but the relief has to be LAC No. 11/11/04 Page 18/25 moulded and land which was sold by Sh. Mauji Ram out of Khasra No. 18/3 including land measuring 1 bigha 10 biswas has to be deducted from the share of LRs of Sh. Mauji Ram out of land earmarked in their favour by the Settlement Officer (Consolidation) as this was the land in Khasra No. 18/3 sold by Sh. Mauji Ram to Smt. Indu Sharma and Sh. V.K. Paul taking advantage of orders passed by Hon'ble High Court in CWP 1303/78.
84. The counsel for LRs of Sh. Mauji Ram has taken an objection that even if the sale deeds were executed by Sh. Mauji Ram, they were non est because during consolidation proceedings no sale can be effected without leave of Consolidation Officer. Counsel for objector No. 9 has replied that the consolidation proceedings were over by 03.05.1971 and therefore the objection of LRs of Sh. Mauji Ram is without any merit. Reliance is placed on order of SDM / RA (Vasant Vihar) dated 08.08.2011 which is on record of LAC No. 17/11/04 titled as 'Union of India versus Jasraj Singh & Ors' which is a reference under Section 30-31 of L A Act pending before this court. Though the court has perused that order but same was not placed on record of this reference by any party. Be that as it may, the burden of proof was on LRs of late Sh. Mauji Ram that sale deeds were executed by Sh. Mauji Ram during pendency of consolidation proceedings. In absence of any evidence regarding commencement and conclusion of consolidation proceedings no relief can be given to the LRs of late Sh. Mauji Ram in this regard.
85. The next question is whether the land which had vested in Gaon Sabha for violation of Section 33 of DLR Act, the compensation for that land is to be given to Gaon Sabha or to objector No. 8 and 9 to an extent of 1 Bigha and 10 Biswas respectively.
86. Sale deed in favour of Smt. Indu Sharma was executed on 14.08.1984 for land in Khasra No. 18/3 (1-0) and on 24.07.84 in favour of Sh. V.K. Paul for land in Khasra No. 18/3 (0-10). Clause 7 of both the sale deeds state that the said land will be used to agricultural purpose and this sale does not contravene Section 33 of Delhi Land Reforms Act, 1954.
LAC No. 11/11/04 Page 19/2587. Smt. Indu Sharma vide application dated 20.12.85 addressed to the Tehsildar requested for mutation of land in Khasra No. 18/3 (1-0). On 27.02.1987 vide mutation No. 167 Tehsildar Mutation vide Case No. 814/86-87 mutated land in Khasra No. 18/3 Min (1-0) in favour of Smt. Indu Sharma. Similarly vide orders dated 02.05.1989 land in Khasra No. 18/3 Min (0-10) was mutated in the name of Sh. V.K. Paul.
88. Smt. Indu Sharma remained in possession of land purchased by her comprised in Khasra No. 18/3 (1-0) till its acquisition is evident from Khasra Girdawari for the year 1991-1992, 1995-1996 and 1999-2000 placed on record by objector No. 9 Smt. Indu Sharma. This is also evident from Exhibit CW4/2 which is Khasra Girdawari of the year 2001-02 filed on record by Gaon Sabha itself.
89. However, vide orders dated 31.01.1992 in case No. 664/85-86 Revenue Assistant passed orders for vesting of land which was mutated in the name of Smt. Indu Sharma in favour of Gaon Sabha for violation of Section 33 of DLR Act.
90. However, Gaon Sabha did not take any action against objector No. 9 Smt. Indu Sharma to execute the order of vesting in favour of Gaon Sabha.
91. Vide orders dated 11.02.2000 mutation recorded in favour of Smt. Indu Sharma and Sh. V.K. Paul was set aside by the Collector on the appeal of present recorded owner and matter was remanded back before RA /SDM with direction to decide the case afresh after giving opportunities to both the parties.
92. Before the SDM / RA could decide the matter after its remand the land was acquired and no final order could be passed with regard to mutation of land in Khasra No. 18/3 Min (1-0) and (0-10) which was sold to Smt. Indu Sharma and Sh. V.K. Paul respectively.
93. Since the main defence of counsel for Gaon Sabha is that due to violation of Section 33 of Delhi Land Reforms Act, 1954 land had vested in favour of Gaon Sabha, it is pertinent to quote Section 33 of the said Act which is as under:
-LAC No. 11/11/04 Page 20/25
"33. Restrictions on the Transfers by a Bhumidar - (1) No Bhumidar shall have the right to transfer by sale or gift or otherwise any land to any person other than a religious or charitable institution or any person in charge of any such Bhoodan movement, as the Chief Commissioner may by notification in the Official Gazette, specify, where as a result of the transfer, the transferor shall be left with less than eight standard acres in the Union territory of Delhi.
