Delhi District Court
Sh. Bhullan Singh vs Gaon Sabha Village Daryapur Kalan on 26 September, 2018
IN THE COURT OF SHRI GAJENDER SINGH NAGAR:
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL RENT
CONTROLLER (CENTRAL) : DELHI
Suit No. : 09/17/87 (Old); 98665/16 (New)
In the matter of:
1.Sh. Bhullan Singh,
2. Sh. Ratan Singh, Sons of Sh. Sheo Chand,
3. Sh. Mange Ram (deceased) through his legal heirs
(a) Sh. Ram Phal,
(b) Sh. Ram Dhari,
(c) Sh. Nandey, Sons of Late Sh. Mange Ram
(d) Smt. Srijan, Wd/o Late Sh. Mange Ram,
(e) Smt. Santo, D/o Late Sh. Mange Ram, All R/o Village Darya Pur Kalan, Delhi.
....Plaintiffs Versus
1. Gaon Sabha Village Daryapur Kalan, Delhi through Block Development Officer, Alipur, Delhi.
Suit No. 98665/16 1/262. Municipal Corporation of Delhi, through its Commissioner, Town Hall, Delhi.
3. Union of India, through Director of Panchayat, Tis Hazari Courts, Delhi.
.....Defendants
Date of Institution : 21.01.1987
Date of order when reserved : 17.09.2018
Date of order when announced : 26.09.2018
1. Vide this judgment, the undersigned shall decide the present suit filed for permanent injunction by the plaintiffs against the defendants seeking decree of injunction to the effect that the defendants may be restrained from interfering in the peaceful possession of the plaintiffs in respect of land situated in Bakhal No. 4445 as shown in red in the site plan which is situated within the revenue estate of Village Daryapur Kalan, Delhi.
2. It is pertinent to mention here that earlier the plaint of the plaintiffs was rejected on account of lack of jurisdiction vide judgment dated 29.04.2004 in the present matter, which was set aside by Ld. Additional District Judge and the matter was remanded back to this Court for trial.
Suit No. 98665/16 2/263. It is also pertinent to mention here that the plaint of the present suit was amended several times by the plaintiffs from time to time. Defendant no.2 i.e. MCD was impleaded as a party later on vide order dated 27.04.1989. Again defendant no.3 i.e. UOI was impleaded as a party to the present suit vide order dated 20.11.2000.
4. The case of the plaintiffs are that they are owners and in physical possession of the Bakhal No. 44, 45 & 47 etc. of land settlement of Village Abadi held during the settlement of 1880 and their possession has been uninteruppted throughout since the time of their forefathers. There are two water connections and two electricity connections in Bakhal No. 44 & 45 in the name of the plaintiffs and they are having their residential houses in Bakhal No. 44, but they have not been shown in the site plan. It is alleged that the plaintiffs have installed kharanja of pucca bricks in Bakhal No. 44 & 45 and also had a gher which is being used for tethering of cattle and storing of fodder. It is also alleged that there is one khor also in existence and the said land is jointly owned and possessed by all the plaintiffs who have been using the same as open space for parking bullock carts and other purposes. It is pleaded that the plaintiff no.1 was panch in the gaon sabha for a longtime and had actively opposed the pradhan, Sh. Kanwal Singh in the elections. The said pradhan had threatened the plaintiffs to arrange their opposition whenever he will get the chance. It is further alleged that the plaintiffs have derived their right, title and Suit No. 98665/16 3/26 interest in respect of the suit land through one Sh. Ganga Bishan their ancestral. The said pradhan has no right, title or interest in the suit land. It is pleaded that the defendant Pradhan Gaon Sabha wants to use the said Khasra Abadi Numbers i.e. Bakhal No. 44 & 45 as a general thoroughfare, however they have no right on the same. The said pradhan of Gaon Sabha alongwith some other supporters approached the suit land bearing Bakhal No. 44 & 45 on 10.01.1987 and tried to take forcible possession of the same and the said threat is still continuing. Hence, the present suit has been filed.
5. Summons of the suit and notice of the application Under Order 39 Rules 1 & 2 CPC were issued against the defendants and the defendants appeared and contested the suit as well as the injunction application.
