Delhi District Court
Sh Ramesh Kumar (Since Deceased Though ... vs G.S. Jhatikara on 3 May, 2023
In the Court of Shri Ajay Kumar Malik : Additional Senior Civil Judge of
South West District at Dwarka Courts, New Delhi
CS SCJ : 874/2017
CNR No.DLSW03-001378-2017
In the matter of :-
Amended memo of parties
1. Sh Ramesh Kumar (since deceased though LR's)
(i) Smt. Meenu Devi w/o Sh Narender Sharma
(d/o Late Sh Ramesh)
r/o Village Mitraun, Delhi.
(ii) Smt. Sangeeta w/o Sh Pardeep
d/o Late Sh Ramesh
r/o Village Nangal Kalan,
District Sonepat, Haryana.
(iii) Sh Devinder Vats s/o Lt. Sh. Ramesh Kumar Vats
r/o Village Jhatikara, Delhi
(iv) Sh Rohit Vats s/o Lt. Sh. Ramesh Kumar Vats
r/o Village Jhatikara, Delhi
2. Sh. Prem Sukh
both sons of Late Sh Chander Bhan
Both residents of Village Jhatikara, Delhi- 110043.
........Plaintiffs
VERSUS
1. G.S. Jhatikara
Through BDO (South West)
BDO Office, Najafgarh, Delhi-110043
2. Union of India
Through Secretary (Revenue)
5, Sham Nath Marg, Delhi.
CS No. 874/17 Page no. 1 of 15
3. SDM/RA,
Kaspas Hera Sub Division
Old Tax Terminal Building, DC Office,
Kapas Hera, Delhi.
.....Defendants
Date of institution : 04.08.2017
Reserved for Judgment : 24.04.2023
Date of decision : 03.05.2023
Suit for Declaration U/s 170(6) of Delhi Land Reforms Rules and ,
Permanent Injunction
JUDGMENT
1. This is a suit for declaration u/s 170(6) of Delhi Land Reforms Rules and permanent injunction filed by plaintiff against the defendants for declaring that the order of defendant no.3/SDM/RA, Kapashera, SouthWest Delhi dated 20.11.2015 be declared illegal, unlawful and without jurisdiction in regard to the land comprising in Khasra no. 117/4(0-15) situated in the Revenue Estate of Village Jhatikara, Delhi (shown in red colour in the site plan) and for restraining the defendants, their officials, agents restraining them from dispossessing or demolishing the built-up house on land comprising in Khasra no. 117/4(0-15) situated in the Revenue Estate of Village Jhatikara, Delhi.
Plaintiffs' Case
2. The case of the plaintiff as averred in the plaint is that the plaintiffs are permanent residents of Village Jhatikara, Delhi and are in settled possession since the year 1978 till date in respect of the residential plot comprising in Khasra no. 117/4(0-15) situated in the Revenue Estate of CS No. 874/17 Page no. 2 of 15 Village Jhatikara, Delhi. It is stated that father of plaintiffs namely Late Sh Chander @ Chander Bhan s/o Late Sh Moti Ram had purchased a residential plot no. 15 measuring 1218 sq.ft. situated in Abadi Deh/Lal Dora of village Jhatikara, Delhi from the custodian of Evacuee Property vide Auction Purchase Certificate dated 15.03.1966 admeasuring 1218 sq. ft. and constructing the same for his residence. In July/August 1977 the floods hit the whole Dabur/Najafgarh Jheel area including Village Jhatikara, Delhi submerged in flood water including village Abadi. At the request of members of Panchayat and the then Pardhan Sh Khajan Singh, father of plaintiffs Sh Chander Bhan handed over the physical possession of his house so that a metalled road can be constructed for the benefit of the whole village and to save the village from future floods. It is stated that panchayat and the whole of the village promised the father of plaintiffs that they will allot another big plot for his residence which was also assured by the then Director Panchayat and the then SDM. Thereafter officials of MCD constructed the road on the said plot/house at the request of defendant no. 1 which is now used by the villagers as common passage. It is stated that the said house still stands in the name of plaintiff's father in the record of the custodian. It is stated that Gaon Panchayat passed an unanimous resolution dated 27.10.1978 which was