Delhi District Court
Naval Singh vs Sukhi Ram on 8 February, 2016
IN THE COURT OF SH. APOORV SARVARIA, CIVIL JUDGE14,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Unique Case ID No. : 02401C0035981996
Suit No. : 28/15
Naval Singh
S/o Sh. Nand Lal
R/o Mundhela Kalan,
Delhi. .....PLAINTIFF
VERSUS
1. Sukhi Ram
Through legal heirs:
(a) Shyam
(b) Chand
2. Lakhmi Chand
S/o Sh. Chandgi Ram.
3. Sat Narain
S/o Sh. Paras Ram.
4. Mahender Singh
Through his legal heirs:
(a) Omwati Widow
(b) Kavita Daughter
(c) Kamlesh Daughter
(d) Babita Daughter
Suit No. 28/15
Naval Singh vs. Sukhi Ram and ors. Page No. 1 of 16
(e) Usha Daughter
(f) Suman Daughter
(g) Master Ritik Son (Minor)
5. Prakash
6. Chand Ram
Both sons of Sh. Paras Ram.
7. Maya Devi
W/o Sh. Sukhbir Singh.
All residents of :
Village Mundhela Kalan
Delhi. ...... DEFENDANTS
Date of institution of suit : 22.08.1996
Date of reserving Judgment : 19.12.2015
Date of pronouncement : 08.02.2016
SUIT FOR POSSESSION AND PERMANENT INJUNCTION
JUDGMENT
1. In the present suit, the plaintiff has prayed for the following reliefs:
"(a)A Decree for Possession in favour of the plaintiff and against the defendants in respect of portion depicted Red in the plan forming part of Residential plot no. 89 situated within the revenue estate of Mundhela Kalan, Delhi, may Suit No. 28/15 Naval Singh vs. Sukhi Ram and ors. Page No. 2 of 16 please be granted in favour of the plaintiff and against the defendants with cost of the suit.
(b)The defendants be restrained by grant of a permanent injunction from further interfering in the peaceful possession of the plaintiff or from raising any further construction thereon."
Plaintiff's case
2. It is stated in the plaint that the parties to the suit are the residents of the revenue estate of Mundhela Kalan, Delhi, where the consolidation of holding proceedings had taken place long ago. It was during these consolidation of holding operations that the village abadi was extended and the residential plots to the Biswadars of the village for raising construction of their houses in order to meet their future demands were allotted. It is only during these settlement operations that a separate residential area is created in the village and they are allotted plots according to their requirements for raising construction of their houses.
3. It is further stated that the plaintiff along with his coowners Sh.
Hanwant Singh and Amar Singh were allotted three residential plots bearing no. 83 (17), 89 (10) and 91 (13) in all measuring 3 bighas and 10 biswas, their khata being joint one during these operations. It was a joint allotment by the Consolidation Authorities, but later on there was a family settlement between the three coowners by virtue Suit No. 28/15 Naval Singh vs. Sukhi Ram and ors. Page No. 3 of 16 of which plot no. 89 (10) fell to the share of the plaintiff. Similarly, residential plot no. 83 and 91 have fallen to the shares of the remaining two coowners of the plaintiff. The subject matter of dispute in the instant suit is the Nothern Portion of plot no. 89, which has been allegedly encroached upon by the defendants.
4. It is further stated that on the Northern side of the plot no. 89 is situated plot no. 88, which was allotted during the consolidation operations by the Consolidation Authorities to the defendants. On the Southern side of the plot of the plaintiff, runs a circular road/phirni/rasta, which too was laid down/demarcated during the consolidation of holding operations in accordance with the scheme of consolidation framed and confined in the village.
