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[Cites 8, Cited by 0]

Delhi District Court

Shyam Sunder vs . Sudhir & Ors. Cis No. 94890/16 on 18 January, 2019

Shyam Sunder Vs. Sudhir & Ors.                            CIS No. 94890/16

     IN THE COURT OF CIVIL JUDGE­06, (CENTRAL), TIS
                HAZARI COURTS, DELHI

DATE OF INSTT: 21.06.2005.

                                 CIS NO.     : 94890/16
                                 CNR No.     : DLCT03­000130­2005

DATE OF DECISION : 18.01.2019

               PRESIDING OFFICER: Mr. KAMRAN KHAN

                    As per amended memo of parties.

       Shyam Sunder
       S/o Shri Ram Richpal,
       R/o Village - Rewla Khanpur,
       P.O. Najafgarh, New Delhi­110043.
                                                          .......Plaintiff
                                  Versus

1.     Sh. Sudhir, S/o Late Sh. Bhoop Singh.
2.     Sh. Raj Sunder, S/o Late Munshi Ram,
3.     Sh. Phool Singh, S/o Late Munshi Ram,
4.     Sh. Satprakash, S/o Late Munshi Ram
       (Since Deceased)
       Through Legal Heirs
       (i)      Parmela, W/o Late Sh. Satprakash
       (ii)     Avdesh @ Goldi, S/o Late Sh. Satprakash
       (iii)    Sachil @ Kale, S/o Late Sh. Satprakash


CNR No. DLCT03­000130­2005                                Page No. 1 of 15
 Shyam Sunder Vs. Sudhir & Ors.                           CIS No. 94890/16

5.     Attar Singh, S/o Sh. Munshi Ram,
6.     Pardeep, S/o Late Sh. Rajeshwar,
7.     Guddu, S/o Late Sh. Rajeshwari,
8.     Dharam Raj, S/o Late Sh. Ram Richhpal,
9.     Rajinder Singh, S/o Late Shri Ram Richhpal
       All residence of Village ­ Rewla Khanpur,
       P.O. Najafgarh, Delhi­110043.
10.    S.D.M. (Najafgarh)
       B.D.O. Office Complex, Roshanpura,
       Najafgarh, New Delhi.
                                                       .....Defendants


Argued by:
(a) Sh. Baldev Raj, counsel for plaintiff.
(b) Sh. Sudhanshu Tomar, counsel for defendants no. 1 to 7.


               SUIT FOR PERMANENT INJUNCTION.

JUDGMENT

Present suit for permanent injunction is filed by the plaintiff claiming himself to be a co­bhumidar / co­owner in possession of land measuring 5 Bighas 1 Biswa situated in Khata / Khatoni No.173/107 of Khasra No. 142/1 (4­19) and Khasra No. 95 (0­2) (hereinafter referred to as "suit property"). As per the plaintiff, defendants no.1 to 7 are co­bhumidar / co­owner of adjacent land bearing Khasra No.142 (4­19). It is the case of the plaintiff that CNR No. DLCT03­000130­2005 Page No. 2 of 15 Shyam Sunder Vs. Sudhir & Ors. CIS No. 94890/16 defendants no. 1 to 7 in collusion with the revenue officials are trying to grab the suit property and as on 20.06.2005, defendants no. 1 to 7 tried to dig foundation in the land of the plaintiff bearing Khasra No. 142/1 and destroyed the demarcation point by removing the poles which were installed at the demarcation line from the time of consolidation. As per the plaintiff, he is using the suit property for tethering animals, storing fodders and cow dung and has a latrine and bathroom over there and a courtyard at the door of his house opens in the same. Besides this on some portion, plaintiff has grown crop of Jawar. It is further the case of the plaintiff that he and his brothers were put in possession of the suit property by the revenue officials and till date, their possession was never disturbed by anyone but the defendants no. 1 to 7 are now trying to dispossess him and hence, the necessity arose to file the present suit seeking a decree for permanent injunction restraining the defendants from dispossessing or interfering in his peaceful possession over the suit property except in due process of law.