94. Effect of breach of Section 33 is provided in Section 42 which reads as under: -
"42. Transfer in contravention to Section 33 - (1) Where a transfer of any holding or part thereof has been made in contravention of the provisions of this chapter by a Bhumidar or Asami, the transferee and every person who may have obtained possession of such holding or part shall, notwithstanding anything in law be liable to ejectment from such holding or part on the suit of the Gaon Sabha or the land holder, as the case may be which shall thereupon become vacant land; but nothing in this section shall prejudice the right of the transferor to realise the whole or portion of the price remaining unpaid, or the right of any other person other than the transferee to proceed against such holding or land in enforcement of any claim thereto.
(2) To every suit for ejectment under this section the transferor shall be made a party.
(3) Notwithstanding anything contained in sub-section (1), the Revenue Assistant also may, on receiving information or on his own motion, take action to eject the transferee and every person who may have obtained possession as aforesaid, after following such procedure as may be prescribed."
95. Further, Section 47 of the Act read as under: -
"47. Consequences of ejectment under Section 46 - Upon ejectment [under Section 42], all the rights and interests of the Bhumidar or Asami in the holding or in any improvements made therein or to get compensation for such improvements shall be extinguished."
96. A conjoint reading of the above noted provisions of law shows that a bhumidar is enjoined from selling agricultural land if after sale of land he is left with less than eight standard acres of land. Such a transferee is liable to ejectment from such holding on the suit of Gaon Sabha or the land owner which shall there upon become a vacant land. In such a suit, transferor is to be made a party. Upon LAC No. 11/11/04 Page 21/25 ejectment, rights of bhumidar in the holding are extinguished.
97. After vesting of land in Gaon Sabha for violation of Section 33 of DLR Act, objector No. 9 was liable to ejectment from land in question on the suit of Gaon Sabha and thereafter land in question would have become vacant land. Admittedly, Gaon Sabha has not filed any ejectment suit against objector No. 9. In the absence of ejectment, Section 47 of Delhi Land Reforms Act does not come into force and in absence of ejectment, right of objector No. 9 over land in question is not extinguished. The fact that objector No. 9 was in possession till the acquisition of land is evident from khasra girdawaris of the year 1991-92, 1995-96 and 1999-2000 filed on record by objector No. 9 and Gaon Sabha itself filed Khasra Girdawari for the year 2001-2002 which shows name of objector No. 9 in Column No. 4. If right of objector No. 9 was not extinguished in the land in question and she was in possession at the time of acquisition of the land, she would be entitled to compensation deposited by the Collector in this reference.
98. Vesting order is dated 31.01.1992. As per Schedule I, Section 185 of Delhi Land Reforms Act, period of limitation under Section 42 (1) for ejectment of transferee is 'None'. Land was acquired in the year 2002-03. Till then, objector No. 9 was in possession. After the land was acquired, right of Gaon Sabha to eject objector No. 9 got interdicted. Objector No. 9 continued to be in possession of land in question and objector No. 9 herself handed over the possession to Collector. Rights of parties to compensation for land in question would be determined on the basis of rights of the parties on the date of taking over of its possession by the Collector. By then, Gaon Sabha had failed to exercise its rights for ejectment of objector No. 9 . Therefore, relying upon Section 47 of the Act, it is objector No. 9 who will be entitled to compensation for land in Khasra No. 18/3 (1-0) and not Gaon Sabha as in absence of ejectment her rights over land in question were not extinguished.
99. Therefore, it is objector No. 9 Smt. Indu Sharma who will be entitled for compensation for land in Khasra No. 18/3 Min (1-0) and not Gaon LAC No. 11/11/04 Page 22/25 Sabha.
100. However, the facts of the case of Sh. V.K. Paul are different. Although no ejectment suit was filed by Gaon Sabha to eject objector No. 8 from the land after its vesting in favour of Gaon Sabha but he has not shown any evidence to show that he had remained in possession of the land in question even after its vesting in favour of Gaon Sabha.
101. In the cross-examination objector No. 9 Sh. V.K. Paul stated that he had not visited the property at all after his first visit in the year 1983-84. He deposed that he has never used the land in dispute for cultivation. He further stated that he is not aware whether at the time of acquisition of land the possession was taken from Gaon Sabha and not from him.
