Delhi High Court
Kuldeep Singh Hooda vs Shri Narender Mehlawat And Others on 25 October, 2010
Author: S.Ravindra Bhat
Bench: S. Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 25.10.2010
+ CS(OS) 1797/2008, I.A. Nos. 10425/2008, 11730/2008
KULDEEP SINGH HOODA ..... Plaintiff
Through : Sh. N.S. Vasisht and Sh. Daleep Kumar Dhyani,
Advocates.
versus
SHRI NARENDER MEHLAWAT AND OTHERS ..... Defendants
Through : Sh. Arun Birbal, Advocate, for Defendant No.6.
Sh. Gautam Gupta, Advocate.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
1. Whether the Reporters of local papers Yes.
may be allowed to see the judgment?
2. To be referred to Reporter or not? Yes.
3. Whether the judgment should be Yes.
reported in the Digest?
MR. JUSTICE S.RAVINDRA BHAT, J
%
1. The plaintiff claims a decree of permanent injunction, restraining the defendants
from interfering with possession and enjoyment of property, being Old Khasra No.
2668/1120, New Khasra No. 356, measuring 5 bigha 5 biswa in Village Mehrauli, Tehsil
Hauz Khas, Delhi (hereafter called "the suit property").
2. The plaintiff's application for ad interim injunction was heard. The Court had by
order dated 15.10.2009 directed the parties to maintain status quo. The defendants had
sought leave to file written statement, which was not done within the prescribed time.
Initially, on 23.02.2010, the sixth defendant's (hereafter "GNCT") written statement was
directed to be stricken-off the record; however, that order was recalled on 07.07.2010 and
CS(OS) 1797/2008 Page 1
the written statement was permitted to be brought on the record. The defendants contend
that the suit is not maintainable.
3. The suit averments are that the plaintiff is in occupation of the suit property since
about 1991; he relies upon the revenue documents for the period 1991-98. It is submitted
that the plaintiff's name has been shown and described as "Gair Maroosi" (non occupant
cultivator) in the Khasra Girdawaris, which reflect the possession, in regard to specific
properties. "Gair Maroosi" is a term used for non-occupancy tenants. The suit describes a
previous litigation, CS (OS) 585/2009, which was initially filed before this Court but
later transferred to the District Court on account of enhancement of pecuniary
jurisdiction. In that, the plaintiff had sought permanent injunction to restrain some of the
defendants in this case, as well as one Sh. Omar Mohammad, who, it is alleged, was the
beneficiary of an allotment order dated 06.01.1999 by the Assistant Settlement Officer,
NCT of Delhi. It is submitted that the said allottee had by two separate sale deeds dated
11.01.1999 sold the entire suit property to others.
4. The plaintiff has extracted in extenso the reliefs claimed in the suit, as well as the
order of the Court in a temporary injunction application; by that order dated 17.03.1999,
the parties were directed to maintain status quo. It is further stated that an appeal against
that order made to this Court, i.e. FAO 313/2006 was dismissed.
5. The plaintiffs submit that having regard to their continuous and unhindered
possession of the suit lands ever since 1994, they are entitled to continue in peaceful
possession. It is submitted that the first defendant operates a restaurant/eatery known as
Seven Food Court in Khasra No. 353 and the defendants are threatening to interfere with
the plaintiff's possession. It is alleged that the plaintiff lodged a criminal complaint,
being FIR No. 622 of 20.08.2007. The plaintiff's apprehension, it is alleged, turned out to
be justified because the defendants started doing acts, which amounted to encroachment
and trespass of the suit property on 22.08.2008 and 28.08.2008. In these circumstances,
the plaintiff claims injunctive relief.
CS(OS) 1797/2008 Page 2
6. In support of the suit, the plaintiff has filed documents, which are copies of the
Khasra Girdawari for the period 1991-98; a map of the suit land and the status report of
the suit property as on 31.07.2008; the copy of the order of this Court in the first appeal
dated 11.03.2008 as between plaintiff and Sh. Omar Mohammad; other documents such
as Ration Card, Electricity Bills and photographs etc.
7. There are eight Khasra Girdawaris placed on the record; they are not certified
copies. All of them record the Central Government as owner of the land. The Khasra
Girdawari for the Rabi crop for the period 03.11.1991 to 13.03.1992 mentions Makbooja
Malik. The subsequent revenue documents in column 3 of Form-II of the Khasra
Girdawaris discloses the plaintiff's name as having cultivated the area of 5 bigha 5 biswa,
of the suit property. These documents do not record when the plaintiff entered into
possession, nor the terms upon which he was handed-over the lands. Column 8 also does
not reflect in the Khasra Girdawaris - as for the period after 31.03.1993, the status as
regards possession and rent. The Khasra Girdawaris also state that the cultivation is that
of a non-occupant.
