Delhi District Court
Jitender Panwar And Ors vs Archeological Survey Of India on 27 February, 2024
IN THE COURT OF MS. PURVA SAREEN,
ADDITIONAL DISTRICT JUDGE-01,
SOUTH DISTRICT, SAKET COURT, NEW DELHI
Civil Suit No.8914/16 (Old No.8698/16)
DLST-01-004188-2016
(1) Jitender Panwar
(2) Devender Panwar
Both S/o Late Sh. Braham Prakash
Both R/o 213A, Shahpur Jat,
Delhi-110059
(3) Sunil Prakash
S/o Late Sh. Rati Ram
R/o 187, Shahpur Jat,
Delhi-110059
(4) Jai Prakash Panwar
S/o Sh. Guli @ Raghubir Singh Panwar
R/o 213A, Shahpur Jat,
Delhi-110059
(5) Jai Bhagwan Panwar
S/o Sh. Guli @ Raghubir Singh Panwar
R/o 367, Shahpur Jat,
Delhi-110059
(6) Anil Panwar
S/o Sh. Guli @ Raghubir Singh Panwar
R/o 200, Shahpur Jat,
Delhi-110059
.... Plaintiff
Vs
Archaeological Survey of India
Ministry of Human Resources Development and Culture,
Through its Director General
11, Janpath, New Delhi-110001
..... Defendants
Date of institution : 06.09.2016
CS No.8914/2016 (Old No.8698/16) Page 1 of 34
Jitender Panwar & Ors V Archaeological Survey of India
Date for reserving orders : 10.01.2024
Date of pronouncement of judgment : 27.02.2024
JUDGMENT
SUIT FOR DECLARATION, POSSESSION AND DAMAGES/MESNE PROFIT
1. The present suit has been filed by Jitender Panwar (hereinafter referred to and called as plaintiff no.1), Devender Panwar (hereinafter referred to and called as plaintiff no.2), Sunil Prakash (hereinafter referred to and called as plaintiff no.3), Jai Prakash Panwar (hereinafter referred to and called as plaintiff no.4), Jai Bhagwan Panwar (hereinafter referred to and called as plaintiff no.5) and Anil Panwar (hereinafter referred to and called as plaintiff no.6) for declaration, possession and damages/mesne profit against the defendants namely Archaeological Survey of India (hereinafter referred to and called as defendant).
2. The case of the plaintiff is that plaintiffs are the owners of 1127 sq meter of land comprised in Khasra No.144/84, situated at Revenue Estate, Village Sarai Shahji, NCT of Delhi (hereinafter referred to and called as suit property). The defendant is a premier organization for archaeological researches and protection of cultural heritage and its duties include maintenance of ancient monuments and archaeological sites and remains of national importance as per provisions of Ancient Monuments and Archaeological Sites and Remains Act 1958.
3. The plaintiffs were owners and title holders of suit land which was inherited by them from their forefathers whose ownership for the CS No.8914/2016 (Old No.8698/16) Page 2 of 34 Jitender Panwar & Ors V Archaeological Survey of India last four generations is mentioned in various jamabandi, khasra girdawari and other revenue records. The suit property was comprised of 11 bighas and 17 biswas and it was recorded in the ownership of Shri Bhuria as per jamabandi for the year 1908- 1909. The suit property was recorded in the name of different persons as 'Mustarka Malkan'.
4. After the death of Sh. Bhuria, name of his two sons namely Siri Ram @ Siri Chand and Prithi was duly recorded in Form-15 vide mutation order dated 31.01.1916. Sh. Prithi also passed away unmarried and without any issue and mutation was done in the name of Siri Ram @ Siri Chand whose name was duly recorded in jamabandi for the year 1920-21 for suit property. Thereafter, Shri Rati Ram and Sh. Raghubir Singh @ Gullu being legal heirs of Siri Ram @ Siri Chand, got mutated the suit property in their name and their names were recorded in revenue record vide mutation no.275 in Form-15 vide order dated 11.03.1944. The names of Shri Rati Ram and Sh. Raghubir Singh @ Gullu was also duly recorded in the khasra girdawari and plaintiffs filing the khasra girdawari for the year 1962-2000. The suit land was in actual physical possession of the predecessor of the plaintiffs herein and they were using the land for cultivation of crops and vegetables.
5. The Government of India through Land & Building Department issued notification no.15(III)/59-15G dated 13.11.1959 under section 4 of Land Acquisition Act, 1984 notifying 34070 acres of land including the suit land for the public purpose of Planned CS No.8914/2016 (Old No.8698/16) Page 3 of 34 Jitender Panwar & Ors V Archaeological Survey of India Development Delhi. The declaration under section 6 of the Land Acquisition Act, 1984 was issued vide notification no.F.4(2)/62- L&H dated 01.02.1962. The Award under Section 11 of the Land Acquisition Act, 1894 for the village Sarai Sahji, NCT of Delhi was declared vide Award No.1389 dated 21.09.1962. However, Award with respect to 11 Bighas 17 Biswas of land comprised in Khasra No.144/84 was not made and therefore, the entire acquisition with respect to the Khasra No.144/84 (11-17) was allowed to lapse. Further, on account of Khasra No. 144/84 (11-
17) being notified under Section 4 and 6 of the Land Acquisition Act 1894, an entry in the Khasra Girdawari was made vide Mutation No.448 dated 17.06.1966. However, since the acquisition with respect to Khasra No. 144/84 (11-17) was allowed to lapse, the said entry was rectified vide Mutation No.517 dated 17.09.1985, wherein the name of Land & Housing Department was removed from the column of owner. The Officers of the defendant and the Delhi Development Authority, on 26.09.1992 attempted to interfere in the peaceful possession of suit property.
