Delhi District Court
Sh. Jai Bhagwan vs Chandu Lal (Now Deceased) Through Lr'S on 7 June, 2023
-:: 1 ::- Dated: 07.06.2023
IN THE COURT OF MS. SHIVALI BANSAL
ADDITIONAL DISTRICT JUDGE-03 (NORTH)
ROHINI COURTS, DELHI
CNRNo. DLNT010014982018
RCA No. 20/18
In the matter of :-
1. Sh. Jai Bhagwan
2. Sh. Virender Singh
3. Sh. Surender Singh
4. Sh. Ravinder Singh
All S/o Lt. Iswar Singh
All R/o Village & PO Hamidpur,
Delhi ....... Appellants
Versus
1. Chandu Lal (Now deceased) Through LR's.
(1) Sh. Beer Singh
(2) Sh. Krishan Singh
(3) Sh. Jagdish
All S/o Lt. Chandu Lal
(4) Ms. Kanti
(5) Ms. Maya
(6) Ms. Sheela
RCA No. 20/18 Jai Bhagwan & Ors. Vs. Chandu Lal & Ors. Page: 1 of 21
-:: 2 ::- Dated: 07.06.2023
All D/o Lt. Chandu Lal
All R/o Village & PO-Barwala,
Delhi-110039.
2. Union of India, Through Secretary
Minsitry of Works & Housing
Nirman Bhawan, Delhi-110001. ......Respondents
Date of Institution 15.02.2018
Date of Final Argument 24.05.2023
Date of pronouncement of 07.06.2023
judgment
APPEAL UNDER SECTION 96 ORDER 41 CPC AGAINST THE
JUDGMENT AND DECREE DATED 22.01.2018
JUDGMENT
1. The present appeal has been preferred against the judgment/decree dated 22.01.2018, passed by Ld. SCJ-cum-RC, Tis Hazari Courts, Delhi, Delhi in CS No. 95755/16 titled as "Jai Bhagwan & Ors. Vs. Chandu Lal & Ors." whereby the Ld. SCJ-cum-RC dismissed the suit of the plaintiff/ appellant herein.
2. The brief facts of the case as stated by the appellant in his plaint are verbatim reproduced herein below:
"The plaintiffs are the permanent and bonafide residents of village Hamid Pur and are agriculturist by profession. They have ancestral agricultural land as well as plots and houses in revenue estate of village Hamid Pur. That one Sh. Iqbal Hussain RCA No. 20/18 Jai Bhagwan & Ors. Vs. Chandu Lal & Ors. Page: 2 of 21
-:: 3 ::- Dated: 07.06.2023 alongwith his co-sharer was the owner of agricultural land in the revenue estate of village Hamid Pur which was governed by Punjab Land Revenue Act. Plaintiffs father and prior to it their forefathers were the tenant of Sh. Iqbal Hussain in respect of that agricultural land. At that time, the forefathers of plaintiffs were tenant and were in cultivatory actual physical possession of the said land alongwith one Sh. Tek Chand, their co-sharer. In 1953- 54 the Delhi Land Reform Act came into existence but the agricultural land in question was still governed by the Punjab Land Revenue Act, as the same was declared as evacuee property. During the partition of India, in 1947-48, Iqbal Hussain alongwith his family and near and dear once, migrated to Pakistan. Thereafter, nobody was left behind as owner of agricultural land in question. Plaintiff's forefathers, continued cultivating the land without paying any rent to anybody and were in actual physical, cultivator possession over the said land without consent of anybody whatsoever. Neither forefathers of plaintiffs nor plaintiffs have paid any rent to anybody after partition of India. The said land was an evacuee property and it was vested in Central Government, but the possession of the same was never taken either by Union of India or by anybody else. So plaintiff's forefathers and thereafter plaintiffs continued to have adverse possession over the said land. In 1954, Delhi Land Reform Act came into operation and as per provision of law the East Punjab Consolidation and Prevention of Fragmentation Act, 1948 was made applicable to the union territory of Delhi. Thereafter, consolidation proceedings were carried out in Union Territory of Delhi including the revenue estate of village Hamid Pur. In those consolidation proceedings, the agricultural land possessed by plaintiffs was given a new Khasra number i.e. 15/16 (4-16). in 1982, one Chandu Lal i.e. defendant no. 1 filed a suit claiming that he was in possession of suit land in question and plaintiffs herein were trying to dispossess him forcibly. Defendant no.1 was never granted any status quo, injunction or order of like nature because he was never in actual, physical possession over the said land, rather he was given/ allotted land bearing Khasra No. 15/16 (4-16) only RCA No. 20/18 Jai Bhagwan & Ors. Vs. Chandu Lal & Ors. Page: 3 of 21
