Delhi District Court
Jai Singh ) vs Mahender Singh (Since Deceased) ... on 6 June, 2020
IN THE COURT OF SH. HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE - 02, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
CS DJ ADJ No. 515659/2016
CNR No. DLSW010007322016
IN THE MATTER OF:
1. Jai Singh )
S/o Ram Kishan )
R/o Village Pandwala Kalan, Delhi )
2. Deep Chand @ Duli Chand )
S/o Ram Kishan )
R/o Village Pandwala Kalan, Delhi ) ... Plaintiffs
v.
1. Mahender Singh (Since Deceased) Through LRs )
S/o Ram Sarup )
(i) Brij Mohan - son )
(ii) Sanjay - son )
(iii) Harkesh - son )
R/o Village Pandwala Kalan, Delhi )
2. Satbir Singh )
S/o Ram Sarup )
R/o Village Pandwala Kalan, Delhi ) ... Defendants
Date of institution of suit: 17.09.2010
Date of judgment reserved: 06.03.2020
Date of pronouncement of judgment: 06.06.2020
CS DJ ADJ No. 515659/2016
Page No. 1/40
via Video Conferencing
JUDGMENT
1. A suit for permanent injunction has been instituted by the plaintiff brother duo, namely, Jai Singh (plaintiff No. 1) and Deep Chand @ Duli Chand (plaintiff No. 2) against the defendant brother duo of Mahender Singh (defendant No. 1) and Satbir Singh (defendant No. 2) for enjoining the defendants permanently for dispossessing the plaintiffs from their agricultural land situated in village Pandwala Kalan, Delhi.
2. The suit was initially preferred before the High Court of Delhi on 25.08.2010 and on account of enhancement of pecuniary jurisdiction, the suit was transferred to South West District, Dwarka Courts, Delhi vide order dated 14.01.2016.
3. The defendant No. 1, namely, Mahender Singh died on 14.04.2019 and his legal heirs were brought on record in accordance with law vide order dated 08.01.2020.1 Facts
4. The facts of the case deciphered from the pleadings are that the plaintiffs are the sons of Ram Kishan and residents of village Pandwala Kalan, Delhi. The plaintiffs claim to be the Bhumidhars in possession of agricultural land under Rectangle No. 6, Kila No. 10/1/2 (03bighas 18biswas) and Rectangle No. 43, Kila No. 13 (04bighas 15biswas) (hereinafter "suit property"). The plaintiffs have been in continuous possession of the suit property and their names are duly reflected in the revenue records, viz., Khasra Girdawari from the year 1984. The plaintiffs also claim to be the tillers of the suit property. The plaintiffs face an imminent threat of being dispossessed by the defendants from 1 See Order sheet dated 20.04.2019 and 08.01.2020.
CS DJ ADJ No. 515659/2016 Page No. 2/40the suit property, as the defendants not only preferred a suit against the plaintiffs herein before the revenue court under Section 85 of the Delhi Land Reforms Act, 1954 (hereinafter "DLR Act") seeking relief of themselves being declared as Bhumidhars but also getting their names recorded as being in possession through Form P-5 by virtue of an order dated 31.03.2010 passed by the concerned Tahsildar.
5. Though, the aforesaid suit is pending adjudication before the revenue court, however, against the order dated 31.03.2010 passed by the concerned Tahsildar and recording the entry of the names of the defendants herein in Form P-5, the plaintiffs herein preferred a revision petition before the Ld. Financial Commissioner, Delhi. The defendants on 08.08.2010 did try to take the possession of the land situated under Rectangle No. 6, Kila No. 10/1/2 (03bighas 18biswas) from the plaintiffs. In short, the plaintiffs apprehend an immediate threat of being dispossessed by the defendants from the suit property in the garb of issuance of Form P-5 in their favour. Hence, the present suit.
6. On a motion seeking ad-interim injunction against the defendants, the Hon'ble High Court of Delhi vide order dated 17.09.2010 granted ex parte ad-interim order in favour of the plaintiffs and against the defendants. It is observed that vide order dated 06.05.2011, the interim application under Order XXXIX, Rule 1 and 2, CPC was disposed of and the defendants were restrained until the next date of hearing.
7. The defendants in their written statement have urged preliminary objections and multiple defences. The foremost preliminary objection urged by the defendants is that the plaintiffs have concealed material facts from this court, such as the pendency of a suit preferred by the defendants herein under Section 85 of the DLR Act before the revenue court. The defendants have urged that the plaintiffs herein further CS DJ ADJ No. 515659/2016 Page No. 3/40 concealed from this court that an interim injunction by the revenue court had been passed in favour of the defendants herein and against the plaintiffs herein. The defendants have also urged that the plaintiffs herein concealed the fact of a contempt petition under Order XXXIX, Rule 2A of the Code of Civil Procedure, 1908 (hereinafter "CPC") being preferred against them by the defendants herein before the revenue court. It is also averred by the defendants that they have been in possession of the suit property even prior to the consolidation of holding.
8. The defendants have urged a preliminary objection of the suit being barred by Section 185 of the DLR Act, as the dispute amongst the parties can only be decided by the revenue court.
9. The defendants have also urged the objection of non-payment of ad valorem court fees on the market value of the suit property i.e. ₹2,00,00,000/- (Rupees Two crores only).
10. The defendants have also urged the preliminary objection of the plaintiffs' suit being preferred without any cause of action and the same being liable to be dismissed under Order VII, Rule 11, CPC. The defendants have also urged that the plaintiffs in their plaint failed to aver any provisions of law under which they acquired ownership/Bhumidhari rights with regard to the suit property.
11. Nonetheless, the defendants have also urged an objection for the suit preferred by the plaintiffs being hopelessly time barred, as the defendants have been in possession of the suit property since last 50 years and the plaintiffs have not filed any suit for ejectment against the defendants till date.
12. The defence urged by defendants against the plaintiffs' claim is that the plaintiffs have no right, title, interest of any kind in the suit CS DJ ADJ No. 515659/2016 Page No. 4/40 property because the defendants and their predecessor-in-interest have been in possession without the consent of the plaintiffs and thus the Bhumidhari rights of the plaintiffs have extinguished, as per Section 67(d), DLR Act, as the plaintiffs herein failed to prefer a suit for ejectment against the defendants herein within the prescribed period of three years from the date of possession of the defendants.
13. The defendants in their written statement have denied that the plaintiffs have been in continuous possession of the suit property and the khasra girdawari from the year 1984 available with the plaintiffs record them as the Bhumidhar and in possession. It is further urged by the defendants that they have filed an application before the revenue authorities to record their possession over the suit property, but on account of plaintiffs' influence, the revenue authorities did not record the possession of the defendants in khasra girdawari and Form P-5, regardless of the fact that the defendants and their predecessor-in- interest have remained in physical possession of the suit property.
14. The defendants have urged a plea in their defence that a mere entry in the revenue record does not create any right, title or interest in favour of the plaintiffs and the Bhumidhari right of the plaintiffs stand extinguished by operation of Section 67(d) of DLR Act. The defendants have further urged in their defence that their possession over the suit property has been continuous, uninterrupted, hostile and open to the knowledge of the plaintiffs and regardless, the plaintiffs did not file any suit for ejectment against the defendants.
15. The defendants have repeatedly urged in their written statement that they have been in physical possession of the suit property, which is cultivated by them and they accordingly rightfully moved an application seeking recording of their possession in the khasra CS DJ ADJ No. 515659/2016 Page No. 5/40 girdawari and issuance of Form P-5 for Rabi 2009. The defendants have denied that the plaintiffs are the Bhumidhars and in actual possession of the suit property.
