Delhi District Court
Vide This Order Application Filed By The vs . on 9 June, 2016
IN THE COURT OF HIMANSHU RAMAN SINGH,
CIVIL JUDGE1, CENTRAL DISTRICT, DELHI
Suit No.473/06
Dharam Bir & Ors.
Vs.
Jitender Singh & Ors.
ORDER: 09.06.2016
1. Vide this order application filed by the defendants no.2 and 3 under Order 7 Rule 11 readwith Section 151 Code of Civil Procedure, 1908 and Section 83 and 185 of the Delhi Land Reforms Act, 1954, shall be disposed of.
2. The present suit has been filed praying for permanent injunction for restraining the defendants from interfering in the peaceful and settled possession of the plaintiffs of the land bearing no. Rect. No.92, Killa No. 19 min (34) and 92/12 min(119) total measuring 5 bighas 3 biswas situated in village Mundka, New Delhi.
Dharam Bir vs. Jitender Singh Suit No.473/06 Page 1 of 24
3. The defendants no. 2 and 3 have moved the present application under Order 7 R 11 CPC on the ground that the suit property is governed under the provisions of Delhi Land Reforms Act, 1954. It is the contention of the defendants no.2 and 3 that they have purchased the land through registered sale deeds and in the revenue record maintained by the revenue authority, only the defendants no. 2 and 3 are shown as bhumidhar and in possession of the suit land.
4. It is the contention of the defendants no.2 and 3 that the possession of the agricultural land goes with the title/revenue records maintained by the revenue authorities.
5. As per the defendants no. 2 and 3 the person who is not recorded bhumidhar of the land in question which is governed under the provisions of Delhi Land Reforms Act, 1954, cannot ask for injunction against true owner/recorded bhumidhar of the land. If the person who has sought injunction, has any kind of right, first he shall seek the bhumidhari right from the revenue court and only after obtaining the same, he can approach the civil court for seeking the relief of injunction. As per the defendants no. 2 and 3 in view of the provisions of the Dharam Bir vs. Jitender Singh Suit No.473/06 Page 2 of 24 Section 83 readwith Section 185 and entry 18 of Schedule I of the said Act only the revenue assistant has the power to entertain and try the present suit.
6. I have heard the submissions at length advanced by the plaintiff as well as the defendants no. 2 and 3. I have perused the record carefully.
7. Ld. counsel for the defendants no. 2 and 3 argued that the suit property in question is admittedly an agricultural land and the plaintiffs claim to be in possession of the same. As per Ld. counsel for the defendants no.2 and 3 the land was in the name of the defendant no.1 Sh. Jitender Singh who transferred the land to defendant no.3 Smt. Kaushalya Devi and the mutation to this effect has already been done. Ld. counsel for the defendants no. 2 and 3 has placed reliance on the judgment of Hon'ble Supreme Court in the case titled as Anathula Sudhakar vs. P. Buchi Reddy, AIR 2008 SC 2033, the relevant portion is reproduced here under for ready reference:
"The position in regard to suits for prohibitory injunction relating to immovable property, is summarised as under:
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of Dharam Bir vs. Jitender Singh Suit No.473/06 Page 3 of 24 possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight forward, the court may decide upon the issue regarding title, even in a suit for injunction.
But such cases, are the exception to the normal rule that question of title will not be checked in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more Dharam Bir vs. Jitender Singh Suit No.473/06 Page 4 of 24 comprehensive declaratory suit, depending upon the facts of the case."
The Ld. Counsel for the defendants argued that in the present case cloud over the title of the plaintiff has been cast and therefore the relief of declaration is also to be sought. It has been averred that the plaintiff has failed to challenge the sale deeds and has not sought the reliefs of declaration and therefore the suit for permanent injunction without seeking the relief of declaration is not maintainable.