-:: 4 ::- Dated: 07.06.2023 on the documents/ papers by the Union of India under the provision of Displaced Persons Compensation and Rehabilitation Act, 1954. the said suit was pending at the time of filing of present suit. In the said suit, defendant no. 1 admitted that suit land in question was in his unauthorized occupation. So, it was admitted by defendant no. 1 that till the date of allotment to defendant no. 1, in 1976, plaintiff's forefathers were in actual possession of the suit land in question. They claimed that their adverse possession has been continuous and uninterrputed which is supported by revenue record. In 1982-83, a family partition took place between the father of plaintiffs and his co-sharer. Suit land in question came in the share of father of plaintiffs. Father of plaintiffs, continued to cultivate the land in question. Thereby maintaining his actual, physical and cultivatory adverse possession till the time of his death. In 1987-88, the consolidation proceedings were again initiated in the revenue estate of village Hamid Pur and because of the Esat Punjab Consolidation and Prevention of Fragmentation Act, 1948, the plaintiffs were recorded as "Schemee Kabiz" as they were in actual, physical, cultivatory and adverse possession of land in question. Plaintiffs claimed that they were made "Schemee Kabiz" on the basis of their long adverse possession. After the consolidation they were allotted land in question bearing no. 15- 16 (4-16) as per the provision of East Punjab Consolidation and Prevention of Fragmentation Act, 1948. they claimed that their rights have finally matured into the right of ownership on the basis of adverse possession and prior to that of their forefathers. Further, the said adverse possession had not been against Union of India only rather it was against defendant no. 1 also who was alloted the said land on papers in the year 1976 but was never given actual, physical possession of the same. They claimed that defendant no. 2 did not get any relief in the suit filed by him in 1982 and has become desperate to somehow throw out plaintiffs from the land in question. In this regard he made attempt, two months back from the date of filing of suit with the help of police and some bad elements. He also tried to dispossess plaintiffs on 01.03.1992 with the help of antisocial elements. In the RCA No. 20/18 Jai Bhagwan & Ors. Vs. Chandu Lal & Ors. Page: 4 of 21
-:: 5 ::- Dated: 07.06.2023 background of aforesaid averments, plaintiffs claimed that a decree of declaration be passed in their favour to the effect that they be declared as owner of property bearing Khasra No. 15/16 (4-16) in Village-Hamid Pur, Delhi. They also prayed the defendant be retrained from interfering in actual possession and peaceful possession over the suit land in question".
3. Defendant no. 1/ respondent in the written statement challenged the case of plaintiffs/ appellants in which he claimed that suit was not maintainable as it was bad on account of mis-joinder of necessary and proper parties. Further, it is stated that plaintiffs/ appellants had no cause of action to file the suit, that suit was barred under Order 2 Rule 2 CPC, that civil court jurisdiction is barred under the provision of Displaced Person Compensation & Rehabilitation Act, 1954, that suit was not valued properly for the purpose of court fees and jurisdiction and that plaintiffs had not moved the court with clean hands. On merits, they refuted the version of plaintiffs/ appellants. They claimed that the fact that one Sh. Iqbal Hussain was owner of agricultural land in question may be true because the land in question is an evacuee property and must have been under ownership of some muslim who might have migrated to Pakistan. Further, they asserted the plaintiffs/ appellants had not given previous khasra number and therefore, it did not lie in their mouth during consolidation proceedings, new Khasra number were given to suit land in question. He claimed that he admits that defendant no.1/ respondent no. 1 had filed a suit against the father of plaintiffs/ appellants. The facts mentioned in the suit were true because father of plaintiffs/ appellants, Ishwar and one Tek Chand were trying to dispossess defendant no. 2/ respondent no. 2 by force from suit land in question. Further, he had RCA No. 20/18 Jai Bhagwan & Ors. Vs. Chandu Lal & Ors. Page: 5 of 21
-:: 6 ::- Dated: 07.06.2023 been allotted the suit land in question by rehabilitation department and possession was duly taken from plaintiff's father/ appellant's father and Tek Chand with the help of police and all legal proceedings were duly followed. As per him, plaintiffs and defendant no. 2 had colluded together and had concocted the story of family partition which was a false story. He claimed that plaintiffs were not aware of the fact that as to when their alleged possession took effect and therefore, plea of adverse possession was vague. In the background of said reply, he prayed for dismissal of the suit.