16. The defendants in their defence have put in the version of facts as that they had sown the crops of Tara on land situated under Khasra No. 43/13 (4-13) but on 12.07.2009, the plaintiffs and their family members destroyed their crops and tried to take forcible possession from the defendants by cultivating the land with their tractor but due to intervention of other villagers, the plaintiffs could not succeed in their illegal motive to grab the defendants' land. It is further averred in the written statement that with regard to the acts on the part of the plaintiffs herein to illegally and forcibly take possession of the land, the defendants herein have preferred a contempt petition before the revenue court. The defendants in their written statement have also challenged the plaintiffs' narration that the Tahsildar found the version of the defendants as false and incorrect.
17. The defendants in their written statement contended the averments made in the plaint with regard to the Tahsildar's finding of an abandoned boring and bricks being at the spot does not prove the possession of the plaintiffs over the suit property.
18. The defendants in their written statement have also contended their claim for recording their possession in Kharif 2009 being rejected by the concerned Tahsildar's order dated 09.10.2009 was on account of plaintiffs' influence upon the revenue officials and against which the defendants have made complaints with the higher authorities.
19. The defendants have contended the averments made by the plaintiff that Form P-5 with regard to land situated under Khasra No. 43/13 was granted to the defendants by a mischief played upon them in CS DJ ADJ No. 515659/2016 Page No. 6/40 a collusion amongst the defendants, Patwari, Field Kanoongo, Tahsildar and three interested witnesses. The defendants have urged that the revenue officials gave notice to the plaintiffs herein before issuance of the Form P-5. It is also contended by the defendants that the revenue officials issued the Form P-5 to the defendants solely based upon the statements of the three interested witnesses. It is urged by the defendants that the revenue officials verified the fact, of whom being the cultivator of the land in question on the spot and the same was duly verified on a local inquiry conducted by them.
20. The defendants have refuted the averments made in the plaint that in the garb of Form P-5 issued to them, they wanted to enter the suit property and take its possession. The defendants have averred that they have been in possession of the suit property since the time of their forefathers and thus entering the suit property on the basis of Form P-5 does not arise. It is denied by the defendants that under law, the issuance of Form P-5 is not a proof of possession of defendants. It is also urged by the defendants that on one hand the plaintiffs have averred in the plaint that issuance of Form P-5 is not a proof of possession and on the other hand, the plaintiffs have not only preferred a revision petition against the issuance of Form P-5 but also the present suit.
21. With regard to the alleged incident of 08.08.2010, the defendants in their written statement have denied they went to the fields on 08.08.2010 and tried to take possession. It is also denied by the defendants that they tried to take possession of the land in Khasra No. 6/10/1 (3-18), which they have already admitted, the plaintiffs to be in possession. The defendants have averred in their written statement that the question of taking the possession of the suit property on 08.08.2010 did not arise at all because the defendants have been in possession of CS DJ ADJ No. 515659/2016 Page No. 7/40 land in question since the time of their forefathers. It is urged in defence by the defendants that the plaintiffs and their family members tried to take possession of the land in question and destroy the crops sown by the defendants and with regard to which a complaint with local police was lodged.
22. The defendants have urged in their defence that the suit preferred by the plaintiffs against them is a false and frivolous suit and the same has been preferred to harass and take possession of the suit property in the garb of an ad-interim injunction order passed by the court. The defendants have sought dismissal of the suit with costs.
23. Against the written statement preferred by the defendants, the plaintiffs filed their replication, where on a broad spectrum, the plaintiffs denied all the allegations and averments made by the defendants in their written statement and further reiterated the averments already made in the plaint.
24. The plaintiffs contended the allegations of concealment about the pendency of a suit preferred by the defendants under Section 85 of the DLR Act. The plaintiffs vehemently contended that the defendants are in possession of the suit property.
25. The plaintiffs also contended that the challenge on the maintainability of the suit by the defendants is misplaced and the present suit is not barred by Section 185 of the DLR Act. The plaintiffs contended the defendants' challenge of no cause of action having arisen to prefer the present suit against them.
26. The plaintiffs stressed that the defendants have repeatedly tried to dispossess the plaintiffs not only by urging false claim of being in possession of the suit property for over 50 years through their forefathers but also by seeking Form P-5 on the basis of utter falsity.
CS DJ ADJ No. 515659/2016 Page No. 8/40The plaintiffs also contended the defendants' claim of sowing the fields for Rabi 2009.
Issues
27. On completion of pleadings, documents on record and the submissions advanced by the learned counsels for the parties, the following issues were framed vide order dated 11.09.2012:
(1) Whether this Court has no jurisdiction to entertain the present suit as the same is barred under the provisions of Section 185 of Delhi Land Reforms Act? OPD (2) Whether the suit is not maintainable for the reasons set out in preliminary objections No. 4 and 6? OPD (3) Whether the plaintiffs are entitled for the relief claimed? OPP (4) To what other relief, if any, are the plaintiffs entitled for?
Evidence led by parties
28. To prove their case, the plaintiffs examined 3(three) witnesses:
PW1 - Deep Chand (plaintiff No. 2 in person); PW2 - Manoj Kumar, Halka Patwari, Tehsil Kapashera, New Delhi and PW3 - M.S. Jakhar, Kanoongo Office, SDM Najafgarh, South West District, New Delhi.
29. On the other hand, the defendants also examined 3(three) witnesses: DW1 - Mahender Singh (defendant No. 1 in person); DW2
- Satyadev Yadav and DW3 - Om Dutt.
30. The PW1 tendered the following document in evidence:
S. No. Exhibit Mark put Description and Date, if any of the on the Document Document i. Ex.PW1/1 - Certified copies of khasra girdawaris from Ex.PW1/41 1983 - 84 to 2008-09;CS DJ ADJ No. 515659/2016 Page No. 9/40
ii. Ex.PW1/42 A joint application by Mahender Singh and Satbir Singh to the Tahsildar, Palam, Delhi with regard to recording the possession and issuance of P-5 for Rabi 2010 in their favour.
iii. Ex.PW1/43 Report of Patwari - L.B. Verma.
iv. Ex.PW1/44 Application dated 01.02.2010 by the
plaintiff No.1 to the Tahsildar, Najafgarh.
v. Ex.PW1/45 Copy of Form P-5 issued by Patwari.
vi. Ex.PW1/46 Copy of courier receipt.
vii. Ex.PW1/47 Copy of acknowledgment.
viii. Ex.PW1/48 Certified copy of order dated 06.10.2009
(Ex.P1)* passed by concerned Tehsildar.
*See examination-in-chief of PW1
recorded on 08.04.2013.
ix. Ex.PW1/49 Certified copy of statements of Hari Ram
and Om Dutt recorded on 09.10.2009.
x. Ex.PW1/50 Certified copy of spot inspection report of
Khasra No. 43/13 undertaken on
09.10.2009.
xi. Ex.PW1/51 Certified copy of spot inspection report of
Khasra No. 6/10 undertaken on
09.10.2009.
xii. Ex.PW1/52 Certified copy of order dated 25.09.2009
and notings dated 01.10.2009 and
06.10.2009.
xiii. Ex.PW1/53 Application dated 08.09.2009 by the
plaintiff No. 1 to SDM, Najafgarh, Delhi.
xiv. Ex.PW1/54 Application dated 08.09.2009 by the
plaintiff No. 1 to Tahsildar, Najafgarh,
Delhi.