6. Defendants filed the common written statement and reply to the injunction application.
7. In the amended written statement, an objection has been taken regarding the jurisdiction of Civil Court to try the present suit in view of the provisions of DLR Act. Another objection regarding the want to notice U/s 99 of Delhi Panchayat Raj Act has also been taken. The defendants have denied that the plaintiffs are in possession of the suit land. The case of the defendants is that the plaintiffs had made Suit No. 98665/16 4/26 encroachment over the public land and the same was removed by MCD staff on 27.12.1986 by an order of SDM (Kotwali), Delhi and kharanja was laid there on by the said staff of MCD. The defendants have specifically mentioned in reply to para no.01 in the written statement that the suit land forms part of the old laldora land comprising in khasra no.103 and the suit land as shown in the site plan is path way in the form of chowk and the same is being used by the villagers since the time immemorial and after coming into force of DLR Act, the suit land vested in Gaon Sabha. The defendants have denied that the plaintiffs are in possession of the suit land since the time of their forefathers or that their possession has ever been peaceful or uninteruppted. The case of the defendants is that the plaintiffs illegally and unauthorizedly encroached upon certain portions of the suit land and also obstructed the public path way and the same was removed on 27.12.1986. The defendants have denied the rest of the allegations raised on behalf of the plaintiffs and has prayed for dismissal of the present suit.
8. No replication to the amended written statement of defendants was filed by the plaintiffs.
9. Vide order dated 11.12.2003, following legal issues were framed: Suit No. 98665/16 5/26
i) Whether the suit is barred by provisions of DLR Act?
ii) Whether the suit is not maintainable for want of notice U/s 80 CPC and Section 99 of Panchayat Raj Act?
iii) Whether the suit is barred U/s 477 and 478 of DMC Act?
10. Thereafter, vide order dated 17.10.2013, on the basis of pleadings of the parties, following issues were framed:
i) Whether the plaintiff has not come to the Court with clean hands? OPD.
ii) Whether the suit is barred U/s 99 of Delhi Panchayat Raj Act, 1954? OPD.
iii) Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for? OPP.
iv) Relief.
11. In order to substantiate their case, the plaintiffs examined Sh. Rajbir Singh as PW1; Sh. Parveen Kumar as PW2; Sh. Gyander Rana, Halka Patwari as PW3; Sh. Harender Mohan, Kanoongo as PW4; Sh. Ramesh Kumar Sharma, Advocate/ Local Commissioner as PW5 and Sh. K.S. Thakur, Advocate/ Translator as PW6.
12. In rebuttal, the defendants' examined Sh. Sunil Kumar Verma, Extension Assistant (Agriculture), Office of BDO (North) as DW1.
Suit No. 98665/16 6/2613. PW1 Sh. Rajbir Singh has deposed almost on the same lines as averred in the plaint. It is stated by him that he is one of the legal heir of the plaintiff no.2. It is stated by him that their houses and the suit property is situated in the Abadi area of old Bakhal/ Khasra No. 44, 45 & 47 etc., situated in Abadi area/ Lal Dora, new Khasra No. 103 of Village Daryapur Kalan, Delhi. He proved site plan which is Ex. PW 1/1; the pedigree/ kurshinama is Ex. PW1/2 and its translated copy is Ex. PW1/2A; the Aks Sijra is Ex. PW1/3; the field book is Ex. PW 1/4 and its translation is Ex. PW1/4A; Sijra of village Abadi showing Abadi area of the village is Ex. PW1/5 and its translation is Ex. PW 1/5A. In his crossexamination, he could not tell the dimension of Khasra No. 103, or the area of Bakhal No. 44, 45 & 47. It is accepted by him that the suit property falls in Lal Dora area. It is stated that he does not have any certificate of Lal Dora issued in his favour. It is accepted by him that the suit property does not have any water, or electricity connection. This witness could not tell the date, month or the year on which Pradhan Sh. Kanwal Singh of defendant Gram Sabha tried to dispossess the plaintiffs from the suit property. He denied the suggestion that the suit property is a public pathway (chowk).