4. That from the pleadings of the parties, the Ld. Trial Court framed the following issues in the suit on 16.01.2009:
1. Whether the plaintiff can be declared owner in possession of the suit land bearing Khasra No. 15/16 (4-16) in village Hamid Pur? OPP
2. Whether the defendant can be restrained from interfering in the physical possession of the plaintiff over the suit land mentioned above? OPP
3. Whether the suit is barred under Order 2 Rule 2 of CPC? OPD
4. Whether the civil court has no jurisdiction under the provision of Displaced Persons, Compensation and Rehabilitation Act, 1954? OPD
5. Relief.
5. Plaintiff / appellant in order to prove his case has examined following witnesses:
A. PW-1 is Sh. Jai Bhagwan. He has tendered his evidence by way of affidavit Ex.PW1/A bearing his signatures at point A and B. He also relied RCA No. 20/18 Jai Bhagwan & Ors. Vs. Chandu Lal & Ors. Page: 6 of 21
-:: 7 ::- Dated: 07.06.2023 upon the following documents:
1. Ex. PW1/1 (Colly.) (running into 6 pages) proved documents Ex. PW1A to Ex. PW/C. B. PW-2 is Sh. Mukesh Kumar, LDC, Record Room (Civil), Tis Hazari Courts, Delhi. He has proved the summoned documents i.e. original file of Suit No. S-490/08 titled as Chandu Lal Vs. Tek Chand & Ors. Ex. PW2/1 (Colly.) (running into sheets from 5 to 224).
C. PW-3 is Sh. Mukesh Kumar, Halka Patwari, Village-Hamidur, SDM Office, Alipur, Delhi. He has proved the summoned record i.e. Farad from the year 2007 to 2012 pertaining to Khasra No. 15/16 (4-16) of Village- Hamid Pur. The original copies of the record are Ex. PW3/1 and Ex. PW3/2. He further stated that "he cannot tell from the record Ex. PW3/1 and Ex. PW3/2 that whether the plaintiffs have ever paid any rent to any person or authority or not."
D. PW-4 is Sh. Hari Dutt Kaushik, Kanoongo, Tehsil Building, Tis Hazari, Delhi. He has proved the summoned record i.e. Khasra Girdawari for the years 1953 to 1957 of Khasra No. 15/16 (4-16) situated in revenue estate of Village Hamidpur, Delhi (running into two pages) and the same is Ex. PW4/1. He has also proved the summoned record i.e. Khasra Girdawari of the above mentioned Khasra Number of the year 1957 and 1958 (running into two pages) and the same is Ex. PW4/2. He has also proved the summoned record i.e. Jamabandi of the year 1964 and 1965 (running into three pages) and the same is Ex. PW4/3. He has also proved the summoned RCA No. 20/18 Jai Bhagwan & Ors. Vs. Chandu Lal & Ors. Page: 7 of 21
-:: 8 ::- Dated: 07.06.2023 record i.e. Khatoni Chakbandi (running into one page) and the same is Ex. PW4/4. He has also proved the summoned record i.e. Naksha Hakdar of the above mentioned Khasra Number (running into one page) and the same is Ex. PW4/5. He has also proved the summoned record i.e. Registered Karwai Chakbandi (running into one page) and the same is Ex. PW4/6.
E. PW-5 is Sh. T. Lakra, Kanoongo, Record Room (Revenue), SBI Building, Tis Hazari, Delhi. He had brought the record pertaining to Khasra no. 15/16 (4-16) of Village Hamidpur i.e. consolidation scheme and register (karyawahi) of the year 1959. Copy of the same was Ex. PW5/A. The concerned Khasra number is mentioned at point A. He further stated that he could not tell about the contents mentioned in Ex. PW5/A. He could not tell as to whether any further consolidation took place or not in village Hamidpur. He stated that another record pertaining to the consolidation lies in the concerned District Revenue Office. He stated that the revenue office pertaining to the village Hamidpur is situated in the office of Consolidation Officer, Village Nayabaas / Kanjhawala.
