Delhi District Court
Union Of India vs Abadi Deh, Naraina And Dharam Singh on 22 November, 2011
IN THE COURT OF SHRI ARUN BHARDWAJ: ADJ:
SOUTH WEST: NEW DELHI.
LAC No. 46/09/06
In the matter of :-
Union of India versus Abadi Deh, Naraina and Dharam Singh
1. Abadi Deh ( Gram Sabha)
2. Dharam Singh son of Tara Chand
Through LRs.
Smt. Kalawati
wife of late Sh. Jhandu Singh
D/o Late Sh. Dharam Singh (since deceased, through LRs)
a. Daya Nand
Son of Late Sh. Jhandu Singh
R/o Village Satheri, Post Khatauli,
District Muzaffar Nagar (U.P)
b. Raj Pal Singh
Son of Late Sh. Jhandu Singh
R/o RZ-19-20/207, Gali No. 5,
J-Block Sagarpur, New Delhi
3. Shakuntla Devi
wife of Babu Ram
4. Rakesh Kumar
son of Babu Ram
5. Dinesh Kumar
son of Babu Ram
6. Pawan Kumar
son of Babu Ram
7. Maya Devi
LAC No. 46/09/06 Page 1/14
wife of Yogender Singh
All R/o Village Naraina,
New Delhi.
8. Raj Pal Singh
Son of Kalawati Devi
R/o RZ-19-20/207, Gali No. 5,
J-Block, Sagarpur, New Delhi.
9. Daya Nand
Son of Jhandu Singh
R/o Village Satheri, Post Khatauli,
District Muzaffar Nagar, (U.P).
Award No.:- 12/05-06.
Village :- Naraina
Filed on : 25.04.2006
Reserved on : 21.11.2011
Decided on : 22.11.2011
J U D G M E N T :-
1. This is a reference under Section 30-31 of the Land Acquisition Act, 1894.
2. Vide Award No. 12/2005-06, 1 bigha and 16 biswa of land of urbanized village Naraina was acquired for the widening of Ring Road at Naraina.
3. Land comprised in Khasra No. 955 min (0-08) was also acquired in the acquisition proceedings noted above. This parcel of land is subject matter of this reference.
4. LAC determined that the compensation payable for land in question was Rs. 10,40,666.38. However, same was not given to any one because as per Naksha Muntzamin, recorded owner is Abadi Deh, Gaon Sabha but other IPs had raised objections against release of compensation in LAC No. 46/09/06 Page 2/14 favour of IP No. 1. Therefore, LAC referred this reference to this court for adjudication of title dispute.
5. Notice of this reference was issued to all the IPs. Only, IP No. 1 Abadi Deh, Gaon Sabha, LRs of IP No. 2 Dharam Singh, IP No. 8 Rajpal Singh have preferred to contest this reference and rest of the IPs were proceeded exparte. One Shri Dayanand was also impleaded as IP No. 9 on application under Order 1 Rule 10 of CPC being brother of IP No. 8 Rajpal Singh.
6. Claim of IP No. 1 Abadi Deh Gaon Sabha is that the land in question belongs to Gram Sabha Naraina through BDO South West who is the owner and interested party for the amount of compensation of land in question.
7. IP No. 8 has filed reply to the claim of Gaon Sabha and stated that there is and was never any Gaon Sabha of village Naraina and provisions of Delhi Land Reforms Act were not made applicable to village Naraina. IP No. 1 is a non existent body. Land in question was part of village abadi owned by Dharam Singh son of Shri Tara Chand who died on 06.01.64 leaving behind Smt. Kalawati wife of Shri Jhandu Singh as his only legal heir. Smt. Kalawati also died on 16.12.83 leaving behind two sons Dayanand and Rajpal and two daughters.
8. Smt. Kalawati had executed a registered will bequeathing her estate in favour of IP No. 8 and IP No. 9 and the two daughters of Kalawati have also relinquished their share in favour of IP No. 8 and 9. Therefore, claim of IP No. 1 was opposed and IP No. 8 prayed for the released of compensation in his favour.
9. In his claim petition, IP No. 8 has taken an additional plea that since village Naraina was urbanized in the year 1966 under Section 507 of Delhi Municipal Corporation Act, there is no Gaon Sabha in village Naraina.
