Delhi District Court
Shri Jagdish vs Shri Pyare Lal on 30 July, 2022
IN THE COURT OF MS. TWINKLE WADHWA:
ADDITIONAL DISTRICT JUDGE CENTRAL-03: TIS
HAZARI COURTS: DELHI
RCA NO. 61734/16
CNR NO. DLCT01-000398-2010
In the matter of : -
1. Shri Jagdish
S/o. Late Shri Inder Raj Singh,
R/o. House No.211, Village Naharpur,
Delhi.
2. Shri Mahavir Singh
S/o. Shri Dali Chand
R/o. House No.100, Village Naharpur,
Delhi.
3. Shri Bhram Jit Singh
S/o. Late Shri Rishal Singh
R/o. House No.215, Village Naharpur,
Delhi.
4. Shri Shyam Vir
S/o. Shri Ram Kishan
R/o. House No.108, Village Naharpur,
Delhi ....Appellants
Versus
1. Shri Pyare Lal, since deceased through
His legal heirs
1.A) Shri Sunder Singh
S/o. Late Shri Pyare Lal
1.B) Shri Narender Singh
S/o. Late Shri Pyare Lal
Both R/o- 11, Village Naharpur,
Sector-7, Rohini, Delhi.
RCA DJ No. 61734/2016 Page no. 1 of 18
1-C) Ms. Usha
W/o. Shri Mahender Singh
D/o. Late Shri Pyare Lal
R/o. Village Jafarpur, Najafgarh,
New Delhi.
1-D) Smt. Kanta
W/o. Shri Hoshiar Singh
D/o. Late Shri Pyare Lal
R/o. Village Jafarpur, Najafgarh,
New Delhi.
1-E) Ms. Madhu
W/o. Shri Narender
D/o. Late Shri Pyare Lal
R/o. Sector-2, Rohini, Delhi.
1-F) Ms. Anita
W/o. Shri Rambir
D/o. Late Shri Pyare Lal
R/o. Village Qazipur, Najafgarh,
New Delhi.
1-G) Ms. Geeta
W/o. Shri Vinod
D/o. Late Shri Pyare Lal
R/o. Village Qazipur, Najafgarh,
New Delhi.
1-H) Ms. Manju
W/o. Shri Sri Nidhi
D/o. Late Shri Pyare Lal
R/o. Village Sulehra, Najafgarh,
New Delhi.
2. Shri Bhoop Singh, since deceased through
His legal heirs
2-A) Shri Devi Singh, now deceased
Through legal heirs:
RCA DJ No. 61734/2016 Page no. 2 of 18
(i) Shri Parvesh Yadav -son
(ii) Shri Avdesh Kumar Yadav -son
Both R/o. House No.112, Sector-7
Rohini, Delhi-110085.
2-B) Shri Jai Ram
S/o. Late Shri Bhoop Singh
R/o. House No.112, Naharpur,
Sector-7, Rohini, Delhi-110085
2-C) Shri Jagdish Yadav
S/o. Late Shri Bhoop Singh
R/o. 28, Pocket-II, Sector-5,
Rohini, Delhi-110085. ....Respondents
Date of institution of the appeal : 21.01.2010
Date on which order was reserved : 23.07.2022
Date of decision : 30.07.2022
Conclusion : Allowed
JUDGMENT
1. The present is an appeal filed against the judgment of Ld. Trial Court dated 29.10.2009 passed by Ld. Civil Judge, Tis Hazari Courts, Delhi in Suit No. 792/06 titled as "Sh. Jagdish vs. Sh. Pyare Lal & Anr.".
The Case of the Plaintiff
2. The case of the plaintiff before the Ld. Trial Court was that he is permanent resident of Village Naharpur, Delhi and has been residing in this Village since birth. Further he has been authorized by the residents of the Village vide Resolution dated 15.07.1990 to file the present suit as it involves the interests of RCA DJ No. 61734/2016 Page no. 3 of 18 several residents of Village Patti Ahiran.