6. Defendant / respondent no. 1 in order to prove his case has examined following witnesses:
A. DW-1 is Sh. Jagdish Singh Saini S/o Late Sh. Chandu Lal, R/o H. No. 160, VPO Barwala, Delhi. He stated that he was the LR of Late Sh. Chandu Lal and his father expired on 21.06.1998. Copy of death certificate was Ex. DW1/1. Copy of ration was Ex. DW1/2. He stated that he had applied under RTI with the Rehabilitation Department and they supplied him information regarding Khasra no. 15/16 measuring 4 bhiga 16 biswas in Village RCA No. 20/18 Jai Bhagwan & Ors. Vs. Chandu Lal & Ors. Page: 8 of 21
-:: 9 ::- Dated: 07.06.2023 Hamidpur. The RTI document was Ex. DW1/3. The Government issued sanad in regard to allotment copy of which was Ex. DW1/4. He further stated that LR no. 1 and 2 are his real brothers. He tendered his evidence by way of affidavit which was Ex. DW1/5. He signed the affidavit at point A.
7. The appellants/ plaintiffs has raised the following ground of appeal in the present appeal:
i. It is submitted by the appellants that the Ld. Trial Court has committed an error of law by not appreciating a settle principle of law of pleadings. It is submitted that the Ld. Trial Court has failed to appreciate the facts of the case as the evidence i.e. documentary & oral led by appellants/ plaintiffs have not been scrutinized and analyzed in right prospect and as per evidence act. It is stated that the Ld. Trial court has totally misread the pleadings of the appellant have wrongly presumed even what is not even written in the plaint. It is further stated that the appellant never stated or admitted that defendant no. 1 is owner of the suit property. It is stated that the Ld. Trial Court has committed an error of law and facts in impugned judgment/ decree that exact date of maturing of adverse possession is not given, however, the appellants have categorically stated so in the plaint.
ii. It is submitted that Ld. Trial Court has committed an error of law and fat that the suit is vague for the reason that plaintiff did not explain the basis of "Scheme Kabiz". It is further stated that Ld. Trial Court has misread and misunderstood the pleadings/ plaint of the appellant that the incident of 01.03.1992 is not detailed, however, in the complete para of plaint RCA No. 20/18 Jai Bhagwan & Ors. Vs. Chandu Lal & Ors. Page: 9 of 21
-:: 10 ::- Dated: 07.06.2023 categorically describes the date, time period and authority/ persons whose help defendant no. 1 was taking to achieve his illegal purpose.
iii. It is stated that the appellant has proved documentary proof and oral evidence fulfilling all the fundamental requirement of law and adverse possession. It is stated that the Ld. Trial Court has failed to appreciate that Union of India has not even contested the case. The Union of India has not filed even WS and also proceeded ex-parte and the same was of defendant no. 2. It is stated that Ld. Trial Court has also failed to appreciate the fact that the appellants have proved their case.
iv. It is stated that the Ld. Trial Court has misunderstood and misapplied the total documentary evidence in shape of Revenue Record as well as statement/ oral evidence of revenue officials as well as evidently value of possession and adverse possession clearly and categorically mentioned in the Revenue Record. It is stated that the Ld. Trial Court has failed to appreciate as to what is Revenue Record, how it is maintained, What is its importance and how it is read, understood and applied to the facts and circumstances of a case.
v. It is prayed as under:
a. To set-aside the impugned judgment/ decree dated 22/01/2018 in suit No. CS-59755/16/92 titled Sh. Jai Bhagwan & Ors. Vs. Chandu Lal (Deceased) through LRs & Ors.
b. To decree the suit of appellants/ plaintiffs i.e. CS 95755/16/92 titled as Sh. Jai Bhagwan & Ors. Vs Chandu Lal (Deceased) through LRs RCA No. 20/18 Jai Bhagwan & Ors. Vs. Chandu Lal & Ors. Page: 10 of 21
-:: 11 ::- Dated: 07.06.2023 & Ors.