10. Gaon Sabha has filed reply to claim of IP No. 8 and has stated LAC No. 46/09/06 Page 3/14 that definition of village abadi is also included within the definition of land in Section 3 Sub-Section (13) and 23 of Delhi Land Reforms Act, 1954 and village Naraina has been mentioned in appendix I of Delhi Land Reforms Rules, 1954 in the assessment circle Kohi for revenue purposes at Sr. No. 8 at topographical number of the village 239, hence DLR Act was / is applicable to village Naraina.
11. IP No. 9 also filed his claim petition and stated similar facts as were stated by IP No. 8.
12. From pleadings of parties following issues were framed:-
(i) Which of the IP is entitled for apportionment of compensation and to what extent?
(ii) Relief.
13. IP No. 8 filed his evidence by way of affidavit and deposed similar facts as were stated by him in his claim petition. IP No. 8 exhibited following documents:-
(i) Copy of Jamabandi of the year 1979-80: Ex.IP8W1/1
(ii) Copy of Jamabandi of the year 1948-49: Ex.IP8W1/2
(iii) Registered will executed by Smt. Kalawati in favour of IP No. 8 and 9:Ex.IP8W1/3
(iv) Statements of Smt. Dayawati and Smt. Kalwati recorded in LAC No. 11/09/77 relinquishing their shares in favour of IP No. 8 and 9: Ex.IP8W1/4.
14. Ex.IP8W1/1 which is Jamabandi of the year 1979-80, reveals that Smt. Kalawati daughter of Shri Dharam Singh was in possession of land in Khasra No. 955/2 (1-16) in village Naraina and Shamlat Deh is the recorded owner thereof.
15. Ex.IP8W1/2 is Jamabandi of the year 1948-49 as per which Abadi Deh is the owner of land in question and Sh. Dharam Singh is the cultivator.
LAC No. 46/09/06 Page 4/1416. During his cross examination, IP No. 8 deposed that there were 8 to 10 shops existing on site which were in possession of different tenants.
17. Evidence by way of affidavit of IP No. 9 Shri Dayanand was similar to the evidence in affidavit of IP No. 8. During his cross-examination this IP was given a suggestion by counsel for Gaon Sabha that besides IP No. 8 and 9, Smt. Shakuntala and her sons who were IP No. 3-6 were also in possession of land in question. This IP also deposed that there were several shops constructed in Lal Dora of village Naraina for which permission of authorities is not required and those shops were in possession of different tenants.
18. IP No. 8 and 9 also examined a Patwari from office of Deputy Commissioner (SW). This witness Shri Bijender Singh IP8W3 had produced original records of Jamabandi for the year 1979-80 of land in Khasra No. 955/2 (1-16) which was exhibited as Ex.IP8W3/1. This witness stated that Smt. Kalawati daughter of Shri Dharam Singh was the cultivator over land in question.
19. To show that the recorded owner of land in question is Abadi Deh, IPs 8 and 9 examined Shri Sri Bhagwan, Kanungo, who was previous Patwari of Naraina village and was presently posted in North West district. This witness produced the entire records of Jamabandi for the year 1979-80 and clarified that the recorded owner of land in question is Abadi Deh and not Shamlat Deh as wrongly shown in certified copy of Jamabandi issued by him. The relevant records were exhibited as Ex.IP9W2/1. He explained the reason for error in describing Shamlat Deh as the recorded owner instead of Abadi Deh by stating that so far as Khatoni No. 423 is concerned, for Khasra No. 1656 (4-16) recorded owner was Shamlat Deh. For Khatoni No. 424, 425, 426 the recorded owner was Abadi Deh. However, Abadi Deh was embedded in LAC No. 46/09/06 Page 5/14 register and not visible at first instance and that is why recorded owner of Khatoni No. 423 was reflected in following khatonis including Khatoni No. 424, 425, 426 as well as 427 which is for land in Khasra No. 955/2 (1-16).
20. Therefore, erroneously shamlat Deh was shown as the recorded owner of land in question in Ex.IP8W1/1. In any case, it is mentioned in Memorandum as well as Naksha Muntzamin that the recorded owner is Abadi Deh and not Shamlat Deh. It is also the case of Gaon Sabha that Abadi Deh and not Shamlat Deh was the recorded owner.
21. Last witness examined in this case was a draftsman from the office of Town Planner, Delhi who produced notification under Section 507 of the Delhi Municipal corporation Act, 1957 as per which the entire remaining area of the Revenue Estate of village Naraina which was not urbanized so far was also urbanized vide notification dated 28.05.1966.