CS DJ ADJ No. 515659/2016
Page No. 10/40
xv. Ex.PW1/55 A joint application by Mahender Singh and
Satbir Singh to the Tahsildar, Palam, Delhi
with regard to recording the possession
and issuance of P-5 for Kharif 2009 in their
favour.
xvi. Ex.PW1/56 Certified copy of order dated 08.04.2009
passed by concerned Tahsildar.
xvii. Ex.PW1/57 A joint application by Mahender Singh and
(Ex.P2)* Satbir Singh to the Tahsildar, Palam, Delhi
with regard to recording the possession
and issuance of P-5 for Rabi 2009 in their
favour.
*See examination-in-chief of PW1
recorded on 08.04.2013.
xviii. Ex.PW1/58 Certified copy of application dated
03.03.2009 by Jai Singh to Tahsildar,
Najafgarh.
xix. Ex.PW1/59 Certified copy of notice/robkar dated
23.03.2009 issued by Naib Tahsildar with
regard to site visit on 03.04.2009.
xx. Ex.PW1/60 Certified copy of notice/robkar dated
23.03.2009 issued by Naib Tahsildar with
regard to site visit on 03.04.2009.
xxi. Ex.PW1/61 Certified copy of Patwari report dated
03.03.2009.
xxii. Ex.PW1/62 Certified copy of Kanungo report dated
17.03.2009.
xxiii. Ex.PW1/63 Certified copy of order dated 29.03.2012
passed by the Ld. Financial Commissioner,
Delhi in a revision petition titled as Jai
Singh & Anr. v. Mahender Singh & Anr.
- Case No. 169/2010.
CS DJ ADJ No. 515659/2016
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31. The PW2 produced the summoned record on 03.12.2014 and tendered the following documents in evidence:
S. No. Exhibit Mark put Description and Date, if any of the on the Document Document i. Ex.PW2/1 Certified copy of khasra girdawari for Khasra No. 6/10/1/2 for the year 2000-01.
ii. Ex.PW2/2 Certified copy of khasra girdawari for Khasra No. 43/13 for the year 2000-01.
iii. Ex.PW2/3 Certified copy of khasra girdawari for Khasra No. 6/10/1/2 for the year 2004-05.
iv. Ex.PW2/4 Certified copy of khasra girdawari for Khasra No. 6/10/1/2 for the year 2005-06.
v. Ex.PW2/5 Certified copy of khasra girdawari for Khasra No. 43/13 for the year 2005-06.
vi. Ex.PW2/6 Certified copy of khasra girdawari for Khasra No. 6/10/1/2 for the year 2009-10.
vii. Ex.PW2/7 Certified copy of khasra girdawari for Khasra No. 43/13 for the year 2009-10.
viii. Ex.PW2/8 Certified copy of khasra girdawari for Khasra No. 6/10/1/2 for the year 2010-11.
ix. Ex.PW2/9 Certified copy of khasra girdawari for Khasra No. 43/13 for the year 2010-11.
x. Ex.PW2/10 Certified copy of proceedings initiated on P-5 (Collectively) - six on the application by Mahinder Singh and pages in total* Satbir Singh for Khasra Nos. 6/10/1/2 and 43/13.
*See examination-in-chief of PW2 recorded on 03.12.2014.
32. The PW3, namely, M.S. Jakhar produced the summoned record on 24.07.2017 and tendered the following documents in evidence:CS DJ ADJ No. 515659/2016 Page No. 12/40
S. No. Exhibit Mark put Description and Date, if any of the on the Document Document i. Ex.PW3/1(Colly.) Certified copies of khasra girdawaris for the year 2009-10, 2010-11 and 2011-12.
33. The defendant No. 1 stepped into the witness box as DW1 on 10.01.2018 and recorded his testimony.
34. DW2 - Satyadev Yadav stepped into the witness box on 21.04.2018 and tendered the following documents in evidence:
S. No. Exhibit Mark put Description and Date, if any of the on the Document Document i. Ex.DW2/1 Certified copy of khatoni.
ii. Ex.DW2/2 Original receipt of sale of mustard crop dated 06.04.2010.
35. DW3 - Om Dutt stepped into the witness box on 21.04.2018 and tendered the following documents in evidence:
S. No. Exhibit Mark put Description and Date, if any of the on the Document Document i. Ex.DW3/1 Certified copy of khatoni of khasra No. 6/5.
ii. Ex.DW3/2 Original photographs and negatives of the suit land.
Submissions advanced by the learned counsels for the parties
36. Mr. J.K. Jain, learned counsel for the plaintiff and Mr. K.C. Tyagi, learned counsel for the defendants advanced their arguments on 06.03.2020.
37. Mr. J.K. Jain, the learned counsel for the plaintiffs submitted that the suit preferred by the plaintiffs is very well maintainable and the same is not barred by Section 185, DLR Act. The learned counsel further submitted that the plaintiffs are Bhumidhar in possession of the CS DJ ADJ No. 515659/2016 Page No. 13/40 suit property, who are facing an unwarranted threat of dispossession by the defendants. The learned counsel for the plaintiffs placed reliance upon the judgment passed by the High Court of Delhi in Tara Chand & Anr. v. Kumari Rajni Jain & Ors. 2 to support his argument that possession follows title.
38. The learned counsel for the plaintiff submitted that the plaintiffs are owner in possession of the suit property and thus the relief of permanent injunction sought by them against the defendants through the present suit is not hit by the legal embargo of Section 185, DLR, as Section 9 CPC is not attracted to the facts of the present case.
39. Mr. Jain, learned counsel for the plaintiffs read out the entire plaint and submitted that under no manner from the averments made in the plaint can it be made out that the relief sought by the plaintiffs is barred in law. The learned counsel for the plaintiffs further submitted that the documentary evidence led by the plaintiffs is in tandem with the averments in the plaint and prove that the plaintiffs are the Bhumidhars in possession of the suit property and the defendants did try to show and prove their possession on the basis of an illegally obtained Form P-5 entry in their favour. The learned counsel for the plaintiffs further submitted that the defendants have failed to lead any evidence to show and prove that they are Bhumidhars of the land in question. The learned counsel added that mere filing of a suit under Section 85, DLR Act before the revenue court does not prove that the defendants are the rightful Bhumidhars and in possession of the suit property.2
150 (2008) DLT 101 CS DJ ADJ No. 515659/2016 Page No. 14/40
40. The learned counsel for the plaintiffs contended that from the plaint it is apparent nay evident that there exists substantial cause of action in favour of the plaintiff to maintain the present suit against the defendants. The learned counsel for the plaintiffs submitted that the challenge waylaid by the defendants on the ground of the suit being time barred is untenable, as the suit has been very well preferred within the period of limitation.
41. The learned counsel for the plaintiffs submitted that the PW1 (plaintiff No. 2 herein) lacked common knowledge and could not tell about the nature of Form P-5. The learned counsel further submitted that to the contrary the testimony of DW1 (defendant No. 1 herein -
now deceased) is revealing, as DW1 admitted that till date there is no khasra girdwari, which records his possession over the suit property.
42. The learned counsel for the plaintiffs took a strong objection and cautioned about placing any reliance upon the testimony of DW2 - Satyadev Yadav, as the evidence led is beyond pleadings. The learned counsel further submitted that no such averment in the written statement of selling the produce from the fields in the mandi was made by the defendants. The learned counsel further submitted that nowhere in the written statement it has been urged that there existed three separate fields and the plaintiffs converted them into one field for the purpose of cultivation.
43. Mr. Jain, learned counsel for the plaintiffs further submitted that similarly, the testimony of DW3 - Om Dutt cannot be relied. The learned counsel further submitted that the defendants through DW3 without seeking any leave of the court place on record colour photographs. The learned counsel submitted that DW3's testimony CS DJ ADJ No. 515659/2016 Page No. 15/40 reveals that he himself is not aware about the fact that under whose possession the suit property was prior to 2007.
