Delhi District Court
Sh. Ramoo S/O Sh. Fakira vs Gaon Sabha Village Paprawat on 23 May, 2011
IN THE COURT OF SH. AJAY GOEL: SCJ CUM RC(CENTRAL):DELHI
S.NO. 308/08/93
Sh. Ramoo s/o Sh. Fakira,
r/o village paprawat, Delhi.
................ Plaintiff
VERSUS
Gaon Sabha Village Paprawat,
through Director of Panchayat
Tis Hazari Courts, Delhi.
........... Defendant
Date of filing:- 5.8.93
Date of assignment to this court:- 12.1.09
Date of arguments:-20.5.11
Date of decision:-23.5.11
JUDGMENT
1. Vide this judgment I shall dispose off the instant suit filed by the plaintiff against the defendant. It was stated that the plaintiff is a kumhar by birth and is resident of village Paprawat, Delhi since his birth rather from the time of his fore fathers. Plaintiff as stated was earlier having his house and 'Awa'(furnace to process utensils of mud/earth) in the centre of village Paprawat and since process of making earth utensils generated heavy smoke it caused inconvenience to the residents of the village and on decision of gaon sabha plaintiff was given a piece of land measuring 500 sq. yards outside old lal dora/phirni of the village and plaintiff accordingly shifted to the said place. It was stated that since last 25 years he alongwith his family is residing there and processing the earth-utencils. The present plot as stated was given Khasra no. 10/6/1 during consolidation conducted in the village, new phirni was made and the house of the plaintiff remained slightly outside the new phirni touching the new phirni(circular road). As stated S.No. 308/08/93 Page:-1/5 defendant has very recently took the demarcation of the said khasra and found that the house of the plaintiff is standing on the land of the Gaon Sabha bearing khasra no. 10/6/1 of village Paprawat and defendant thus threatened to demolish the house in the suit treating the same as an encroachment on the land of the Gaon Sabha. As stated plaintiff explained the true facts to them but the staff of the Director Panchayat was not ready to listen. Even number of villagers tried to persuade the defendant but to no avail. It was stated that defendant cannot take law into its own hand and cannot demolish the house of the plaintiff and dispossess him therefrom by use of force and without adopting the due process of law. As stated that defendant is adamant in its illegal designs and they are still threatening to put their threats into action. Accordingly it was prayed that decree of permanent injunction be passed in favour of the plaintiff against the defendant restraining the defendant and its employees and all others acting on its behalf from demolishing the house situated in village Paprawat, Delhi and from dispossessing the plaintiff therefrom without adopting due process of law.
2. Written Statement on behalf of the defendant was filed in which preliminary objections were raised stating that the suit is barred u/s 80 of CPC, u/s 99 of DPR Act 1954, is bad for non joinder of necessary parties and this court has no jurisdiction to try the matter. On merits it was denied that the present plot was given khasra no. 10/6/1 during the consolidation conducted in the village or that the Gaon Sabha gave a piece of land measuring 500 sq. yards outside the old Lal dora/phirni of the village. It was stated that Gaon Sabha never gave any plot tot he plaintiff and the encroachment over the Gaon Sabha land in question is recent and defendant has right to remove the encroachment, if any. Rest of the contents were denied and it was prayed that the instant suit be dismissed.
3. Replication was filed in which contents of the plaint were reiterated and those of the written statement were denied.
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4. Following preliminary issue was framed vide order dated 31.8.94"-
1) Whether this court has got the jurisdiction to try the suit in view of the objections taken by the defendants in their WS or not?
2) Relief.
5. Vide order dated 22.11.94 the said preliminary issue was decided and suit was dismissed by my Ld. Predecessor. However the plaintiff preferred appeal against the order and said order was set aside and matter was remanded back by the appellate court vide order dated 7.1.00.
6. On the pleadings of the parties following issues were framed:-
1) Whether the suit is bad for non joiner of necessary parties?
2) Whether the suit is maintainable for want of notice u/s80 CPC/ u/s 99 Delhi Panchayat Raj Act?OPP
3) Whether the plaintiff has any right, title or interest in the suit property?OPP
4) Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for?
5) Relief.
7. Plaintiff did not lead any witness in support of his case and PE was closed vide order dated 21.1.03 whereas Defendant in support of its case examined DW-1 Hem Raj Jat.
8. I have heard Ld. Cl. for both the parties as well as perused the record. My issuewise findings are as follows:-
9. Issue no. 1:- It is not disclosed by the defendant as to how the suit is bad for non joinder of necessary parties. Relief of injunction has been claimed against the Gaon Sabha who is defendant before me and Union of India is not at all necessary party, hence the present plea of defendant is not sustainable and is hereby rejected. This issue is accordingly decided in favour of the plaintiff and against the defendant.
10. Issue no. 2:- Admittedly no notice has been given in the present case u/s 80 CPC, S.No. 308/08/93 Page:-3/5 hence it is contended by the defendant that the suit is not maintainable. Union of India is not party in the present case and there was no requirement of notice u/s 80 CPC to be served on Gaon Sabha which is a separate legal entity. Moreover the suit is for injunction. The present suit was dismissed by Ld. Trial Court earlier but the said judgment was set aside and it was held that neither notice u/s 99 of Panchayat Raj Act is necessary nor notice u/s 80 CPC was required and these findings are resjudicata between the parties, moreover the plea of Section 99 of Panchayat Raj Act has not been pressed in the court because it has been stated that suit is for permanent injunction and for the same this Section is not applicable. Even otherwise Section 99 of Panchayat Raj Act is not applicable since as per the Section 99 no suit or legal proceedings shall be instituted against Gaon Sabha or Gram Panchayat or against a member, panch or servant under it for anything done or purporting to have been done in any official capacity under this Act. Hence both these issues are decided in favour of the plaintiff and against the defendant.
11. Issue no. 3 and 4:- In the present case the plaintiff has claimed his rights on the basis of possession of khasra no. 10/6/1 and wants protection on the ground that he should not be evicted except following due course of law. Ex. DW-1/2 shows that the land in question is in the name of Gaon sabha. Khasra Girdawari is for the year 2002-2003 and Ex. DW-1/1 is khatoni for the year 1980-81 in which name of the Gaon Sabha defendant is shown and it is written as Kabile Khast Banjar. The plaintiff has stated that in 1998-99 Ex-DW-1/8 Makan Chardiwari is mentioned, hence he is entitled to the relief. This document cannot be read in favour of the plaintiff on two grounds. First of all, in the khatoni Ex. DW-1/1 name of bhomidar is not mentioned and there is no entry of such chardiwari in the last column and secondly mention of chardiwari does not mean that house belongs to plaintiff. Plaintiff himself has not come in the witness box nor any witness has been examined by him in support of his case and accordingly it is held that S.No. 308/08/93 Page:-4/5 plaintiff has miserably failed to prove his case and he has no right, title or interest in the suit land. These issues are accordingly decided in favour of the defendant and against the plaintiff.
12. Relief:- In view of the observations of issue no. 3 and 4 instant suit stand dismissed with cost. Decree sheet be prepared. File be consigned to record room.
Announced in open court (Ajay Goel)
on 23.5.11 SCJ cum RC(Central)/Delhi
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