6. The predecessor of the plaintiffs filed a writ petition No.3503/1992 seeking directions to defendant not to interfere in the peaceful possession and enjoyment of the suit land. The DDA filed its counter affidavit to the said writ petition stating that the land comprised in Khasra No.144/84 (11-17) was not under the management and possession of the DDA as it was neither acquired nor notified for acquisition. The defendant filed its counter affidavit in the said writ petition taking its previous stand. The CS No.8914/2016 (Old No.8698/16) Page 4 of 34 Jitender Panwar & Ors V Archaeological Survey of India said writ petition was dismissed in default by order dated 05.09.2008 and the plaintiff herein had filed C. M. No.15142/2008 under Order IX Rule 7 CPC for the restoration of writ petition. During the pendency of the said case, defendant issued an order no.6/32/92-M-9219 dated 05.02.2009 under Section 19(2) of the Act for removal of all material from the suit land. Same was replied to by the plaintiffs. The defendant again issued notice dated 13.02.1999 directing the plaintiffs to remove their material from the suit land. The plaintiff filed C. M. No.2652/2009 in W.P. (C) No.3503/1992 seeking stay of said notices. Hon'ble High Court of Delhi was pleased to restore the WP(C) No.3502/1992 and interim order was also restored. The WP(C) No.3502/1992 was dismissed by order dated 02.02.2012 and plaintiffs herein challenged order in LPA No.158/2012. The impugned order was passed on 02.02.2012 and plaintiffs filed the LPA on 23.02.2012. The defendant took the advantage of the situation and forcefully removed the plaintiffs from the suit land sometime in the month of February 2012.
7. During the course of hearing in the LPA No.158/2012, the defendant without challenging the veracity of various revenue records, which are statutory documents raised an issue of title with respect to the suit land and therefore, the Hon'ble High Court by its order dated 07.04.2016 passed in LPA No.158/2012 was pleased to grant liberty to the Plaintiffs to file a suit for declaration and consequential reliefs in Civil Court. The Hon'ble High Court was also pleased to observe that the observation of the learned Single Judge in the impugned order dated 02.02.2012 would not CS No.8914/2016 (Old No.8698/16) Page 5 of 34 Jitender Panwar & Ors V Archaeological Survey of India be treated as conclusive. Hence, the present suit.
8. Written statement was filed on behalf of defendant wherein the defendant submitted that that the present suit was misconceived and not maintainable in its present form and hence was liable to be dismissed. The suit was otherwise barred by res-judicata and for principles analogous to it. The suit was also barred by limitation. The defendant further stated that the plaintiffs were the encroacher/trespassers on the land in question falling vacant within the limits of the protected area of the monument, protected in accordance with the provisions of AM & ASR Act 1958 and was under the custody of the defendant. When the officials of defendant objected to the illegal act of the plaintiff, they were threatened with dire consequences and matter was reported to the police on 15.09.1992. The defendant further stated that the plaintiff had suppressed material facts and by way of the present suit, plaintiff was attempting to establish his ownership over the suit property on the basis of false and forged documents prepared in connivance with Revenue Authority which had no value in the eyes of law. The land in question fell within protected area called 'Sarai Shahaji' having historical significance and a preliminary gazettee notification was also issued by the Govt of India in which two months notice with the intention to declare the monument specified in the schedule to be of national importance was affixed at the place near the said monument on 07.12.1987. Since no objection was received, the monument was notified as a protected monument and now the same vested with the ASI. Accordingly, no person had a right or title to claim it as an individual property. The CS No.8914/2016 (Old No.8698/16) Page 6 of 34 Jitender Panwar & Ors V Archaeological Survey of India defendant was never issued any notice nor he was given an opportunity of being heard when the entry was made in the revenue record.
9. A Gazette Notification was issued by the Govt of India vide No.SO-3338 dated 11.11.1987 published in Part II Section 3 Sub- Section (II) 1987 of the Gazette of India dated 05.12.1987 in which two months notice of the intention to declare the monument specified in the Schedule to be of national importance was affixed at a conspicuous/ prominent place near the said monument as per the rules and the said Gazette was made available to the public on 07.12.1987. No objections were received and in exercise of Section 4 of the Ancient Monument and Sites Remains Act 1958, the monument was notified as a centrally protected monument and hence the same vests with the defendant. A final Gazette notification was published vide SO-1545 dated 21.05.1998 and nobody has any right or title to claim it as individual property.
10.It was further averred in the written statement filed by the defendant that entry in the revenue record was changed without issuing any notice or without giving any opportunity to the defendant. Defendant further stated in its written statement that in the award no.1389 filed by the plaintiffs alongwith the plaint, it was clearly mentioned that 'Field No.144/84 measuring 11 bighas 17 biswas was bounded by the boundary wall and in the remaining portion of this field number, old pucca graves were scattered here and there. In view of this position this field number was not included in this award at present".
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11.In parawise reply on merits the defendant denied all the averments made by the plaintiff specifically stating that the plaintiffs were never the owners of the suit property. Defendant stated that plaintiff had no cause of action and the same was not maintainable and the same was liable to be dismissed.
12.Plaintiff filed replication to the written statement of defendant controverting the stand taken by defendant in written statement and reiterated the facts of their plaint.
13.After completion of proceedings, following issues were framed :-
1. Whether the plaintiff is entitled to a decree of declaration as prayed for in clause (i) ? OPP
2. Whether the plaintiff is entitled to decree of possession as prayed for in clause (ii) ? OPP
3. Whether the plaintiff is entitled to a decree of damages and mesne profits of Rs.5,20,000 alongwith interest as prayed for in clause (iii)? OPP
4. Whether the plaintiffs have been encroached / trespassed in the suit land? OPD
5. Whether the suit land falls within the protected area of protected monuments called 'Sarai Shahaji'? OPD
6. Whether the plaintiffs have no locus-standi to file the present suit? OPD
7. Relief.
14.Thereafter, matter was listed for plaintiff evidence, which was CS No.8914/2016 (Old No.8698/16) Page 8 of 34 Jitender Panwar & Ors V Archaeological Survey of India conducted by Local Commissioner. The plaintiff examined 13 witnesses as under:-
1) Plaintiff no.5 namely Jai Bhagwan Panwar examined himself as PW1 who tendered his affidavit in evidence as Ex.PW1/A. He stated in his affidavit that defendant had unauthorizedly and illegally taken possession of the suit property depriving the plaintiff of its use and enjoyment. The plaintiffs had inherited the land from their forefathers and was in recorded ownership for the last four generations as reflected in various jambandi, khasra girdawari and revenue records. The total land comprised in Khasra no.144/84 was recorded in the name of joint ownership of villagers including Bhuria as "Mustarka Malkan". The name of Bhuria was recorded in colum of owners in jamabandi in year 1908-09 which was Ex.PW1/1. After death of Bhuria, Sri Chand and Pirthi became the owners which was duly recorded in mutation order dated 31.01.1916. After death of Prithi who died unmarried, his share was inherited by Sri Ram @ Shri Chand vide mutation Ex.PW1/2 and Ex.PW1/3. Copy of jamabandi was Ex.PW1/4. After death of Sri Ram @ Shri Chand, Rati Ram and Raghubir Singh became the owners vide mutation no.275 Ex.PW1/5. The copy of jamabandi was Ex.PW1/6 and Ex.PW1/7.