8. The first three defendants, in their written statement mention about a letter dated
04.03.1999, written by the Evacuee Property Cell, to the concerned revenue officer,
`requiring creation of Khasra Girdawari as it reflected unauthorized occupation. It is
submitted that the recording of the plaintiff's possession was unauthorized as he was
never given any license or permissive possession. The said defendants deny the suit
allegations and that the plaintiff is entitled to the reliefs.
9. The GNCT, through its Land and Building Department, submits that the suit is
not maintainable as the Custodian of the Evacuee Property is the true and lawful owner
and that the plaintiff had never been granted permission or license to enter upon the
property or carry-out cultivation, as is alleged in the suit. GNCT denies that the plaintiff
is a "Gair Maroosi" tenant; it alleges that the Khasra Girdawaris relied upon were
illegally recorded and that action was taken pursuant to a letter written to the concerned
SDM on 21.01.1999. The GNCT also contends that the suit allegations are incorrect and
contrary to the express provisions of the Punjab Tenancy Act. Reliance is placed upon
CS(OS) 1797/2008 Page 3
Section 5 of the Punjab Tenancy Act, 1887 (hereafter called "the Act"), to say that only
four classes of tenants have a right to remain on revenue lands and that the plaintiff does
not belong to any of those categories. In these circumstances, the plaintiff's claim to
occupancy is no better than that of a trespasser, who cannot seek an injunction restraining
the principal owner from taking appropriate steps.
10. The plaintiff, on the other hand, apart from reiterating the averments in the suit,
contends that the documents on record establish that he has been in continuous physical
possession and enjoyment of the suit property for the last 80 years. This, he says,
amounts to settled possession of the lands, which cannot be disturbed except in
accordance with law. It is submitted that the authorities can take steps to evict tenants
only under Sections 39 and 40, and no other. Having regard to these circumstances, the
defendants cannot, at this stage - after having suffered an adverse order in a similar suit,
though involving third parties, (but nevertheless to which they were parties), contend that
the plaintiff cannot maintain the suit and seek its restoration at this stage. It is submitted
that if at all the defendants wish to take back possession, they should either take recourse
to law, which implies some semblance of fair procedure, or file a suit. Having done
neither, it is not open to them to resist the present suit and seek its dismissal on the
allegation that the plaintiff is a trespasser.
11. Before considering the rival contentions, it would be essential to extract the
relevant provisions of the Act. They are as follows:
"XXXXXX XXXXXX XXXXXX
5. Tenants having right of occupancy - (1) A tenant-
(a) (a) who at the commencement of this Act has for more than two
generations in the male line of descent through a grandfather or grand-uncle
and for a period of not less than twenty years, been occupying land paying no
rent therefore beyond the amount of the land-revenue thereof and the rates and
cesses for the time being chargeable thereon; or
(b) (b) who having owned land, and having ceased to be landowner thereof
otherwise than by forfeiture to the Government or than by any voluntary act,
has since ceased to be land-owner continuously occupied the land; or
CS(OS) 1797/2008 Page 4
(c) (c) who in a village or estate in which he settled along with or was
settled by the founder thereof as a cultivator therein, occupied land on the
twenty-first day of October, 1868, and has continuously occupied the land since
that date; or
1
Omitted by the India (Adaptation of Existing Indian Laws) order, 1947,
section 4 (1). Provisions about Mrqarridars had been added by Punjab Alt 11 of
1925.
(d) (d) who being jagirdar of the estate or any part of the estate in which
the land occupied by him is situate, has continuously occupied the land for not
less than twenty years, or, having been such jagirdar, occupied the land while
he was jagirdar and has continuously occupied it for not less than twenty years,
has a right of occupancy in the land so occupied unless, in the case of a tenant
belonging to the class specified in the clause (c), the landlord proves that the
tenant was settled on land previously cleared and brought under cultivation by,
or at the expense of, the founder.
(2) If a tenant proves that he has continuously occupied land for thirty years
and paid no rent therefore beyond the amount of the land-revenue thereof and
the rates and cesses for the time being chargeable thereon, it may be presumed
that he had fulfilled the conditions of clause (a) of sub-section (1).
(3) The words in that clause denoting natural relationship denote also
relationship by adoption, including therein the customary appointment of an
heir and relationship, by the usage of a religious community.
XXXXXX XXXXXX XXXXXX
10. Right of occupancy not to be acquired by joint owner in land held in joint
ownership - In the absence of a custom to the contrary, no one of several joint
owners of land shall acquire a right of occupancy under this Chapter in land
jointly owned by them.
