Delhi District Court
Dr. Dhani Ram Sankhwar vs The Executive Engineer on 17 January, 2011
IN THE COURT OF SURESH KUMAR GUPTA,
ADDITIONAL DISTRICT JUDGE 03 (EAST),
KARKARDOOMA COURT, DELHI
RCA No.35/2010
ID No. : 02402C0284652010
IN THE MATTER OF :
Dr. Dhani Ram Sankhwar,
S/o Late Sh. Jeetu Sankhwar,
R/o A29, Kondli, Delhi110096
At Present :
D134, Kondli, Delhi110096 ..................Appellant / Plaintiff
Versus
1. The Executive Engineer,
Head Works Division,
Agra Canal, Okhla,
New Delhi25
2. The Assistant Engineer,
Head Works Division,
Agra Canal, Okhla,
New Delhi
3. The Secretary,
Irrigation Department,
Govt. of Uttar Pradesh,
Through its Executive Engineer
Head Works Division,
Agra Canal, Okhla,
New Delhi25 ........Respondents / Defendants
Date of institution : 04.10.2010
Date of arguments heard : 12.01.2011
Date of judgment : 17.01.2011
RCA No.35/2010 Page 1 of 8
J U D G M E N T
1. The present appeal arises from the impugned judgment and decree dated 08.09.10 passed by Learned Trial Court vide which suit of the appellant was dismissed.
2. The notice of the appeal was given to the respondent.
3. The facts of the case are like this. The plaintiff (herein appellant) has filed a suit for permanent and mandatory injunction with the averments that he belongs to Jatav Community which is recognized as a Scheduled Caste. On 21.10.97 defendant No.1 alloted a piece of land measuring 1 bigha 7 biswas (027 acres) bearing khasra No.153, Village Gharoli, Delhi (hereinafter referred to as suit property) to him and possession was delivered on 22.10.97. He has been paying revenue charges @ Rs.2500/ per year. The suit property was alloted for nursery and agricultural purposes for a period of five years from the date of allotment. He has developed the suit property by incurring expenses of more than Rs.2 lacs. There is a nursery over the suit property, the cost of which is around Rs.1.50 lacs. He has planted number of trees over the suit property. He has kept a guard to take care of suit property. The defendant No.1 without any reason and permission of State Govt. issued a notice / letter dated 02.02.03 to him with the direction to hand over the vacant possession of suit property as period of Patta stands expired. Defendant No.1 also directed defendant No.2 to take steps for possession of suit property. He has contested two civil suits titled as Amir Khan and anothers v. Sankhawar and others and Abdul Latif Ansari and others v. Dr. RCA No.35/2010 Page 2 of 8 Shekhawatji in the year 1999 in order to protect the suit property and incurred an expenses of Rs.30000/. A civil suit bearing No.25/02 titled as Dr. Dhani Ram v. Delhi Vidyut Board was also contested with respect to the suit property. He has been protecting the suit property even through litigation with others. He is ready to deposit 25% excess revenue charges to the defendants. He cannot be compelled to hand over the possession of the suit property. Hence, this suit.
4. The defendants (herein respondents) contested and resisted the suit by filing the joint written statement wherein preliminary objections qua cause of action, locus standi and suit is barred U/s 77 of Punjab Tenancy Act are raised. On merits, it is averred that lease of the suit property expired on 20.10.02 and thereafter the possession of plaintiff is illegal. The suit property is situated in front of Sankhawar Hospital, Kondli, Delhi which was used for plantation, flowers etc. to clean the area. The plaintiff has constructed illegal huts over the suit property. The suit property is a Govt. land and same is used for maintaining the canal as a project has been finalized to construct a canal of Hindon River which will cross through the suit property. The defendants are not interested in giving the suit property to the plaintiff or to any other person. The plaintiff is liable to hand over the possession of the suit property.
5. The plaintiff filed the replication wherein averments of the written statement were controverted and stand taken in the plaint was reiterated.
6. From the pleadings of the parties following issues were framed for trial on 29.03.05 by Learned Trial Court which are like this : RCA No.35/2010 Page 3 of 8
1. Whether the suit of the plaintiff is liable to be dismissed in view of preliminary objection No.4 of W.S. ? OPD
2. Whether plaintiff is entitled for relief of mandatory injunction as he prayed for ? OPP
3. Whether plaintiff is entitled for relief of permanent injunction as he prayed for ? OPP
4. Relief.
7. The plaintiff has examined two witnesses including himself as PW1 whereas defendants have examined one witness. Learned Trial Court after perusing oral as well as documentary evidence and hearing learned counsel for the parties dismissed the suit of the plaintiff.