8. It is argued by Ld. counsel for defendants no.2 and 3 that upto month of December, 2000 Sh. Vishnu Bhagwan, Sh. Ramesh Chander and Sh. Naresh Kumar were in actual physical and cultivatory possession of the suit land i.e. land bearing khasra no.92/12/2 (22) and 19/1 (34) of village Mundka, Delhi. Vide sale deed dated 22.12.2000 they sold the half portion of said land to defendant no.1 and vide sale deed dated 26.12.2000 they sold the remaining half portion of the land to defendant no.2 and the defendants no.1 and 2 came in actual physical possession of the said land. On the basis of the said sale deeds the suit land was mutated in the name of the defendants no.1 and 2 and the said fact can be clearly verified from the Nakal Khatoni Paamaish filed by the plaintiff Dharam Bir vs. Jitender Singh Suit No.473/06 Page 5 of 24 alongwith the plaint. Thereafter on 21.07.2005 defendant no.1 sold his share in the said land to defendant no.3 and now defendants no.2 and 3 are in actual physical and cultivatory possession of the said land. It is submitted that alongwith the suit the plaintiffs have not filed any documents in order to show their alleged possession over the land in question. The plaintiffs have not placed on record any document in order to show that they are the bhumidhars and in possession of the suit land. It is settled law of land that the possession of the agriculture land goes with the title and revenue records maintained by the revenue authority. In this regard the defendants have relied upon the judgment of the hon'ble High Court of Delhi titled as Phoolwati & Ors. vs. Ram Dei & Ors., 150 (2008) DLT 105, the relevant portion is reproduced here in under:
"The plaintiffs have described the property as agricultural land. This description is given by giving Khasra numbers and Khatouni. Counsel for the plaintiffs relied upon mutation of year 1982 to claim that plaintiffs were in uninterrupted possession of the property. The question of uninterrupted possession by the plaintiffs to the exclusion by its truthful owners is belied by the sale deed itself. The sale deed executed on 17th June, 1982, by Harpal Singh categorically mentions that he had delivered physical possession of the land to the vendee on the spot. When there is a documentary proof of handing over of the possession on 17th June, 1982 at the time of execution of the sale deed, no amount of oral averment can be considered by the Court that the possession remained with the plaintiffs.
It is settled law that Court has to presume that all official Acts have Dharam Bir vs. Jitender Singh Suit No.473/06 Page 6 of 24 been performed in due course and in accordance with the procedure laid down. There is no presumption that official acts were performed contrary to the law.
Possession of agricultural land goes with title and the Revenue Records. Revenue Records are prepared in respect of the agricultural land on the basis of physical verification by Patwari. If one is aggrieved by the entries in Revenue record, the remedy is provided under Delhi Land Reforms Act for correction of record, for regaining possession, for ejectment of transfer, etc. The Civil Court is not only barred from entertaining such claims, but is bound to honour the revenue records as correct. Any amount of oral pleadings cannot be considered by Civil Court in respect of possession over the agricultural land, contrary to record. If this is allowed, anybody can fabricate evidence in respect of his possession, create some witnesses and file a civil suit in a Civil Court. It is for this reason that law has specifically barred filing of civil suits in respect of agricultural land and has provided an elaborate procedure under revenue laws and only Revenue Authorities have been given power to decide the issues in respect of the agricultural land. Section 79 of Delhi Land Revenue Act gives power to the Revenue Assistant to order alterations in the annual register and to enquire into and decide cases of reported transfers."
It has been held that the possession of the agricultural land goes with the title of the Revenue Record. The person aggrieved is provided the remedy under the Delhi Land Reform Act, 1954 (hereinafter 'DLR Act', in short) the plaintiff has to approach only the Revenue Authority to establish his possession over the suit land and not to the Civil Court.
9. Ld. counsel for the defendants no.2 and 3 have relied upon the Dharam Bir vs. Jitender Singh Suit No.473/06 Page 7 of 24 citation of the Hon'ble Delhi High Court in the case titled as Smt. Adarsh Murghai vs. Delhi Administration, 1992(3) Delhi Lawyer 32, wherein it has been held that a person who is not a bhumidar cannot directly approach to the Civil Court. Admittedly in the present case the plaintiff is not the bhumidar of the suit land. The plaintiff has first to get a declaration from the revenue authorities that he is holding the bhumidari rights and only after having obtained the same he can ask for injunction from the civil court.