XXXXXX XXXXXX XXXXXX
39. Grounds of ejectment of occupancy tenant - (1) A tenant having a right of
occupancy shall be liable to be ejected from his tenancy on any of the following
grounds, namely :-
(a) (a) that he has used the land comprised in the tenancy in a manner
which renders it unfit for the purposes for which he held it;
(b) (b) where rent is payable in kind, that he has without sufficient cause
failed to cultivate that land in the manner or to the extent customary in the
locality in which the land is situate;
CS(OS) 1797/2008 Page 5
XXXXXX XXXXXX XXXXXX
40. Grounds of ejectment of tenant for a fixed term-A tenant not having a
right of occupancy by holding for a fixed term under a contract or a decree or
order of competent authority, shall be liable to be ejected from his tenancy at
the expiration of that term, and, on any of the following grounds, before the
expiration thereof, namely :-
(a) (a) that he has used the land comprised in the tenancy in a manner
which renders it unfit for the purposes for which he held it ;
(b) (b) where rent is payable in kind, that he has without sufficient cause
failed to cultivate that land in the manner or to the extent customary in the
locality in which the land is situate;
(c) (c) on any ground which would justify ejectment under the contract,
decree or order.
XXXXXX XXXXXX XXXXXX
41. Ejectment of tenant from year to year -A tenant who has not a right of
occupancy and does not hold for a fixed term under a contract or a decree or
order of competent authority, may be ejected at the end of any agricultural year.
XXXXXX XXXXXX XXXXXX"
12. What can be discerned from the above discussion is that the plaintiff, claiming to
be a gair maroosi, (non-occupant cultivator) of the suit property, alleges threat to his
possession of the suit lands; they are agricultural in nature. The documents on record
concededly show that the GNCT is shown as the owner of the lands; till 1993, the Khasra
Girdawaris reveal that the GNCT was in occupation. Thereafter, no doubt, the Girdawaris
record the plaintiff's cultivation, as a non-occupant. However, those documents nowhere
reveal how the plaintiff secured possession. They do not say what were the terms under
which the tenancy, or occupancy, or right to cultivate, was given to, or granted to him.
13. In order for anyone to successfully urge existence of lawful possession as tenant,
to enjoin another from disturbing it, he has to establish that the possession or occupation
began or originated lawfully. In the case of tenancies, particularly agricultural tenancies,
the occupier has to establish when and what terms were agreed, with the owner. This was
held in Hanmanta Daulappa Nimbal Since Deceased By His Heirs And Lrs v. Babasaheb
Dajisaheb Londhe, (1995) 6 SCC 58, in the following words:
CS(OS) 1797/2008 Page 6
"The appellant could have got lawful possession over the lands, if there would
have been an agreement with the landlord, and pursuant thereto the landlord
inducted the tenant in possession for beneficial enjoyment of the demised land on
payment of premium or rent etc. or there would have been acquiescence of the
landlord, for the tenant continuing to possess by accepting the rent. Since the
claim of the appellant that he came into possession in the year 1968-69 under
oral lease was not conclusively accepted and there is no proof that the landlord
had accepted any rent, the appellant is a trespasser on the land. The suit was filed
for injunction against the appellant. The burden is on the appellant to establish
his lawful possession. Except the oral tenancy, no other evidence was brought on
record. Entries in the revenue records cannot establish lawful possession, when,
admittedly, no notice was given to the respondent before making those entries.
The other circumstance is payment of land revenue to the Government through Talathi (village servant). For the payment thereof also, there is no notice or acquiescence by the landlord.
7. If these two circumstances are excluded, then the only fact is on the land, but the possession cannot be said to be lawful possession. In other words, his possession is of a trespasser, which is not protected by the Act."
14. If the above considerations are kept in mind, the plaintiff never showed that he entered into possession of the suit lands, lawfully. The Khasra Girdawaris no doubt show that he was cultivating the lands, from time to time. However, there is no document showing whether the plaintiff paid rents to the owner, i.e. GNCT. In these circumstances, the Court holds that the plaintiff's possession cannot be called lawful.
15. There is another aspect, which is relevant, and cannot be ignored. It is that an occupier of immovable property cannot, in the absence of proof of having got possession of the property, seek injunction against the true and lawful owner, to restrain his dispossession.
16. In view of the above discussion, this Court holds that the suit has to be dismissed, for the plaintiff's failure to produce any document to establish that he is in lawful occupation of the land in question. The suit is, therefore, dismissed, with costs. Accordingly all the pending applications are dismissed.
S. RAVINDRA BHAT
(JUDGE)
OCTOBER 25, 2010
'ajk'
CS(OS) 1797/2008 Page 7
CS(OS) 1797/2008 Page 8