8. In the reply filed on behalf of the respondent no. 1, 2 and 3, it is stated that the present appeal is purely based upon the false and frivolous grounds. It is stated that the appellants have failed to prove the case before the Ld. Trial Court. It is stated that the present appeal be dismissed as the appellants have failed to give any cogent reason in their support. It is stated that the present appeal be dismissed as the same is not maintainable as the defendant no. 2 and 3 who were parties in the main suit before the Ld. Trial Court are not made parties in the present suit and the appellants have not cleared from whom they are claiming declaration.
9. It is stated in the reply that appellants have failed to prove their case as the appellants examined PW-1 who clearly stated in cross-examination that he has no poof nor he had filed any documentary proof to the fact that he and his forefathers were in physical possession and cultivating the land since 1948 to 1981. The PW-1 has also admitted that he has no proof to show that there was family partition, as such they failed to establish their claim. It is denied that the appellants never pleaded or admitted that the defendant no. 1 was the owner of suit land. It is further stated that in the Fard exhibited by the appellant before the Ld. Trial Court, it is clearly written and admitted by the appellant that Late Sh. Chandu Lal was the owner of the suit land and after his death, the name of his LRs are shown as owner of the suit land and the appellant has not admitted the ownership of respondents.
10.It is stated that the suit land was allotted to the respondent/defendant in the RCA No. 20/18 Jai Bhagwan & Ors. Vs. Chandu Lal & Ors. Page: 11 of 21
-:: 12 ::- Dated: 07.06.2023 year 1977 by the Rehabilitation Department, Government of India, being displaced person from Pakistan and the possession was given through Patwari and in the presence of police on 29th December, 1981. It is further stated that the Fard was exhibited and the documents exhibited by the defendant no. 1 clearly shows that the suit land was cultivated by the deceased Chandu Lal. It is further stated that during the consolidation proceedings, the appellants manipulated the Revenue Record and made false entries on Revenue Records of Khasra No. 15/16, Village-Hamid Pur, Delhi and thereafter, against the said entries, the defendant no. 1 filed revision petition before the Finance Commissioner. It is further stated that the Ld. Finance Commissioner declared void the entries on Khasra Girdawari made by Revenue Department in collusion with the appellant. It is further stated that the father of the appellants was died in the year 1983 and he was shown in possession and shown in regular cultivation of suit land upto 1987. It is further stated that the the Fard exhibited by the respondent herein, it is clearly written that the owner was in possession and cultivating the suit land during financial year 1987-88, 1988-89 and 1981-82 (the word KHUDKAST is written in column no. 3 of said Fard). It is further stated that the appellants filed the present appeal only after they failed to file appeal against the order of Finance Commissioner and made the false grounds and they also failed to establish their possession in suit land and therefore, the Ld. Trial Court dismissed the claim of appellants.
After considering the submissions of Ld. counsels for the appellant and respondents and material evidence as well as documents available on RCA No. 20/18 Jai Bhagwan & Ors. Vs. Chandu Lal & Ors. Page: 12 of 21
-:: 13 ::- Dated: 07.06.2023 record, my findings are as under :-
11. Before proceeding to decide the appeal, it is noteworthy to mention that an appeal is a continuation of the original proceedings, the appellate court's jurisdiction involves a rehearing of appeal on question of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for re-consideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court's finding, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and presses by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non-observance of these requirement lead to infirmity in the judgment. However, a first appeal under Section 96CPC is entirely different from a second appeal under Section 100. Section 100 expressly bars second appeal unless a question of law is involved in a case and the question of law so involved is substantial in nature. The Hon'ble Supreme court in its various judgments "Santosh Hazari v. Purushottam Tiwari (Deceased) By Lrs. (2001) 3 SCC 179, Madhukar and others v. Sangram and Others (2001) 4 SCC 756, B. M. Narayana Gowda v. Shanthamma (Dead) By Lrs. and Another (2011) 15 SCC 476, H. K. N. Swami v. Irshad Basith (Dead) By Lrs. (2005) 10 SCC 243, M/s. Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar (1980) 4 SCC 259 and Malluru Mallappa(D) Thr. LRS. Vs Kuruvathappa & Ors. (2020) 4 SCC 313", had reiterated the aforesaid position of law.