2. On notice, defendants no. 1 to 7 appeared and filed their joint written statement in which they took preliminary objections on the ground of no cause of action, concealment of true and material facts, non­joinder of necessary parties and barred by Section 41(h) of Specific Relief Act. On merit, defendants no. 1 to 7 admitted that the plaintiff is co­bhumidar / owner in possession of the suit property. It was further CNR No. DLCT03­000130­2005 Page No. 3 of 15 Shyam Sunder Vs. Sudhir & Ors. CIS No. 94890/16 admitted that they are co­owner / co­bhumidar of Khasra no. (4­19) but denied that they are trying to grab the land of Khasra no. 142/1 and submitted that plaintiff is digging his land and defendants have no concern with the land of the plaintiff. Further, it was submitted that demarcation of their land has already been done after passing of the order of SDM. It was also submitted that as per the site plan of the plaintiff, there are 38 Ghathas in length and 20 Ghattas in North­South, 29 Gathas in East­West direction, 03 Ghattas in North­South. From the point 8/2/3, there are 16 Ghattas and from 74/9 there are 10 Gathas. Accordingly, it was submitted that the plaintiff has got the remedy to demarcate his land after making an application to the Revenue Department and the site plan filed by the plaintiff is wrong as incorrect Gathas has been mentioned in the site plan as 7 Gathas instead of 3 Gathas and at point 74/9, it has been mentioned in the site plan as 7 Gathas and actually there exist 16 Gathas and from 8/2/3 there exist 16 Gathas. Besides this, all other averments of the plaint were denied specifically and prayer was made to dismiss the suit with costs.

3. Replication to the written statement of defendants was filed in which the averments of the written statement were denied specifically.

4. Initially, plaintiff filed the suit only against defendants no. 1 to 7 but thereafter, plaintiff moved an application under Order I Rule CNR No. DLCT03­000130­2005 Page No. 4 of 15 Shyam Sunder Vs. Sudhir & Ors. CIS No. 94890/16 10 CPC which was allowed by the court on 21.09.2011 and accordingly, defendants no. 8, 9 and 10 were impleaded. During the proceedings, defendant no. 4 expired and his LRs were also impleaded vide order dated 16.05.2016.

5. From the pleadings of the parties, following issues were framed for adjudication on 10.03.2015:­

1. Whether the suit of the plaintiff is barred by Section 41(h) of Specific Relief Act? OPD

2. Whether the suit of the plaintiff is barred by Section 185 DLR Act? OPD

3. Whether the plaintiff is entitled for relief of permanent injunction as prayed? OPP

4. Relief.

6. In order to prove the issues, plaintiff Sh. Shyam Sunder examined himself as PW1. He tendered his affidavit Ex.PW1/A in which he reiterated the averments of the plaint. Besides this, he also proved following documents:­ Ex.PW1/1 : Copy of demarcation report dated 09.11.2001. Ex.PW1/2 : Copy of khatoni pamaish for the year 1970­ 1971.

Ex.PW1/3 : Copy of khatoni for the year 2013­2014. 

         Ex.PW1/4          : Copy of Masavi.

CNR No. DLCT03­000130­2005                                    Page No. 5 of 15
 Shyam Sunder Vs. Sudhir & Ors.                             CIS No. 94890/16

        Ex.PW1/5          : Copy of field book.
        Ex.PW1/6          : Copy of nishandehi / demarcation report dated
                            04.10.2012.
        Ex.PW1/7          : Site plan.

In cross­examination, PW1 deposed that the area mentioned in Ex.PW1/2 & Ex.PW1/3 with regard to khasra no. 142/1 is correct and he had not filed any objections to the area allotted to him during consolidation proceedings. He admitted that he, Sh. Dharam Raj and Sh. Rajender Singh are the owner of one third portion each in Khasra no. 142/1 and Khasra no.95. For the site plan Ex.PW1/7, he deposed that the same is incorrect and after seeing the judicial record, he deposed that the correct site plan is Ex.PW1/4, which is a copy of masavi. In the cross­examination, PW1 was shown copy of aks­shijra of Khasra no. 142/1 Ex.PW1/D1 and PW1 admitted that on the eastern side of Khasra no. 142/1, there is 20 Ghattas and in the northern side 38 Ghattas (8+7+23) is correctly shown and in the southern side showing 29 Ghattas is also correct. Further, he deposed that there are 7 Ghattas at point A and at point B there are 4 Ghattas on the western side which is not shown in Ex.PW1/D1. He further deposed that the possession of the suit property was received by his father in the year 1970­1971 during the consolidation. He further deposed that on 21.06.2005, he had filed khatoni, aks­shijra and a site plan and the said documents were exhibited as Ex.PW1/X, Ex.PW1/X1 and Ex.PW1/X2. PW1 admitted CNR No. DLCT03­000130­2005 Page No. 6 of 15 Shyam Sunder Vs. Sudhir & Ors. CIS No. 94890/16 that in the site plan Ex.PW1/X, he had shown 7 Ghattas on the western side shown at point A but voluntarily deposed that he was not aware about the dimensions and the site plan was prepared on the basis of wrong aks­shijra given by the Patwari. He further deposed that there is no demarcating line between Khasra no. 142/1 and 142. For Local Commissioner report dated 05.08.2005 Ex.PW1/X3, PW1 deposed that the said report was prepared in the court premises by the Local Commissioner.