102. Unlike the case of objector No. 8 Smt. Indu Sharma neither this objector nor Gaon Sabha has filed on record any khasra Girdawari to show possession of objector No. 8 over land in Khasra No. 18/3 Min (0-10).
103. Therefore, Gaon Sabha would be entitled to receive the compensation for land in Khasra No. 18/3 Min (0-10) which was purchased by Sh. V.K. Paul from Sh. Mauji Ram.
104. So far as dispute between recorded owners and objectors No. 2 to 7 is concerned, it is noticed that none of the two groups is claiming compensation for land in Khasra No. 18/3 (1-18).
105. The recorded owners continue to insist to get compensation for the land which was taken away from them by the orders of Settlement Officer (Consolidation) which is order dated 19.08.1975. This land is in Khasra No. 18/14 (4-16) and 18/15/1 (1-12) totaling 6 bigha 8 biswas. This land is not subject matter of this reference.
106. The objectors No. 2 to 7 have prayed for compensation for land in Khasra No. 18/3 in their claim petition inspite of the fact that this land was withdrawn from them by Settlement Officer (Consolidation) and given to recorded owners. However, during his cross-examination objector No. 7 Sh. Umed Singh LAC No. 11/11/04 Page 23/25 deposed that land in Khasra No. 18/3 does not belong to them. They have no concern with the same. He volunteered that the said land though initially belonged to his father Sh. Mauji Ram, it was later on in the year 1978 allotted to present recorded owners. He went on to state that he has no objection if the compensation pertaining to Khasra No. 18/3 Min (2-18) is disbursed in favour of Gaon Sabha.
107. In this situation where the parties are prevaricating, the reference can be answered on the basis of order of Settlement Officer (Consolidation) and parties be given relief as per their entitlement subject to deduction of land measuring 2 bigha 18 biswas from the share of LRs of Sh. Mauji Ram as Sh. Mauji Ram had sold this land in favour of objector No. 8 and objector No. 9 to the extent of 1 bigha and 10 biswa which led to its vesting in Gaon Sabha. All the land in Khasra No. 18/3 which has vested in Gaon Sabha was sold by Sh. Mauji Ram during operation of interim orders passed by Hon'ble High Court of Delhi in CWP No. 1303/78 filed on behalf of present recorded owners. Therefore, that parcel of land would be deducted from the shares of LRs of Sh. Mauji Ram and given to present recorded owners in LAC No. 15/11/04 titled as 'Union of India versus Bharto & Ors' which is also to be decided on the basis of evidence recorded in this reference.
108. Therefore, following relief is given in this reference:-
i Compensation for land in Khasra No. 18/3 Min (1-18) shall be payable to the recorded owners No. 1 to 4 in equal proportion.
ii Compensation for land in Khasra No. 18/3 Min (1-0) shall be payable to Ms. Indu Sharma, Objector No. 9.
iii Compensation for land in Khasra No. 18/3 Min (1-18) shall be payable to Gaon Sabha Pochanpur. However, as the estate of village Pochanpur was urbanized, the successor of Gaon Sabha would be Ministry of Urban Development through its Secretary. Reference can be made to the judgment of Hon'ble High Court LAC No. 11/11/04 Page 24/25 in the case of 'Prem versus Union of India' which is L.A Appeal No. 323/07 dated 28.08.2008 and 'Gaon Sabha, Bharthal versus Union of India & Anr.' C.M. (Main) No. 1606/10 dated 10.01.2011. Reliance can also be placed in this regard on Office Memorandum dated 18.11.2011 issued by Additional Secretary (Revenue) Govt. of NCT of Delhi Revenue Department.
109. Reference is answered accordingly. Copy of order be given to LAC South-West for information. Copy of order be also sent to the Secretary, Ministry of Urban Development.
110. A copy of this judgment be placed on the records of LAC No. 15/11/04 titled as 'Union of India versus Bharto & Ors.' and LAC No. 13/11/04 titled as 'Union of India versus Prem Singh & Ors as the parties had led evidence in present reference and the two references named above are to be decided on the basis of evidence recorded in this reference.
111. File be consigned to record room.
Announced in the open Court on the 15th day of December, 2011 (ARUN BHARDWAJ) ADDL. DISTRICT JUDGE DWARKA COURTS: NEW DELHI LAC No. 11/11/04 Page 25/25