3. It is the case of the plaintiff that a vacant land ad- measuring 150 sq. yards of khata No. 141, Chaupal Patti Ahiran, Village Naharpur is located adjacent to the houses of both the defendants. For clarification, Site Plan is on record. It is submitted that it belongs to Chaupal Patti and is a public property which has been illegally encroached upon by the defendants. This land was used to hold Panchayats in this Chaupal besides organizing Ram Leela, Dramas and beating drums/ festivals etc. Residents have a sentiment attached to this land. As per the Government Revenue Records, the area of this Chaupal used to be much more but due to encroachment being done on this land by the defendants, at present only 150 sq. yards is left.
4. It is the case of plaintiff that in the year 1981, Ld. SDM, Punjabi Bagh on the complaint being made, inspected the vacant land and ordered the defendants not to encroach upon this land. Thereafter, defendants restrained themselves but now it has come to the knowledge of residents that both the defendants are again encroaching upon this land. It is submitted that this land is public property of Khata No. 141 and is public property on which no one could be permitted to be encroached upon. In case, defendants are not restrained, residents will suffer irreparable loss and injury. Hence injunction is claimed against the defendants.
RCA DJ No. 61734/2016 Page no. 4 of 18 The Case of the Defendant no. 1
5. A written statement was filed before the Ld. Trial Court on behalf of the defendant no.1 thereby submitting that plaintiff has no locus to file the present suit. The suit property / land belongs to defendant no.1 and 2. Further no permission under Order I Rule 8 of CPC has been obtained by the plaintiff. Further Patti Ahiran is itself not a juristic person. It is submitted that there was a litigation between defendant no. 1 and 2 which lasted for nine years and said suit between the defendants was compromised on 23.05.1990. The plaintiff came to know that they have compromised the said suit amongst themselves hence he has filed the present suit in July 1990 itself.
6. It is further submitted that land in question was attached by SDM, Punjabi Bagh vide order dated 09.12.1981 in proceedings under Section 145/146 of CrPC as there was dispute qua this land between defendant no.1 and 2. The proceedings of the SDM were stayed as there was civil suit going on between the two defendants. As the said suit was compromised, plaintiff has filed the present suit. It is submitted that the said land is still lying attached in the proceedings under Section 145 CrPC. It is further submitted that land in question is situated in old lal dora of Village Naharpur and whole Village is one Khasra Number. The disputed portion of land never formed part of Khata Number 141, Khasra Number 117/2.
RCA DJ No. 61734/2016 Page no. 5 of 18 The Case of Defendant no. 2
7. Defendant no. 2 has reiterated the averments made by defendant no. 1. It is submitted by defendant no. 2 that there is no land of Patti Ahiran. Further there is no relevancy of the record of 1864 as the present land is covered by Delhi Land Reforms Act and Delhi Land Revenue Act. It is submitted that the said land belonged to defendants no.1 and 2 who are in possession of more than 50 years.
The Grounds of Appeal
8. It is submitted that it is not the case of plaintiff that they are in actual physical possession of the suit property. Further it is their case that this is a public property and should be used for public purposes. Hence they have locus.
9. It is submitted that vide attachment order dated 09.12.1981 by the then Ld. SDM-Punjabi Bagh, barbed wires were put around this property. It supports the case of appellant that this a public land. The purpose of putting barbed wires were to prevent defendants from unlawfully encroaching upon the same. The Ld. Trial Court has wrongly concluded that there is no proof of community use of this plot.
10. Further in the said suit pending between the respondents, it is admitted by the respondents themselves that there was Kachcha Chaupal at this land 150 years ago. Further, no evidence led by respondents that Chaupal collapsed 80 to 90 years ago.
