Delhi District Court
Sube Singh vs Manju Kashyap on 12 July, 2012
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RCA No. 97/11/11
Sube Singh Vs Manju Kashyap
IN THE COURT OF SH N.K. GOEL : ADDL. DISTRICT JUDGE (5)
WEST DELHI
RCA No. 97/11/11
In re.
Sh. Sube Singh
S/o Late Sh. Lajje Singh,
R/o Village Jharoda Majra Burari,
Delhi-110084
....................Appellant
Vs.
Smt. Manju Kashyap
C/o Sh. Balbir Singh
R/o House in Khasra No. 15/11/2,
Deepanshu Colony,
Village Jharoda Majra Burari,
Delhi-110084
...............Respondent
Date of filing of appeal : 23.08.2011
Reserved for judgment : 02.07.2012
Decided on : 12.07.2012
JUDGMENT
1. Vide this common judgment, I shall decide RCA no. 97/11/11 titled as Sube Singh Vs Manju Kashyap, RCA No. 98/11/11 titled as Sube Singh Vs Kanhaiya Lal, RCA No. 99/11/11 titled as Sube Singh Vs Paras Ram and 2 RCA No. 97/11/11 Sube Singh Vs Manju Kashyap RCA no. 100/11/11 titled as Sube Singh Vs Manglu as common questions of law and facts arise in all of them and, hence, they can conveniently be disposed off vide a common judgment. The subject matters of the appeals are as follows:-
RCA no. 97/11/11: A constructed house on plot measuring 50 Sq. Yards comprising of two rooms, kitchen, latrine and bathroom forming part of Khasra No. 15/11/2 of Village Jharoda Majra, Burari, Delhi situated in the colony presently known as Deepanshu Colony, Village Jharoda Majra, Delhi-110084.
RCA No. 98/11/11: Same as above.
RCA No. 99/11/11: A constructed house on plot measuring 175 Sq. Yards comprising of one shop, one room, open courtyard and Pakka boundary wall forming part of Khasra No. 15/11/2 of Village Jharoda Majra, Burari, Delhi situated in the colony presently known as Deepanshu Colony, Village Jharoda Majra, Delhi- 110084. RCA No. 100/11/11: A constructed house on plot measuring 30 Sq. Yards comprising of one room forming part of Khasra No. 15/11/2 of Village Jharoda Majra, Burari, Delhi situated in the colony presently known as Deepanshu Colony, Village Jharoda Majra, Delhi- 110084.
2. These four properties shall hereafter be referred to as the suit properties. 3
RCA No. 97/11/11 Sube Singh Vs Manju Kashyap
3. The case of the plaintiff/appellant in the suits was that he had let out the suit properties to the defendants/respondents on 01.03.2006, 01.02.2004, 01.06.2006 and 01.06.2005 on a monthly rent of Rs. 700/-, Rs. 1000/-, Rs.2500/- and Rs. 500/- respectively. As the defendants/respondents had stopped paying rent and did not pay the rent despite service of demand notice, the plaintiff filed the suits for recovery of possession, arrears of rent and mesne profits in respect of the suit properties.
4. Defendants/respondents contested the suits and filed their respective written statements.
5. They all denied the plaintiff/appellant to be the owner of the suit properties and claimed themselves to be the owners being the bonafide purchasers for consideration in the names of their respective wives. Hence, they denied the locus standi to file the suits. It was prayed that the suits be dismissed.
6. On the pleadings of the parties, the Ld. Trial Court framed the following issues in the suits on 24.09.2008:-
1. Whether plaintiff is entitled to the decree of possession as prayed for? OPP.
2. Whether plaintiff is entitled for recovery of arrears of rent as prayed for? OPP.4
RCA No. 97/11/11 Sube Singh Vs Manju Kashyap
3. Whether plaintiff is entitled for damages as prayed for? OPP.
4. Whether plaintiff is entitled to interest, if yes at what rate and for what period? OPP.
5. Relief.
7. The plaintiff examined himself as PW-1 and proved documents Ex.PW-1/1 to Ex. PW-1/6. He examined PW-2 Suraj Bhan, Halqa Patwari and PW-3 Naresh Kumar, Patwari from the office of Land & Acquisition Collector, North, Delhi. PW-3 proved the copy of award no. 05/LAC/CL/2000 of Village Jharoda Majra Burari, Delhi as Ex.PW-3/1, possession proceedings taken place on 08.06.2001 and 27.06.2003 as Ex.PW-3/2 and Ex.PW-3/3 respectively.