44. The learned counsel for the plaintiffs submitted that the suit preferred by the defendants herein before the Sub Divisional Magistrate, Najafgarh under Section 85, DLR Act is a ruse and has been preferred on the false claim of being in possession of the suit property. The learned counsel further stated the defendants herein deployed every act of trickery to show themselves as the owners and in possession of the suit property. The learned counsel further submitted that though initially the defendants herein did manage to get a Form P-5 issued in their favour by falsifying service of notice through courier, however, not only the order dated 31.03.2010 passed by the Tahsildar, Palam but also the impugned entry was set aside by the order dated 29.03.2012 passed by the Ld. Financial Commissioner, Delhi in Jai Singh & Anr. v. Mahender Singh & Anr. - Case No. 169/2010 (See Ex.PW1/63).
45. To support his arguments, the learned counsel for the plaintiffs placed reliance upon - S.S.P. Buildcon P. Ltd. v. M.C.D. & Anr.;3 A.P. Jain & Ors. v. Union of India & Ors.;4 Sri Bhimeshwara Swami Varu Temple v. Pedapudi Krishna Murthi and Ors.;5 Nathoo Lal v. Durga Prasad;6 Ambika Prasad v. Ram Ekbal Rai,7 and Tulsi v. Besar.8
46. Mr. K.C. Tyagi, learned counsel for the defendants contended that the suit preferred by the plaintiff is a ploy and squarely hit by Section 185, DLR Act. The learned counsel further submitted that not only khasra girdwari - Ex.PW3/1 reveal the names of the defendants 3 173 (2010) DLT 354 4 2012 III AD (Del) 785 5 (1973) 2 SCC 261 6 AIR 1954 SC 355 7 AIR 1966 SC 605 8 AIR 2002 HP 12 CS DJ ADJ No. 515659/2016 Page No. 16/40 as owner in occupation of suit property but also the crops of sarson sown by them. The learned counsel further contended that a Form P-5 was rightly issued to the defendants by the concerned revenue authorities.
47. To buttress his arguments of the suit being barred by Section 185, DLR Act, the learned counsel placed reliance upon the judgments passed by the Apex Court in Gaon Sabha & Anr. v. Nathi & Ors.,9 Hatti v. Sunder Singh10 and a judgment pronounced by High Court of Delhi in Rev Singh v. Rishi Pal & Ors.11
48. The learned counsel for the defendants submitted that the plaintiffs herein have preferred a suit for permanent injunction in garb of which a relief of possession is being sought by them against the defendants.
49. Mr. Tyagi, learned counsel for the defendants further contended that the case urged by the plaintiffs is covered under Section 84, DLR Act, as the defendants' occupation of the suit property has been rightly recorded in Form P-5. The learned counsel for the defendants further submitted that the plaintiffs failed to seek the ejectment of the defendants in accordance with law i.e. under Item No. 19 of Schedule I of the DLR Act, and thus the present suit must fail.
50. The learned counsel further added vigour to his arguments with regard to the Form P-5 recording the defendants' occupation by placing reliance on presumption provided under Section 41 of the Delhi Land Revenue Act, 1954 that all entries in the record-of-rights shall be presumed to be true.
9(2004) 12 SCC 555 10 (1970) 2 SCC 841 11 182 (2011) DLT 52 CS DJ ADJ No. 515659/2016 Page No. 17/40 Reasoning & Findings
51. I, have perused the complete case record, considered and deliberated over the submissions advanced by the learned counsels for the parties. My issue-wise findings ensue in the following paragraphs of this judgment.
Issue No. 1Whether this Court has no jurisdiction to entertain the present suit as the same is barred under the provisions of Section 185 of Delhi Land Reforms Act?
52. The onus to prove issue No. 1 was saddled upon the defendants. The defendants have pushed their entire weight of arguments on the issue of the suit being barred by Section 185, DLR Act. The learned counsel for the defendants submitted that the jurisdiction of the civil court is ousted, as the suit property is an agricultural land and the case urged by the plaintiffs is squarely covered under Section 84, DLR Act and a suit ought to have been preferred by the plaintiffs herein against the defendants under Item No. 19, Schedule I of the DLR Act.
53. The above submissions have been vociferously contended by the learned counsel for the plaintiffs. It has been contended by the learned counsels for the plaintiffs that the plaintiffs are the bhumidhars in possession of the suit property, who have not only been tilling the suit land but also the revenue record duly reflect their names in the record- of-rights.12 The learned counsel for the plaintiffs also submitted that the defendants have deployed numerous tactics to seek possession of the suit property and also to record their names in the revenue records and one such desperate attempt was made by getting a Form P-5 issued in their names behind the back of the plaintiffs vide order dated 31.03.2010.
12See Section 20, 21 of the Delhi Land Revenue Act, 1954 CS DJ ADJ No. 515659/2016 Page No. 18/40 The learned counsel further added that the Tahsildar's order dated 31.03.2010 duly stands set aside by the order dated 29.03.2012 passed by the Ld. Financial Commissioner, Delhi and therefore the present suit seeking permanent injunction against the defendants from neutralising their threats of dispossessing the plaintiffs and from interfering in cultivation of suit property has been preferred and the same is beyond the purview of Section 185, DLR Act and Section 9, CPC.
54. The short question, which needs to be answered is whether this court i.e. civil court has jurisdiction to decide the present suit?
55. Section 185 of the Delhi Land Reforms Act, 1954 reads as under:
"185. Cognizance of suits, etc., under this Act. - (1) Except as provided by or under this Act no court other than a court mentioned in column 7 of Schedule I shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), take cognizance of any suit, application, or proceedings mentioned in column 3 thereof.
(2) Except as hereinafter provided no appeal shall lie from an order passed under any of the proceedings mentioned in column 3 of the Schedule aforesaid.
(3) An appeal shall lie from the final order passed by a court mentioned in column 3 to the court of 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."
56. On perusal of the above legal provision it is certain that the matter in respect of which the jurisdiction of civil courts is ousted are only those matters mentioned in Schedule I of the DLR Act and various types of suits, applications and other proceedings are mentioned in column 3 of Schedule I read with entries mentioned in column 2 and the courts in CS DJ ADJ No. 515659/2016 Page No. 19/40 which the proceedings have to be filed are mentioned in column 7 thereof.
57. Section 84 of the DLR Act provides that a person taking or retaining the possession of the land other than in accordance with the provisions of the law for the time being in force shall be liable to ejectment on the suit of a Bhumidhar, Asami or Gram Sabha, as the case may be. In terms of Section 85 of the DLR Act, if the suit is not brought under Section 84(1) or a decree obtained in any suit is not executed within the period of limitation, provided for the filing of the suit or execution of the decree, the person taking or retaining possession was where the land forms part of the holding of a bhumidhar become a bhumidhar thereafter. The time period prescribed in Item No. 19(iii), Schedule I, DLR Act is 3(three) years from 1st July following the date of occupation.
58. It is admitted position that the defendants herein have preferred a suit under Section 85, DLR Act against the plaintiffs herein before the concerned Revenue Assistant and the same is pending adjudication.