22. As the village was an urbanized village, notice of this reference was also sent to the Ministry of Urban Development who in turn advised DDA to contest the reference on its behalf. Counsel for DDA had appeared in the reference and the matter rested at that so far as said Ministry and DDA are concerned.
23. No evidence was brought on record on behalf of Gaon Sabha.
24. Arguments were addressed by Shri Vikram Singh Girsa, learned Counsel for the Gaon Sabha, Ms. Sukhda Dhamija, learned counsel for IP No. 8 and Shri Arvind Kumar, learned counsel for IP No. 9.
25. Issue wise findings are as under:-
ISSUE NO.1:-
26. Counsel for Gaon Sabha has relied upon definition of "land" as given in Section 3 and Sub-Section (13) of the Delhi Land Reforms Act which is as under:-
LAC No. 46/09/06 Page 6/14"Land" except in Sections 23 and 24, means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming and includes-
(a) buildings appurtenant thereto,
(b) village abadis,
(c) grovelands,
(d) lands for village pasture or land covered by water and used for growing singharas and other produce or land in the bed of a river and used for casual or occasional cultivation, but does not include-
land occupied by buildings in belts of areas adjacent to Delhi town and New Delhi town, which the Chief Commissioner may by a notification in the Official Gazette declare as an acquisition thereto;
27. Further, reliance is placed on Appendix I referred to in Rule 58 of the Delhi Land Reforms Rules, 1954 pertaining to Land Revenue payable for village Naraina. In Assessment Circle Kohi, at serial No. 8 village Naraina is mentioned and rate of installment is also mentioned. Relying upon the definition of "land" and relying upon reference to, village Naraina for Land Revenue in Appendix I, Counsel for Gaon Sabha has argued that Delhi Land Reforms Act is applicable to the land in question and therefore existence of Gaon Sabha, Naraina can not be challenged by contesting IPs and where the recorded owner of land in question is Abadi Deh, it is the Gaon Sabha which should be given the compensation.
28. However, in the case of Raj Kishore Rastogi Vs. Radhey Shyam: 2008 (149) DLT 754, trial court had returned a plaint under Order 7 LAC No. 46/09/06 Page 7/14 Rule 11 of CPC in a suit for possession, declaration and injunction holding that jurisdiction of Civil court is barred. The Hon'ble High Court of Delhi while allowing the appeal held:-
"8.As pleaded in the plaint the land is in the extended abadi. The land in the extended abadi may be land as defined under Section 3 (13) of the Delhi Land Reforms Act, 1954 but this land would not be a holding as defined under Section 3 (11a) of the Delhi Land Reforms Act. Holding is defined under:-
(11a) "holding" means:-
(a) in respect of-
(i) Bhumidar or Asami or
(ii)tenant or Sub tenant under the Punjab Tenancy Act 1887 or the Agra Tenancy Act, 1901 or
(iii) lessee under the Bhoodan Yagna Act, 1955 a parcel or parcels of land held under one tenure, lease, engagement or grant and
(b) in respect of proprietors, a parcel or parcels of land held as "sir or Khurd Khast".
9. To put it pithily, land comprised in a holding would be such land which has to be used for an agricultural purpose as defined under the Delhi Land Reforms Act 1954 and in relation whereto the Proprietary interest would be that as a bhoomidar, sir, khud Khast, or an asami".
29. Therefore, impugned order was set aside and suit was restored.
30. In this case also, land in question was not used for agriculture, horticulture or animal husbandry, pisciculture and poultry farming. It was part LAC No. 46/09/06 Page 8/14 of Abadi Deh which was in possession of predecessors of IP No. 8 and 9 in the form of shops. Therefore, Delhi Land Reforms Act, 1954 did not apply to land in question.
31. On behalf of IP No. 8, reliance was placed on "Kewal Ram Vs. Gram Panchayat, Bhutti and Ors." 1988 (1) Recent Revenue Reports 455 to explain what does Abadi Deh refer to.
32. The question in this case was whether the disputed land forming part of Abadi Deh is a place which is not private property and which is open to use or enjoyment of the public (whether Such place is vested in the Gaon Sabha or not). It is fruitful to quote copiously from this judgment where it is held as under:-
4. In the glossary of vernacular words given in the Punjab Settlement Manual by Sir James M. Douie, Fourth Edition.
Third Reprint (hereinafter called "the Settlement Manual"), the word 'Abadi Deh' has been assigned the meaning "inhabited site of village". Para (3) at page 67 of the Settlement Manual deals with the expression" The Abadi"
and reads as follows"
"The houses of the members of the brotherhood and of their dependents are usually built close together in some convenient part of the village. It may be noted that this inhabited site or 'abadi' is excluded from the operation of the Land Revenue Act, 'except so far as may be necessary for the record, recovery and administration of village cesses' (see" Section 4(1) of the Punjab Land Revenue Act, 1887).