14. PW2 Sh. Praveen Kumar deposed on same lines as averred by the PW1.
Suit No. 98665/16 7/2615. PW3 Sh. Gyanendra Rana was the Halka Patwari who brought on record the Shijra Aks of the year, 195253 of Village Daryapur Kalan, same is Ex. PW1/3.
16. PW4 Sh. Harendra Mohan, Kanoongo brought the Shizra Nasav of Village Daryapur Kalan of the year, 190809, copy of same is already on record as Ex. PW1/2. He also brought the record of Khasra Paimaish Abadi Bakhal No. 44, 45 & 47, Village Daryapur Kalan of year 1862, copy of same is Ex. PW1/4. The record of Shizra Aks of Abadi area, Khasra/ Bakhal No. 44, 45 & 47, Village Daryapur Kalan of year, 1864 also brought by him, copy of the same is already exhibited as Ex. PW1/5.
17. PW5 Sh. Rakesh Kumar Sharma, Advocate deposed that he was appointed as Local Commissioner vide order dated 09.11.1987 for inspection of the suit premises. He visited the spot on 17.11.1987 and prepared rough proceedings at the spot. He also obtained the signatures of the persons present there. He also prepared rough sketch in his own handwriting. He exhibited his report as Ex. PW5/1, rough proceedings as Ex. PW5/2 and rough site plan as Ex. PW5/3. In his crossexamination, he could not tell, if Halka Patwari was present there or not. It is stated by him that perhaps the suit property was part of Khasra No. 44, 45, it is stated by him that the land was situated in Suit No. 98665/16 8/26 Village Daryapur Kalan, Old Lal Dora.
18. PW6 Sh. K.S. Thakur, Advocate/ Translator has deposed that he is translator from Urdu to Hindi language. He has translated in his own handwriting Sijra Nasab, Village Daryapur Kalan for the year, 190809; Khasra Paimaish of Abadi area of Khasra/ Bakhal No. 44, 45 & 47, Village Daryapur Kalan of year, 1865 and Sijra Aks of Abadi area of Khasra/ Bakhal No. 44, 45 & 47, Village Daryapur Kalan of year, 1864, copies of the same are already on record and already exhibited as Ex. PW1/2A, Ex. PW1/4A and Ex. PW1/5A, respectively, bearing his signature and stamp at Points A, B and C, respectively. The same had been translated by him from Urdu to Hindi language from Ex. PW1/2, Ex. PW1/4 and Ex. PW1/5. It is stated by him that the said documents are true translation of the original. In his crossexamination, it is stated by him that he does not remember the number of the suit property. It is also stated by him that he has not filed any document/ certificate etc. regarding the translation.
19. No other plaintiff's witness was examined and plaintiff's evidence was closed.
20. In rebuttal, DW1 Sh. Sunil Kumar has deposed almost on the same lines as averred in the written statement. He proved written Suit No. 98665/16 9/26 statement which is Ex. D1; certified copy of DD Entry vide DD No. 8 9 & 10 dated 27.12.1986 is Ex. DW1/1; copy of drawing prepared by Sh. Mir Singh, Patwari and also signed by Sh. Kanwal Singh, the then Pradhan of Village Daryapur Kalan is Ex. DW1/2; representations signed by villagers of Village Daryapur Kalan addressed to ZAC (North), MCD, Narela Zone for lying of a Kharanja is MarkA; letter by the SDM, Kotwali to Area SHO, Narela for providing police force for removal of encroachment is Ex. DW1/3; copy of site plan in case titled as Sh. Prabhu Vs. Mange Ram etc. showing the open case of the suit land is MarkB; copy of letter by Assistant Executive Engineer, Narela Zone, Delhi to Assistant Engineer for removal of encroachment of laying Kharanja is MarkC; copy of Khatoni of Bakhal No. 44, 45 & 47 is Ex. DW1/4 and reporting dated 15.10.1998 made by Halka Patwari, Daryapur Kalan with respect to Bakhal No. 44, 45 & 47 of Daryapur Kalan is Ex. DW1/5. He also relied upon copy of Aks Sirja of Khasra No. 103 which has already been exhibited as Ex. PW1/3. In his crossexamination, it is stated by him that he joined the service on 04.11.1991. It is admitted by him that he was not in service during 198586 i.e. at the time of incident. It is admitted that he has no personal knowledge about the facts of the case and circumstances thereof. It is accepted by him that the said village is situated only in one Khasra No. 103. He could not tell if the Abadi area of