Besides this, plaintiff also examined Sh. M.S. Jhakhar, Office Kanoongo, Najafgarh as PW2 who brought the original demarcation report of Khasra no. 142/1 exhibited as Ex.PW1/1. He also brought the original masavi, original field book already exhibited as Ex.PW1/4 & Ex.PW1/5 respectively. He also brought certified copy of the Khatoni of Khata no. 71/70 for the year 1973­1974 Ex.PW2/1 and certified copy of demarcation report of Khasra no. 152 Ex.PW2/2.

Lastly, plaintiff examined Sh. Manoj Kumar, Halqa Patwari as PW3 who brought the summoned record i.e. Khata / Khatoni bearing no.173/160 for the year 2001­2002 as per which Khasra no. 142/1 measures 4 Bighas 19 Biswas and Khasra no. 95 measures 2 Biswas. He also proved certified copy of the said Khatoni as Ex.PW3/1 and aks­shijra of Khasra no. 142/1 as Ex.PW3/2.

Thereafter, plaintiff closed the evidence, vide separately recorded statement, on 09.08.2017.

CNR No. DLCT03­000130­2005 Page No. 7 of 15

Shyam Sunder Vs. Sudhir & Ors. CIS No. 94890/16

7. On the other hand, defendant Sh. Phool Singh appeared in the witness box as DW1. He tendered his affidavit Ex.DW1/A and deposed that the plaintiff is not aware about the dimensions mentioned in record and at the spot in respect of Khasra no.142/1. He also deposed that the defendants are owner in possession of Khasra no. 142 which is adjacent to Khasra no. 142/1 and they are occupying Khasra no. 142 as per the dimensions allotted by the Revenue Department and shown in aks­shijra. He also relied upon documents Ex.PW1/D1, Ex.PW1/X1 to Ex.PW1/X3.

In cross­examination, DW1 admitted that Khasra no. 142/1 and 95 belongs to the plaintiff and his two brothers and his land comes in Khasra no. 142.

Ld. Counsel for the defendants closed the evidence, vide separately recorded statement on 31.07.2018.

8. Arguments heard. File perused. Having gone through the records very carefully, my issue­wise findings are as under:­ ISSUES NO. 1 & 2:

9. The onus to prove both the issues were on the defendants. In pursuant to the said issues, ld. Counsel for the defendants argued that as the suit property is an agricultural land in the revenue record, CNR No. DLCT03­000130­2005 Page No. 8 of 15 Shyam Sunder Vs. Sudhir & Ors. CIS No. 94890/16 therefore, the present suit is barred under Section 185 of the Delhi Land Reforms Act, 1954. On the other hand, ld. Counsel for the plaintiff argued that the present suit being only of injunction is not barred by Section 185 of the Delhi Land Reforms Act, 1954.