Copies of khasra girdawari were also produced by the witness. The witness submitted that khasra no.144/84 was shown to consist of a monument only on a fragment of land and rest of the land was in continuous possession of the villagers including the plaintiffs. The copies of masavi and shijra were exhibited as Ex.PW1/8 and Ex.PW1/9. The witness further submitted that suit land was in physical possession of the forefathers and they were using it for CS No.8914/2016 (Old No.8698/16) Page 9 of 34 Jitender Panwar & Ors V Archaeological Survey of India cultivation. Photographs were marked by the witness. The witness stated that the Land & Building Department issued notification under section 4 of the Land Acquisition Act notifying that the suit land was for public purpose for planned development and award under section 11 of Land Acquisition Act for village Sarai Shahji was declared but no award was made with respect to the suit land measuring 11 bighas and 17 bishwas and therefore the entire acquisition with respect to khasra no.144/84 was allowed to lapse. The award was exhibited as Ex.PW1/9. The said khasra number was notified under Section 4 & 6 of Land Acquisition Act and an entry was made in Khasra girdwari qua the same but lateron the same was rectified when the name of land and housing department was removed from the column of the owner vide Ex.PW1/10. On 26.09.1992, the officers of DDA attempted to interfere in the peaceful possession of the land and the Predecessor of plaintiff filed a writ petition in the Hon'ble Delhi High Court seeking restraint against the defendant from interfering in the peaceful possession of the plaintiff. The DDA took the stand that suit land was not under them and neither it was acquired nor notified for acquisition. However, DDA also took the stand that the suit land fell within the protected area and notified under Section 4 of Ancient Monument & ASI Act 1958. The writ petition was dismissed in default and plaintiff filed Civil Misc. Application under Order IX Rule 7 CPC during the pendency of which the defendant issued an order for removal of all material from suit land. Plaintiff relied to the said order and a notice was again issued by the defendants to remove their material from suit land which goes to show that the plaintiffs were in possession of the suit CS No.8914/2016 (Old No.8698/16) Page 10 of 34 Jitender Panwar & Ors V Archaeological Survey of India property. The witness exhibited the legal notice and postal receipt as Ex.PW1/13, Ex.PW1/11 and PW1/12 respectively. The writ petition was restored alongwith the interim order but the writ was dismissed on merits against which plaintiff moved before the Division Bench. The defendant meanwhile removed the plaintiff forcefully from the suit land and in the LPA raised the issue of title and Hon'ble Delhi High Court granted liberty to the plaintiff to file a suit for declaration and consequential relief. The witness stated that the defendant had no claim over the suit land whatsoever and had only relied upon the notification issued under Section 4 of AM & ASI Act which could not divest or extinguish the title of the plaintiff. In fact, the defendant even admitted in an application under the RTI Act that no ownership was granted by notifications of AM & ASI Act. The suit land was used for cultivation and was vacant and there was no ancient monument in existence over the suit land. There were private residential houses in the said area which had been recognized by the defendant. The act of the defendant was illegal and plaintiff was the owner of the suit property.
Witness relied upon the following documents :-
1) Mark A, certified copy of jamabandi of the year 1908-09.
2) Ex.PW1/1, certified copy of mutation number 26.
3) Ex.PW1/2, certified copy of mutation number 33.
4) Mark B, certified copy of jamabandi of the year 1920-21.
5) Mark C, certified copy of mutation number 275.
6) Ex.PW1/3, certified copy of jamabandi of the year 1944-45.
7) Mark D, certified copy of jamabandi of the year 1948-49.
8) Mark E, certified copy of Masawi for Village Sarai Shaji, NCT CS No.8914/2016 (Old No.8698/16) Page 11 of 34 Jitender Panwar & Ors V Archaeological Survey of India of Delhi.
9) Mark F, certified copy of Shijra for Village Sarai Shaji, NCT of Delhi.
10) Mark G, certified copy of Award no.1389 dated 21.09.1962.
11) Mark H, certified copy of mutation number 517.
12) Ex.PW1/4, copy of original postal receipt no.ED862731165.
13) Ex.PW1/5, copy of original postal receipt no.RLAD B 677.
14) Mark I, Copy of khasra girdawari for the year 1962-70.
15) Mark J, Copy of khasra girdawari for the year 1970-75.
16) Mark K, Copy of khasra girdawari for the year 1975-79.
17) Mark L, Copy of khasra girdawari for the year 1983-87.
18) Mark M, Copy of khasra girdawari for the year 1991-95.
19) Mark N, Copy of khasra girdawari for the year 1999-2000.
20) Mark O to Mark Z and Mark AA, photographs.
21) Mark BB, copy of writ petition in WP (C) no.3503/1992.
22) Mark CC, Counter affidavit filed by DDA in WP (C) 3503/1992.
23) Mark DD, Counter affidavit filed by ASI in WP (C) 3503/1992.
24) Mark EE, Copy of notification dated 05.12.1987.
25) Mark FF, Copy of notification dated 21.05.1998.
26) Ex.PW1/7, Copy of notice dated 05.02.2009.
27) Mark GG, copy of legal notice dated 07.02.2009.
28) Mark HH, copy of C.M No.2652/2009 filed in WP(C) no.3503/1992.
29) Mark II, copy of order dated 09.03.2010.