6. The characteristics and incident of a village site or Abadi Deh have been the subject matter of discussion in certain judicial decisions to which reference can be conveniently make at this stage.
7. In Ishwar Singh Vs. Atma Singh, 1894 Punjab LAC No. 46/09/06 Page 9/14 Record, page 447 No. 117 ( Civil, Benton, J., has made the following pertinent observations in the course of his judgment:-
According to the usual rule prevalent throughout the Province a kamin who is allowed to build on a site by the village community can continue to hold the same as long as he pleases and his posterity may go on holding likewise to the end of time on the same conditions. All the more may the members of the community itself go on holding the site on which they have built or which they have occupied ages ago with the assent or with the acquiescence of their co-sharers. It does not appear how their long prescriptive use can be ignored in the absence of express agreement, and how they can be ousted when any one demands a new distribution.
8. In Baldeva vs. Molar (1962) 64 Pun LR 452, the facts were that a suit was filed on the allegation that the parties were proprietors in a village along with several other persons and the prayer was that the Abadi land situate in the village, other than that over which residential houses had been built and which was capable of partition, be partitioned according to the respective shares Pana wise and placed in separate possession of the plaintiffs.
The trial court found, inter alia, that there was sufficient partible land passed a preliminary decree for possession by way of partition of the Abadi Deh of the village. The share of each proprietor was directed to be determined according to the land revenue paid by him. A Local Commissioner was appointed to partition the area and a direction was given to him to exclude from the partition paths and tanks and to leave enough area in the Abadi for the cattle and for common purposes and to reserve some area for the extension of the Abadi of Harijans. There was a further direction not to dispossess any proprietor of his pucca house or gher with a pucca boundary wall on all the four sides but to include in the partition the area under house or ghers to determine the share of such a proprietor. Giwars, irrespective of possession, were also directed to be included in the partition. The main question for consideration in the appeal before the High Court was LAC No. 46/09/06 Page 10/14 whether the partition was required to be confined only to vacant plots in the Abadi Deh and whether houses, ghers and gitwards were required to be exluded from the partition and, if so, whether such exclusion was to be confined only to pucca houses or ghers with pucca boundary walls on all the four sides. The Division Bench, which heard the appeal, speaking through Tek Chand. J...referred to several decisions, including the decision by Benton, J. in Ishwar Singh's case (supra), and held:-
(a) that the principle of impartibility of residences did not depend upon the permanent or semi- permanent character of the structures of the houses and that, therefore, all the houses in the Abadi, whether they were kacha or pucca, were required to be treated as impartible and could not be included in the proposed partition;
(b) that ghers, which were enclosed with walls, whether pucca or kacha, partook of the same character from the point of view of impartibilty as houses and they too therefore, were required to be treated as impartible and could not be included in the proposes partition and
(c) that gitwars, which were open spaces enclosed by thorny shrubs or bushes and used for tethering cattle or stacking dungcakes etc, and which were essentially vacant or empty site, could not be excluded from partition. In light of the findings aforesaid, the appeal was allowed in the following terms:-
"The contention of the appellants deserves to prevail with regard to houses and walled enclosures whether pucca or kacha. The distinction drawn by the lower appellate Court between pacca houses and ghers with pucca boundary walls and kacha houses and ghers enclosed by kacha walls is pointless. The preliminary decree passed by the trial Court deserves to be modified insofar that no proprietor would be dispossessed from pucca or kacha houses and ghers with pucca or kacha boundary walls on all the four sides. The preliminary decree in all other respects remain unaltered".
