Delhi District Court
I Propose To Adjudicate Upon vs Jai Parkash & Ors. 44 (1991) Dlt 198 on 6 April, 2015
IN THE COURT OF SH. SHAILENDER MALIK
SCJCUMRC (N/W) : ROHINI COURTS : DELHI
Suit No. 471/13
Sh. Hem Chander
Sh. Krishan
Both sons of Late Sh. Bhim Singh
R/o Village Kanjhawala,
New Delhi
Vs
Sh. Rajender Singh
S/.o Sh. Jai Narain
R/o Village Kanjhawala
Delhi
Gram Sabha, Kanjhawala
Through B.D.O.
Alipur, Delhi
Date of institution: ....... 04.10.2013
Date of reserving order: ....... 06.04.2015
Date of announcing order: ....... 06.04.2015
JUDGMENT
1. I propose to adjudicate upon, following preliminary issue as to the maintainability of the present suit:
" Whether the suit is maintainable in the present form and is Page No. 1/8 barred by any provisions of any law."
2. Precisely, facts necessary for deciding above mentioned preliminary issue are that plaintiffs have filed the present suit regarding land comprised in khasra no. 115/05 (old), khasra no. 75/5(new) measuring 4 bhiga 16 biswa situated in revenue estate of village Kanjhawala, Delhi (hereinafter referred to as suit land) with the facts that plaintiffs belong to weaker section of society and plaintiffs were alloted the suit land as per the scheme of Delhi Land Reforms Act, by Gram Panchayat on 16.11.1971. It is stated that plaintiffs by dint of hard work made the barren land in to cultivable and made fit for agricultural purpose. It is stated that suit land has been in physical and cultivable possession of present plaintiffs. Though as per scheme of DLR Act, suit land was initially alloted to the plaintiffs for 5 years on lease and thereafter, as per the requirement of DLR Act, Gram Panchayat was required was required to file report before Revenue Assistant regarding reclamation of suit land and on the basis of said report of Gram Panchayat, only Revenue Assistant / SDM has power to cancel the lease or extend the same. Plaintiffs had filed the petition u/s 74 (4) of DLR Act seeking declaration of bhumidhari right in respect of suit land. The case of plaintiffs further is that since the petition u/s 74 (4) of DLR Act is pending, in the meantime consolidation, as per the provisions of "East Punjab"
(consolidation & Prevention of fragmentation), Act 1948 had started in the village Kanjhawala for better cultivation. Plaintiffs apprehension of change of center of land in his possession, had earlier filed the writ petition no.734270/2005 before Hon'ble High Court wherein order dated 25.10.2005 was passed giving directions to Revenue Assistant / SDM to complete the pending proceedings filed by plaintiffs within period of six months and till then plaintiff's possession would not be disturbed. It is stated that despite that order of Hon'ble High Court, Revenue Department, (consolidation Page No. 2/8 officer) did not pay any heed to the order of Hon'ble High Court and therefore, plaintiffs had again approached the Hon'ble High Court by filling contempt petition in which order dated 06.02.2008 was passed giving directions to Gram Panchayat/Revenue Officials not to dispossess the plaintiff till the decision of the plaintiff's petition filed u/s 74 (4) of DLR Act. It is stated that since the allotment of the suit land to plaintiffs have never been canceled nor any proceedings for ejectment was initiated by Gram Panchayat therefore, it is stated that substantive petition of plaintiff u/s 74 (4) of DLR Act is pending regarding declaratory right but defendant no.1 and 2 are allegedly threatening the plaintiff to dispossess from the suit land forcibly by claiming that they have been alloted above said suit land. Therefore, plaintiffs stated to have approached Financial Commissioner by filling the petition u/s 42 of Consolidation Act, challenging the allotment if any in favor of the defendant and said petition was admitted and respondent's were restrained not to dispossess the plaintiff from the suit property. It is stated that plaintiff is in settled possession of the suit land hence, the present suit was filed with the prayer for decree of permanent injunction to restrain defendant or their agent / associates etc from claiming title or interest on their behalf or form dispossessing the plaintiff forcibly from the suit land.