the village is in existence since prior to 190809. He could not tell if the Abadi area of the village is only one. He could tell what was the number of Suit No. 98665/16 10/26 Abadi area prior to 190809. He could not tell who is the owner of which area in the village. It is accepted by him that the incident mentioned in his affidavit in para no. 02 dated 27.12.1986 was never occurred in his presence. It is accepted by him that DW2 was not prepared in his presence. It is accepted by him that MarkA i.e. representation was not made in his presence. He could not tell, if any proceedings U/s 86 was ever conducted by the SDM, or not on the said representation. It is stated that he has not filed any proceedings U/s 86 in evidence. It is stated by him that he has no knowledge whether plaintiff's ancestor were in possession of property since prior to 1864. He could not tell whether the demand of police force on 27.12.1986 was complied with or not. It is stated by him that he has no knowledge about suit titled as Prabhu Vs. Mange Ram etc. A specific question was put to this witness that Khasra No. 103, Abadi area is written in Khatedar Column No. 2 as "Ger Mumkin Abadi Deh, Gram Sabha", can he tell how many people are residing in this area, in reply it is stated by him that he cannot tell the same. It is stated by him that he cannot tell which person is retaining how much area in the Village Abadi. It is accepted by him that he cannot say after seeing Ex. PW1/3 as to where are the streets, chowks, private gher, ghikward, houses are adjusting in Khasra No. 103. It is accepted by him that he has no personal knowledge whether kharanja was placed in the year 1986, or not. It is stated by him that he has not examined the record pertaining to 1880 in respect of Abadi Deh. He could not Suit No. 98665/16 11/26 tell if in the record of 1880 of Abadi Deh, the ownership of particular persons, area owned by individual residence are specifically mentioned. He could not tell the old khasra number of Abadi Deh. It is stated that the whole Abadi Deh i.e. Khasra No. 103 is common property and does not belong to any single person. A suggestion was given to him that the suit property is part of residential house (of the plaintiffs), he denied this suggestion. However, voluntarily stated that the house is separately existing adjoining this property. This witness could not specifically denied if the act of the Pradhan to take raasta through Bakhal No. 44, 45 & 47 was incorrect.
21. No other defendants' witness was examined and defendants' evidence was closed.
22. The Court has heard both the parties and has perused the record.
ISSUE NO. 1 (dated 11.12.2003)
i) Whether the suit is barred by provisions of DLR Act?
23. This issue has already been decided by Ld. Addl. District Judge vide order dated 04.09.2013. Infact on this preliminary issue, the suit was dismissed by Ld. Predecessor of this Court. However, that order of Ld. Predecessor of this Court was setaside and it was held by Ld. Suit No. 98665/16 12/26 Additional District Judge that the jurisdiction of Civil Court to entertain the suit is not barred by the provisions of DLR Act. Thus, this issue decided in favour of the plaintiffs and against the defendants.
ISSUES NO. 2 & 3 (dated 11.12.2003)
ii) Whether the suit is not maintainable for want of notice U/s 80 CPC and Section 99 of Panchayat Raj Act?
iii) Whether the suit is barred U/s 477 and 478 of Delhi Municipal Corporation Act?
24. The above two issues are preliminary in nature. The onus to prove these issues was upon the defendants. The defendants have challenged the maintainability of the present suit on the ground that it is barred by Section 99 of Delhi Panchayat Raj Act and Section 80 of Code of Civil Procedure as well as Sections 477 and 478 of Delhi Municipal Corporation Act. No evidence has been led on behalf of either of the party on this aspect. However, it is argued on behalf of plaintiffs that the present suit is for permanent injunction. The relief was of urgent nature, hence requirement of giving notice was not there. Further, any such requirement is deemed to be dispensed with by the Court.