RCA DJ No. 61734/2016 Page no. 6 of 18 Further Ld. Trial Court erred in observing that in the said suit pending between the respondents, why plaintiff has not intervened. It is submitted that the said was a suit between the respondents and the plaintiff had no locus therein. Further the said suit was compromised in a clandestine manner. Further, in view of SDM order, there was no need for plaintiff to file any revision in said suit. Further Ld. Trial Court erred in observing that no photographs or proof filed that Ram Leela was staged there. It is submitted that the suit was lying attached since 09.12.1981 by the order of SDM, hence there could have been no photographs of public function. Further photographs, if was taken before 1980, could not have been preserved for so long.
11. Further, the Ld. Trial Court failed in coming to the conclusion that appellant has not been able to establish identities of the suit land. The respondents have not denied the identity of the suit land. Their only averment is that it does not fall within particular Khata Number. The identification of the land itself is not disputed. Further PW-5 has established identity of a suit land. Further the Gaaon Sabha was not a necessary party in the present suit at all. Further the Ld. Trial Court erred in observing that the land is a Government land. Ld. Trial Court has completely failed to apply its mind while appreciating the facts.
The Reasons For Decision
12. I have heard both the Ld. Counsels for the parties and have gone through the record.
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13. Vide separate order, the application for condonation of delay in filing the appeal has already been allowed vide order dated 16.07.2011 and the delay is already condoned.
14. The first ground in appeal is that it is not proved that it was public land, used by Villagers. It has come on record and is admitted by both the parties that there was a suit filed by respondent no.1 against respondent no. 2 which was ultimately compromised. The certified copy of the plaint of the said suit as well as compromise entered into between the parties thereto have been filed on record.
15. The relevant quote from the plaint filed by respondent no.1 in the said suit against respondent no. 2 in the suit bearing No. 600/81, titled as "Shri Piare Lal Vs. Shri Bhoop Singh and Ors" filed before the Court of Ld. Senior Sub Judge, Delhi is as follows:-
"Suit no.600/81Suit for permanent injunction.
"3. That at Marks GHIK, there was a Kucha Chopal about 115 years ago but the said Chopal collapsed about 80/90 years ago and since then Shr1 Piare Lal (plaintiff) is in possession of the said land since the time of his fore-fathers and he has constructed the Chabutra marked CDFGH on the said land and he used to cather his cattles on the remaining land since the time of his forefathers and thus in this way he becomes the rightful owner and occupant of the same and neither any suit RCA DJ No. 61734/2016 Page no. 8 of 18 has been filed by the Gaon Sabha or any other authority or person against the plaintiff in respect of the said land and the plaintiff is in possession of the said land since the time of his fore-fathers i.e. 80/90 years ago, without any obstruction/hindrance from any corner.
4. That the gates marked G4, G5, G6 and G7 are opened by shri Bhoop singh, when he constructed his house several years ago. But gate marked G3 has been opened by him forcibly with the help of defendants no.2 to 7 on 8.11.81, which opens in the said chabutra of Shri Piare Lal (plaintiff) and on the objection of said Shri Piare Lal against the opening of the said door G3, the defendant Shri Bhoop Singh alongwith defendants No.2 to 7 started quarrelling with him and on such occurrence a case U/S 107/151 Cr.P.C. is still pending before the A.C.P, Punjabi Bagh,Delhi and then proceedings U/s 145 were initiated by Shri Vivek Rai, S.D.M., Punjabi Bagh, Delhi on the information of Shri Baljit Singh Yadav s/o Shri Shiv Lal Yadav, resident of village Nahar pur, Delhi and on police report.
5. That on 9.12.81 Shri Vivek Rai, the S.D.M. Punjabi Bagh, order U/S 146 Cr.P.C., the attachment of the entire land, including the said chabutra, shown red in the site plan, marked as CDFGH and order the police P.S.Mangolpuri for compliance and to report him by 14.11.81. And thus the plaintiff is deproved of from use of gate marked G2 which is the only gate for entrance of his cattles in the house and G1 is for the entrance of human beings and no cattle can be entered through gate marked Gl.