3. Defendant no.1 did not appear despite service of summons and thus was proceeded exparte on 09.01.2014. Defendant no. 2 (Gram Sabha) has filed the WS taking various objections inter alia that suit is false and frivolous and that plaintiff is seeking relief of injunction whereas they are neither in possession nor the owner of the same as land has already been alloted to Private Right Holders in year 1998. Suit is barred by u /s 44 of "East Punjab" (consolidation & fragmentation), Act 1948 which ousts the jurisdiction of Civil Court. Moreover, suit is barred by u/s 9 CPC and under Section 185 of Delhi Land Reforms Act because admittedly suit land is agricultural land is governed by provisions of DLR Act. Since plaintiff has Page No. 3/8 already filed petition before Revenue Assistant seeking declaration of bhumidhari right, Civil Court does not have jurisdiction to entertain the suit as plaintiff had efficacious remedy to seek relief before Revenue Assistant as such suit is barred u/s 41 (h) of Specific Relief Act. While denying the case of the plaintiffs on merits it is specifically denied that plaintiffs are in cultivatory possession of the suit land. It is stated that plaintiffs filed the false writ petition before Hon'ble High Court and on the basis of wrong assertion of fact that they are in possession of suit land, they obtained the orders whereas during the consolidation proceedings in year 1998 itself entire land of village Kanjhawala was put into the common pool and old khasras were abolished and new khasras were alloted. Thereafter, land was alloted a fresh to right holders as per their entitlement and as per scheme of consolidation.
4. This court considering the pleadings as come on the record and the objection taken on behalf of defendant, on 31.01.2015 framed the issue under consideration. I have heard ld. Counsel for the plaintiffs and has also gone through the written arguments filed on behalf of plaintiffs. I have also heard ld. Counsel for defendant no. 2 i.e. Gaon Sabha, Kanjhawala, Delhi.
5. It is submitted by the counsel for plaintiffs that present suit is for the relief of injunction as respondents had given the threats to dispossess the plaintiff from the suit land as such suit for such relief is maintainable in civil court and is not barred by provisions of Section 185 DLR Act, moreover, suit is also not barred by any of the provisions of "East Punjab Holding (Consolidation and Prevention of Fragmentation) Act". Section 44 of the said Act only provides that if any order is passed during consolidation by competent authority under the said Act, same is not challengeable before civil court. In the present case, suit land was allotted to the father of the plaintiff and plaintiffs are in possession as such by no provisions of either Page No. 4/8 DLR Act or East Punjab Act, the suit is barred. It is further argued that the land in question as originally allotted to the father of the plaintiffs was never canceled by Gram Panchayat as per the provisions of DLR Act and therefore, plaintiffs in terms of Section 74 (4) of DLR Act, is entitled to be declared "bhoomidar" and therefore, during the lifetime of the father of the plaintiff, a petition under the above said provision is filed which though was dismissed by revenue assistant, however, revision was filed before Financial Commissioner, and same is still pending. It is submitted that plaintiffs with others had filed a writ petition before Hon'ble High Court, wherein vide order dated 25.10.2005 directions were given to the RA to dispose off the petition and further directions were given that possession of the plaintiff shall not be disturbed.
6. On the other hand counsel for defendant no. 2 submits that the suit though may be for relief of injunction but is not maintainable firstly because the plaintiff has not relied upon even a single document to establish his possession of the suit land. It is argued that since plaintiff by his own admission as stated in the plaint that land was given to his father by the Gaon Sabha and in terms of provisions of Section 74(4) of DLR Act, Gram Panchayat has to file the report to Revenue Assistant for reclamation of land as lease was never extended. It is also argued on behalf of defendant no. 2 that since admittedly the land of village Kanjhawala has been under consolidation, therefore, the suit is otherwise barred because of the provisions of Section 44 of "East Punjab (Consolidation and Prevention of Fragmentation) Act, 1948".