59. The undisputed fact is that the names of the plaintiffs have been recorded in the revenue records, record-of-rights as Bhumidhars in relation to the suit property. It is apparent nay evident from the evidence on record that the plaintiffs name are reflected in the revenue records, coupled with the fact that they are also in settled possession of the suit property. It is also observed that no evidence has been led by the defendants to rebut plaintiffs' evidence. It is the case of the defendants that they have been in possession of the suit property and prior to them their forefathers were in possession of the suit property. It is observed from the evidence on record that other than the Form P-5, there is no shred of evidence that the defendants are or have been in possession of CS DJ ADJ No. 515659/2016 Page No. 20/40 the suit property. It is also observed that a report of the Naib Tahsildar dated 08.04.2009 states that on local enquiry it was revealed that Jai Singh and Deep Chand (plaintiffs herein) were in possession of land situated under Khasra No. 43/13 (4/15). However, it is not out of place to observe herein that even the entry made in the revenue record (i.e. Form P-5) in favour of the defendants by order dated 31.03.2010 passed by the concerned Tahsildar was set aside by order dated 29.03.2012 passed by the Ld. Financial Commissioner, Delhi in Jai Singh & Anr. v. Mahender Singh & Anr. - Case No. 169/2010. 13 In short, the possession of the plaintiffs over the suit property is a settled possession, however with a looming threat of the defendants dispossessing the plaintiffs being real and the factum of defendants being in possession of the suit property is fractured and on a very weak footing.
60. With regard to the defendants interfering with the possession of the plaintiffs and the threat of the plaintiffs being dispossessed, I would add that there exists another route to support the pleas urged by the plaintiffs and which are clearly made out by the averments made by the defendants in their written statement.
61. The undisputed fact is that the defendants herein have preferred a suit under Section 85, DLR Act against the plaintiffs herein before the revenue assistant seeking a declaratory decree that they are the Bhumidhars of land admeasuring 8bighas 16biswas situated under Khasra No. 6/10/1 (4-3) and Khasra No. 43/13 (4-13) in village Pindwala Kalan, Delhi and the same is pending adjudication. It is urged in the suit before the revenue assistant that despite the defendants herein 13 See Ex.PW1/663, p. 773 of the paper-book.
CS DJ ADJ No. 515659/2016 Page No. 21/40being in possession of the land, their names are not recorded in the revenue record continuously till date.14
62. At this stage, I deem appropriate to reproduce Section 84 and 85 of the DLR Act, which reads as under:
"84. Ejectment of persons occupying land without title.--(1) A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, and -
(a) where the land forms part of the holding of a Bhumidhar of Asami without the consent of such Bhumidhar or Asami, or
(b) where the land does not form part of the holding of a Bhumidhar or Asami without the consent of Gaon Sabha, shall be liable to ejectment on the suit of the Bhumidhar, Asami or Gaon Sabha, as the case may be and shall also be liable to pay damages.
(2) Where any person against whom a decree of ejectment from any land has been executed in pursuance of a suit under sub-
section (1) re-enters or attempts to re-enter upon such land otherwise than under authority of law, he shall be presumed to have done so with intent to intimidate or annoy the person in possession or the Gaon Sabha as the case may be, within the meaning of section 441 of the Indian Penal Code (45 of 1860).
85. Failure to file suit under section 84 or to execute decree obtained thereunder.--If a suit is not brought under sub- section (1) of section 84 or a decree obtained in any such suit is not executed within the period of limitation provided for the filing of the suit or the execution of the decree, the person taking or retaining possession shall -
(i) where the land forms part of the holding a Bhumidhar, become a Bhumidhar thereof;
14See para 4 of the plaint - Ex.D-4, p. 413 of the paper-book.
CS DJ ADJ No. 515659/2016 Page No. 22/40(ii) where the land forms part of the holding of an Asami on behalf of the Gaon Sabha, become an Asami thereof;
(iii) in any case to which the provisions of clause (b) of sub-section (1) of section 84 apply, become a Bhumidhar or Asami as if he had been admitted to the possession of the land by the Gaon Sabha:
Provided that if in the revenue records of the fasli year ending on the 30th June, 1954, the land referred to in clause (iii) was not included in the holding of that person taking or retaining possession or his predecessor-in-interest, then, notwithstanding the expiry of the aforesaid period of limitation for such suit or decree, the suit may be filed or the decree obtained in such suit may be executed within a period of three years from the date of passing of the Delhi Land Reforms (Amendment) Act, 1965:
Provided further that the benefit of the extension of the period of limitation under the preceding proviso shall not be availed of in any case where a person who has become a Bhumidhar in respect of any land under clause (iii) has transferred such land to another person for valuable consideration before 10th May, 1965."
63. The legal provisions pertaining to the ejectment of a Bhumidhar, Asami are nestled in sections 76 - 87 in sub-Chapter H of Chapter III of the DLR Act. Section 76 of DLR Act states that subject to the provisions of sections 33, 42, 81, 85, 86, 86A and 87 no Bhumidhar shall be liable to ejectment.
64. From the perusal of the above-quoted legal provisions, it is certain that section 85, DLR Act cannot be read in isolation. It is observed that for section 85, DLR Act to tick in, there has to be a failure on the part of the Bhumidhar, Asami or Gaon Sabha to prefer a suit for ejectment of a person, who has taken or retained possession of land otherwise than in accordance with the provisions of law. Section 84 also CS DJ ADJ No. 515659/2016 Page No. 23/40 provides that such a person shall be liable not only for ejectment from such land but also pay damages.
65. There is no qualm that section 85 comes in play only when there has been a failure on the part of the Bhumidhar, Asami or Gram Sabha to seek ejectment of such person, who has occupied the land under section 84 or the Bhumidhar, Asami or Gram Sabha fails to seek execution of a decree in any suit within the period of limitation, such a person taking or retaining possession shall become a Bhumidhar in case where the land forms part of the holding of a Bhumidhar; an Asami in case where the land forms part of the holding of an Asami on behalf of the Gaon Sabha and in case of land being under section 84(1)(b), become a Bhumidhar or Asami as if he had been admitted to the possession of the land by the Gaon Sabha. The twin provisos to section 85 state the limitation period and extension of such limitation period, as section 85 was amended in 1965.
66. Thus, a suit under Section 85 of the DLR Act cannot be seen without referring to Section 84 of the DLR Act. The time period for a suit section 84 of the DLR Act, as per Item No. 19(iii), Schedule I of the DLR Act is three years from 1st July of the date of occupation. The suit before the Revenue Assistant by the defendants herein is qua assertion of their rights and to be declared as a Bhumidhar and under no manner can it be contemplated and concluded that such a suit would come in the way as an insurmountable wall to obstruct a right of a person (plaintiffs in the present case) to approach a civil court to seek a preventive relief of an injunction, precisely, permanent injunction.CS DJ ADJ No. 515659/2016 Page No. 24/40
67. I, do not intend to diverge from the legal principle culled out in Gaon Sabha & Anr. v. Nathi & Ors.,15 Hatti v. Sunder Singh.16 Section 9 of the Code of Civil Procedure, 1908 states that the courts shall subject to the provisions contained herein have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. It is settled principle that it is for the party who seeks to oust the jurisdiction of a civil court to establish his contention that jurisdiction has either expressly or impliedly been ousted. It is equally well settled that a statute ousting the jurisdiction of a civil court must be strictly construed - See Dhulabhai v. State of Madhya Pradesh.17
68. No doubt, the Delhi Land Reforms Act, 1954 is a code in itself and it ousts the jurisdiction of civil courts to that in favour of revenue courts. With all due deference to the judicial pronouncements of the Apex Court in Gaon Sabha & Anr. v. Nathi & Ors.,18 Hatti v. Sunder Singh19 and of the High Court of Delhi in Rev Singh v. Rishi Pal & Ors.,20 I am of the considered view that the same do not come to the aide of the defendants.