12. The first ground of the appellant that the appellant had nowhere pleaded/ RCA No. 20/18 Jai Bhagwan & Ors. Vs. Chandu Lal & Ors. Page: 13 of 21
-:: 14 ::- Dated: 07.06.2023 stated or admitted that defendant no.1 is owner of suit property is not sustainable as the appellant at para (8) of the appeal had categorically stated that :
"8. ........ and he was merely given/ allotted the land bearing Khasra No. 15/16 (4-16) only on the documents/ papers by the Union of India under the provision of Displaced persons Compensation and Rehabilitation Act, 1954...."
Further, in PW1/1 (Colly) Khasra Girdawaris for the year 1986 to 2007, the defendant no.1 was declared owner in column 2. Pertinently, in Ex.PW-2/1 precisely at page no. 579 to 581 of TCR i.e. allotment letter no. LAO/KGO/Hamidpur/D/1442 dated 16.12.1976 through Department of Rehabilitation (Settlement Wing) had categorically allotted the suit property Khasra 15/16 (4-16) village Hamidpur, Delhi to the defendant no.1. And from the documents Ex. PW4/4 Khatouni Consolidation, Ex. PW4/5 Naqsha Haqdarwar, Ex. PW-4/6, the defendant no.1 exclusively shown as owner of the Khasra No. 15/16 (4-16).
The Ld. Trial court in the operative para 32 of the impugned judgment had rightly appreciated that as per RTI documents Ex. DW-1/4 (Colly) and government issued sanad Ex. DW-1/4 (OSR) indicated that suit land in question was allotted to defendant no.1.
13. The another ground of appellant that the Ld. Trial court had erred that plaintiff/ appellant herein did not explain the basis of "Scheme Kabiz" is also not tenable. From the careful perusal of the trial court record Ex.PW-2/1 at page 595 TCR i.e. the order dated 25.03.19991 issued by Consolidation RCA No. 20/18 Jai Bhagwan & Ors. Vs. Chandu Lal & Ors. Page: 14 of 21
-:: 15 ::- Dated: 07.06.2023 Officer for Scheme Kabiz under Section 26(3) of East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act, 1948, wherein the defendant no.1 was declared owner and Sh. Ishwar Singh (father of the plaintiff) was declared Scheme Kabiz. However, the said order of consolidation officer was challenged under Section 42 of the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act, 1948 before Financial Commissioner, the provision of Section 42 is reproduced for the sake of convenience:
"42. Power of State Government to call for proceedings- The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of [any order passed, scheme prepared or confirmed or repartition made by any officer under this Act], call for and examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit :
Provided that [no order or scheme or repartition shall be varied or reversed without giving the parties interested notice to appear and opportunity to be heard] [except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration."
The Financial Commissioner vide its order dated 13.10.1992 Ex. PW1/DA and Ex. PW-2/1 at page 603-607 of TCR, categorically quashed the consolidation officer order whereby Sh. Ishwar Singh (father of the plaintiff) was declared Scheme Kabiz. It was also held by the Financial Commissioner that the entry in the list of scheme kabizan based upon the khasra girdawari entries for the period preceding the consolidation proceedings is unwarranted as the entries made in the name of a dead person is a nullity in RCA No. 20/18 Jai Bhagwan & Ors. Vs. Chandu Lal & Ors. Page: 15 of 21
-:: 16 ::- Dated: 07.06.2023 the eyes of law. On careful perusal of the record, Sh. Ishwar Singh died on 23.08.1984, the copy of death certificate of Late Sh. Ishwar Singh was available on record at page 611-613 TCR, PW-2/1. Therefore the scheme kabiz order was rightly quashed by the financial commissioner.