7. Having heard the submissions and having gone through the written arguments filed on behalf of plaintiff, there is no denial to the legal proposition that civil suit can be dismissed at the initial stages only when such suit is not maintainable in law. Therefore, when the present issue under Page No. 5/8 consideration is being decided, facts of present case will be considered to see whether the suit is barred in any of the provisions of law or not. If the question is mixed question of law and fact and then obviously suit cannot be dismissed. There is distinction between maintainability and sustainability of the suit. Let us now examine the facts of the case keeping that proposition in mind. No doubt plaintiff has filed the present suit for injunction and relief of injunction no doubt can be given by Civil Court and in that sense suit cannot be held to be barred by the provisions of Section 185 of DLR Act. However, at the same time, the facts of the case must be understood in totality and not merely because the plaintiff is seeking relief of injunction. If we carefully read the facts as stated in the plaint as a whole, it would be clear that plaintiff appears to be claiming right in respect of land comprised in survey no. 115/5 (old) and/ survey no. 75/5(new) measuring 4 bhiga 16 biswa of Village Kanjhawala on the ground that said land was given to his father as per the scheme of DLR Act by Gram Panchayat of Village Kanjhawala. Admittedly, said land was allotted temporarily to the father of the plaintiff. Though, the case of the plaintiff however is that lease of said land was never canceled and Gram Panchayat never filed any report to Revenue Assistant regarding reclamation of the said land. However, in the para 5 of plaint itself, plaintiff has stated that he has already filed the petition under Section 74(4) of DLR Act seeking bhoomidari rights in respect of land in question. Now, when plaintiff is seeking the relief of injunction in the present civil suit on one hand and on the other hand plaintiff is seeking bhoomidari rights before the Revenue Assistant, it is to be seen whether plaintiff has possession of the suit land. There is no document on the record to show that plaintiff is in the possession of the suit land. No doubt ld. Counsel for plaintiff has tried to take benefit of directions given by the Hon'ble High Court in order dated 25.10.2005 in writ petition no. 734270/2005. This, order of Hon'ble High Court passed in year 2005, does not establish the factum of possession of the plaintiff in the suit land when the present suit has been filed in year 2013 Page No. 6/8 because in between the suit land has already been allotted to defendant no. 1 by the order of Consolidation Officer passed as per Section 21 of Consolidation Act which was also challenged by the plaintiff before Financial Commissioner. Thus, these facts clearly establish the plaintiff on one hand is availing all the legal remedies available before revenue authorities and simultaneously trying his luck to get any relief in civil court by filing a suit with the relief of injunction. Thus, evidently when plaintiff has already filed the petition under Section 74(4) of DLR Act, seeking the bhoomidari right. In such situation I find that suit is not maintainable , even according Section 185 of DLR Act because plaintiff is essentially and indirectly trying to seek the relief regarding declaration of bhoomidari right under the garb of a suit for injunction. When there being no evidence of plaintiff being in possession of suit land and there being revenue record showing defendant no. 1 and 2 being in possession,
8. It is admitted proposition of fact that land of the village Kanjhawala was subjected to consolidation and admittedly consolidation officer as per the provisions of East Punjab (Consolidation and Prevention of Fragmentation) Act, 1948, partitioned the whole land and land in question was allotted to defendants in 1998. Plaintiff has not placed on record any document of being in possession. In such situation when on one hand regarding consolidation proceedings matter is pending before Financial Commissioner and regarding the bhoomidari right matter is pending before Revenue Assistant, in such situation I find that the present suit is not maintainable in Civil Court only with oral claim of being in possession. Section 44 of East Punjab (Consolidation and Prevention of Fragmentation) Act, 1948 reads as under:
"No Civil Court shall entertain any suit instituted or application made, to obtain a decision or order in respect of any matter which the [State] Government or any officer is, by Page No. 7/8 this Act, empowered to determine, decide or dispose of."
9. Thus, from the reading of the provisions of Section 44 of above mentioned Act it is clear that Civil Court has no jurisdiction to entertain the suit in respect of decision or order in respect of matter of consolidation proceedings. Admittedly, in the present case suit land has already been allotted to defendant no. 1, in such situation when the order passed by Consolidation Officer, has already been challenged before Financial Commissioner, I find that present suit is also barred by the provisions of Section 44 of East Punjab (Consolidation and Prevention of Fragmentation) Act, 1948. Reliance in this regard can be placed to judgment of Delhi High Court in Amar Singh & anr Vs Jai Parkash & ors. 44 (1991) DLT 198.
10. Thus, for the reasons discussed above, issue under consideration is decided against plaintiff I find the suit to be not maintainable. Hence, dismissed. File be consigned to record room.
Announced in open court on 6th April 2015 SHAILENDER MALIK (SCJRC, ROHINI COURTS, DELHI) Page No. 8/8