10. It has been argued by the Ld Counsel for the defendants no. 2 and 3 that admittedly, the suit land is governed under the provision of DLR Act, 1954 and jurisdiction of this court is barred in view of the Entry 18 of Schedule I and Section 185 of DLR Act, 1954. Only the revenue assistant has jurisdiction to entertain and try the present suit for permanent injunction filed by the plaintiff. In support of the said contention the defendants no. 2 and 3 have relied upon the judgment dated 14.05.2008 passed by the Hon'ble High Court of Delhi in CS (OS) 1332/2007, titled as Sh. Anil Kumar & Anr. vs. M/s B. R. B. Construction Pvt. Ltd & Ors., to say that even a suit for permanent injunction is also barred before the civil court. It has been contended that Dharam Bir vs. Jitender Singh Suit No.473/06 Page 8 of 24 the provisions of Section 185 Schedule 1 and Section 183 of the DLR Act clearly provides that a suit for permanent injunction can be filed only before a revenue court. It is further stated that DLR Act, 1954 is a complete code in itself and in the said Act only the terms of Asami and Bhumidar are defined. The bhumidari rights are conferred upon the proprietor in respect of his agricultural land, his right of ownership of land ceases to exist and he becomes only a tenure holder. Bhumidari rights are special rights created on the abolition of ownership of agricultural land and are controlled and regulated by the provisions of the act. The right of a bhumidar to transfer his bhumidari rights in the agricultural land is controlled only by the provisions of the Act and the provisions of the customary law placing further restrictions on transfer of bhumidari rights would stand repealed by Section 2 (1)(iv) as being inconsistent with the provisions of the act and would not be applicable. In this context the defendants no. 2 and 3 are relying the citation passed by the Hon'ble High Court of Delhi in the case titled as Nathu vs. Hukam Singh & Ors., AIR 1983 Del 216.
11. Per contra, Ld. counsel for the plaintiffs has placed reliance on document dated 30.01.1984 which show that the survey of the property Dharam Bir vs. Jitender Singh Suit No.473/06 Page 9 of 24 was conducted and the predecessor of the plaintiff namely Late Sh. Kanshi Ram was shown to be in possession, as per the Schemi Qabij. Ld. counsel for the plaintiffs has argued that this document was prepared at the time of consolidation and established the possession of the plaintiff without doubt. Ld. counsel for the plaintiffs referred to para no. 8 of the plaint as per which plaintiffs filed a petition under Section 85 of the Delhi Land Reforms Act for declaring them bhumidars in respect of the land in question against Sh. Vishnu Bhagwan, Ramesh and Naresh sons of Sh. Jage Ram, the then recorded bhoomidars on 15.07.1998 in the court of Revenue Assistant, Punjabi Bagh, Delhi. During the pendency of the case the defendants no. 2 and 3 got executed certain documents of transfer of the aforesaid land from Sh. Vishnu Bhagwan at the back of the plaintiffs and without their knowledge. Sh. Vishnu Bhagwan etc., agreed to settle the dispute whereby they agreed to pay a sum of Rs.1,00,000/ to the plaintiffs and subject to encashment of that cheque, the plaintiffs agreed to surrender the possession of the land in question. Sh. Vishnu Bhagwan handed over a cheque bearing no. 463943 dated 28.08.2001 drawn on Punjab National Bank, Nanak Pura, New Delhi issued by defendant no.1 which was account payee cheque in the name of plaintiff no.1. The present defendants no. 2 and 3 colluded Dharam Bir vs. Jitender Singh Suit No.473/06 Page 10 of 24 with each other and in view of handing over the said cheque the plaintiffs gave the statement in the court of revenue assistant whereby the petition for declaration of bhumidari was got dismissed as withdrawn on 28.05.2001. The said cheque got dishonoured on being presented and as a result the plaintiffs did not surrender the possession of the land and the defendants could not come in possession of the land.
12. Ld. counsel has further stated that the case Anil Kumar & Anr. vs. M/s B.R.B. Construction Pvt. Ltd. & Ors cited by the defendants no.2 and 3 is not applicable in the present case, as the said case law concerns with construction and hence is not application in the present suit.