30) Mark JJ, copy of order dated 09.02.2012 pass in WP (C) no.3503/1992.CS No.8914/2016 (Old No.8698/16) Page 12 of 34
Jitender Panwar & Ors V Archaeological Survey of India
31) Mark KK, copy of order dated 07.04.2016 in LPA No.158/2012.
32) Mark LL, copy of order dated 03.08.2012.
33) Mark MM to Mark SS, latest photographs.
34) Mark TT, latest photograph of google map.
PW1 was duly cross-examined by counsel for the defendant. In his cross-examination, PW1 stated that khasra no.144/84 was their ancestral property. Witness admitted that khasra no.144/84 was not written in the jamabandi but the name of great grandfather Bhuria was there. He admitted that column 10 of jamabandi of 1908-09 stated that the land was "Gairmumkin" and "Khandar". He stated that the khasra no.84 which was mentioned on the jamabandi was the old number and was the same as 184/84. He admitted that in column no.4 of Intekal 517 , the name of owner was shown as Government but the same was done by mistake and rectified later on. He stated that he had received the award for Shahpur Jat land but could not tell the khasra number and the amount of compensation.
2) PW2 was Sh. Sanjeev Kumar, Clerk from the Office of SDM, Saket. He produced the summoned record i.e. register of Khasra Girdawari of Mojja Sarai Shahaji pertaining to year 1962 to 1970, year 1970-75, year 1975-79, year 1979-83, year 1983-87, year 1987-1991, year and year 1991-1995 and exhibited the same as Ex.PW2/1 to Ex.PW2/7 respectively.
He also brought the certified copy of Khasra Girdawari for the year 1995-99 and Sh. Amit Kumar Yadav, Kanungo from DM Office brought the Khasra Girdawari register for the year CS No.8914/2016 (Old No.8698/16) Page 13 of 34 Jitender Panwar & Ors V Archaeological Survey of India 1999-2003 and intkal mutation 517 for the year 1985 alongwith certified copy of the same and exhibited the same as Ex.PW2/8 to Ex.PW2/10 respectively.
In his cross examination, witness stated that Khasra Girdavari registers were maintained by Halka Patwari. Khasra Girdawari register contained khasra Number, Ownership of Khasra number, Cultivator / possessory name, etc as mentioned in the top of the form 11 of the Khasra Girdawari. Halka Patwari made entries in the Khasra Girdawari on the basis of Jamabandi and the cultivators and possessory name were entered in the Khasra Girdawari register after the inspection of the land by Halka Patwari himself after visiting the spot/land personally during Girdawari period.
He further stated that girdawari means status of particular land. He further stated that Patwari goes for the Girdawari for 2 occasions in an year. He had not made any entry in any document. He did not understand Urdu language. He had no idea whether concerned patwari made the entry about exhibited/summoned documents that is Girdawari by personally going on the spot or not. After the girdawari was made by Patwari the Field kanungo was to padtal the same. He had no personal knowledge about the Inteqal No.517 brought (Exhibit PW 2/10). He did not know the contents of Inteqal.
3) PW3 Azhar Ahmad, Clerk was a summoned witness from the office of Tehsildar, Hauz Khas, DC Office, M.B. Road, New Delhi who brought the summoned record and same was exhibited as Ex.PW3/1.
CS No.8914/2016 (Old No.8698/16) Page 14 of 34Jitender Panwar & Ors V Archaeological Survey of India In his cross examination, witness stated that department had not given him any authority letter to depose as witness in the court and only the summon was given to him. Witness stated that he could not read and write Urdu language. Witness admitted that the number mentioned in the map was in Urdu Language and that the year mentioned in the map was also in Urdu. He further admitted that the map was torn from certain parts and some Khasra Numbers were not visible. Witness could not tell who had prepared the Shijra. Witness could not state whether it was boundary of Monument or not but in Shijra which had been brought by him before the court was written in English. The Shijra did not contain any official stamp of their department. The original Shijra remained in the custody of the Patwari and Kanaungo. Witness admitted that he did not have personal knowledge about the area Sarai Shahji.
4) PW4 Sh. Bijender Singh was Patwari who brought register of jamabandi of Mojja Sarai Shahaji pertaining to year 1908-1909, year 1920-21, year 1944-45, year 1948-49 and exhibited the same as Ex.PW4/1, Ex.PW4/2, Ex.PW4/3 (wrongly mentioned as Ex.PW1/3) and Ex.PW4/3 respectively. He also brought the register of intkal no.26 of Mojja Sarai Shahji pertaining to year 1916-17, intkal no.33 of Mojja Sarai Shahji pertaining to year 1916-17, intkal no.275 of Mojja Sarai Shahji pertaining to year 1944-45 and exhibited the same as Ex.PW4/4 to Ex.PW4/6 respectively.
In his cross examination, witness stated that he had come to the court on the basis of the summons issued to him. Witness CS No.8914/2016 (Old No.8698/16) Page 15 of 34 Jitender Panwar & Ors V Archaeological Survey of India stated that he could not read and write Urdu Language. Witness admitted that all the documents produced by him were in Urdu Language. Witness further admitted that Jamabandi pertaining to year 1944-45 brought by him did not bear any official seal/stamp of the revenue Department and the pages of the said record were in a loose condition. He further stated that the Jamabandi pertaining to year 1908-09 brought by him did not bear official seal/stamp of the Revenue Department. Witness could not state whether the said stamp was of revenue department or not. Witness admitted that the said stamp was not there in the entire register and some pages of the record were torn from the borders. He further admitted that Jamabandi pertaining to year 1916-17, year 1920-21 and year 1948-49 did not bear any official seal/stamp of revenue department.
5) PW5 Sunil Kumar Gupta was Senior Judicial Assistant from Record Room of Patiala House Court who brought the summoned record and exhibited the same as Ex.PW5/1.
Witness was not cross examined by learned counsel for defendant.
6) PW6 was Umesh Verma, Judicial Assistant from Record Room of Delhi High Court who brought the summoned record and exhibited the same as Ex.PW6/1 to Ex.PW6/5.
Witness was not cross examined by learned counsel for defendant.