Suit No. 98665/16 13/2625. It is to be noted that Section 478 (3) of Delhi Municipal Corporation Act itself provides that no notice is required when the suit is for permanent injunction and the object of the same would be defeated by the giving of the notice or the postponement of the institution of the suit. The present suit has been directed against the acts of the Pradhan of Gaon Sabha which led to an apprehension in the minds of the plaintiffs that they would be forcibly dispossessed from their property. The suit is not directed against any act or omission of Municipal Corporation of Delhi, or any of its employees. No relief has been sought against the Municipal Corporation of Delhi. The Municipal Corporation of Delhi has been impleaded as a defendant subsequent to filing of the suit. Since the suit is not against any act performed by the Municipal Corporation of Delhi, it does not fulfill the condition laid down in Sections 477 and 478 Delhi Municipal Corporation Act. As such, the suit does not fall within the purview of Sections 477 and 478 of the said Act so as to attract the requirement of prior notice. Hence, the suit is not barred by the said provision.
26. In view of the existence of special provisions of Section 99 of the Delhi Panchayat Raj Act, the general provisions of Section 80 of Code of Civil Procedure do not apply to Gaon Sabha. Hence, the suit is not barred by Section 80 of Code of Civil Procedure too. Further, even otherwise, Section 80 of Code of Civil Procedure lays down the Suit No. 98665/16 14/26 requirement of prior notice only in suits which are against acts done in official capacity. Hence, the requirement of prior notice under Section 80 of Code of Civil Procedure does not apply and the suit is not barred by the said provision.
27. Section 99 of the Delhi Panchayat Raj Act, 1954 reads as follows:− "Suits against Gaon Panchayat or Circle Panchayat or its Officer:− (1) No suit or other legal proceedings shall be instituted against a Gaon Sabha or a Gaon Panchayat or against a member, panch officer of servant of the Gaon Panchayat or Circle Panchayat or against any person acting under it or his direction for any thing done or purporting to have been done in any official capacity under this Act, until the expiration of two months next after notice, in writing has been, in the case of a Gaon Panchayat or Circle Panchayat and in the case Gaon Sabha, delivered in or left at the office of the Gaon Panchayat or Circle Panchayat and in the case of a member, Panch officer or servant or any person acting under this direction or the direction of the Gaon Panchayat or Gaon Circle Panchayat, delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation, if any, claimed and the name and place of abode of the intending Plaintiff and the plaintiff and the plaint shall contain a statement that such notice has been so delivered of left. (2) No action such as is described in sub−section (1) shall be commenced otherwise Suit No. 98665/16 15/26 than within six months next after the accrual of the cause of action."
28. This section postulates that no suit shall be instituted against a Gaon Sabha for any thing done or purporting to have been done in any official capacity, until a two months' prior notice has been served, in writing.
29. This is a suit for simplicitor injunction and the nature of relief claimed is of urgent nature. Therefore, the present suit is maintainable even for want of notice under Section 99 of Delhi Panchayat Raj Act, 1954.
30. The basic object of Section 99 of Delhi Panchayat Raj Act, like Section 80 CPC is to prevent the matters from coming to Court, but once the matter reached the Court and contested, the suit should not be dismissed on such technical ground as observed by Hon'ble High Court of Delhi in case titled as Yashoda Kumar Vs. MCD, AIR 2004 Del 225.
31. The suit is not vitiated for want of prior notice for the reason that the said provisions of law merely provide a procedural requirement which does not go into the merits of the dispute. In this context, it would be appropriate to refer to the decision of Hon'ble Suit No. 98665/16 16/26 Supreme Court in the case of Ghanshyam Dass Vs. Dominion of India, (1984) 3 SCC 46, wherein it was held as under:
"Section 80 of the Code is but a part of the procedure code passed to provide the regulation and machinery, by means of which the courts may do justice between the parties. It is therefore, merely a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it."
32. In Sangram Singh Vs. Election Tribunal, Kotah & Anr., 1955 SCR (2) 1 it was held by Hon'ble Supreme Court that the provision of prior statutory notice is designed to facilitate justice and not to punish, and that proceedings should not be allowed to be defeated on mere technicalities.