13. Ld. counsel for the plaintiffs has placed reliance in the judgment passed by Hon'ble Supreme Court in the case titled as Ram Rattan & Ors vs. State of of Uttar Pradesh, AIR 1977 SC 619, the relevant portion is reproduced here under for ready reference:
"4. A true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recoure to the remedies available under the law. While it may Dharam Bir vs. Jitender Singh Suit No.473/06 Page 11 of 24 not be possible to lay down a rule of universal application as to when the possession of a trespasser becomes complete and accomplished, yet, one of the tests is to find out who had grown the crop on the land in dispute."
14. Ld. counsel has further argued that no cloud over the title has been raised. The defendants no. 2 and 3 have not been able to raise any cloud over the title of the plaintiffs. On the other hand, the plaintiff has placed on record original dishonoured cheque. Ld. counsel for the plaintiffs has placed reliance on the judgment passed by the Hon'ble Supreme Court in case titled as Rajender Singh vs. Vijay Pal @ Jai Pal & Ors., 148 (2008) DLT 596 (SC), the relevant portion is reproduced here under for ready reference:
"2. The plaintiff/respondent No.1 had instituted the suit before the Civil Judge, Delhi for declaration and injunction in respect of the suit property and for other incidental reliefs. In the said suit, a preliminary issue was framed to the extent that in view of Section 185 of the Delhi Land Reforms Act, 1954 (in short 'the Act'), the jurisdiction of the Civil Court to entertain the suit was barred. Both the Courts below held that the Civil Court had no jurisdiction to entertain the suit in view of the bar imposed under Section 185 of the Act. The High Court, in second appeal against the judgments of the Courts below, held that in view of the nature of the reliefs claimed in the suit, the jurisdiction of the Civil Court was not hit by Section 185 of the Act. Accordingly, the judgments of the two Courts below were upset by the High Court by the impugned judgment and the trial Court was directed to decide the suit on all other issues on merits. Feeling aggrieved, the instant special leave petition has been filed, in respect of which leave has already been granted.Dharam Bir vs. Jitender Singh Suit No.473/06 Page 12 of 24
3. In view of the stand taken by us, as noted hereinafter, and considering the facts and circumstances of the case and the allegations made in the plaint, we are, prima facie, satisfied that this appeal can be disposed of by directing the trial Court to decide the suit not only on the other issues on merits but also on the issue regarding the jurisdiction of the Civil Court to entertain the suit in view of Section 185 of the Act."
15. Ld. counsel for the plaintiffs has placed reliance on the judgment passed by Hon'ble Supreme Court in the case titled as Mam Raj vs. Ram Chander, 1974 Rajdhani Lal Reporter, 428, the relevant portion is reproduced here under for ready reference:
"9. It will thus be noticed that it is only under section 185 which expressly ousts the jurisdiction of the civil courts in certain matters and not in all matters. The matters in respect of which the jurisdiction of the civil courts is ousted are only those matters which are mentioned in Schedule 1 to the Act, and various types of suits, applications and other proceedings are mentioned in column 3 of the said Schedule read with entries mentioned in column 2 and the courts in which the proceedings have to be filed are mentioned in column 7 thereof. It is thus clear that in the suit of the present type in which permanent injunction is claimed on the basis of succession to bhoomidari rights by virtue of a will, such a suit is not covered by any entry in column 3 of First Schedule and thus the Delhi Land Reforms Act does not either expressly or implied bar the present suit. So far as the alternative relief of possession is concerned, namely, that in case it be held that the plaintiffs have been dispossessed during the pendency of the suit, it may be argued that such claim can be decided by Revenue Courts in view of entry No.19 in column 3 of the First Schedule but that question cannot be decided as a preliminary issue. The case of the plaintiffs is that they are in fact in Dharam Bir vs. Jitender Singh Suit No.473/06 Page 13 of 24 possession whereas the defendant has denied the possession of the plaintiffs. It will thus be a question for trial whether the plaintiffs on the date of the suit had any possession or not. Again, if the plaintiffs are dispossessed during pendency of the suit, it will again be a question to be determined on facts. The question cannot be determined without taking evidence and so long as the issue is not decided as a question of fact, it cannot be held that the suit itself is beyond the cognizance of civil courts; as and when the question arises whether the plaintiffs have been dispossessed during the pendency of the suit, the question will then arise as to the jurisdiction of the civil court to grant a decree for possession. On the allegations as contained in the plaint which has to be taken as correct for the purpose of deciding jurisdiction of the courts to take cognizance of the suit, it cannot be said that the cognizance of the civil court is barred."