duly recorded in the register of Gaon Sabah for alternative plot comprised in Khasra no. 117/4 measuring 15 Biswas situated in Extended Abadi/Lal Dora in the Revenue Estate of village Jhatikara, Delhi and the deceased father of plaintiffs Sh Chander Bhan was put in possession of the abovesaid residential plot on the same day and since then, the plaintiffs are in exclusive possession of the said plot till date. It is stated that father of plaintiffs was under the impression that mutation in his name might be effected in the revenue CS No. 874/17 Page no. 3 of 15 records as the same has been sanctioned in his favour by the revenue authorities. In the year 1982 father of plaintiffs & plaintiffs also bored a tubewell in the allotted residential plot falling in Khasra no. 117/4(0-15) for its better use. It is stated that Sh. Suraj Bhan, Ex. Pardhan of Gram Panchayat Jhatikara alongwith alongwith some like minded persons (hereinafter 'the unscrupulous persons) are having an evil eye on the residential plot of plaintiff falling in Khasra no. 117/4(0-15). It is stated that the said unscrupulous persons in order to usurp and grab the plot of Khasra no. 117/4 tried to joint/fix pipe line with the tubewell bored by plaintiffs in the said suit property in the grab of supplying water to the village. Thereafter plaintiff no. 1 instituted proceedings against defendant no. 1 and Sh Suraj Bhan under section 83 of DLR Act 1954. It is stated that the then Ld SDM (Punjabi Bagh) vide order dated 23.04.1990 was pleased to grant ex parte ad interim injunction against Sh Suraj Bhan restraining him from interfering in any manner in the peaceful possession of plaintiff no. 1 over the suit property. It is stated that vide order dated 20.11.2015 defendant no. 3 disposed off three matters bearing case no. 135/98 filed under Appendix VI Rule 14 of the DLR Rules titled as 'G.S. Jhatikara Vs Ramesh', Case no. 144/95 u/s 23 of DLR Act titled as 'Ramesh Kumar Vs Surai Bhan' and Case no. 13/NG/2001 u/s 86A of DLR Act titled as 'G.S. Jhatikara Vs Ramesh Chander' respectively by one common judgment dated 20.11.2015 whereby defendant no. 3 held that plaintiffs have encroached upon the land of Gaon Sabha and ejected the plaintiffs from the land bearing Khasra no. 117/4(0-15) situated in the Revenue Estate of Village Jhatikara, Delhi. It is stated that being aggrieved plaintiffs filed an appeal before the Deputy Commissioner (South West) bearing no. 89/2015 u/s 185 of DLR Act on 23.11.2015 against the order dated 20.11.2015 passed by defendant no. 3.
CS No. 874/17 Page no. 4 of 15 The appeal of the plaintiffs was heard by Ld D.C on 08.12.2015 and the counsel for the plaintiffs raised a preliminary legal notice to the effect that the land in question falls in the Lal Dora Abadi and which is used for residential purpose and thus the provisions of Sec.86A of DLR Act is not applicable. It is stated that on 18.12.2015 plaintiffs have received summons/notice issued by defendant no. 3 in the execution case no. 49/146/2015 dated 16.12.2015 whereby plaintiffs were directed to be present on NDOH i.e. 04.01.2016. It is stated that plaintiffs are in possession of the suit property since 1978 after having constructed a pucca house on the said land. Hence, the plaintiff has filed the present suit.
Defendants' Case
3. Written statement has been filed on behalf of defendant no. 1 and 2 wherein it has been contended that the present suit is not maintainable as plaintiffs do not have any valid legal right/title qua the suit land. It is stated that the suit land being property of Gaon Sabha Jhatikara as per the revenue records is governed by Delhi Land Reforms Act, 1954. It is denied that any possession was ever taken from father of the plaintiffs for road construction by MCD.