7) PW7 Harish Saini, MTS from Monument Section, Office of CS No.8914/2016 (Old No.8698/16) Page 16 of 34 Jitender Panwar & Ors V Archaeological Survey of India Superintendent Archaeologist Delhi Circle brought the summoned record which was already marked as Ex PW1/7. Ex.PW1/6 and Mark CC.
In his cross examination, witness admitted that the copy of letter no.F No.DLH-265/2012-M-4384 dated 03.08.2012 was the photocopy in his official record brought by him.
8) PW8 was Amit Kumar Yadav, Kanungo from DM Office, Saket who brought the summoned record.
Witness was not cross examined by learned counsel for defendant.
9) PW9 was Flabia Ekka, Deputy Director, NL-2, DDA, Vikas Sadan, INA who was a summoned witness. He brought the award no.1389 which was unsigned and unattested.
Witness was not cross examined by learned counsel for defendant.
10) PW10 Bijender Singh was Clerk from the Record Room, Sadar Kanungo Branch, Tis Hazari who brought the summoned record and exhibited the same as ex.PW10/1.
In his cross examination witness stated that he had no knowledge of Urdu Language. Witness could not tell the year of masavi as the same was torn. Witness admitted that masavi was of Sarai Shahaji. The name of the village was not on masavi as the same was torn. Witness further stated that certified copy of masavi Ex.PW10/1 was not the whole copy of the masavi.
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11) PW11 was Abul Hassan who was the translator of all the certified Urdu documents. He brought on record translated documents as under:-
1) Translated copy of certified copy of jamabandi of Khasra No.144/84 of Village Sarai Shahaji for the year 1908-09, for the year 1920-21 and for the year 1948-49 vide Ex.PW11/1 to Ex.PW11/3.
2) Translated copy of certified copy of mutation number 26 of khasra no.144/48 of village Sarai Shahaji, Ex.PW11/4.
3) Translated copy of certified copy of mutation/intkal number 33 of khasra no.144/48 of village Sarai Shahaji, Ex.PW11/5.
4) Translated copy of certified copy of mutation number 275 of khasra no.144/48 of village Sarai Shahaji, Ex.PW11/6.
5) Translated copy of certified copy of mutation number 517 of khasra no.144/48 of village Sarai Shahaji, Ex.PW11/7.
6) Translated copy of certified copy of jamabandi of Khasra Girdawari of Khasra no.144/84 of Village Sarai Shahji for the year 1962-1966, for the year 1970-74, for the year 1975-1979, for the year 1979-83, for the year 1983-87, for the year 1988-1991 and for the year 1995-99, Ex.PW11/8 to Ex.PW11/14 respectively.
7) Translated copy of certified copy of jamabandi khasra no.144/84 of village Sarai Shahji, Ex.PW11/15.
8) Translated copy of certified copy of mutation/intkal number 111 of khasra no.144/84 of village Sarai Shahji, Ex.PW11/16.
In his cross examination, witness stated that he knew Urdu language and was working as a translator since 2015. He stated that he could not write Urdu Patwari language. He stated that he was not an authorized translator from any govt department.
CS No.8914/2016 (Old No.8698/16) Page 18 of 34Jitender Panwar & Ors V Archaeological Survey of India He denied that he had wrongly translated the document at the instance of Rajat Panwar who had approached him for translation.
12) PW12 was Bijender Singh, Clerk from the Record Room, Sadar Kanungo Branch, Tis hazari who brought the summoned record and exhibited the same vide Ex.PW12/1.
In his cross examination witness stated that he had been working in the above said office since September 2017. He had not been issued any authority letter from his department to depose as witness. He could not read or write Urdu Language. Witness admitted that record produced by him i.e. Ex.PW12/1 had no official seal/stamp of Revenue Department. He did not know whether record brought by him was of Khasra No.144/84, however, he brought the record on the basis of mutation no.111. He brought the record on the basis of summons sent to him.
13) PW13 was Harish Saini, Record Keeper from the office of Superintendent, ASI, Delhi Circle who brought the summoned record and exhibited the same as Ex.PW13/1 and Ex.PW13/2.
In his cross examination, witness stated that he had no personal knowledge of the record brought by him. He admitted that Ex.PW13/1 (from page no.44 to 59) were not legible and were not original. He stated that same was the print out copy from the e- mail received by department.
15.Thereafter, plaintiff evidence was closed and defendant's evidence was conducted.
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16.Defendant examined only one witness namely D. K. Bhardwaj, Surveyor (Grade-I), ASI, Delhi Circle as DW1 in its evidence. Witness stated that suit was barred by resjudicata and limitation. He further stated that the plaintiffs were the encroachers of a vacant land which was falling within the protected limits of the protected area of the monument as per the provisions of the AM & ASI Act. The plaintiffs had deliberately disregarded the warning and notice and had even threatened the defendants with dire consequences. Matter was even reported to the concerned police station on 18.09.1992. The defendant further alleged that the plaintiffs were trying to illegally establish their ownership on the basis of false documents prepared in connivance with revenue authority which had no value in the eyes of law. The plaintiffs were not the owners of the land as no objection was received qua the gazette notification declaring the suit property as protected area under the act. The revenue records had been allegedly manipulated by the plaintiffs and no opportunity of being heard was given to the defendant with respect to change of entry in the government record.
Witness relied upon the following documents :-
1) Compliant made to police, Ex.DW1/1 (colly).
2) Copy of notification dated 05.12.1987, Ex.DW1/2 (colly).
3) Copy of confirmatory gazette, Ex.DW1/3 (colly).
4) Khasra Girdawar dated 04.02.2009, Ex.DW1/4.
5) Copy of letter dated 20.11.1987, Ex.DW1/5 (colly).
6) Letter dated 09.02.1988 and dated 22.12.1987, Ex.DW1/6 (colly).
7) Letter dated 05.05.1988 alongwith notification and schedule of CS No.8914/2016 (Old No.8698/16) Page 20 of 34 Jitender Panwar & Ors V Archaeological Survey of India land, Ex.DW1/7 (colly).
8) Copy of letter dated 15.10.1992, Ex.DW1/8.
9) Site plan, Ex.DW1/9.
10) Aks Sizara dated 10.07.1986, Ex.DW1/10.
11) Khasra Girdawar from 1987-1991, Ex.DW1/11.