9. Abadi Deh, that is, the inhabited site of the village, LAC No. 46/09/06 Page 11/14 consists of sites on which the houses of the members of the brotherhood or proprietary body are usually built close together, small plots attached or annexed thereto which are used for penning the cattle, storing manure or stacking straw, empty or vacant sites unoccupied by any individual, common plots set apart for public use such as the chaupal or hujra, for dharamshalas, mosques graveyards, burning ghats, tanks, wells etc. and public paths or ways. The village site is measured in one number for the purposes of the revenue records and the entry in the column of ownership and occupancy will be 'Abadi Deh'. The Abadi is almost always excluded from the operation of the Land Revenue Act, except so far as may be necessary for the record, recovery and administration of village cesses. The proprietary body or brotherhood holds Abadi Deh in joint ownership and it is treated as the common property of the community. Still, however, generally speaking, the greater part of Abadi Deh is in most cases indivisible and members of the community cannot call for a redistribution of the area or for a partition according to the khewat or ancestral shares. The members of the community, who have built their houses or ghers in the portion of the village site for long with the assent or acquiescence of their co-sharers cannot be ousted from the sites, on which they have built, in the guise of partition. So also the portions of the land set apart by common consent for public use cannot be brought into any scheme of redistribution or partition at the instance of any member of the community. If the village site in which such portions are comprised is assessed to land revenue which 'would be in a very rare case, the revenue authorities may determine the extent and manner to and in which the co sharers may make use thereof and the proportion in which expenditure, in any, incurred thereon and the profits, if any, derived therefrom are to be borne by and divided by those persons or any of them. However, so far as empty or open sites in or about the village, unoccupied by the members of the community and not used by them for any public purpose, are concerned, whether they are enclosed by shrubs, bushes etc. or not, any member of the proprietary body can call for the LAC No. 46/09/06 Page 12/14 partition of such vacant or open site according to the rule, applicable in a particular case which, more often than not, determines the share of each proprietor therein according to the land revenue paid by him.
33. Therefore, the contention of counsel for IP No. 8 and 9 is that the Jambandi of the year 1948-49 as well as 1979-80 has shown that the recorded owner of land in question was Abadi Deh and Sh. Dharam Singh and Smt. Kalwati were shown as in possession over land in question and IP No. 8 and 9 being successor of Smt. Kalawati are entitled to receive the entire compensation in equal parts.
34. A reference to the Punjab Land Revenue Act, 1887 would show that a Jamabadi is a Register of holding of owners and tenants prepared pursuant to Section 31(2) of the Punjab Land Revenue Act, 1887. Under Section 31 to 40 of the said Act record of rights and annual records are prepared. Jamabandi is part of the standing record maintained under Section 31(2). The form in which Jamabandi is to be maintained is given in Land Revenue Rule, 72. By Section 44 of the Punjab Law Revenue Act an entry made in the record of rights or in an annual record shall be presumed to be true untill the contrary in proved ( Chhote Khan Vs. Mal Khan: AIR 1954 SC 575).
35. Perusal of Ex.IP8W1/2 which is Jamabandi for the year 1948-49 reveals that the recorded owner of the land in question is Abadi Deh. Same is the effect of Ex.IP8W3/1 which is record of Jamabandi for the year 1979-80. In earlier Jamabandi, Shri Dharam Singh, maternal grand father of IP No. 8 and 9 is shown in possession and in later Jamabandi Smt. Kalawati is shown to be in possession over land in question. Abadi Deh is "inhabited site of village". A villager who is allowed to build on a site in Abadi Deh by village community can continue to hold the same as long as he pleases and his posterity may go on holding likewise to the end of time on the same conditions.
LAC No. 46/09/06 Page 13/14Long prescriptive use can not be ignored in absence of an express agreement. Predecessors of IP No. 8 and 9 are in possession atleast since 1948-49 as is evident from Ex.IP8W12. Possession of IP No. 8 and 9 is admitted by Gaon Sabha when a question was put to them that beside them, IP No. 2-6 were also in possession over land in question. For seeking relief on the basis of possession counsel for IP No. 8 and 9 have rightly relied upon 'Hardwari Lal (deceased) versus Rai Singh (deceased)' 155 (2008) DLT 678 (DB), 'Behari & Ors. Versus Union of India' 47(1992) DLT 300 (DB) and 'Raja Rameshwar Rao versus Special Deputy Collector cum Land Acquisition Officer' 1990 (1) Andh. W.R 833.
36. Therefore, it is IP No. 8 and 9 being successor of Sh. Dharam Singh and Smt. Kalawati who are entitled to receive the entire compensation to the exclusion of IP No. 1 Gaon Sabha or Ministry of Urban Development.
37. This issue is therefore answered in favour of IP No. 8 and 9 and against IP No. 1
38. A copy of this order be sent to LAC South-West and file be consigned to record room.
Announced in the open Court on the 22nd day of November, 2011 (ARUN BHARDWAJ) ADDL. DISTRICT JUDGE DWARKA COURTS: NEW DELHI LAC No. 46/09/06 Page 14/14