4. Defendant no. 3 was proceeded exparte by my Ld Predecessor vide order dated 18.11.2019.
5. Replication has been filed by the plaintiff to the written statement of the defendants wherein the contents of the plaint have been reiterated and the contentions of the defendants in its written statement have been denied except the admissions made.
CS No. 874/17 Page no. 5 of 15
6. An application u/o XXII Rule 3 CPC was moved on behalf of LRs of plaintiff and thereafter, LRs of plaintiff Ramesh Kumar were impleaded in the present matter.
Issues
7. After completion of pleadings, vide order dated 29.01.2019 the following issues were framed by my learned Predecessor for trial :
(i) Whether plaintiffs are entitled for declaration in their favour and against the defendant, as prayed for? (OPP).
(ii) Whether plaintiffs are entitled for a decree of permanent injunction in their favour and against the defendants, as prayed for? (OPP).
(iii) Relief.
Plaintiff's Evidence
8. Sh Ramesh Kumar has examined himself as PW-1, who proved his affidavit in evidence as Ex. PW-1/A. He relied upon the following documents:
a. The Site plan is Ex. PW 1/1.
b. Photocopy of my voter ID card is Ex. PW1/2 (OSR).
c. Photocopy of Auction Purchase Certificate is Mark A (colly).
d. The Mark B mentioned in the affidavit was de-exhibited as
same was not on record.
e. The copy of Resolution dated 27.10.1978 is Mark C (colly).
f. The copy of Site Map /Lay Out plan is Ex. PW 1/3.
g. The photocopy of order dated 23.04.1990 is Mark D (colly).
h. Copy of judgment & Decree dated 31.08.1994 is Mark E (colly).
i. Complaint dated 23.06.1997 is Mark F.
CS No. 874/17 Page no. 6 of 15
j. Reply dated 10.07.1998 to the show cause notice is Mark G.
k. The application U/s 22 to Tehsildar and proceedings is Mark H
(colly)
l. The copy of the Report dated 23.02.1998 is Mark I.
m. The setting aside ex parte ejectment order dated 10.07.1998 is
Mark J.
n. The copy of orders dated 05.08.1998 and 05.03.2003 is Mark K and
Mark L.
o. Copy of order dated 20.04.2005 is Mark M.
p. Certified copy of order dated 20.11.2015 is Ex. PW1/4.
q. Copy of appeal against order dated 20.11.2015 is Mark N.
The testimony of PW-1 could not be read in evidence as PW-1 was not cross examined by defendants as PW-1 had passed away on 15.11.2021.
9. Sh Parveen Kumar was a summoned witness who was examined as PW-2. He had brought the summoned record which is order dated 23.04.1990 passed by then SDM(Punjabi Bagh) bearing diary no. 2527- 29/SDM/PB/90 which is EX. PW2/1.
10. Sh Rajesh Sharma, Halka Patwari was a summoned witness who was examined as PW-3. He had brought the summoned record which is Ex. PW 3/2 (colly) khata khatoni of khata 510/436 which pertains to khasra no. 117/4 (0-15) situated in the village Jhatikara and Ex. PW 3/1 (OSR) is the aks sizra of the said khrasa no. 17/4.
11. Sh Raghubir, LDC, Ministry of Home Affairs was a summoned witness who was examined as PW-4. He stated that he had not brought the CS No. 874/17 Page no. 7 of 15 summoned record as same had been transferred to the Office of The Assistant Settlement Commissioner and the office order of same is Mark A.
12. Sh Nagendra Sah, UDC was a summoned witness who was examined as PW-5. He stated that he had not brought the summoned record and shall bring the same on NDOH. The testimony of PW-1 could not be read in evidence as PW-5 had not brought the relevant record.
13. Sh Ajai Pal Singh Malik, Technical Assistant, Najafgarh Block was a summoned witness who was examined as PW-6. He stated that he had not brought the summoned record and shall try to bring the same on NDOH. This witness was dropped by plaintiff.
14. Sh Ravinder Kumar, Sr. Assistant, BDO South West, Najafgarh was a summoned witness who was examined as PW-7. He had brought the summoned record which is letter dated 18.09.1995 bearing no. F.42(2)/P/BDO(N)/90-91/2508.