6. That the order of shri Vivek Rai, S.D.M, dated 9.12.81 U/s 146 is wrong and illegal and caused irreparable loss to the property of the plaintiff which cannot be compensated in terms of money.
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7. That Shri Bhoop Singh, defendant No.l has no right, title or interest to open the gate marked as G3 and in red colour in the site plan and if it is not closed or allowed to remain as it is, it will cause irreparable injury to the plaintiff.
14. It is, therefore, prayed that Shri Bhoop Singh S/o Shri Ramlal, resident of village Naharpur, Delhi-34 ordered to close the gate marked as G3 in the site plan and police of P.S.Mongolpuri/S.D.M. Punjabi Bagh be restrained from enforcing attachment of the land shown red in the site plan by a decree of Mandatory injunction in favour of the plaintiff and the defendant No.1 to 7 be restrained by a decree of permanent injunction from encroaching the land shown red in the site plan by way of opening of door or through any other way.
Any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case be awarded to the plaintiff."
16. Thereafter matter was compromised between respondents and an application under Order 23 Rule 3 read with Section 151 of CPC in case titled as "Shri Pearey Lal vs. Shri Bhoop Singh & Ors." filed before Court of Ld. Sub-Judge, Delhi. The relevant quote from the said compromise is as follows:-
"3. That now the said parties have compromised the dispute as under:
A. That the land in dispute has been divided between the parties. The portion shown in Blue and Green colour in the plan attached, is the disputed portion.
B. That henceforth the plaintiff shall be the exclusive owner in possession of the portion shown Green without any claim whatsoever from the defendant nos.1 to 8.
C. That likewise the defendant No.1 shall be the exclusive RCA DJ No. 61734/2016 Page no. 10 of 18 owner in possession of the portion shown as Blue in the plan attached, without any right or claim from the plaintiff or other defendants.
I. That the plaintiff hereby withdraws the suit against the defendants Not; 9 to 19.
J. That the parties shall bear their own costs. It is, therefore, prayed that the compromise be kindly attested. In view of the compromise the suit may be dismissed as compromised leaving the parties to bear their own costs. However the parties shall be bound by the terms of this compromise."
17. It is clearly admitted by respondent himself in his plaint filed in the said suit that there was a Kachcha Chaupal around 150 years ago in this land but it was collapsed 80 to 90 years ago. No proof has been filed by defendants that said Chaupal collapsed 80 to 90 years ago. Hence the fact that this was a public land where Kachcha Chaupal used to be existed more than 100 years back is admitted by respondents themselves. Hence an admitted fact need not be proved.
18. Hence by way of the own admissions of defendants that there use to be a Kachcha Chaupal more than 100 years ago, it is proved that it was a public land which was used as a Chaupal. A Chaupal is a public place in Villages which is a hub of community life in Villages. Chaupals are used in Villages by residents of the Village to sit and discuss their problems, celebrate their functions, sort out the disputes. Hence in view of RCA DJ No. 61734/2016 Page no. 11 of 18 the own admissions of respondents, it is a public place which was used as Chaupal.
19. Since it has already been established on record that it is a public land, it was used as Chaupal long time back, hence, every resident has a right to enjoyment of this land including plaintiff. So it is immaterial whether he has obtained formal permission from other Residents under Order 1 Rule 8 CPC or not. He being an interested person, is authorized to institute the present suit on his own even. He himself has an interest in the land, it was not mandatory to file the suit in representative capacity. Every person is entitled to exert his rights with respect to the public land, if any.
20. Further PW2 is Sh. Jagdish who is also a resident of this Village. He admitted to have signed the Resolution thereby giving an authority to the plaintiff to file the suit in representative capacity. Further PW3 Sh. Narender Sharma and PW4 Sh. Anand Kumar Sharma are also from the same Village who have come to depose in this case. This itself shows that some of the Villagers had given authority to the plaintiff to institute the suit in writing or orally. Plaintiff has filed the present suit in a representative capacity duly authorized. Further he is himself also authorized and capable to file the present suit.