33. In the judgment titled as Janak Raji Dev Vs. Chandrabati Devi, AIR 2002 Cal. 11, it has been held that no separate application and an express order are the essential requisites; such leave could be presumed; the leave need not be granted by passing a formal order. The leave under subsection (2) of section 80 could be implied and could be gathered from what the Court does. The prayer for leave could be in any form.
Suit No. 98665/16 17/2634. In light of the aforesaid decisions, it is amply clear that the suit cannot be dismissed on the ground of absence of prior statutory notice. Apart from this, the present suit was already registered by the Court and exparte interim order was also passed on 21.01.1987. From this it could be easily presumed that the Court had impliedly granted the leave to institute the suit or that the notice stood waived in the facts and circumstances of the case. Since this Court had registered the suit and granted the stay order and the defendants had contested it all through, even notice under Section 99 of Delhi Panchayati Raj Act should be deemed waived in the facts and circumstances of the case. After all the purpose of notice under Section 99 of Delhi Panchayati Raj Act is same as that of Section 80, CPC i.e. to bring the claim to the authority's notice so that it may concede or contest it. Once the authority had contested it on merits even at preliminary stage, it could not complain of nonservice of notice U/s 99 of Delhi Panchayati Raj Act. Thus, the nonservice of notice is not fatal to the present suit.
35. Hence, these issues are decided in favour of the plaintiffs and against the defendants.
ISSUE NO. 2 (dated 17.10.2013)
ii) Whether the suit is barred U/s 99 of Delhi Panchayat Raj Act, 1954? OPD.
Suit No. 98665/16 18/2636. This issue has already been decided above.
ISSUES NO. 1 & 3 (dated 17.10.2013)
i) Whether the plaintiff has not come to the Court with clean hands? OPD
iii) Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for? OPP.
37. The contention of the plaintiffs is that they are in physical possession of Khasra Abadi i.e. Bakhal No. 44, 45 & 47 etc. of the last settlement of Village Abadi held during the settlement of 1880. It is stated that the plaintiffs have installed Kharanja of pucca bricks in the suit property. It is stated that the plaintiffs have their houses and gher in Bakhal No. 44 & 47 beside that there is a khor. It is stated that khor and gher have been shown in the site plan. It is stated that the plaintiffs have left a passage (private passage) between Bakhal No. 46 & 47 and Bakhal No. 44 & 47. It is stated that they were using the Bakhal No. 44, 45 & 47 as open space for parking bullock carts and for other purpose. It is stated that the plaintiffs have derived rights from their ancestor Sh. Ganga Bishan in that property. It is stated that the Gaon Sabha wants to use Bakhal No. 44 & 45 as general thoroughfare without having any right, title or interest in the same. It is stated that on 10.01.1987 the then Pradhan of the Gaon alongwith Suit No. 98665/16 19/26 some of his supporters tried to take forcible possession of the suit land, but the situation was saved by some elderly persons, however he threatened to come again.
38. Per contra, it is stated on behalf of the defendants that the plaintiffs have not came with clean hands. They have concealed the material fact that on 27.12.1986 by the order of SDM Kotwali, Delhi encroachment was removed by MCD staff with the help of police and Kharanja was laid down. Thus, the plaintiffs are not in possession. It is further contended that the settlement record relating to the year, 1880 has no relevance after coming into force of Delhi Land Reforms Act, 1954 and consolidation proceedings which took place in the year, 195354. It is stated that after this consolidation the suit land which is situated in Abadi Deh (Old Lal Dora) area is comprised of only one Khasra i.e. bearing no. 103. It is stated that the suit land is public pathway in the form of crossing/ chowk and is being used by village abadi and public at large, since time immemorial and the same is vests in defendant Gaon Sabha. It is contended that the plaintiffs alongwith some other villagers about two months (prior to 27.12.1986) back illegally and unauthorizedly encroached upon certain portions of the suit land and obstructed the public pathway. The said encroachment/ obstruction was removed on 27.12.1986.