15. Sh Suresh Kumar, Office Kanungo, Tehsil Kapashera was a summoned witness who was examined as PW-8. He had brought the complete original case file bearing case no. 394/RA/NG/97 under 86A of village Jhatikara titled as "G.S Jhatikara Vs Ramesh s/o Chander' and the certified copy of the same is Ex. PW-8/1(colly). PW-8 stated that he had brought the summoned file from office of SDM, Record Room, Najafgarh division and the remaining record is consigned to Office Kanungo, Tehsil Mehruli.
CS No. 874/17 Page no. 8 of 15
16. Sh. Premsukh was examined as PW-9 who proved his affidavit in evidence as Ex. PW-9/A. He relied upon the following documents:
a. Ex. PW-2/1 which is site plan b. Ex. PW-2/2 which is photocopy of voter cards of both plaintiffs c. Mark A which is photocopy of Auction Purchase Certificate in the
name of father of plaintiffs i.e. Late Sh Ramesh Kumar.
d. Mark B which is sale letter.
e. Mark C (colly) which is copy of resolution dated 27.10.1978
f. Ex. PW2/3 which is copy of site map/layout plan.
g. Mark D(colly) which is photocopy of order dated 23.04.1990
h. Mark E(colly) which is copy of judgment and decree dated
31.08.1994
i. Mark F which is complaint dated 23.06.1997
j. Mark G which is reply dated 10.07.1998
k. Mark H which is application u/s 22 to Tehsildar and proceedings
l. Mark I which is copy of report dated 23.02.1998
m. Mark J which is setting aside of ejectment order dated 10.07.1998
n. Mark K and Mark L which is copy of orders dated 05.08.1998 and
05.03.2003
o. Mark M which is copy of order dated 20.04.2005 and 20.05.2005
p. Ex. PW2/4 which is copy of order dated 20.11.2015
q. Mark N which is copy of appeal against order dated 20.11.2015.
During tendering of affidavit of PW-9, the documents relied upon by witness were given the nomenclature in terms of affidavit of PW-1.
17. Plaintiff's evidence was closed on 24.01.2023 and matter was CS No. 874/17 Page no. 9 of 15 adjourned for defendant's evidence.
Defendant's Evidence
18. Sh Rakesh Sharma, Block Development Officer examined as DW-1, who in his affidavit in evidence Ex. DW1/A has stated and reiterated on oath the contents of the affidavit. He relied on the following documents:
a. Ex. DW-1/DZ is written statement filed by defendant Gaon Sabha Jhatikra b. Ex. PW-1/4 is order passed by Ld SDM RA, Najafgarh (which is already exhibited as Ex. PW-1/4) c. Ex. PW-3/2(colly) is Khata Khatauni (which is already exhibited as Ex. PW-3/2) d. Ex. PW-3/1 is Aksijra (which is already exhibited as Ex. PW-3/1) e. Ex. PW-8/1(colly) is Section 86A, DLR Act proceedings (which is already exhibited as Ex. PW-8/1) f. Ex. PW-7/1 is non recovery of Gaon Sabha records of Village Jhatikra (which is already exhibited as Ex. PW-7/1).
Defendant's evidence was closed on 03.03.2023 and matter was listed for final arguments.
19. Final arguments have been heard. I have gone through the judicial record.
20. Now I shall give my issue-wise findings.
For the purpose of deciding issue no. (i) and (ii) the relevant extracts of Delhi Land Reforms Act, 1954 are as under:
84. Ejectment of persons occupying land without title- [1] A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, and -
(a) where the land forms part of the holding of a Bhumidhar or Asami without the consent of such Bhumidhar or Asami, CS No. 874/17 Page no. 10 of 15 or
(b) where the land does not form part of the holding of a Bhumidhar or Asami without the consent of the Gaon Sabha, shall be liable to ejectment on the suit of the Bhumidhar, Asami or Gaon Sabha, as the case may be and shall also be liable to pay damages.