10. After hearing ld. Counsel for the parties and having gone through the record carefully, this court is of the considered opinion that admittedly suit property is an agricultural land. Section 185 of Delhi Land Reforms Act, 1954 ousts the jurisdiction of the Civil Court to take cognizance of any suit mentioned in column No. 7 of Schedule I. Hence, this court has to examine whether the present suit falls in any of the category mentioned in the Schedule I of the Delhi Land Reforms Act, 1954. Present suit is simpliciter of injunction and on the bare perusal of the aforesaid schedule, it is clear that even if the land is agricultural then also Civil Court is not barred to take cognizance on a suit for injunction as in the Schedule, there is no specific entry which bars filing of suit of permanent injunction in the Civil Court. In this regard reliance is placed on the judgment passed by Hon'ble High Court of Delhi in the case titled as Tara Chand & Anr Vs. Kumari Rajni Jain & Ors., 150 (2008) DLT 101, in which Hon'ble High Court of Delhi had noted that suits for injunctions pertaining to the agricultural land have to be decided after trial by the Civil Courts and not before the revenue authorities.

CNR No. DLCT03­000130­2005 Page No. 9 of 15

Shyam Sunder Vs. Sudhir & Ors. CIS No. 94890/16

11. It is to be further noted that the entry closest to the relief prayed in the present suit is entry 18 which reads as "suit for injunction or for the repair of the waste or damage the cost to the holding in column 2 of the said entry the relevant Section has been mentioned as Section 83". It would be appropriate to refer Section 83 of the Delhi Land Reforms Act, 1954 at this stage which is as under:

"83. Suit for compensation and repair of the waste or damage - Notwithstanding anything in Section 81, the Gaon Sabha or the landholder may, in lieu of suing for ejectment, sue
(a) for injunction with or without compensation, or
(b) for the repair of the waste or damage caused to the holding."

12. The section mentions Section 81 and therefore it would be appropriate to also refer to Section 81 which reads as under:

"81. Ejectment for use of land in contravention of the provisions of this Act (1) A Bhumidhar or an Asami shall be liable to ejectment on the suit of the Goan Sabha or the landholder, as the case may be, for using land for any purpose other than a purpose connected with agricultural, horticulture or animal husbandry, which includes pisciculture and poultry farming and also to pay damages equivalent to the cost of works which may be required to render the land capable of use for the said purposes.
(2) Notwithstanding anything contained in subsection (1), the Revenue Assistant also may, on receiving information or on his own motion, eject the Bhumidhar or Asami, as the case may be, and also recover the damages referred to in subsection(1), after CNR No. DLCT03­000130­2005 Page No. 10 of 15 Shyam Sunder Vs. Sudhir & Ors. CIS No. 94890/16 following such procedure as may be prescribed."

13. A joint reading of the entry 18 alongwith Section 81 and Section 83 of Delhi Land Reforms Act, 1954 would show that the said entry cannot be held to be applicable to the present suit which is a suit for permanent injunction. For the jurisdiction of civil court to be barred the jurisdiction has to be expressly ousted by the statue. It is settled law that exclusion of jurisdiction of civil court is not to be readily inferred, but such exclusion must either be explicitly expressed or clearly implied. Section 9 of the CPC confers abundant power on the civil courts to proceed in the matter.

14. No provision has been brought to the notice of this court where the revenue courts are empowered to grant the relief of injunction as claimed in the present suit. If the revenue courts are not entitled to grant injunction, the plaintiff cannot be left remedyless. The plaintiff who claims to be possession in the property is certainly entitled to protect his possession.

15. Further it is also to be noted that Section 41(h) of the Specific Relief Act, 1963 provides that the injunction can be refused when equally efficacious remedy is available to the plaintiff. However, as the plaintiff apprehends that the defendants no. 1 to 7 want to interfere in his possession on the suit property and has filed the present CNR No. DLCT03­000130­2005 Page No. 11 of 15 Shyam Sunder Vs. Sudhir & Ors. CIS No. 94890/16 suit for permanent injunction, therefore, no other efficacious remedy is available to the plaintiff than to file the present suit.

16. In light of the aforesaid discussion, this court is of the opinion that the present suit is not barred by Section 185 of Delhi Land Reforms Act, 1954 as well as by Section 41(h) of the Specific Relief Act, 1963. Accordingly, both these issues are decided against the defendants.

ISSUE NO. 1:

17. The onus to prove this issue was on the plaintiff. Ld. Counsel for the plaintiff argued that the possession and ownership of the plaintiff has been admitted by the defendants and accordingly, plaintiff is entitled to protect his possession from the defendants no. 1 to

7.

