Delhi High Court
Sh.Shri Bhagwan vs Gaon Sabha Of Village Nasirpur & Anr. on 27 April, 2011
Author: Indermeet Kaur
Bench: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 27.4.2011
+ R.S.A.No.162/2007 & CM No.8531/2007
SH.SHRI BHAGWAN ...........Appellant
Through: None.
Versus
GAON SABHA OF VILLAGE NASIRPUR & ANR.
..........Respondents
Through: None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This appeal has impugned the judgment and decree dated 23.4.2007 which had endorsed the finding of the trial judge dated 17.3.2003 whereby the suit filed by the plaintiff Shri Bhagwan seeking declaration and permanent injunction against the defendant (Gaon Sabha Nasirpur) had been dismissed.
2. The case of the plaintiff is that Khasra No.384 measuring 1 RSA No.162/2007 Page 1 of 5 bigha 2 biswas situated in the revenue estate of village Nasirpur was in the recorded ownership of one Kheemoo and Shanker both sons of Malook Chand, both had equal share. Kheemoo died living behind his brother Shanker who is the father of the plaintiff and the sole legal heir of Kheemoo. Father of the plaintiff thus became exclusive owner of the aforenoted suit property. Contention is that under some misconception the Halka Patwari had recorded the suit land as "Gair Mumkin shore"; result was that the Revenue Assistant treated this land as waste land and vested the same in the Gaon Sabha. The suit land had a kucha boundary; it was thus exempted from the provisions of Delhi Land Reforms Act by virtue of Section 8. The vesting of this land in the Gaon Sabha was illegal. The father of the plaintiff had constructed a pucca house on the site. Because of the wrong vesting of the land with the Gaon Sabha, the Revenue Assistant had initiated proceedings under Section 86A of Delhi Land Reforms Act (hereinafter referred to as „DLRA‟) against the father of the plaintiff seeking his ejectment. Order of ejectment was passed on 26.2.1991. Appeal was preferred and the matter was remanded back for disposal and was held to be time barred. Land continues to be in the name of the Gaon Sabha. Further contention of the plaintiff is that the he apprehends that he will be dispossessed RSA No.162/2007 Page 2 of 5 illegally without due process of law by the defendant. Suit was accordingly filed.
3. The defendant contested the proceedings. It was stated that the jurisdiction of the civil court is barred under Section 185 of the DLRA; suit is also bad for want of notice under Section 99 of the Delhi Panchayati Raj Act; it was denied that the suit land has wrongly been mentioned as „Gair Mumkin Shore‟.
4. On the pleadings of the parties a preliminary issue was framed; it reads as a follows:
"Whether the present suit is maintainable in its present form?"
5. The court had examined oral and documentary evidence and drawn a conclusion that Jamabandi shows that the suit land is agricultural land; in view of the provisions of Section 185 of the said Act Civil Court has no jurisdiction to deal with the Bhumidari rights; claim of the plaintiff qua Bhumidari rights; suit being barred by the aforenoted provisions of law it was dismissed. This was endorsed in first appeal.
6. The finding in the impugned judgment reads as under:
"9. The cursory look at the aforesaid provision makes it abundantly clear that the matters delineated in schedule 1shall be entertained by the Revenue Authorities. Ld.Counsel for the appellant relied upon authority reported in DLT Vol. 76 1998 page 258, titled Cdr. Bhupinder Singh Rekhi Versus C. S. Rekhi, in RSA No.162/2007 Page 3 of 5 which our own High court laid down that provisions of the section 185 of DLR Act are confined only to the matters mentioned in the schedule and none others. In the aforesaid case the Hon'ble court also held that suit for declaration of title on the basis of mere agreement to sell, was found not maintainable before the civil court. It was further held in the aforesaid authority that the jurisdiction of the court would primarily depend upon the allegations made in the plaint and not on the allegation in the written statement and cause of action which determines the jurisdiction of the court. I have gone through the contents of plaint with great circumspection which clearly stipulate that the plaintiff sought declaration of agricultural land which once upon a time belonged to his forefathers. The trial court rightly held that the appellant could not place on record any document to show that there was any building or old construction on the khasra in dispute. Hence section 8 of DLR Act does not apply. Admittedly, khasra No. 385 of village Nasirpur, Delhi was an agricultural land to which the plaintiff claimed right. It is but natural that unless the plaintiff is declared bhoomidar of said land he cannot claim the relief of injunction from the Civil court. The tenor of the contents of plaint goes to show that in a suit for declaration the appellant was infact seeking declaration of his bhoomidari rights which he cannot seek before the Civil Court because of the bar created by section 185 of DLR Act. Accordingly, I do not see any illegality or infirmity in the impugned order passed by Ld. Civil Judge. The result is appeal fails being without any merit."
7. This is a second appeal. It has been admitted and on 23.7.2008 the following substantial questions of law were formulated.
"a) Whether the court below could have dismissed the suit on account of the provisions of Section 185 of DLR Act, when rights RSA No.162/2007 Page 4 of 5 of the parties qua the land in question stood already decided by the competent revenue court under the provisions of Delhi Land Reforms Act?
b) Whether the plaintiffs/appellants being in settled and established possession of the land in question for more than 50 years and the pucca houses for 25 years over there, were entitled to the decree for injunction?
c) Whether the provisions of Section 185 of the Delhi Land Reforms Act were attracted and created bar to the suit of the plaintiff?
d) Whether the rights of the respondent to take action against the appellant was barred in view of the provisions of resjudicata?
e) Whether the provisions of Section 8 of DLR Act were attracted and applicable in favour of plaintiffs."
8. None has appeared for the appellant although the counsel for the appellant Mr.J.K.Jain has been informed. The concurrent findings returned by the two courts below holding that the suit of the present nature is not maintainable in view of the specific bar under Section 185 of the DLRA calls for no interference. Substantial question of law is answered against the appellant. There is no merit in the appeal. The appeal as also the pending application is dismissed.
INDERMEET KAUR, J.
APRIL 27, 2011 nandan RSA No.162/2007 Page 5 of 5