16. Ld. counsel for the plaintiffs has placed reliance in the judgment passed by Hon'ble High Court of Delhi in the case titled as Tara Chand & Anr. vs. Kumari Rajni Jain & Ors., 150 (2008) DLT 101, the following issues were framed that are same reproduced hereunder the relevant portion is reproduced here under for ready reference:
"Whether the suit by the plaintiff is barred under the provision of law, particularly those of Specific Relief Act and Delhi Land Reforms Act? (OPP)
14. Pertaining to the findings on issue No.2 suffice would it be to note that under Section 185 of the Delhi Land Reforms Act, 1954 only such suits are not maintainable before Civil Courts remedy whereof is not available before a revenue Court.
20. I hold that the suit filed by the plaintiffs was maintainable. I hold Dharam Bir vs. Jitender Singh Suit No.473/06 Page 14 of 24 that the suit is neither barred under the provisions of the Specific Relief Act or the Delhi Land Reforms Act.
21. I may note a short order passed by Their Landships of the Hon'ble Supreme Court reported as 148 (2008) DLT 596 (SC)=III (2008) SLT 476=2008 AIR SCW 1965, Rajender Singh v. Vijay Paul & Ors. In somewhat similar circumstances Their Lordships of the Supreme Court held that suits for injunctions pertaining to agricultural land have to be decided after trial by the Civil Courts and not before the revenue authorities."(emphasis supplied)
17. Ld. counsel for the plaintiffs has placed reliance in the judgment passed by Hon'ble High Court of Delhi in the case titled as A. P. Jain & Ors. (Shri) vs. Union of India & Ors., 2012 III AD (DELHI) 785, the relevant portion is reproduced here under for ready reference:
"185. Cognizance of suits, etc., under this Act - 1) Except as provided by or under this Act no court other than court mentioned in column 7 of Schedule I shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, take cognizance of any suit, application, or proceedings mentioned in column 3 thereof. (2) Except as hereinafter provided no appeal shall lie form an order passed under any of the proceedings mentioned in column 3 of the Scheduled aforesaid.
(3) An appeal shall lie from the final order passed by a court mentioned in column 3 to the court or authority mentioned in column 8 thereof.
(4) A second appeal shall lie from the final order passed in an appeal under sub section (3) to the authority, if any, mentioned against it in column 9 of the Schedule aforesaid.
186. Procedure when question of title is raised - (1) Notwithstanding anything contained in section 185, if in any suit or Dharam Bir vs. Jitender Singh Suit No.473/06 Page 15 of 24 proceeding in column 3 of Scheduled I, a question is raised regarding the title of any party to the land which is the subject matter of the suit or proceeding and such question is directly and substantially in issue the Court shall, unless the question has already been decided by a competent court, frame an issue on the question of the title and submit the record to the competent civil court for the decision of that issue only.
Explanation: A plea regarding the title to the land which is clearly untenable and intended solely to oust the jurisdiction of the revenue court shall not be deemed to raise a question regarding the title to the land within the meaning of this section.
(2)The civil court, after reframing the issue, if necessary, shall decide such issue only and return the record together with its finding thereon to the revenue court which submitted it.
(3) The revenue court shall then proceed to decide the suit, accepting the finding of the civil court on the issue referred to it. (4) An appeal from a decree of a revenue court in a suit or proceeding in which an issue regarding title has been decided by a civil court under subsection (2) shall lie to the civil court which having regard to the valuation of the suit has jurisdiction to hear appeal from the Court to which the issue of title has been referred.
13. A bare glance at Section 185 shows that by virtue of the said Section, notwithstanding anything contained in the Code of Civil Procedure, 1908, no court other than a court mentioned in Column 7 of ScheduleI shall take cognizance of any suit, application, or proceedings mentioned in Column 3 thereof. Adverting to Column 3 of Schedule I, which relates to description of suit, application and other proceedings and reading the same with Column 2, which is captioned "Section of Act", I find no mention of any embargo to the institution of the present suit.