18. On the other hand, ld. Counsel for defendants no. 1 to 7 argued that plaintiff has failed to prove any encroachment on the suit property and as per the revenue records, plaintiff is in possession of his property, therefore, there is no requirement to grant any injunction to the plaintiff. He further submitted that as the plaintiff has failed to prove any encroachment, therefore, the subject matter of the dispute is totally unascertainable and present suit cannot be entertained. In support of his CNR No. DLCT03­000130­2005 Page No. 12 of 15 Shyam Sunder Vs. Sudhir & Ors. CIS No. 94890/16 arguments, ld. Counsel for defendants no. 1 to 7 relied upon case titled as Laxman Singh Vs. Jagganath, 2000 (1) MPHT 384.

19. After hearing ld. Counsel for the parties and having perused the record, this court is of the considered opinion that it is a settled law that in a suit for permanent injunction simpliciter, the plaintiff has to prove his possession in the suit property and if he succeeds in doing so then he is entitled to protect his possession from third person.

20. Now, in the case in hand, plaintiff has claimed himself to be a co­bhumidar / owner in possession of the suit property and has also claimed that the defendants no. 1 to 7 are co­bhumidar / co­owner of the adjacent peace of land bearing Khasra No. 142. In the written statement, defendants no.1 to 7 have not denied the aforesaid two facts. Further, plaintiff by way of Khatoni for the year 2001­2002 Ex.PW3/1, Khatoni for the year 1973­1974 Ex.PW2/1, Katoni Pamaish for the year 1970­ 1971 Ex.PW1/2 and Khatoni for the year 2013­2014 Ex.PW1/4 has also proved that he is co­bhumidar in possession of the suit property. Further, DW1 in his cross­examination also admitted that Khasra No. 142/1 and Khasra no. 95 are of the plaintiff and his two brothers. Hence, the aforesaid admissions of defendants no. 1 to 7 as well as the revenue record proves that the plaintiff is co­bhumidar in possession of the suit property and he is entitled to protect his possession from defendants no.

CNR No. DLCT03­000130­2005 Page No. 13 of 15

Shyam Sunder Vs. Sudhir & Ors. CIS No. 94890/16 1 to 7 whose land are adjacent to the suit property.

21. So far as the dispute regarding wrong mentioning of Ghattas on the western side of Khasra no. 142/1 is concerned it is to be noted that any adjudication on the said dispute is beyond the purview of this court as the plaintiff has not claimed that any portion of the suit property has been encroached by defendants no. 1 to 7 either at the time of filing of the present suit or during its pendency. Plaintiff has already moved an application to the SDM for correction of the Ghattas on the western side, as clear from application Ex.PW3/4. The question whether measurement of the suit property has been correctly recorded or not is a question to be decided by the revenue court and not by this court. As the present suit is simpliciter for the permanent injunction and plaintiff has proved to be a co­bhumidar in possession of the suit property, therefore, he is entitled to protect his possession in Khasra no. 142/1 and Khasra no. 95 from defendants no. 1 to 7. Accordingly, this issue is answered in favour of the plaintiff.

22. The court, therefore, draws following conclusion upon the issues:­ As to issue No.1 Negative As to issue No.2 Negative As to issue No.3 Affirmative CNR No. DLCT03­000130­2005 Page No. 14 of 15 Shyam Sunder Vs. Sudhir & Ors. CIS No. 94890/16 ORDER ISSUE NO. 4 : RELIEF

23. In view of my findings to the aforesaid issues, the suit of the plaintiff stands decreed with costs and defendants no. 1 to 7, their agents, servants etc. are restrained from dispossessing or interfering in the peaceful use and occupation of the plaintiff in land bearing Khasra No. 142/1 (4­19) and Khasra No. 95 (0­2) situated in Village Rewala Khanpur, Delhi­43.

24. Decree sheet be prepared accordingly.

25. File be consigned to record room after due compliance. 

Announced in the open Court            KAMRAN KHAN
Dated:18.01.2019                       Civil Judge ­06 (Central)
                                       Tis Hazari Court, Delhi

Note: This judgment contains fifteen pages and each page has been checked and signed by me.



                                       KAMRAN KHAN
                   Digitally           Civil Judge ­06 (Central)/THC
                   signed by
                   KAMRAN              Delhi/18.01.2019.
KAMRAN             KHAN
KHAN               Date:
                   2019.01.19
                   16:22:59
                   +0530


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