69. The Apex Court in Hatti v. Sunder Singh21 observed that a civil court has no jurisdiction to entertain a suit in view of Section 185 of the DLR Act. The Supreme Court also observed that the DLR Act is a complete code and civil court has no jurisdiction to entertain a suit in which the plaintiff alleging that he is the proprietor of the suit lands 15 (2004) 12 SCC 555 16 (1970) 2 SCC 841 17 AIR 1969 SC 78 18 (2004) 12 SCC 555 19 (1970) 2 SCC 841 20 182 (2011) DLT 52 21 (1970) 2 SCC 841 CS DJ ADJ No. 515659/2016 Page No. 25/40 asked for a declaratory decree that he is entitled to the bhumidhari rights in respect of the suit land. It was also held that all the three reliefs which were asked by the respondents in their suit were within the competent jurisdiction of the revenue assistant under the DLR Act.22
70. A suit in which the relief of permanent injunction is claimed on the basis of Bhumidhari rights, such a suit is not covered under any entry in column 3 of Schedule I of the DLR Act and thus the DLR Act does not either expressly or impliedly bar the present suit.
71. A reference to all other sections which are subject matter of column 2, nature and description of the suit in column 3 of the Schedule I of the DLR Act, shows that there is no section for filing of a suit of the nature of the suit in question.
72. By virtue of Section 185, DLR Act the jurisdiction of civil court is barred in favour of the revenue court. However, the legal embargo is applicable only if the proceedings before the civil court are either in form or in substance are such proceedings, which are squarely covered in the entries provided under Schedule I of the DLR Act.
73. The plaintiffs have sought a decree of permanent injunction against the defendants enjoining them from interfering with the plaintiffs' possession and right to sow, cultivate and harvest on the suit property. It is observed that there is no provision under Schedule I of the DLR Act with respect to the nature and description of the suit preferred by the plaintiff. Thus, I hold that there is no bar to the jurisdiction of the civil court under Section 185, DLR Act - See Tara 22 ibid. p. 844, 846 and 847 CS DJ ADJ No. 515659/2016 Page No. 26/40 Chand & Anr. v. Kumari Rajni Jain & Ors.23 and Suresh Bala & Ors.
v. Rampal.24
74. Further, I deem appropriate, to rely upon the judicial pronouncement of High Court of Delhi in Ashok Kumar & Ors. v. Smt. Munni Devi & Ors.25, which after having discussed at length the ratio of Hatti v. Sunder Singh 26 separated the chaff from the grain and eloquently explained in which cases/proceedings, the legal embargo of Section 185, DLR Act would be attracted. The relevant extract of the aforesaid judgment is reproduced as under:
"5. In my opinion, the trial Court has fallen into a grave error in holding that the Civil Courts did not have jurisdiction in view of Section 185 of the Act. Section 185 has already been reproduced above and which Section shows that the Revenue Courts have jurisdiction to try such suits which are mentioned in columns 2 and 3 of the Schedule I of the Act, and it is only with respect to such suits that the jurisdiction of the Civil Courts will be barred. The sections and type of the suits which are mentioned in columns 2 & 3 of the Schedule I of the Act, do not cover suits such as the subject suit for declaration, injunction and for cancellation of a sale deed/power of attorney on the ground of the same having been forged and fabricated. Such causes of action/reliefs of declaration and injunction which pertain to invalidity of the title documents which are said to have been got executed on the basis of a forged and fabricated General Power of Attorney are not covered under any of the Sections under columns 2 & 3 of Schedule I and they can be thus decided by a Civil Court. A reference to columns 2 and 3 of Schedule I of the Act shows that in none of the sections or the description of suits, mentioned in columns 2 and 3 of the Schedule I respectively, the subject suit would be covered. The only sections which can be said to be somewhat related to the issues/causes of action/reliefs in the suit are Sections 13 and 104. Section 13 pertains to an application to regain possession after bhumidhari rights are got declared and for which period of 23 150 (2008) DLT 101, pp. 11 - 21 at p. 103, 104 24 RSA No. 252/2013 date of decision 15.01.2014 - High Court of Delhi 25 RFA No. 621/2003 date of decision 05.03.2012 - High Court of Delhi 26 (1970) 2 SCC 841 CS DJ ADJ No. 515659/2016 Page No. 27/40 limitation is one year from the commencement of the Act. The Act commenced in the year 1954 and the subject suit for declaration and injunction cannot be said to be pertaining to Section 13 of the Act, and also because no declaration of bhumidhari rights envisaged under Section 13 is in issue in the subject suit. Therefore, the subject legal proceedings are not covered under serial No.3 of the Schedule I which pertains to Section 13, being an application to regain possession. So far as the Section 104 is concerned which is the subject matter of serial No.28 of the Schedule I, the said section pertains to a declaratory suit which is filed on behalf of Gaon Sabha against a person claiming entitlement to any right to the land which is the subject matter of the Act. Obviously, the subject suit filed by the private persons is not a suit for declaration, covered by Section 104.
A reference to all other Sections which are the subject matter of column 2 of the Schedule I and the description of such suits under those sections as stated in column 3 of Schedule I shows that there is no section for filing of a suit of the nature of the suit in question. A reference to the column 2 and the description of the Sections in column 3 shows that the proceedings which are the subject matter of the Revenue Courts are those proceedings, which are with respect to either declaration of Bhumidhari rights (as distinguished from inter se dispute of claim of ownership/bhumidhari rights on account of transfer by title deeds/sale deeds including by forging a power of attorney), suits which are with respect to exchange of bhumidhari land or for partition of a bhumidhari land or suit for ejectment filed by an Asami or a suit for injunction or damage caused to a holding of a person etc etc. These suits which the Civil Courts are barred from taking cognizance of are basically suits of a bhumidhar or Asami or Gaon Sabha and that too provided they are first of all the subject matter of the Sections which are stated in column 2 of the Schedule I.
6. Unless the suits are in substance, the suits which fall within the Sections as stated in column 2, the jurisdiction of the Civil Courts is not barred by virtue of Section 185 of the Act. No doubt Section 186 states that where a question of title is raised in any proceeding falling under column 3 of the Schedule I of the Act then such a proceeding has to be referred by the Revenue Court to a Civil Court to determine the question of title, however, it does not mean that suits where title is in CS DJ ADJ No. 515659/2016 Page No. 28/40 question, and which suits are not the subject matter of columns 2 and 3 of the Schedule I, such suits have to be filed in the Revenue Courts. In fact, it is other way round that firstly the suits must in substance be the suits essentially covered under columns 2 and 3 of the Schedule I of the Act, and only thereafter if title of the land is in question then the Revenue Court will refer the issue of title to Civil Court, however, if the suits itself are not falling under columns 2 and 3 of Schedule I, for such suits jurisdiction of the Civil Court is not barred.
7. In view of the above, the impugned judgment wrongly dismissed the suit by holding that the Civil Courts had no jurisdiction and the jurisdiction was of the Revenue Courts. I must hasten to add that I have not expressed any opinion on the merits of the matter, for or against either of the parties, and the trial Court will decide the suit in accordance with law as per the cases urged and proved by the parties.
8. In view of the above, appeal is allowed. Impugned judgment and decree dated 17.5.2003 is set aside. It is held that the Civil Court had jurisdiction to decide the subject suit filed by the appellants/plaintiffs. Parties are left to bear their own costs. Parties to appear before the District & Sessions Judge, Delhi on 10th April, 2012 and on which date the District & Sessions Judge will mark the suit for disposal to a competent Court in accordance with law. Since the respondents/defendants have not been represented in this appeal, the trial Court will serve the respondents/defendants before proceeding ahead with the suit."
75. Thus, both on legal principle and on authority there is no escape from the conclusion that where in a suit properly constituted and the same being cognizable by a civil court and on contest the jurisdiction of the civil court to settle, decide the same is not ousted, the same cannot be held to be hit by the legal embargo of Section 185 of the DLR Act.