The Hon'ble Punjab & Haryana High Court in its judgment "Dalip Singh vs Hoshiara" (1999) SCC Online P&H 930, had held that:
"According to the instructions, it is the duty of the Patwari before making any change in the existing entry at the time of harvest inspection, to notify in writing the person or persons likely to be adversely affected by such a change of the entries and retain on record proof of the notifications. Further the changes so made should be attested by the Lambardar or the Panch of the village. It is further stated in the instructions that entries made in violation of the said instructions shall be treated null and void at the time of attestation of the Jamabandi or at an earlier stage. Under Section 11 of the Punjab Land Revenue Act, 1887, the Financial Commissioner had the general power of superintendence and control over all Revenue Officers and in that capacity, he has got a right to issue such instructions. In this view, I am supported by a decision of this Court in S. Mohan Singh v. The Financial Commissioner, Revenue, Punjab, 1967 PLR 377, wherein, it has been observed that the standing orders can be issued because of the general power of superintendence granted to the Financial Commissioner under Section 11 of the Land Revenue Act. These instructions have been issued to put a curb on the unrestricted powers of the Patwaris to manipulate the Khasra Girdawaris in the way they desire. It was the duty of the Patwari before changing the Khasra Girdawari and making an entry in favour of the appellants to have informed the landowners so that they could come and contest the new entry, which was to be made by him, if they so desired. There are other circumstances which go to show that the entries in Khasra Girdawaris made by the Patwari do not depict the true state of RCA No. 20/18 Jai Bhagwan & Ors. Vs. Chandu Lal & Ors. Page: 16 of 21
-:: 17 ::- Dated: 07.06.2023 affairs."
Similarly, as per Section 26 of the Delhi Land Revenue Act, 1954 which reads as:
"26. Correction of Mistake or Error in Annual Register- the Deputy Commissioner, may, on his own motion and, shall, on the application of any person, correct any mistake or error in the annual register."
Therefore, the Ld. Trial court in para 28 of the impugned judgment rightly negated the scheme kabiz and had not recognized the possession of father of plaintiff/ appellant herein in suit land in question.
14.The another ground of the appellant that the Ld. Trial court has failed to appreciate that Union of India has not even contested the case, UOI has not even filed written statement and has been proceeded ex-parte is also not sustainable. As per the Section 101 of the Indian Evidence Act, the plaintiff must prove the existence of any legal right, even if the defendant is proceeded ex-parte. In this regards The court places reliance upon the judgment of the Hon'ble Madras High Court in the case "K. Balakrishnan vs. S. Dhanasekhar, 2017 SCC Online Mad 30659", where it was held as follows:
"When the defendant is set ex parte, the burden is heavy on the Court, as it would not have the advantage of defence. Therefore, the Court should be extra careful in such cases and they should consider the pleadings and evidence and should arrive at a finding as to whether the plaintiff has made out a case for a decree.
In view of the above, it is clear that the court, at no stage, can act blindly or mechanically. While enabling the court to RCA No. 20/18 Jai Bhagwan & Ors. Vs. Chandu Lal & Ors. Page: 17 of 21
-:: 18 ::- Dated: 07.06.2023 pronounce judgment in a situation where no written statement is filed by the defendant, the court has also been given the discretion to pass such order as it may think fit as an alternative. This is also the position under Order 8 Rule 10 CPC where the court can either pronounce judgment against the defendant or pass such order as it may think fit."
Therefore, this court finds no infirmity in the impugned judgment passed by the Ld. Trial court.
15.The another ground of the appellant alleged to be owner by adverse possession and the exact date of maturing of adverse possession in not given by Ld. Trail court is also not sustainable for the reasons elaborated herein under. The Ld. Trial court had rightly elaborated the settled provision of law on ownership by virtue of adverse possession mentioning the Hon'ble Apex court judgment "Vidya Devi vs Prem Prakash" (199) 4 SCC 496, wherein three elements are necessary for establishing the ouster on the basis of adverse possession viz:
1. Declaration of hostile animus;
2. Long and uninterrupted possession of the person pleading ouster;
3. Exercise of right of exclusive ownership openly and to the knowledge of other co-owners.
In case titled as "Mohd. Ali vs Jagdish Kalia" 2003 IX AD (SC) 45, it was held that for the purpose of adverse possession/ ouster the defendant must also prove animus possidendi. Further, in case "Praveen Narang vs Dinesh Gulati" 161 (2009) DLT 585. It was held that merely long possession for RCA No. 20/18 Jai Bhagwan & Ors. Vs. Chandu Lal & Ors. Page: 18 of 21
-:: 19 ::- Dated: 07.06.2023 however length of time does not result in converting permissive possession into adverse possession. And in case titled "P.Anjanappa vs Sumaliagappa"
(200) 7 SCC 570, it was held that if the defendants are not sure who is the true owner of the property in question, then the question of their being in hostile possession and question of denying title of the true owner do not arise.
