Delhi District Court
Rca No.50/2012" "Ram Phool & Ors. vs Hari Singh & Ors." Dod: 01.05.2013 on 1 May, 2013
RCA No.50/2012" "Ram Phool & Ors. V/s Hari Singh & Ors." DOD: 01.05.2013
IN THE COURT OF VINOD YADAV: ADDL. DISTRICT JUDGEI:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
Regular Civil Appeal No.50/2012
In the matter of:
1. Shri Ram Phool, S/o Late Shri Ram Kumar,
R/o Village Bharthal, New Delhi110 045.
2. Shri Sumender, S/o Late Shri Ram Kumar,
R/o Village Bharthal, New Delhi110 045.
3. Smt.Kamlesh, D/o Late Shri Ram Kumar,
W/o Shri Om Prakash, R/o Neb Sarai, New Delhi.
4. Shri Harinder, S/o Late Shri Ram Kumar.
5. Smt.Bimla, D/o Late Shri Ram Kumar,
W/o Shri Ajay Kumar,
R/o Village Naharpur, Gurgaon, Haryana.
6. Shri Hardeep, S/o Late Shri Hari Ram,
R/o Village Bharthal, New Delhi110 045.
7. Shri Pradeep, S/o Late Shri Hari Ram,
R/o Village Bharthal, New Delhi110 045.
.....Appellants
(Through Shri Pankaj Vivek, Advocate)
Versus
1. Shri Hari Singh, S/o Shri Sri Chand,
2. Shri Sis Ram, S/o Shri Amar Singh,
3. Shri Ran Singh, S/o Shri Amar Singh,
4. Late Shri Pehlad S/o Shri Rati Ram,
(Deceased Through L.Rs)
a) Smt.Omwati, W/o Shri Pehlad,
b) Smt.Sheela, D/o Shri Pehlad,
c) Smt.Shiksha, D/o Shri Pehlad,
d) Smt.Sunita D/o Shri Pehlad,
e) Shri Anil Kumar, S/o Shri Pehlad
5. Shri Jai Singh, S/o Shri Rati Ram
6. Late Shri Hoshiar Singh, S/o Shri Rati Ram (Deceased Through L.Rs)
a) Smt.Dhanno Wd/o Shri Hoshiar Singh,
b) Smt.Nirmala D/o Shri Hoshiar Singh,
c) Shri Ashok Kumar, S/o Shri Hoshiar Singh,
d) Shri Manoj Kumar, S/o Shri Hoshiar Singh,
All R/o Village Bharthal, New Delhi110 045.
.....Respondents
(Through Shri D.S Sehrawat, Advocate)
Date of Institution of Appeal : 20.10.2012
Date of reserving judgment : 01.05.2013
Date of pronouncement : 01.05.2013
RCA U/s 96 CPC: "Appeal Allowed: Impugned Judgment set Aside" Page 1 of 6
RCA No.50/2012" "Ram Phool & Ors. V/s Hari Singh & Ors." DOD: 01.05.2013
APPEAL U/s 96 CPC AGAINST THE JUDGMENT/DECREE Dated 15.09.2012,
IN CS No.416/2010, TITLED AS "RAMPHOOL & Ors. V/s HARI SINGH & Ors.",
PASSED BY Ms.SNIGDHA SARVARIA, Ld.CIVIL JUDGE (CENTRAL05),
TIS HAZARI COURTS.
01.05.2013
J U D G M E N T:
The appellants are aggrieved by judgment/decree dated 15.09.2012, passed by Ld.Civil Judge (Central05), Delhi in Civil Suit No.416/2010, titled as, "Shri Ram Phool & Ors. V/s Shri Hari Singh & Ors." (hereinafter referred to as the "impugned judgment"). The appellants were plaintiffs in the said suit for partition and permanent injunction in respect of a residential plot, comprising in Khasra No.146, admeasuring 504 sq.yards, falling in the extended abadi of village Bharthal, New Delhi (hereinafter referred to as the "suit land").
2. The facts of the case are not in dispute with regard to the nature of the suit land, i.e it was allotted to the parties pursuant to the consolidation proceedings which had taken place in village Bharthal.
3. The Ld.Trial Court had framed three issues, however, the said suit was dismissed vide impugned judgment, after rendering findings on issue No.(i), which reads as under:
(i) Whether the suit is barred under the provisions of Section 185 of the DLR Act, as mentioned in para No.1 of the preliminary objection No.1 of the written statement of the defendants No.5 to 7 and 1? OPD. RCA U/s 96 CPC: "Appeal Allowed: Impugned Judgment set Aside" Page 2 of 6
RCA No.50/2012" "Ram Phool & Ors. V/s Hari Singh & Ors." DOD: 01.05.2013
4. The learned counsel for the appellant has filed copy of Notification No.F.33/Engg.TP(DP)/11424/94 Delhi, dated 24.10.1994, U/s 507 of Delhi Municipal Corporation Act, issued by the Central Government, which contemplates that the entire land of village Bharthal stood declared as urban. The learned counsel has relied upon the judgment, passed by the Hon'ble High Court of Delhi in RSA No.269/2007, titled as, "Lekh Ram through his L.Rs V/s Shyam Lal through his L.Rs" , decided on 06.05.2011, wherein a substantial question of law was there before the Hon'ble High Court, which reads as under:
"Whether on urbanization of a village, the land in the village abadi continues to be government by the provisions of the Delhi Land Reforms Act, 1954?