[(2)Where any person against whom a decree for ejectment from any land has been executed in pursuance of a suit under sub-section (1) re-enters or attempts to re-enter upon such land otherwise than under authority of law, he shall be presumed to have done so with intent to intimidate or annoy the person in possession or the Gaon Sabha as the case may be, within the meaning of section 441 of the Indian Penal Code(45 of 1860)]
85. Failure to file suit under section 84 or to execute decree obtained thereunder-
If a suit is not brought under [sub-section (1) of section 84] or a decree obtained in any such suit is not executed within the period of limitation provided for the filing of the suit or the execution of the decree, the person taking or retaining possession shall-
(I) where the land forms part of the holding of a Bhumidhar, become a Bhumidhar thereof;
(ii) where the land forms part of the holding of an Asami on behalf of the Gaon Sabha, become an Asami thereof;
(iii) in any case to which the provisions of clause (b0 of [sub section (1) of section 84] apply, become a Bhumidhar or Asami as if he had been admitted to the possession of the land by the Goan Sabha;
[Provided that if in the revenue records of the fasli year ending on th 30th June, 1954, the land referred to in clause
(iii) was not included in the holding of the person taking or retaining possession or his predecessor-in -interest, then, notwithstanding the expiry of the aforesaid period of limitation for such suit or decree, the suit may be filed or the decree obtained in such suit may be executed within a period of three years from the date of passing of the Delhi Land Reforms (Amendment) Act, 1965.
Provided further that the benefit of the extension of the CS No. 874/17 Page no. 11 of 15 period of limitation under the preceding proviso shall not availed of in any case where a person who has become a Bhumidhar in respect of any land under clause (iii) has transferred such land to another person for valuable consideration before 10th May, 1965].
86. Ejectment of Bhumidar to whom section 85 applies - (1) Any person, who becomes Bhumidhar under the provisions of clause (I) of section 85, may notwithstanding anything hereinafter contained, be ejected from the land at the instance or the Gaon Sabha within such period as may be prescribed.
(2) Where a Bhumidhar has been ejected, his rights in the holding shall be extinguished and the land shall become vacant land.
[86A. Ejectment by Revenue Assistant of persons occupying land without title - Notwithstanding anything contained in sections 84,85 and 86, the Revenue Assistant also may, on receiving information or on his own motion, eject any person who is liable to be eject from any land on a suit of the Gaon Sabha under any of those sections, after following such procedure as may be prescribed.] 1 2 3 4 5 6 7 8 9
(iii) By a Three From the As in the Revenue Deputy ....] Bhumidhar, years 1st of July Courts Fees Assistant Commis-
Asami or following Act, 1870 sioner
Gaon the date
Sabha in of
any other occupatio
case. n.
[19A. 85 Suit for --do--- From the ---do--- ---do--- ---do--- ....]
ejectment date of
of a person passing of
referred to the Delhi
in the first Land
proviso. Reforms
(Amend-
ment)Act,
1965
20. 86 Suit for One From the ---do--- ---do--- ---do--- ....
ejectment year date of
of a acquiring
Bhumidhar Bhumi-
to whom dhari
clause(i) of rights
section 85
applies.
CS No. 874/17 Page no. 12 of 15
20A. 86A Proceeding Same Same as Nil. Revenue Deputy ....]
s for as that that prov- Assistant Commis-
ejectment provide ided for a sioner
of persons d for a suit under
occupying suit section
land under 84, 85 or
without section 86, as the
title 84, 85 case may
or 86, be
as the
case
may be
21 87 Suit for Three From the [As in the ---do--- ---do--- Chief
ejectment years date of Court Fees Com-
of person constituti Act, 1870] mis-
from lands on of sioner
of public Gaon
utility Panchayat
under
section
151.]
22. 88 Objections One From the [Rs. 1.25p] ---do--- ---do--- .......
of an year date of
Asami fixation
against the of rent
fixation of
rent by
Gaon
Sabha or
landholder
21. Issue no. (i) and (ii)
Issue no. (i) and (ii) are inter connected, hence they are taken up together.