8. Thereafter defendants/respondents filed applications u/o 7 rule 11 CPC r/w 151 CPC for rejection of the plaint, inter alia, pleading therein that in pursuance of the award Ex. PW-3/1 (serial no. 187) the plaintiff/ his predecessors had already filed/taken claim of the acquired land as depicted in entry no. 27 page 11 of the award and on the basis of the material on the record, it was crystal clear that the suit properties stood already acquired and were the properties of Government of India and, hence, the suits for possession filed by the plaintiff were barred under the 5 RCA No. 97/11/11 Sube Singh Vs Manju Kashyap Land Acquisition Act. Reliance was placed on Section 16 of the Land Acquisition Act, 1894 (in short, the Act) and it was contended that as the Act is self contained code and any proceedings carried thereunder cannot be challenged in the civil court and the civil court has no jurisdiction to go into the question of validity or legality of the acts done under the Act, the plaints were liable to be rejected u/o 7 rule 11 CPC.
9. In his reply to the applications, the plaintiff/appellant, inter alia, denied that the plaintiff/his predecessors in interest had already taken claim of the acquired land. It was submitted that the alleged entry no. 27 at page 11 in Ex.PW-3/1 did nowhere show that any compensation amount had been paid. It was admitted that the suit land had been acquired vide the said award, but, however, it was stated that the actual physical possession of Khasra no. 15/11/2 was not taken over by the Government for the reason that the land comprising in the said khasra was found built-up as evident from the perusal of possession proceedings Ex.PW-2/3. It was further submitted that the said proceedings confirm the averments of the plaint to the effect that the plaintiff had carved out the plots and built up the same and let out the same on rent to the tenants. It was denied that the suit was barred under the provisions of the Act. Hence, it was prayed that the applications be dismissed.
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RCA No. 97/11/11 Sube Singh Vs Manju Kashyap
10.Vide the impugned order, the Ld. Trial Court came to the conclusion that the suits of the plaintiff were not maintainable and were liable to be dismissed being barred under the Act and filed without cause of action. Hence, the Ld. Trial Court "dismissed" the suits u/o 7 rule 11 CPC. Feeling aggrieved by the impugned orders, the plaintiff/appellant filed the present appeals.
11.While "dismissing" the suits u/o 7 rule 11 CPC, the Ld. Trial Court placed reliance on the judgments reported as Manish Seth & Anr. Vs Union of India & Ors. 155 (2008) DLT 122 (DB), Rampat Vs Union of India & Ors. 122 (2005) DLT 643 (DB), Satinder Prasad & Ors Vs State of U.P, AIR 1993 SC 2517, H.M Kelogirao Vs Government of A.P. 1997 (7) SCC 722, U.P Jal Nigam Vs Kalra Properties, 1997 (3) SCC 124, Executive Engineer, Jal Nigam Central Stores Division U.P Vs Suresha Nand Juyal, III (1997) CLT 356, Larsen and Tourbro Vs State Gujrat (1998) 4 SCC 87, State Houseless Harijan Employees Association Vs State of Karnataka, III(1998) SLT 582 (9) AD (SC) 412, Special LAO Vs Godrej Boyce and UOI Vs Prashadi, AIR 1987 SC 2421, Anil Kumar Jain & Anr. Vs Union of India & Ors, 122 (2005) DLT 431 (DB), Balmokand Khatri Educational and Industrial Trust, Amritsar Vs State of Punjab and Ors, 1996(4) SCC 212 and Nagin Chand Godha Vs Union of India & Ors. 2003 (70) DRJ 721(DB) 7 RCA No. 97/11/11 Sube Singh Vs Manju Kashyap and held as follows:-
"It is a settled position of law that once the possession is taken and Kabza Karvai or Panchnama for taking possession is prepared and it is also shown that the possession was delivered to the beneficiary, the land would vest in the Government free of encumbrances and even subsequent possession would tantamount to illegal or unlawful possession could be enough"
Hence, the Ld. Trial Court held that under these circumstances "merely because the appellant retained possession of the acquired land, the acquisition cannot be said to be bad in law". Hence, the Ld. Trial Court found the suits to be without cause of action and barred under the Act.
12.It is in this background that now I shall deal with the respective contentions of the Ld.Counsel for the parties advanced in the appeals.