12) Letter dated 15.09.1992, Mark DW1/12.
In his cross-examination, the witness stated that he was employed as a Surveyor in ASI. The function of the surveyor was to prepare the site plan of the area to be notified as protected monument to identify encroachment, to handle cases related to encroachment and to perform such other function as directed by the seniors. He did not have any knowledge with respect to writ petition filed by Sh. Rati Ram with respect to suit property or with respect to any counter affidavit filed by the ASI. On being asked about the area that was notified in khasra no.144/84, the witness stated that he could tell the notified area after seeing the record of schedule of land which had been counter signed by Revenue Authority at the time when it was published during the process of notification. Witness admitted that they did not have any certified copy of mutation no.517. Witness stated that the said document was forged and fabricated. He further submitted that the document Ex.DW1/ZX1 was prepared by the Archaeological Department and notified by the Revenue Department and counter signed. The same was counter signed by Sh. Rati Ram, Field Kanungo. He did not have any knowledge if any case had been filed for forgery and the department would be aware if any such case was filed. Witness had no knowledge if the suit land had been notified for acquisition under the provisions of Land Acquisition Act 1984. The CS No.8914/2016 (Old No.8698/16) Page 21 of 34 Jitender Panwar & Ors V Archaeological Survey of India notification EX.DW1/2 was published in the official gazette and posted at the monument in the presence of Sh. Ramesh Chander, Fateh Mohd, Shamshed Ali and Chandar Singh. He could not tell in whose name the girdawari was recorded after 1991, however, after the eviction notice Sh. Rati Ram and Sh. Gullu were evicted from the suit property with the help of police force. The witness was specifically asked if the department challenged the jamabandi in the name of Bhuria, the mutation order in the name of Shri Ram and Prithi, the mutation no.26-27/33 in the name of Sri Chand before any Court or Revenue Tribunal and witness did not have any knowledge of the same. The witness was further asked if the department challenged the jamabandi of 1920-21 in the name of Sri Ram or the mutation in the name of Rati Ram or the jamabandi in the name of Rati Ram before any Court or Revenue Tribunal and witness did not have any knowledge of the same. Witness was further asked if department challenged the khasra girdawari qua suit property 144/84 and mutation no.517 regarding which the witness had no knowledge. The witness denied that the suit property was a private property and also denied that it was never acquired and no award could be made qua the same. The witness could not tell the case number where they had filed suits against unauthorized occupants. He denied that the department had no claim over the suit property or that department had taken a false plea of the suit property being in a protected area. He further denied that the documents were authentic and genuine. He also denied that the department had forcefully dispossessed the plaintiff without due process of law.
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17.No other witness was examined by defendant in support of his case and defendant's evidence was closed. Thereafter, evidence was closed.
18.Final arguments were addressed by the counsel for plaintiffs and defendant. Written arguments were also filed by the plaintiff to substantiate his submissions.
19.I have gone through the documents placed on record and perused the evidence of the parties and file carefully.
20.My Issue wise findings are as follows:-
Firstly, this court shall decide the issues no.1 and 2 together as same are inter alia connected.
1. Whether the plaintiff is entitled to a decree of declaration as prayed in clause (i) ? OPP
2. Whether the plaintiff is entitled to decree of possession as prayed in clause (ii) ? OPP The plaintiff has filed the present suit for declaration and possession in respect of 1127 sq meters land in khasra no.144/84 in Village Sarai Shahji, NCT of Delhi. As per the facts, the suit property was inherited by plaintiff from their forefathers whose name had been duly recorded in revenue record as mustarka mulkan (joint ownership of individual). It is a variety of common land created during consolidation and management in control of such land vests in Gram Panchayat whereas ownership continues to vest in proprietor. The terms mustarka malka hence refers to owners and title holders and the entry in the revenue record CS No.8914/2016 (Old No.8698/16) Page 23 of 34 Jitender Panwar & Ors V Archaeological Survey of India confers the right upon the plaintiff to seek declaration of their title on the basis of said record. The plaintiffs produced and exhibited the revenue record i.e. jamabandi and khasra girdawari to prove their case. Mutation orders were also produced to show the ownership of the property.
The plaintiff produced the jamabandi and the khasra girdawari record of the predecessor of the plaintiff as mustaka malkan. Further, the plaintiff exhibited mutation no.26 as Ex.PW4/4, mutation no.33 as Ex.PW4/5 and mutation no.275 as Ex.PW4/6. PW4 was the concerned clerk from the record room who was posted as Patwari. He admitted all the mutation documents to be correct and genuine and the counsel for the defendant could not demolish the evidence or the documents of the witness. The mutation no.517 recorded the removal of Land and Building department and entry of land of villagers as Mustaraka malkan in PW2/10. The plaintiff could prove from his documents that the ownership of the property was vested in him. Moreover, the law is very much clear that mustaraka malkan land belongs to property owner. However, the control and management of such land would continue to vest in gram panchayat or the state government till it is used for village common purposes, otherwise it would continue to vest with the properietary body of the estate and would not result in divesting the ownership of the proprietor. It has also been held by a bench of hon'ble Supreme Court that the ownership of mustaraka malkan land did not vest in the gram panchayat and there was no provision of acquisition, divesting, confiscation, seizure, impouding, appropriation or annexation of the proprietory rights.
CS No.8914/2016 (Old No.8698/16) Page 24 of 34Jitender Panwar & Ors V Archaeological Survey of India Hence, from the above discussion, it can be inferred that revenue record categorically establishes that the ownership of the suit property was in the mustaraka malkan whose name was duly recorded in the revenue record for the last more then 100 years. Learned counsel for plaintiff has drawn assistance from the judgment of hon'ble Supreme Court titled Narasamma Vs State of Karnataka (2009) 5 SCC 591 wherein it was held that "Furthermore, in the aforesaid decision, the concurrent findings on the question of possession was not in favour of the person who was claiming to get his name registered as an occupancy right holder in respect of the land in dispute, whereas in the present case, the concurrent findings of fact on the question of possession by the High Court as well as by the Land Tribunal stood in favour of the appellants. At the risk of repetition, in the present case both the Land Tribunal and the High Court held that the appellants were in possession of the land in dispute and the entries in the Record of Rights also stood in their names showing that the nature of cultivation was gutha (rent) and also the appellants were in possession of the same. As noted herein earlier, the respondent had failed to produce any document or material to show to the contrary. Therefore, the onus was on the respondent to show by producing material that the appellants had not acquired any status of occupancy right although they were found to be in continuous possession of the land in dispute".