(i) Whether plaintiffs are entitled for declaration in their favour and against the defendant, as prayed for? (OPP).
(ii) Whether plaintiffs are entitled for a decree of permanent injunction in their favour and against the defendants, as prayed for? (OPP). The onus to prove these issues were on plaintiff. Although the plaintiff brought on record his affidavit as Ex. PW-1/A but the examination in chief of PW-1 was never completed, therefore no question of cross examination ever occurred for the defendants. It was not the defendant who could have been held responsible for non conclusion of examination in chief but the liability here is on the shoulder of plaintiff. Nothing brought CS No. 874/17 Page no. 13 of 15 on record by plaintiff can be read in evidence unless the defendants get the proper chance for cross examination. The plaintiff got examined Sh Prem Sukh son of Chandra Bhan as PW-9 who deposed in terms of the deposition already made by Sh Ramesh Kumar and relied upon the same documents. The plaintiff has sought the relief of declaration regarding impugned order dated 20.11.2015 and brought on record the same as Ex. PW-1/4. Even as per Ex. PW-1/4 the Gram Sabha was in knowledge of possession of plaintiff over the suit property much before initiating the proceedings u/s 86A of DLR Act. Vide order dated 15.04.1990 Gram Panchayat was superseded by order of Lt. Governor. The plaintiff initiated the proceedings u/s 83 of DLR Act, 1954 and vide order dated 23.04.1990 SDM granted the ex parte stay so again it is on record that it was within knowledge of the revenue department that plaintiff is in possession of the suit property. The order Ex. PW-1/4 itself speaks that:
3.3 The report of the concerned Halka Patwari whenever called for by this court is silent on the "first entry made in the Khatauni in which it has been endorsed as vide P-7 no. 1 dated 25.06.1996 Khasra no. 117/4 entered in the name of Gram Sabha (BARUWE P-7 No. 25/6/96 KH. No. 117/4 GRAM SABHA DARJ KIYA GAYA). The report is silent on the entry made before the year 1996 or after 1978'' (sic) It shows that even the revenue records does not speak about the ownership of the suit property in favour of defendants for the period commencing from 1978 which is now the admitted fact on the part of defendants. The Ex. PW-1/4 itself speaks that record of defendant are silent about the possession of plaintiff over suit property since 1990 as per their own stay orders and from 1978 as per their own records i.e. the record of revenue deptt. Schedule 1 of DLR 1954 very specifically mandates at entry no. 20A that the limitation period for proceeding for ejectment of person CS No. 874/17 Page no. 14 of 15 u/s 86A of DLR Act is of 3 years. The Goan Sabha filed the application u/s 86A of DLR Act against the plaintiff on 23.06.1997 which is much below the Limitation Period. The law has to be taken as it is. Revenue record keep silence qua possession of suit property since 1978 and as per proceedings in judicial matter defendant was having knowledge of proceedings against them since 1990 i.e. also about possession of suit property with plaintiff.
Accordingly, the proceedings u/s 86A against the plaintiff are barred by limitation period and hence, the proceedings initiated u/s 86A of DLR Act on 23.06.1997 are against the law. Hence, illegal and unlawful. Thus, the plaintiff has successfully discharged his onus to prove issue no. (i) and
(ii) are decided in favour of plaintiff and against defendants. Accordingly, defendants, their official and agents are restrained from dispossessing the plaintiff from the house on the land comprising in Khasra no. 117/4 (0-15), situated in Revenue Estate of village Jhatikara, Delhi as shown in site plan Ex. PW-2/1.
Relief
22. In view of my aforesaid findings on issue no. (i) and (ii), the suit is decreed in favour of the plaintiff and against defendants. No order to costs. Decree sheet be prepared.
File be consigned to the record room after due compliance.
Ajay Digitally signed
by Ajay Kumar
Kumar Malik
Date: 2023.05.03
Announced in the Open Court Malik 19:02:22 +0530
on 03.05.2023 (Ajay Kumar Malik)
ASCJ cum JSCC cum Guardian Judge
Dwarka Courts: New Delhi
CS No. 874/17 Page no. 15 of 15