76. Now marching forward to the judgment of Rev Singh v. Rishi Pal & Ors.,27 relied upon by the learned counsel for the defendant it is 27 ibid.
CS DJ ADJ No. 515659/2016 Page No. 29/40observed that the same was passed in a regular second appeal and the same is clearly distinguishable on facts, as the land in question was a non-agricultural land. The trial court has dismissed the suit for permanent injunction preferred by the plaintiff having sought restraining orders against the defendants from dispossessing the plaintiff from a plots of land admeasuring 200 sq.yds. and 75 sq.yds. situated at village Sabhapur, Tehsil Seelampur, District North East Shahdara, Delhi. The plaintiff claimed himself to be recorded Bhumidhar, who had carved out plots and sold them to some purchasers. The plaintiff retained two plots admeasuring 200 sq.yds. and 75 sq.yds. and built a boundary wall of bricks. The defendants in collusion with local police threatened to dispossess the plaintiff. The plaintiff failed to prove his case and the suit was dismissed.
77. The first appellate court upheld the judgment of the trial court and held that the plaintiff was seeking a declaration of Bhumidhari rights and the same was barred under Section 185 of the DLR Act.
78. The High Court of Delhi while answering the substantial question of law in second appeal endorsed the findings of the trial court that the plaintiff was actually seeking a declaration to the effect that he be declared a Bhumidhar and only if the plaintiff gets the status of Bhumidhar recognised would he be entitled to the relief of injunction. The High Court observed that where the title of the plaintiff is under a cloud, for all practical purposes the plaintiff is seeking a declaration of his rights which could only be decided by the revenue court. The High Court held that the title of the plaintiff is not clear as he claims himself to be a Bhumidhar and recorded owner of the suit land, whereas, the defendant is in the possession of the property in question. The second CS DJ ADJ No. 515659/2016 Page No. 30/40 appeal was dismissed by the High Court as the suit was upheld to be hit by the legal embargo of Section 185 of the DLR Act.
79. In the case at hand the plaintiffs have pleaded and proved that they are the Bhumidhars and in possession, occupation of the suit property. The plaintiffs have also led substantial evidence on record that they are the tillers of the suit property. It cannot be concluded that the title of the plaintiffs is under a cloud. On a contrary, the case of the plaintiff is crystal clear of the possession following the title. As mentioned earlier, no fruitful reliance can be placed upon the judicial pronouncement of Rev Singh v. Rishi Pal & Ors.28
80. In view of the above discussions and observations, this court finds that the suit preferred by the plaintiffs is not barred by Section 185 of the DLR Act. Accordingly, the issue No. 1 is answered and ruled against the defendants and in favour of the plaintiffs.
Issue No. 2Whether the suit is not maintainable for the reasons set out in preliminary objections No. 4 and 6?
81. The onus to prove issue No. 2 was also casted upon the defendants.
82. The defendants in paragraph No. 4 under the heading preliminary objections in their written statement have averred that the suit for permanent injunction preferred by the plaintiffs is not maintainable as no cause of action has arisen and the same is liable to be dismissed under Order VII, Rule 11, CPC.
83. The challenge waylaid is to the maintainability of the suit for want of cause of action and seeking dismissal of suit under Order VII, Rule 11, CPC. This court deems appropriate to observe that in case of 28 ibid.
CS DJ ADJ No. 515659/2016 Page No. 31/40the suit being found devoid of cause of action, the plaint would be rejected and not dismissed, as that is what Order VII, Rule 11, CPC provides. It is equally well settled that to test whether a plaint is to be rejected under Order VII, Rule 11, CPC only the plaint and the documents filed along with the plaint. Regardless, the onus of proving issue No. 2 has been casted upon the defendants and it is observed that the defendants did not lead any evidence.
84. That said, this court finds that the plaintiffs have averred in their plaint that they are the Bhumidhars of the suit property. It is also observed that the plaintiffs have along with the plaint not only filed but proved in evidence the revenue records i.e. record-of-rights for the relevant period i.e. 1984 onwards. It is also observed that the spot inspection report carried out pursuant to physical verification in the year 2009 establishes the plaintiffs' possession over the suit property. The plea repeatedly urged by the plaintiffs in their plaint is that the defendants are not only claiming themselves to be entitled to their portions of the suit property but also threatening to dispossess the plaintiffs. Therefore, the plaintiffs have sought the relief of permanent injunction against the defendants.
85. In view of the above observations, the contention of the defendants that the plaint is bereft of cause of action and the suit be dismissed under Order VII, Rule 11, CPC is bound to fail, as there exists substantial cause of action in favour of the plaintiffs and against the defendants to maintain the present suit, as the same is made out from the averments made in the plaint and the documents filed along with the plaint.
86. The defendants have also in the paragraph No. 6 of the preliminary objections flanked a challenge to the maintainability of the CS DJ ADJ No. 515659/2016 Page No. 32/40 suit on the ground that the plaintiffs have not given any provisions of law under which the plaintiffs have acquired the ownership/Bhumidhari rights of the suit property and under which provisions of law the plaintiffs are entitled for the relief prayed in the plaint.
87. The relief sought by the plaintiffs against the defendants is that of permanent injunction by restraining the defendants, their heirs, administrators, assignees from interfering in the possession of the suit property and also interfering in the sowing of crops by the plaintiffs on the suit property.
88. The Specific Relief Act, 1963, as per preamble thereto, was enacted to define and amend the law relating to certain kinds of reliefs, and the specific reliefs dealt in Part II thereof are of "Recovering Possession of Property", "Specific Performance of Contracts", "Rectification of Instruments", "Rescission of Contracts", "Cancellation of Instruments", "Declaratory Decrees", in Chapters I to VI thereunder. Part III of the said Act titled "Preventive Relief" is divided into "Injunctions Generally" and "Perpetual Injunctions", in Chapters VII and VIII thereunder. Part I of the said Act titled "Preliminary", in Section 4 thereof provides that specific relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law.
89. Sections 36 & 37 of the Act in Chapter VII under Part III of the Act titled "Injunctions Generally", inter alia provides that preventive relief is granted by injunction, temporary or perpetual and that a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit and that the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the CS DJ ADJ No. 515659/2016 Page No. 33/40 plaintiff. Section 38 of the Specific Relief Act, 1963 provides the relief of perpetual injunction and the same reads as under:
"38. Perpetual injunction when granted.-- (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from a contract, the court shall be guided by the riles and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:-
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings."
90. Section 39 in Chapter VIII titled "Perpetual Injunctions" under the said Part III is titled "Mandatory Injunctions" and is as under:
"39. Mandatory Injunctions.-- When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts."
91. A perpetual injunction is to be granted to prevent a breach of an obligation, which may arise from a contract and/or which where the defendant invades or threatens to invade the plaintiff's right to or CS DJ ADJ No. 515659/2016 Page No. 34/40 enjoyment of property. A mandatory injunction is to be granted to prevent the breach of an obligation by compelling performance of certain acts which the Court is capable of enforcing. The word "obligation" is defined in Section 2(a) of the Act as including "every duty enforceable by law". The injunctive relief is a discretionary and equitable relief.
92. The plaintiffs before this court have sought the relief of permanent injunction against the defendants, whereby they have sought restraining order against dispossession from the suit property and the defendants also be enjoined from not interfering in the sowing of crops over the suit property. It has been held in the preceding paragraphs that not only the plaintiffs have their names in record-of-right but also they are in settled possession.