5. The Hon'ble High Court after considering the law laid down in some earlier decisions came to the following conclusion:
xxxxx
9. On behalf of appellant, it has been urged that admittedly the disputed land has since been urbanized under the provisions of Section 507 (a) of the DMC Act; it is excluded from the purview of the DLRA.
Reliance has been placed upon the judgment of this court report in WPC 4143/2003 Smt.Indu Khorana V/s Gram Sabha & Ors. 2010 Indlaw DEL 856 to support this submission. It is pointed out that once the rural area has been urbanized by a notification, the provisions of the DLRA become inapplicable.
10. Arguments have been countered. It is pointed out that the suit of the present nature was rightly held to be outside the purview of the civil court; the court below had rightly noted that the plaintiff was actually seeking a declaration of his bhumidari rights which RCA U/s 96 CPC: "Appeal Allowed: Impugned Judgment set Aside" Page 3 of 6 RCA No.50/2012" "Ram Phool & Ors. V/s Hari Singh & Ors." DOD: 01.05.2013 issue could be addressed only by the revenue court; the jurisdiction of the civil court was barred. It is pointed out that the judgment relied upon by the learned counsel for the appellant has no application as in this judgment the provisions of Section 150 DLRA had not been dealt with. The impugned judgment calls for no interference.
11. Record has been perused. The suit property comprises of 6 biswas of land located in Khasra No. 42/9/5. Admittedly, a notification has been issued U/s 507 (a) of the DMC Act, notifying this land as urban.
12. The controversy has now been set at rest by the reference answered by the Bench of this Court in the case of Indu Khorana 2010 Indlaw DEL 856 (supra). Relying upon the earlier decision of this court reported in Trikha Ram V/s Sahib Ram & Anr. 69 (1997) DLT 749 and Madho Prasad V/s Ram Kishan & Ors. 2001 (7) AD (Delhi) 721 2001 Indlaw DEL 1987, it has been held that once by virtue of a notification U/s 507 (a) of DMC Act the land is declared to be an urban land, it could no longer be classified as village abadi land within the definition of land under DLRA and the provisions of DLRA would not be applicable. Unfortunately, these judgments were not considered by the two courts below. In CS (OS) 379/2003 Shri Sis Ram & Ors. V/s Lallu Singh & Ors., decided on 09.05.2006, in a suit for partition of abadi land of village Mauzpur which by a notification issued U/s 507 (a) of the DMC Act had been declared as an urban area; it was held that the urbanization of the land by virtue of the said notification would be excluded from the provisions of DLRA."
xxxxx RCA U/s 96 CPC: "Appeal Allowed: Impugned Judgment set Aside" Page 4 of 6 RCA No.50/2012" "Ram Phool & Ors. V/s Hari Singh & Ors." DOD: 01.05.2013
6. The learned counsel for the appellant has further relied upon the law laid down by the Hon'ble High Court in following two cases:
(i) FAO No.188/2007, titled as, "Raj Kishore Tyagi V/s Radhey Shyam & Ors.", decided on 25.04.2008 and;
(ii) RFA (OS) No.54/2008, titled as, "Ram Kishore V/s Jai Singh & Ors.", decided on 20.01.2012 to emphasize that the suit land falls in extended abadi can never be treated as a land within the meaning of Section 3 (11) of DLR Act and the suit for partition of such land is maintainable before the Civil Court.
7. The learned counsel for respondents No.5 to 7 has argued to the contrary that the aforesaid Notification was not there before the Ld.Trial Court and, therefore, the defendants were precluded from replying the same, as there could be an amendment in the aforesaid Notification or subsequently the area could have been denotified. The learned counsel has further emphasized the effect of MPD2021 on the status of this land. He very graciously agreed that since all these facts were not there before the Ld.Trial Court and these facts would require evidence from both the sides and as such, he has consented to the setting aside of the impugned judgment and for issuing direction to the Ld.Trial Court to reconsider the issue after calling for evidence from both the sides thereupon.
8. Accordingly, the impugned judgment is hereby set aside. The trial court record be sent back to the Ld.Trial Court/Successor Court, with the direction to allow the parties to lead further evidence on Issue No.(i). Needless to say, that the Ld.Trial Court would give findings on all the issues. RCA U/s 96 CPC: "Appeal Allowed: Impugned Judgment set Aside" Page 5 of 6 RCA No.50/2012" "Ram Phool & Ors. V/s Hari Singh & Ors." DOD: 01.05.2013
9. The trial court record be sent back forthwith to the Ld.Trial Court along with copy of this judgment.
10. Parties are directed to appear before the court of Ld.Sr.Civil Judge cumRC (SouthWest) on 18.05.2013 at 2.00 PM, who may retain the case on his board or may assign the same to any other Ld.Civil Judge as per his roster.
11. Appeal file be consigned to Record Room.
Dictated & Announced in the (Vinod Yadav)
open Court on 01.05.2013 Addl. District JudgeI/SouthWest
Dwarka District Courts:New Delhi
RCA U/s 96 CPC: "Appeal Allowed: Impugned Judgment set Aside" Page 6 of 6