14. A close reading of judgments rendered by the Supreme Court and the Division Bench of this Court in the cases of Nathi (supra) and Jage Ram (supra) respectively, shows that all that is laid down in the said decisions is that the Land Reforms Act is a complete Code Dharam Bir vs. Jitender Singh Suit No.473/06 Page 16 of 24 in itself and if a question of title to a property governed by the Act arises, a civil court has no jurisdiction to try a suit in respect thereof even if the land is uncultivated land viz. (a) Banjar Jadid, land which has remained unsown for four successive harvests, (b) Banjar Qadim, land which has remained unsown for eight successive harvests, and (c) Gair Mumkin, land which has for any reason become uncultivable, such as land under roads, buildings, streams, canals, tanks, or the like, or land which is barren, sand or ravines.
15. It was further held that in view of the Scheme of the Act, the right to institute a suit would vest only to a Bhumidar or to the Gram Sabha. Thus, if the Gram Sabha wants any clarification in respect of any person claiming to be entitled to any right in any land, it can institute a suit for declaration under Item 28 of Schedule I of the Act and the Revenue Assistant can make declaration of the right of such person.
16. It need hardly be emphasized that the present suit is neither a suit for declaration of title nor a suit for possession. The plaintiffs' claim is premised on the fact that the plaintiffs are in settled possession of the aforesaid land for the last several decades. It is also trite that settled possession gives rise to possession such that even the rightful owner may only recover it by taking recourse to law.
17. This court finds support in coming to the aforesaid conclusion by a threeJudge Bench decision of the Supreme Court in Rame Gowda (Dead) by Lrs Vs. M. Varadappa Naidu (Dead) by LRs., 2004 I AD (S.C.) 157=(2004) 1 SCC 769, wherein it has been laid down that settled possession or effective possession of a person without title would entitle him to protect his possession even as against the true owner. It was significantly observed as follows:
"8.It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so Dharam Bir vs. Jitender Singh Suit No.473/06 Page 17 of 24 peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (or course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.
9.It is settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram v. Delhi Admn., Puran Singh v. State of Punjab and Ram Rattan v. State of U.P. The authorities need not be multiplied. In Munshi Ram case, it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the Dharam Bir vs. Jitender Singh Suit No.473/06 Page 18 of 24 due course of law, he is, entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which is trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may reenter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh case, the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The "settled possession" must be
(i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase "settled possession" does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The court laid down the following tests which may be adopted as a working rule for determining the attributes of "settled possession":
i)That the trespasser must be in actual physical possession of the property over a sufficiently long period;
ii)that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and Dharam Bir vs. Jitender Singh Suit No.473/06 Page 19 of 24 which contains an element of animus possidendi.
The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and
iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession."
19. On the basis of the aforesaid law laid down by the Hon'ble Supreme Court, I have no hesitation in holding that the plaintiffs have established on record that they are in possession of the suit property, which possession has devolved upon them through their predecessorsintitle, who were recorded owners of the land in question. There is no rebuttal to this by any of the defendants. The plaintiffs must accordingly be held entitled to the decree prayed for by them against their possible dispossession otherwise than by due process of law.