21. It is the case of respondents that they have been using it RCA DJ No. 61734/2016 Page no. 12 of 18 and hence they have become owner, however, it is not explained by them how they have become owners. Further they only claim to be the owners on the basis of long term possession. However there is no decree in their favour from any Court that by way of a long possession, they have become owners of this land.
22. Further respondents were in possession of this land till 1980 only when the property was attached pursuant to the orders of Ld. SDM. Against the order of SDM, they have filed the said suit before the Civil Court which they ultimately compromised. The said was a compromise between the two parties i.e. respondent no. 1 and 2. A private compromise qua a land in which possessary title is claimed by the respondents will not affect the rights of third party thereto, if any. A private compromise between the two parties cannot affect the rights of other parties on the said land, if any.
23. As far as identification of the property is concerned, it is observed by Ld. Trial Court that identity of the property is not clear. However, defendant has himself admitted in his written statement that this land was attached in 1981. The relevant portion from the amended written statement filed on behalf of defendant no.1 before Ld. Trial Court is as follows: "6. That the plaintiff has not come to the Court with clean hands and is guilty of suppressing the material facts. The present suit is just to black mail and harass the defendants, as RCA DJ No. 61734/2016 Page no. 13 of 18 earlier it was the present plaintiff, who had instigated the litigations between the defendants interse with regard to the disputed land. The said litigation continued for a span of 9 years and when the said litigation was compromised in the Court of Sh. P.D.Gupta, Sub Judge, Delhi on 23.05.1990, the present plaintiff finding that the defendants are no more litigating, filed the present suit under a bogus and frivolous resolution allegedly passed by the Patti Ahiran. It may be submitted that the land in question was attached vide Order dated 9.12.1981 by the Court of SDM(Pb. Bagh), Delhi in proceedings under Section 145/146 Cr.P.C. The said proceedings started as there was dispute about the possession over the disputed land between the defendant no.1 and 2 interse. The said proceedings under Section 145 Cr.P.C. was stayed since there was civil suit pending between the defendants with regard to the possession over the disputed land. Since the defendants compromised the said civil suit, the present plaintiff has started the present litigation. As far as the land in question is concerned, the same is still lying attached the proceedings under Section 145 Cr.P.C.
7. That the plaintiff has no cause of action and the alleged one is false and concocted which is clear from the fact that on the alleged date of cause of action, the land was still under attachment from the Court of the S.D.M. (Pb. Bagh)."
24. This is rather admitted by defendant no.1 in his written statement that, with respect to this property, he had filed a civil suit. Hence, the identification of this property physically is not disputed by any of the parties. Hence Ld. Trial Court erred in observing that the property is not correctly identified. The RCA DJ No. 61734/2016 Page no. 14 of 18 relevant quote i.e. para -3 of amended written statement, filed on behalf of defendant no.1 before Ld. Trial Court is as follows:-
"Para-3 of the plaint as stated is wrong and denied. The said land is not part of khata no. 141, khasra no.117/2 Chaupal Patti Ahiran and was never in the ownership,use or possession of Chaupal Patti Ahiran in the last 50 years. On the contrary earlier on the said disputed portion belonged exclusively to this Defendant and he was in possession. However, since the Defendant no.2 started disputes over possession of this portion, the proceedings under Section 145 Cr.P.C. started. The no.1 also filed a civil suit for permanent injunction against Shri Bhoop Singh ete.which suit was pending in the court of Shri P.D.Gupta, Sub Judge, Delhi in re: Pyare Lal Vs. Bhoop Singh. In the said suit the matter mas compromised, whereby the portion shown green was allotted to the Defendant no.1 and the portion shown in Blue colour was allotted to the Defendant no.Z and in view of the compromise the suit was disposed of by the court of Shri P.D.Gupta,Sub Judge, Delhi on23.5.1990. All along the dispute regarding possession of this portion was between the Defendant no.1 and 2 only and for the last 9 years it is the Defendant no.1 and 2 who are contesting the litigations. The Plaintiff having come to about the ending of disputes between the Defendants, has started the present litigation to keep the dispute alive and so that the Defendant no.1 and 2 are not able to reap the fruits of their compromise. The intention of the Plaintiff is clear that he wants to keep the litigation alive for decades to come. The land in dispute is owned by the Defendants and the alleged Patti of Plaintiff have no right, title or interest in the same. The land in question is situated in the the old Lal dora of village Naharpur and the whole village has one khasra numbers. The disputed portion RCA DJ No. 61734/2016 Page no. 15 of 18 never formed part of khata no. 141 khasra no.117/2."