8. I have heard Learned counsel for the parties and perused the entire record of the case.
9. Learned counsel for the appellant submitted that suit is maintainable and is not barred by section 77 of Punjab Tenancy Act (hereinafter referred to as an Act). Learned counsel for the respondents, on the other hand, urged to the contrary. Heard and perused the record. Section 1(2) of the Act says that "this Act extends to that part of Union Territory of Delhi which is described in schedule A to the Delhi Laws Act, 1912". Section 2 of Delhi Laws Act, 1915 says that "territory specified in schedule A to the Delhi Laws Act, 1912 and notification made therein shall be deemed to be enforced in the territory specified by schedule 1 of this Act in the same manner and name of village Gharoli falls in schedule 1 and therefore section 77 of the Act is applicable to the village Gharoli". RCA No.35/2010 Page 4 of 8 The suit property is situated in village Gharoli so section 77 of the Act is applicable to the suit property. Section 77(3) of the Act says that "following suits shall be instituted in and hut and determined by revenue courts and no other courts shall take cognizance of any dispute or matter with respect to viz. any suit might have been instituted". There are three groups shown in section 77 of the Act. The type of suit as reflected in category F of second group deals with the suits by a tenant U/s 45 of the Act to contest liability to ejectment when notice of ejectment has been served. Section 42 of the Act says that "a tenant shall not be ejected otherwise than in execution of decree for ejectment, except in the following cases : a) when a decree for an arrear of rent in respect of his tenancy has been passed against him and remains unsatisfied. b) when the tenant has not a right of occupancy and doesn't hold for a fixed term under a contract or a decree or order of competent authority. Section 43 of the Act says that the landlord may apply to the Revenue Officer for the ejectment of a tenant in the cases mentioned in the clause 'a' of section 42 of the Act or for the service of tenant of a notice of ejectment under clause 'b' of section 42 of the Act. Section 45 of the Act says that "on receiving the applications of the landlord in any sch case as mentioned in clause 'b' of section 42 of the Act, the Revenue Officer shall, if the application is in order and not opened to objection on the face of it, cause a notice of ejectment to be served on the tenant". Clause 3 says that "notice shall specify the name of landlord and describe the land to which it relates and shall inform the tenant that he must vacate the land before the first day of RCA No.35/2010 Page 5 of 8 May next following, or that, if intends to contest his liabilities to ejectment, he must institute a suit for that purpose in revenue courts for the service of notice from two months".
10. The objection taken by the respondents have to be seen in the backdrop of provisions of the Act. The respondent No.1 has issued a notice Ex.PW1/J dated 02.02.03 to the appellant to vacate the suit property. There is nothing on the record that respondents had moved an application before the Revenue Officer and any notice for ejectment was served upon the appellant by the Revenue Officer. It is the notice issued by Revenue Officer which specifies that if tenant wants to contest the liability for ejectment then he can file a suit for ejectment in the revenue court. Admittedly, no notice of such kind has been issued by the Revenue Officer on the application of the respondents. The provisions of section 77 would have been applicable in case respondents have complied with the provisions of section 43 & 45 of the Act. There is no such compliance on the part of respondents as such the objections raised by the respondents doesn't hold water. The suit filed by the appellant is maintainable.
11. It is the case of the appellant that suit property was alloted to him for a period of five years on 21.10.97 by respondent No.1 for the purpose of cultivation and agricultural purposes. It is admitted by the appellant, while appearing as PW1, that period of the five years stand expired on 21.10.02. No extension was granted to him after 21.10.02. He started depositing yearly rent after 21.10.02 when respondents refused to accept the same. The rent was deposited without any permission from the RCA No.35/2010 Page 6 of 8 respondents. He has been occupying the suit property despite the request from the respondents to vacate the suit property. It is correct that he doesn't have any right in the suit property after 21.10.02 but he cannot leave the suit property as he has planted popular trees. No support could be drawn from the testimony of PW2 Ashan Ram as he has categorically stated in the cross examination that he has not filed any affidavit in the court and he doesn't know anything about the case property.
12. It is clear from the case of the appellant that suit property was alloted on Patta for a period of five years on 21.10.97 by respondent No.1. There was no extension of Patta after the lapse of five years. The respondents have not demanded any rent from the appellant after the expiry of the period. The appellant has been depositing the rent of his own. He has also admitted that he has no right in the suit property. The suit property belongs to the State Govt. The respondents have given a notice Ex.PW1/J to the appellant to vacate the suit property. The respondents are within their right to issue such a notice after the expiry of the period of five years.
13. The appellant cannot hold the land for the reason that he has planted number of popular trees and even raised a nursery in the suit property. He has used the suit property for number of years. Mere planting of trees or raising a nursery is no ground to retain the possession of the suit property after the expiry of the period of five years.
14. The appellant cannot retain the possession of the suit property merely on the reason that he has protected it from the encroacher and even RCA No.35/2010 Page 7 of 8 contested the suit filed against him by other persons. He has used the land for number of years. He was supposed to protect his possession in the suit property and for which he has contested the suit in the year 1999 and to my mind that by itself is no ground to allow the appellant to continue with possession of the suit property.
15. The appellant has also raised a plea that he belongs to a Scheduled Caste community and the Patta has to be renewed after the expiry of the period meant for Patta. The appellant has not placed on record any such guidelines issued by State Govt. and in the absence of such guidelines on record, the plea doesn't hold water.
16. Learned Trial Court has properly appreciated the facts as well as documents on record. This court doesn't find any infirmity in the judgment and decree dated 08.09.10 passed by Learned Trial Court and accordingly the appeal filed by the appellant is dismissed with no order as to the cost. Decree sheet be prepared. TCR alongwith copy of this judgment be sent back. File of this court on completion be consigned to record room.
Announced in the open Court on 17.01.2011 (Suresh Kumar Gupta) Additional District Judge03 (East), Karkardooma Court, Delhi / 17.01.2011 RCA No.35/2010 Page 8 of 8