Suit No. 98665/16 20/2639. The plaintiffs have examined various public witnesses to prove their case. PW3 Halka Patwari brough the Sijra Aks of the year 195253 which is showing that entire Lal Dora of the village is in Khasra No. 103. PW4 Kanoongo, Sadar Kanoongo Branch brought the Khasra Paimaish (Ex. PW1/4), Abadi Bakhal No. 44, 45 & 47, Village Dariyapur for the year, 1862 alongwith Sijra Aks (Ex. PW 1/5) of Abadi Area, Village Dariyapur. From translation of these documents, it appears that number shumar 43, 44 & 47 in the Village Abadi Area were in the name of Sh. Ganga Bishan. Translated copy of Sijra Aks shows that the numbers 44, 46 & 49 etc. were in the Abadi Area. This witness also filed on record Sijra Nasav as Ex. PW 1/2 which shows that one Sh. Ganga Bishan was having two sons namely Sh. Dhan Singh and Sh. Dhanno Lal. Further, Sh. Dhanno Lal is having a son namely Sh. Sheo Chand. It is to be noted that name of the father of the plaintiffs is also Sh. Sheo Chand. From these government records, the plaintiffs have been able to prove that at some point of time the Abadi Deh i.e. Lal Dora of Village Dariyapur Kalan was having numbers like 44, 47, 48 etc. Thus, it appears that earlier the Abadi area was having different Khasra Numbers/ Bakhal Numbers, however later on the entire Abadi area of the village was given a single number i.e. Khasra No. 103.
40. It is vehemently argued on behalf of the defendants that Bakhal Suit No. 98665/16 21/26 No. 44, 45 & 47 are not in Abadi area of Village Dariyapur Kalan is not tenable in view of abovestated observations. Furthermore, it is an admitted position that houses of the plaintiffs are adjoining the suit land. It is also not disputed that their houses are in the Lal Dora/ Abadi Deh of Village Dariyapur Kalan. In these circumstances, whether the number of the Khasra of Abadi Deh is number 103, or whether in the past it had different Khasra/ Bakhal numbers is of no relevance as the fact is that the plaintiffs are residents of Lal Dora/ Village Abadi Deh, they have their houses in the Lal Dora/ Village Abadi Deh, Village Dariyapur Kalan.
41. It is to be noted that the defendants have admitted that Khasra No. 103 is in possession of different persons i.e. the villagers, further the site plan of the village/ Khasra No. 103 filed on record does not show which portion is in possession of which person in the village. Further, the common roads/ pathways, or common utility areas have also not been earmarked in the site plan. Thus, the defendant Gaon Sabha failed to prove where is the pathway, or common utility area in the village which vests in it. Similarly, though the plaintiffs have been able to prove that their ancestor Sh. Ganga Bishan was owning Shumar No. 43, 45 & 47 in the Abadi area of Village Dariyapur, however even they could not prove the exact dimensions and bounds of the area of Shumar/ Bakhal No. 43,45 & 47. Thus, the only decisive factor is the possession of the land by the person to protect his Suit No. 98665/16 22/26 rights.
42. In the present matter a Local Commissioner was appointed by the Court. In his report Ex. PW5/1 it is categorically stated by him that the plaintiffs are in possession of the suit property. He also stated that the bricks used in Kharanja in the suit property is of the same make as the bricks used for making the khor for the animals constructed by the plaintiffs which also proves their settled possession. Thus, the Local Commissioner report's indicated that the plaintiffs have laid down Kharanja in the suit property alongwith khor for their animals. It is also to be noted that proceedings of Local Commissioner was also attended by Sh. Kanwal Singh, the then Pradhan of the village on behalf of the defendants. It is again to be noted that this Sh. Kanwal Singh is the person against whom allegations have been made by the plaintiffs of trying to take forceful possession. Thus, from the report of the Local Commissioner it has been proved on record that the plaintiffs are in settled possession of the suit property. It is to be noted that the defendants could not examine any resident of Village Dariyapur Kalan to show, if the suit property was ever used as public pathway, or common utility area.