93. Every man has a right to enjoy his property to the exclusion of others. It is not out of place to state herein that another right flows from the same fountainhead, which being that no man can be dispossessed without due process of law. The law abhors citizen, individuals, persons taking law into their own hands, as the same would result in perpetual anarchy, disharmony and chaos.
94. This court is of the considered view based upon the careful perusal of the pleadings and documents led in evidence that the suit preferred by the plaintiffs against the defendants with regard to enjoining them from dispossessing the plaintiffs and non-interference in the tilling of the land is maintainable, as the position in law is terra firma that no one can be dispossessed without due process of law and in the present case, the plaintiffs does have a case against the defendants to seek recourse against their dispossession by the defendants. In short, CS DJ ADJ No. 515659/2016 Page No. 35/40 the suit for permanent injunction in its present form is held to be maintainable against the defendants.
95. Accordingly, the issue No. 2 is decided against the defendants and in favour of the plaintiffs.
Issue No. 3Whether the plaintiffs are entitled for the relief claimed?
96. The onus to prove issue No. 3 was saddled upon the plaintiff.
97. The case urged by the plaintiffs is that not only they are Bhumidhars in possession of the suit property but also the revenue records clearly state their names being recorded in record-of-rights. Whereas, the defence urged by the defendants is that they are in possession of the suit property and their forefathers have been in possession for over five decades.
98. From the careful perusal of the case record, it is held that the record-of-rights duly maintained in accordance with law stands proved by the plaintiffs and as per the documentary evidence on record, the plaintiffs are in possession of the suit property.
99. The spot inspection report dated 09.10.200929 with regard to the land situated under Khasra No. 43/13 states that out of 4bighas 15biswas, land admeasuring 3bighas 15biswas was found vacant and on the remaining land of 1bigha, some crop of dhancha plant were found damaged. It is also observed that the statements of Hari Ram Vats and Om Dutt also record on 09.10.2009 state that the crop of bajra- dhancha was sown by Mahender and Satbir.
100. Om Dutt stepped in the witness box as DW3 to record his testimony in favour of the defendants on 21.04.2018 and 04.06.2018.
29See Ex.PW1/50 at p. 681 of the paper-book.
CS DJ ADJ No. 515659/2016 Page No. 36/40Om Dutt testified that he has been seeing the defendants till and cultivate the land under Khasra No. 43/13 and Khasra No. 6/10/1 since childhood from very inception.
101. Interestingly, from the spot inspection report dated 09.10.200930 it is observed that the land situated under Khasra No. 6/10/1, Satbir (defendant No. 2) and Sanjay, son of defendant No. 1 agreed that the land was cultivated by Jai Singh and Deep Chand (plaintiffs herein). It cannot be lost track that on 09.10.2009, the statements of Hari Ram Vats and Om Dutt were also recorded as they were present during the spot inspection. It is admitted by the defendants that the plaintiffs are in possession of land situated under Khasra No. 6/10/1.
102. There is also on record a certified copy of report dated 08.04.2009 by Naib Tahsildar (P) and order dated 13.04.200931 with regard to land situated under Khasra Nos. 43/13 and 6/10/1 at village Pandwala Kalan, Delhi, as per which the issuance of Form P-5 in favour of the defendants herein was rejected. It is further observed that subsequently by order dated 31.03.2010 passed by the Tahsildar an entry in favour of the defendants herein by issuance of Form P-5 was made. It is admitted position that the order dated 31.03.2010 passed by the Tahsildar was set aside by order dated 29.03.2012 passed by the Ld. Financial Commissioner, Delhi in Jai Singh & Anr. v. Mahender Singh & Anr. - Case No. 169/2010.32
103. This court observes that not only the revenue records i.e. record- of-rights, annual register, spot inspection report dated 08.04.2009 but also the order dated 29.03.2012 passed by the Ld. Financial 30 See Ex.PW1/51 at p. 685 of the paper-book.
31See Ex.PW1/56 at p. 707 - 725 of the paper-book.
32See Ex.PW1/63 at p. 765 - 774 of the paper-book.
CS DJ ADJ No. 515659/2016 Page No. 37/40Commissioner, Delhi in Jai Singh & Anr. v. Mahender Singh & Anr.
- Case No. 169/201033 remains unchallenged by the defendants herein and the same have attained finality. It is not out of place to observe that Section 30 of the Delhi Land Revenue Act, 1954 states that all entries in the annual register shall, until the contrary is proved, be presumed to be true. It is held that the defendants have failed to rebut this presumption with regard to the revenue record placed before this court by the plaintiffs.
104. The factual position which can be deduced from the above observations is that the plaintiffs are not only in possession of the suit property but their names are also duly recorded in the record-of-rights maintained in accordance with law. It is also observed that the threat to the plaintiffs' possession of suit property by the defendants is real and the present suit seems to be inevitable and appropriate recourse in accordance with law.
105. Assuming for the sake of arguments, the defendants are the owners and have been in occupation of the land under Khasra No. 43/13 for over five decades, yet the revenue record and the spot inspection undertaken by the concerned revenue officials as late as 08.04.2009 show the plaintiffs to be in possession, shall not empower the defendants to upheaval the plaintiffs' possession without due process of law. The documentary evidence and the physical spot inspections do tilt the scales of justice in favour of the plaintiffs and against the defendants. In short, the plaintiffs cannot be forcibly dispossessed by the defendants except in accordance with law.
33See Ex.PW1/63 at p. 765 - 774 of the paper-book.
CS DJ ADJ No. 515659/2016 Page No. 38/40106. That said, I am of the considered opinion that the plaintiffs deserve all the protection in the realm of law from being forcibly dispossessed or being interrupted by the defendants to till, sow and reap the bounty of harvest from the suit property. Accordingly, the issue No. 3 is answered in favour of the plaintiffs and against the defendants.
Issue No. 4To what other relief, if any, are the plaintiffs entitled for?
107. I, am of the considered view that other than the relief as per issue No. 3 ruled in favour of the plaintiffs, the plaintiffs are not found entitled to any other relief. It is also observed that no other relief has been urged and pressed for by the learned counsel for the plaintiffs on 06.03.2020.
Relief
108. In view of the above observations, findings in the preceding paragraphs, this Court deems appropriate to decree the suit for permanent injunction preferred by the plaintiffs against the defendants.
109. Accordingly, the suit stands decreed. It is hereby ordered that the defendants, their heirs/administrators/assignees are permanently restrained, enjoined from interfering with the possession of the plaintiffs over the land situated under Rectangle No. 6, Kila No. 10/1 admeasuring 3bighas 18biswas and Rectangle No. 43, Kila No. 13 admeasuring 4bighas 15biswas at village Pandwala Kalan, Delhi and also not interfere, obstruct the plaintiffs' right to sow, cultivate, reap harvest over the land situated under Rectangle No. 6, Kila No. 10/1 admeasuring 3bighas 18biswas and Rectangle No. 43, Kila No. 13 admeasuring 4bighas 15biswas at village Pandwala Kalan, Delhi and/or dispossessing the plaintiffs from the above land forcibly otherwise than by due process of law. Parties to bear their own costs.
CS DJ ADJ No. 515659/2016 Page No. 39/40110. Consequentially, all interim applications, if any, stand disposed of as infructuous. Let a decree sheet be drawn accordingly.
111. File be consigned to record room only after due compliance and necessary action, as per Rules.
HARGURVARIN Digitally signed by
HARGURVARINDER SINGH
DER SINGH JAGGI
Date: 2020.06.06 10:58:02
JAGGI +05'30'
Pronounced on June 06, 2020 (Hargurvarinder Singh Jaggi)
Addl. District Judge-02
South West District
Dwarka Courts Complex, Delhi
CS DJ ADJ No. 515659/2016
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