13.The Ld. Counsel for the plaintiff /appellant has vehemently contended that as is proved from Karwahi Kabja Ex.PW-3/3 at the time of possession there existed tin shed on 0.06 of land of Khasra no. 5/12, its possession was not taken and Vastedaran possession had been delivered to the Kanungo. He has further contended that in any case the land acquisition proceedings had taken place in the year 2000 to 2003 and as the suit 8 RCA No. 97/11/11 Sube Singh Vs Manju Kashyap properties were let out by the plaintiff/appellant to the defendants/respondents in 2004, 2005 and 2006, the defendants/respondents had no locus standi to challenge the locus standi of the plaintiff/appellant to file the suits. His contention is that the impugned orders suffer from patent illegality and, hence, are liable to be set aside. On the other hand, the Ld. Counsel for the defendants/respondents have contended that the land underneath the suit properties had already been acquired by the Government of India and, therefore, the plaintiff/appellant did not have any cause of action for filing the suit. His contention is that in any case, it is the defendants/respondents who are the owners of the suit properties and, hence, there is no illegality or infirmity in the impugned orders.
14.There is no dispute about the proposition of law laid down in the authorities referred to by the Ld.Trial Court in the impugned orders. The Act is a self contained code and is a complete code in itself. The acquisition proceedings compromise various steps and on completion of the steps finality and conclusiveness is provided to the said steps by operation of Section 6(3) of the Act. Once the symbolic possession of the acquired land is taken, then the person in occupation thereof must enjoy its possession as a trustee on behalf of the public at large and that by itself 9 RCA No. 97/11/11 Sube Singh Vs Manju Kashyap cannot be considered to be a ground to contend that the possession is not taken. He cannot subsequently come to the court to say that actual possession is not taken and, therefore, he should be protected and the land be de-notified. Legal possession vests in the State absolutely free from all encumbrances. In such a case the land owner has no right in the land after acquisition is complete and the land stands vested in the State to the exclusion of all persons claiming title therein. Once possession is taken and Kabja Karwahi or Panchnama for taking possession is prepared and it is also shown that the possession has been delivered to the beneficiary, the land would vest in the Government free from encumbrance and even subsequent possession would tantamount to illegal or unlawful possession. However, in my considered opinion, the facts of the present cases are somewhat different from the facts of the cases relied upon by the Ld. Counsel for the respondents/defendants.
15.In the present cases the plaintiff's case was that he had let out the suit properties to the defendants/respondents on different monthly rents on 01.03.2006, 01.02.2004, 01.06.2006 and 01.06.2005. The said fact has not been specifically denied by the defendants/respondents in their WS. On the other hand, they claim themselves to be the owners of the suit properties being bonafide purchasers for consideration in the names of 10 RCA No. 97/11/11 Sube Singh Vs Manju Kashyap their respective wives. If the plaintiff/appellant is able to prove that he had infact let out the suit properties to the defendants/respondents in the years 2004, 2005 and 2006 i.e after completion of the acquisition proceedings in respect thereof, the suit for possession qua the defendants/respondents could be maintainable and in such a peculiar and complex situation, it would not lie in the mouths of defendants/respondents to say that the plaintiff/appellant has no locus standi to file the suit. Had the suits been against the Government authorities or any Government agencies for a relief of declaration or for any other relief including injunction, the suits could be held to be barred under the provisions of the Act. But, however, in the peculiar facts and circumstances of the present cases, instead of holding that the suits were barred under the Act or that the plaints were without any cause of action, I am of the considered opinion that the trial court ought to have given an opportunity to the plaintiff/appellant to lead evidence to prove whether he had infact let out the suit properties to the defendants/respondents in the year 2004, 2005 and 2006 and, if so, whether the suits against the defendants/respondents were maintainable or not. If by virtue of acquisition proceedings, the plaintiff/appellant had ceased to be the owners of the suit properties, then the defendants/respondents have also no cause to say that they are the 11 RCA No. 97/11/11 Sube Singh Vs Manju Kashyap owners of the suit properties being bonafide purchasers for consideration in the names of their respective wives. However, while "dismissing" the suits u/o 7 rule 11 CPC, the Ld.Trial Court lost sight of these important aspects and thus committed an error. The Ld. Trial Court ought to have given full opportunity to the plaintiff/appellant to lead evidence to prove the issues framed on 24.09.2008. Therefore, in view of the above discussion, I hold that the impugned orders suffer from illegality and, hence, are liable to be set aside.
16.In view of the above discussion, I allow the appeals and set aside the impugned orders and accordingly remand the cases back to the Ld.Trial Court with a direction to record the evidence of the parties and to decide the issues on merits. Let a copy of this order be placed in the files of RCA no. 98/11/11, RCA No. 99/11/11 and RCA No. 100/11/11 and in each of the trial court records. Trial court records alongwith the copies of this judgment each be sent back. Parties are directed to appear before the Ld.Trial Court on 30.07.2012 for further orders. Appeal files be consigned to record room.
(N K Goel) Addl. District Judge-05 (WEST) (Announced in the open court on 12.07.2012) Tis Hazari Courts, Delhi.