43. It is contended on behalf of the defendants that on 27.12.1986 the two months old illegal possession of the suit property was got Suit No. 98665/16 23/26 vacated from the plaintiffs and a Kharanja was laid down by MCD at that place. The only witness examined on behalf of defendants i.e. DW1 Sh. Sunil Kumar Verma, has stated that he has no knowledge about the present case. It is also stated by him that he joined the service only in the year, 1991 i.e. six years after the alleged incident. It is stated by him that he is deposing only on the basis of documents. The documents relied upon by him are the copy of DD Entry (Ex. DW1/1 (Colly) made at P.S. Bawana qua going to the Village Dariyapur for removing encroachment and last entry is regarding returning to the police station after removing the encroachment and lying down Kharanja. It is to be noted that document Ex. DW1/1 is the copy of the DD Entries, no one was called from the concerned police station to prove these DD Entries, thus the DD Entries are not proved as per law. Even otherwise these DD Entries are only saying that encroachment from the chowk in the middle of Village Dariyapur has been removed, it is not clarified if it were the plaintiffs who had encroached the chowk. It is also not clear if the DD Entries is talking about the chowk in front/ adjoining the houses of the plaintiffs. Thus, the documents of proceedings dated 27.12.1986 do not clarify if the same are in respect of the suit property, or some other property.
44. Copy of a site plan filed in some other case against one of the plaintiff namely Sh. Mange Ram has been filed on record by the Suit No. 98665/16 24/26 defendants to show that land in front of the house of Sh. Mange Ram is common utility area, however certified copy of this document has not been filed on record. It is also not clear which party filed this site plan in earlier suit. It is also not clear what was the fate of that suit. Thus, this document cannot be read, or relied upon.
45. In view of the abovestated discussions, it is hereby held that the plaintiffs are in settled possession of the suit property. The defendant Gaon Sabha has failed to prove that they are the owners of the suit property. The Gaon Sabha could not prove any malafide on the part of the plaintiffs. It is also to be noted that the defendant Gaon Sabha has not taken any action till date to recover the possession of the suit property from the plaintiffs.
46. It is settled proposition of law that a person who is in settled possession of certain land/ property cannot be dispossessed from there, except without following due process of law. No one can be permitted to take the law in his own hands and to throw out a person from the possession of a particular land/ property, even though the occupant has no right to retain the possession. The possession can be recovered in a lawful manner, reliance being placed upon the landmark judgment of the Full Bench of Hon'ble Supreme Court of India titled as Rame Gowda (D) by LRs Vs. M. Varadappa Naidu (D) by LRs & Anr., Suit No. 98665/16 25/26 decided on 15.12.2003.
47. In view of the abovestated discussions, these issues are decided in favour of the plaintiffs and against the defendants.
ISSUE NO. 4 (dated 17.10.2013) Relief.
48. In view of the findings recorded on issues no.1 & 3 (dated 17.10.2013), the relief that the defendants be restrained from interfering in the peaceful possession of the plaintiffs in respect of land shown in red in the site plan which is situated within the revenue estate of Village Daryapur Kalan, Delhi, except without following due process of law is granted. Thus, the suit of the plaintiff is decreed. Parties to bear their own costs. Decreesheet be drawn accordingly.
File be consigned to Record Room.
Digitally signed by GAJENDER GAJENDER SINGH
SINGH NAGAR
Date: 2018.09.26
NAGAR 17:26:54 +0530
Announced in the open court (GAJENDER SINGH NAGAR)
on 26.09.2018 Administrative Civil Judgecum
Additional Rent Controller (Central)
Delhi/26.09.2018
(This judgment contains 26 pages in total)
Suit No. 98665/16 26/26
CS98665/16
26.09.2018
Present : None.
Vide separate judgment of even date, the suit of the plaintiff is decreed. The defendants be restrained from interfering in the peaceful possession of the plaintiffs in respect of land shown in red in the site plan which is situated within the revenue estate of Village Daryapur Kalan, Delhi, except without following due process of law.
Parties to bear their own costs. Decreesheet be drawn accordingly.
File be consigned to Record Room.
(Gajender Singh Nagar) ACJ/ARC (Central) Delhi/26.09.2018 Suit No. 98665/16 27/26