18. In the present suit the plaintiff has claimed a decree of permanent injunction thereby restraining defendants from interfering in the peaceful and settled possession of the plaintiffs. It has nowhere come on record that the plaintiffs is not in possession of the suit property. Rather the Dharam Bir vs. Jitender Singh Suit No.473/06 Page 20 of 24 name of the predecessor in interest of the plaintiffs have been mentioned in the Schemi Qabij. Under Section 185 which expressively ousts the jurisdiction of the civil court in certain matters and not in all the matters. The matters in respect of which the jurisdiction of civil courts is ousted are only those matters which are mentioned in Schedule 1 to the Act and various types of suits, applications and other proceedings as mentioned in column 3 of the said Schedule read with entries mentioned in column 2 and the courts in which the proceedings have to be filed are mentioned in column 7. It was held in the case of Mam Raj vs. Ram Chander (supra) by the Hon'ble Supreme Court that the suit in which permanent injunction is claimed on the basis of succession to the bhumidari rights by virtue of the Will, such a suit is not covered by any entry in column 3 of the first Schedule and thus the Delhi Land Reforms Act does not either expressly or implied bar of the suit. In the present case it is the case of the plaintiffs that they are in fact in the possession of the suit property. Reliance is also placed on the decision on the judgment passed by the Hon'ble High Court of Delhi in the case titled as Tara Chand & Anr. vs. Kumari Rajni Jain & Ors (supra) in which Hon'ble High Court of Delhi had noted that suits for injunctions pertaining to the agricultural land have to be decided after trial by the Civil Courts and not before the Dharam Bir vs. Jitender Singh Suit No.473/06 Page 21 of 24 revenue authorities. The entry closest to the relief prayed in the present suit is entry 18 which reads as "suit for injunction or for the repair of the waste or damage the cost to the holding in column 2 of the said entry the relevant section has been mentioned as Section 83". It would be appropriate to referred Section 83 of the Delhi Land Reforms Act at this stage which is as under:
"83. Suit for compensation and repair of the waste or damage - Notwithstanding anything in Section 81, the Gaon Sabha or the landholder may, in lieu of suing for ejectment, sue
(a) for injunction with or without compensation, or
(b) for the repair of the waste or damage caused to the holding."
19. The section mentions 81 and therefore it would be appropriate to also refer to Section 81 which reads as under:
"81. Ejectment for use of land in contravention of the provisions of this Act (1) A Bhumidhar or an Asami shall be liable to ejectment on the suit of the Gaon Sabha or the landholder, as the case may be, for using land for any purpose other than a purpose connected with agricultural, horticulture or animal husbandry, which includes pisciculture and poultry farming and also to pay damages equivalent to the cost of works which may be required to render the land capable of use for the said purposes.
(2) Notwithstanding anything contained in subsection (1), the Revenue Assistant also may, on receiving information or on his own motion, eject the Bhumidhar or Asami, as the case may be, and also recover the damages referred to in subsection (1), after following such procedure as may be prescribed."Dharam Bir vs. Jitender Singh Suit No.473/06 Page 22 of 24
20. A joint reading of the entry 18 alongwith 81 and 83 would show that the said entry cannot be held to be applicable to the present suit which is a suit for permanent injunction. For the jurisdiction of civil court to be barred the jurisdiction as to be expressly ousted by the statue. It is settled law that exclusion of jurisdiction of civil court is not to be readily inferred, but such exclusion must either be explicitly expressed or clearly implied. Section 9 of the CPC confers abundant power on the civil courts to proceed in the matter.
21. No provision has been brought to the notice where under the revenue courts are empowered to grant the relief of injunction as claimed in the present suit. If the revenue courts are not entitled to grant injunction, the plaintiff cannot be left remedy less. The plaintiff who claims to be possession in the property is certainly entitled to protect his possession. From a bare reading of a plaint thus and which alone which is to be seen at the stage under Order 7 Rule 11 of the CPC the suit does not appear to be barred under Section 185 of the Act.
In judgment passed by Hon'ble High Court of Delhi in the case titled as Vinod Kumar Sharma vs. Seema Seth & Ors in CS (OS) 185/2008, the relevant portion is here under:
Dharam Bir vs. Jitender Singh Suit No.473/06 Page 23 of 24
"What has to be seen is whether on a meaningful reading also, can it be said that the suit is barred by the said provision or can it be said that the plaintiff has been cleverly drafted and the relief in fact claimed is the relief which the revenue courts under Schedule 1 to the Act which entitle to grant and jurisdiction with respect whereto of the civil courts/this court is barred"
22. In light of the aforesaid discussion this court is of the opinion that the present suit is not barred under the provisions of Delhi Land Reforms Act, 1954. Consequently the application under Order 7 Rule 11 readwith Section 151 CPC filed on behalf of defendants no. 2 and 3 stands dismissed.
No order as to costs.
Announced in the open court (Himanshu Raman Singh) today i.e. 09.06.2016 Civil Judge1, Central District, Tis Hazari Courts, Delhi Dharam Bir vs. Jitender Singh Suit No.473/06 Page 24 of 24