On careful perusal of the trial court record it is observed that the appellant had not furnished any revenue record from and before 1947 depicting possession of the suit property. Further, the Ld. Trial court in para 27 of the impugned judgment rightly found that:
"...................that he had no documentary proof that his forefathers were tenants of Iqbal Hussain and other co-sharer, that he had not filed any proof to show that his father was cultivating suit land from 1947 to 1981, that there was no revenue record showing that suit land in question was cultivated by forefathers of plaintiffs from 1948 to 1981 and that he was not knowing that government is the owner of suit land in question....."
Pertinently, in the Financial Commissioner order dated 13.10.1992 as Ex. PW1/DA and Ex. PW-2/1 at page 603-607 of TCR, it was held that:
3. In rebuttal, the learned counsel representing the respondents did not contest the factum of the date of death of Ishwar Singh on 23.08.84. He, however, submitted that the name of Ishwar Singh was for the first time recorded in the Khasra Girdawari in the year 1982 and the said entry continued to be recorded by the revenue authorities upto the date starting of the consolidation proceedings despite the fact that after the death of Ishwar Singh ......."
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-:: 20 ::- Dated: 07.06.2023 Therefore, from the record it is apparent that the name of the Sh. Ishwar Singh (father of the Appellants) was firstly recorded in the year 1982, which was however nullified by the financial commissioner vide said order dated 13.10.1992.
Further, from the documents Ex. PW4/4 Khatouni Consolidation, Ex. PW4/5 Naqsha Haqdarwar, Ex.PW-4/6, the defendant no.1/respondent no.1 exclusively shown as owner of the Khasra No. 15/16 (4-16) without any remark or whatsoever.
Further, on careful perusal of the RTI documents Ex.DW-1/4 (Colly), warrant of eviction no. LAO/KGO/Hamidpur/D/254-257 and LAO/KGO/Hamidpur/309-312 dated 29.04.1981 and 23.05.1980 respectively was issued by Deptt. of Rehabilitation, Ministry of Supply and Rehab, Govt. of India to provide possession to defendant no.1. Subsequently, on 27.01.82 peaceful and vacant possession was handed over to defendant no.1 by Sh. Jhanji Ram Halka Patwari with aid P.S. Alipur police officials namely, S.I. Sh. Siyaram, Raj Singh 1625, Sh. Sumer Singh 1533, Sh. Ved Prakash 1701 in the presence of independent witnesses Sh. Baljeet Singh S/o Bhagwana and Sh. Mange Ram S/o Hardayal resident of Village Hamidpur. The tractor no. DEG-9424 was also driven by Sh. Kishan S/o of Chandu Lal with loud announcement on the suit property. Thereafter, the documents marked to Naib Tehsildar and Halka Patwari for further process.
Therefore, the possession of the suit property was handed over to the RCA No. 20/18 Jai Bhagwan & Ors. Vs. Chandu Lal & Ors. Page: 20 of 21
-:: 21 ::- Dated: 07.06.2023 defendant no.1 which remained with the defendant no.1. The plaintiffs failed to establish possession on the suit property. The averment of the Appellant that the appellants were in continuous possession is rejected. Further, the defendant no.1 filed application under section 42 of the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act, 1948 before financial commissioner and suit for injunction filed by defendant no.1 before civil court, clearly establish that the appellants possession was not uninterrupted. And the Ld. Trial court had rightly dismissed the suit of the plaintiff/ appellants herein.
16.In view of the above, this court finds no infirmity in impugned judgment/ decree dated 22.01.2018 in Suit No. CS-95755/16/92 passed by the Ld. SCJ- cum-RC, Tis Hazari Courts, Delhi in case titled "Sh. Jai Bhagwan & Ors. vs Chandu Lal (Deceased) through LR's & Ors. And the said impugned judgment/ decree is upheld.
17.Therefore, the present Appeal is dismissed.
File be consigned to Record Room. Digitally signed SHIVALI by SHIVALI BANSAL TCR to be sent back.
BANSAL Date: 2023.06.07
17:00:31 +0530
Announced in open Shivali Bansal
Court on 07.06.2023 Additional District Judge-03
North District, Rohini Courts, Delhi
RCA No. 20/18 Jai Bhagwan & Ors. Vs. Chandu Lal & Ors. Page: 21 of 21