"As noted herein earlier, in the present case, not only the revenue records clearly show that the appellants were in continuous possession of the land in dispute, and the admission of the respondent that the appellants were tenants in an earlier CS No.8914/2016 (Old No.8698/16) Page 25 of 34 Jitender Panwar & Ors V Archaeological Survey of India recovery proceedings, and in the absence of any document having been produced by the respondent to show that the entries in the Record of Rights were wrong, it is not possible for us to rely on the aforesaid decision cited by the learned counsel for the respondent".
21.In Gurunath Manohar Pavaskar & Ors Vs Nagesh Sidappa Nalagund & Ors 13 SCC 565 (2007), it has been held that "Record of right is not a document of title. Entries made therein in terms of Section 35 of the Indian Evidence Act although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but it is beyond any doubt or dispute that such a presumption is rebuttable."
The combined reading of the above two judgments goes to show that revenue records are authentic documents to prove as to who was in possession of the suit property. The revenue records are thus also admissible evidence to prove the fact of possession and raise a presumption in regard to possession.
The continuous possession of the plaintiff and their predecessors are duly recorded in the revenue records which have been proved by the plaintiffs. The possession of the plaintiffs and their predecessrs is also admitted by the defendant vide Ex.PW1/6 and Ex.PW1/7 which are the notice given to the plaintiffs predecessors for removal of construction from the suit property. Once the presumption of continuity of possession has been proved by the plaintiff, the onus now shifts upon the defendant to prove that they were not the owners of the property which was not done by the defendants.
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22.As far as jamabandi is concerned, it is record of rights defined under Punjab Revenue Act 1887 and entries in it are presumed to be correct until challenged before the revenue authorities or proved otherwise.
It is a document prepared as part of record of rights in every revenue estate. It contains entries regarding ownership, cultivation and up to date of various rights in land. It is revised every five years when a jamabandi is prepared by patwari and attested by revenue officer. Two copies of revised jamabandi are prepared. One copy is consigned to the District Record Room and other copy remains with patwari for the currency of the settlement. Presumption of truth is attached to the entries in the jamabandi under section 44 of Punjab Land Revenue Act 1887. All changes of rights in land coming to the notice of the revenue agency are reflected in the jamabandi according to a set procedure after these have been verified by revenue officer. The revenue records are authentic documents to prove as to who was in possession of the suit property. They are admissible in evidence to prove the fact of possession over the suit property. Hence, going by the above discussion, the revenue records raise a presumption in regard to possession.
23.The revenue record i.e. jamabandi, khasra girdawari, mutation etc are statutory documents prepared under the provisions of Delhi Land Revenue Act 1954 and Punjab Revenue Act 1987. The said documents carry a presumption of correctness under section 41 of DLR Act and Section 44 DLR Act. The said presumption also CS No.8914/2016 (Old No.8698/16) Page 27 of 34 Jitender Panwar & Ors V Archaeological Survey of India arises from Section 35 and Section 114(e) of the Indian Evidence Act 1872.
24.The defendant had raised objections to the revenue records calling them forged and fabricated. However, no evidence has been led by the defendants to rebut the presumption of correctness of the revenue record. The defendant by mere rebuttal made in the written statement without any proof of the same cannot question the authenticity of the documents of the plaintiff. It has been categorically held in Pratap Singh Vs Shiv Ram (2020) 11 SCC 242 case that "therefore, we find that the presumption of truth attached to the record-of-rights can be rebutted only if there is a fraud in the entry or the entry was surreptitiously made or that prescribed procedure was not followed. It will not be proper to rely on the oral evidence to rebut the statutory presumption as the credibility of oral evidence vis-a-vis documentary evidence is at a much weaker level".
25.DW1 in his cross examination admitted that he had no knowledge whether the entires in revenue records relating to the suit property were ever challenged by the defendant in any court or tribunal. He even could not produce the revenue record of land obtained by the defendant at the time of issuance of notification under AM & ASR Act. The document which was produced was merely for internal purposes and was not a statutory document.
26.It is further observed by the court that mutation no.517 dated 17.09.1985 was directed on account of the fact that acquisition CS No.8914/2016 (Old No.8698/16) Page 28 of 34 Jitender Panwar & Ors V Archaeological Survey of India proceedings in respect of khasra no.144/84 had lapsed as no award was made and as a result the name of L & B Office was removed from the column of owners and villagers were re-entered as mustarka malkan and as the L & B Office had been removed from the column of owners, no notice of said mutation was required to be issued to the defendant.
27.The AM & ASR Act provides for preservation of monument and archaeological sites and this Act cannot effect the title of the property or confer any title in the property to Archaeological Survey of India. The defendant has claimed over the suit property on the basis of certain notification issued under Section 4 of the AM & ASR Act As per section 4 of AM & ASR Act :-
(1) Where the Central Government is of opinion that any ancient monument or archaeological site and remains not included in section 3 is of national importance, it may, by notification in the Official Gazette, give two months' notice of its intention to declare such ancient monument or archaeological site and remains to be of national importance; and a copy of every such notification shall be affixed in a conspicuous place near the monument or site and remains, as the case may be.
(2) Any person interested in any such ancient monument or archaeological site and remains may, within two months after the issue of the notification, object to the declaration of the monument, or the archaeological site and remains, to be of national importance.
(3) On the expiry of the said period of two months, the Central CS No.8914/2016 (Old No.8698/16) Page 29 of 34 Jitender Panwar & Ors V Archaeological Survey of India Government may, after considering the objections, if any, received by it, declare by notification in the Official Gazette, the ancient monument or the archaeological site and remains, as the case my be, to be of national importance.
(4) A notification published under sub-section (3) shall, unless and until it is withdrawn, be conclusive evidence of the fact that the ancient monument or archaeological site and remains to which it relates is of national importance for the purposes of this Act.