25. Rather perusal of the entire written statement filed by defendant no. 1 and 2 would show that there is no misconception between the parties regarding in actual identification of this property. The only dispute is regarding which Khasra Number or Khata Number this particular land may fall. But physical identification is not disputed by defendants. The burden of proof was on defendant to prove that this is not a property which was being used by villagers as Chaupal. But he failed to discharge that burden.
26. As far as the question in which particular Khasra Number or Khata Number this particular Chaupal falls is irrelevant as by way of "Site Plan", the land has been identified by plaintiff and defendant physically. Defendants do not deny the existence of such land. Rather the case qua this land was pending between them wherefrom again it is established that this is the particular land qua which the suit is filed by plaintiff. Rather both parties admitted that this is the land qua which SDM initiated attachment proceedings and this land was attached. Hence the land was correctly identified by both the parties and was in the knowledge of both the parties that for which particular land the suit is about. There was no misconception amongst the parties regarding the actual physical identification of this land.
RCA DJ No. 61734/2016 Page no. 16 of 18
27. Further in view of the above discussions, it becomes unimportant if Patti Ahiran is a juristic person or not. Or whether it exists as on date or not. It has already established on record that this is a land which was used by Villagers for recreational purposes and is a Gaon Sabha land and hence defendants cannot claim any possessary title over the same as it was a land used for public purposes. Further it becomes unimportant whether plaintiffs are in actual possession of this disputed land or not as it is not their case that they themselves have any private possessary title over this land. The suit of plaintiff is that this is a land of the Chaupal which was being used for the said purpose by the Residents which is proved.
28. Further defendants have failed to prove that they have any right over this property. It is their own case that the property is lying attached under the order of Ld. SDM since 1981. In these circumstances since the property is lying attached under the order of Ld. SDM and also in view of the fact that this is a property which was being used as public Chaupal, defendants are hereby restrained from encroaching upon the said property. Copy of this order be sent to the necessary Government Authorities for the purpose of obtaining physical possession of this 150 square yards plot and for developing it as a public park.
RCA DJ No. 61734/2016 Page no. 17 of 18
29. In view of the above, the present appeal filed by the appellant is hereby allowed. Defendants are hereby restrained from encroaching upon or in any way interfering in the disputed plot / land bearing Khata No. 141, Chopal Patti Ahiran, Village Nahar Pur, Delhi 34, which is marked in the Site Plan and as was attached as per SDM report.
30. Copy of this order be sent to the necessary Government Authorities/ MCD for the purpose of obtaining physical possession of this 150 square yards plot and for developing it as a public park.
31. The Trial Court Record (TCR) be sent back alongwith the copy of this judgment.
32. Appeal file be consigned to record room after due compliance. Digitally signed TWINKLE by TWINKLE WADHWA WADHWA Date: 2022.07.30 16:13:37 +0530 Announced in the open court (Twinkle Wadhwa) On this 30th Day of July 2022 Ld. ADJ-03, Central THC/Delhi/30.07.2022.
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