28.As per above said Act, there is no bar to private ownership of Monuments and Sites and in case acquisition of monuments or sites is required, it has to be done according to Section 13 and 20 of AM & ASR Act which specifically states that "provision of land acquisition act have to be resorted to for acquiring the monuments and sites and there is no provision empowering the central government to acquire any property under the said act.
29.Therefore plaintiffs have been able to prove that plaintiffs and their predecessors had been in continuous possession of the suit property which is duly reflected in revenue record, jamabandi and khasra girdwari and plaintiffs are mustarka malkan which means that they are owners in separate possession. The documents of the plaintiff have not been rebutted by the defendants. Plaintiffs have produced all revenue records and mere averment by the defendant that the said records are forged and fabricated without any proof of such an averment cannot be relied upon. The fact that the plaintiffs predecessors were granted interim protection in writ petition CS No.8914/2016 (Old No.8698/16) Page 30 of 34 Jitender Panwar & Ors V Archaeological Survey of India no.3503/1992 further goes to show that plaintiffs were in prior possession of the suit property. The continuous possession of plaintiff and their predecessors therefore has been duly proved. It also proved from record that they were dispossessed from suit property in February 2012 by the defendant.
30.It is also clear from the provision of AM & ASR Act that the defendant has no power to evict or dispossess any person or demolish or remove any construction and if such an action is required, it can only be done by the collector under the Land Acquisition Act. Hence, the above discussion goes to show that the AM & ASR Act does not confer any ownership rights upon the defendant.
31.Accordingly, issues no.1 and 2 stands decided in favour of the plaintiffs and against the defendant, thereby, the decree of declaration is passed in favour of the plaintiffs and against the defendants and plaintiffs are declared as rightful owners and title holders of suit property i.e. 1127 sq meter of land comprised in Khasra No.144/84, situated at Revenue Estate, Village Sarai Shahji, NCT of Delhi.
Further, a decree of possession is also passed in favour of the plaintiff and against the defendant and defendant is directed to handover the vacant, peaceful and physical possession of suit property i.e. 1127 sq meter of land comprised in Khasra No.144/84, situated at Revenue Estate, Village Sarai Shahji, NCT of Delhi to the plaintiff.
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32.Now, issue no.3 is decided as under :-
3. Whether the plaintiff is entitled to a decree of damages and mesne profits of Rs.5,20,000 alongwith interest as prayed in clause (iii)? OPP The plaintiffs have not been able to show if any monitory loss was caused to them by the act of the defendant. The plaintiffs have admitted that the suit land was pre-dominantly being used for cultivation but have not shown by way of evidence or otherwise in the pleadings, the amount earned by them from the land. The plaintiffs have also not been able to show the damage caused, if any by the said encroachment. The plaintiffs have also not brought on record the earnings made by them from the encroached area when they were in possession of the same. Hence, in the absence of any proof, the plaintiffs are not entitled to any decree of damages and mesne profitd. No damages or mesne profits are being ordered in favour of the plaintiffs. Accordingly, the present issue stands decided against the plaintiffs and in favour of the defendant.
33.Now, this court shall proceed to decide the issue no.4, 5 and 6 together as the same are inter connected which are as under:-
4. Whether the plaintiffs have been encroached / trespassed in the suit land? OPD
5. Whether the suit land falls within the protected area of protected monuments called 'Sarai Shahaji'? OPD
6. Whether the plaintiffs have no locus-standi to file the present suit? OPD As the issue no.1 and 2 are already decided in favour of CS No.8914/2016 (Old No.8698/16) Page 32 of 34 Jitender Panwar & Ors V Archaeological Survey of India the plaintiff, issue no.4 stands decided in favour of plaintiff and against the defendant as the defendant has not been able to prove that the plaintiffs were encroacher or trespassed in the suit land.
As far as issue no.5 & 6 are concerned, the defendant has not filed any title document or any other record except for the notification Ex.DW1/2 and Ex.DW1/3 which were the notifications under section 4 of AM & ASR Act and even the defendant witness admits that the said notification does not confer any ownership right over the suit property. The plaintiffs have also brought on record and exhibited Ex.DW1/ZX4 and Ex.DW1/ZX5 which were the documents of the defendant relating to de- listing/de-notification of Sarai Shahji as said monument did not exist and was not traceable.
The above documents, thus, create a serious doubt over the actual existence of the alleged protected monument Sarai Shahji. The defendant has failed to bring on record any documents whatsoever to show the actual existence of the alleged monuments in the protected area. The defendants own documents show that the alleged protected monuments are untracable and that they have even recommended for their de-notification from the AM & ASR Act.
From the above discussion, all the above issues also stand decided in favour of the plaintiffs and against the defendant. The land in question does not fall within the protected area of protected monuments called Sarai Shahaji and the plaintiffs also have locus-standi to file the present case.
Relief CS No.8914/2016 (Old No.8698/16) Page 33 of 34 Jitender Panwar & Ors V Archaeological Survey of India
34.In view of the aforesaid discussion, suit is decreed in favour of the plaintiffs and against the defendant. The plaintiffs are declared rightful owners and title holders of suit property i.e. 1127 sq meter of land comprised in Khasra No.144/84, situated at Revenue Estate, Village Sarai Shahji, NCT of Delhi and defendant is directed to handover the vacant, peaceful and physical possession of suit property i.e. 1127 sq meter of land comprised in Khasra No.144/84, situated at Revenue Estate, Village Sarai Shahji, NCT of Delhi to the plaintiff. However, the plaintiffs are not entitled to any decree of damages and mesne profits. Further, the land in question does not fall within the protected area of protected monuments called Sarai Shahaji.
35.Decree sheet be prepared accordingly. The present decree is passed subject to filing of deficient court fees, if any.
36.No order as to cost.
File be consigned to Record Room after due compliance.
Digitally signed by PURVA PURVA SAREEN
SAREEN Date:
Announced in open court 2024.03.05
13:12:45 +0530
On 27th February, 2024 (Purva Sareen)
Additional District Judge-01,
(South) Saket District Courts,
New Delhi
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