5. It is further stated that on 17.11.1995, the residents of the village had obtained a demarcation from the revenue staff. It was during these demarcation proceedings that it was revealed that the rightholders, who were allotted residential plots abutting the Circular Road/Phirni/Rasta were found to have occupied a portion of the Circular Road/Phirni/Rasta lying in front of their plots. This took place on account of the fact that the Consolidation Authorities during these operations had under bona fide mistake demarcated those plots so as to cover 3 gathas wide Circular Road. It was also during these demarcation operations that it became evident that the plot holders on the Northern side of the plots had similarly Suit No. 28/15 Naval Singh vs. Sukhi Ram and ors. Page No. 4 of 16 encroached upon a portion of the plots adjoining on the Southern side. The plaintiff's plot was thus encroached upon by the defendants. The plot of the defendants is situated on the Northern side of the plot of the plaintiff, whereas the plaintiff's plot is located on the Southern side of the plot of the defendants. The Northern boundary of plot no. 89 is the Southern boundary of plot no. 88, which belongs to the defendants. The intervening boundary is common for both the plots. Plot Nos. 83 and 89 are owned by the plaintiff's coBhoomidars. Both these plots are located on the Eastern and Western sides of the plaintiff's plot. It was during these demarcation operations that a portion of plot nos. 83, 89 and 91 was found to be located deep down in the adjacent plots nos. 84, 88 and 92 situated immediately adjacent to their Northern side. A portion of the Circular Road/Phirni/Rasta which was found in occupation of the plaintiff and his two CoBhoomidars and others has been removed by the Authorities but the encroachment on the plaintiff's plot and that of his brothers still exists. The defendants are stated to be in illegal occupation of plot nos. 83, 89 and 91. However, the plaintiff has confined his suit only to that portion of land out of plot no. 89, which is in the illegal occupation of the defendants and which has been depicted Red in the plan measuring 323.3 sq. yards, over which the defendants have constructed a Boundary Wall in September, 1995.
Suit No. 28/15Naval Singh vs. Sukhi Ram and ors. Page No. 5 of 16
6. It is further stated that the construction made by the defendants on the disputed portion of plaintiff's plot no. 89 infringes the plaintiff's legal right in respect of his immovable property. Consequent to the infringement of the plaintiff's right, who is the exclusive owner thereof, the construction raised by the defendants on the dispute portion is stated to be a permanent trespass on the plaintiff's right.
7. It is further stated that the plaintiff had been under the bona fide impression that the dimension of the plot no. 89 extended to 3 gathas vide patch inside the Circular Road/Phirni/Rasta. This impression of the plaintiff was dispelled in March, 1996 when the Gaon Sabha Authorities removed the alleged encroachment of the plaintiff and that of his coBhoomidars from the Circular Road/Phirni/Rasta. It was only through the Demarcation Report that the plaintiff came to know for the first time regarding the actual location, dimension, shape and extent of his plot in March, 1996. It also came to his knowledge that very time that the defendants too have encroached upon a portion depicted Red in the plan of the plaintiff's plot no. 89. The plaintiff made several repeated requests to the defendants to remove their structures from the plaintiff's land/plot, but the defendants turned down his requests. Hence, the plaintiff filed the present suit.
8. It is further stated that the defendants have no right, title or interest in the subject matter of dispute. They have no connection with the Suit No. 28/15 Naval Singh vs. Sukhi Ram and ors. Page No. 6 of 16 same. The disputed portion is a part and parcel of the plaintiff's plot no. 89. The plaintiff is entitled in law to be accorded the relief of possession by ordering the defendants to remove their structures from the suit property and by putting the same in the actual physical possession of the plaintiff.
Defendants' Case
9. In the written statement of defendants, it is stated that this Court has got no jurisdiction to entertain the present suit and the revenue court has got the jurisdiction to entertain the present suit. The suit is also bad for nonjoinder of the necessary parties.
10.It is stated that the defendants had made no encroachment on the land of the plaintiff and it is also matter of record whether the plaintiff is the owner of the plot no. 89, total measuring1 bigha.
11. Initially the defendants were proceeded exparte on 23.05.2000.
Issues
12.On 24.01.2004, following issues were framed:
1. Whether the plaintiff is entitled for the decree of possession and permanent injunction as prayed? OPP
2. Relief.Suit No. 28/15
Naval Singh vs. Sukhi Ram and ors. Page No. 7 of 16 Evidence led by parties
13.Plaintiff produced himself as PW1 and tendered his evidence affidavit. Plaintiff produced Sh. Jeet Singh as PW2 who tendered his evidence affidavit. Plaintiff produced Sh. Zile Singh as PW3 who tendered his evidence affidavit. Plaintiff produced PW4 Sh. Rakesh, Halka Patwari, Village Mundela Kalan who produced the aksh sijra of village Mundela Kalan Ex. PW4/1, Khatauni Register and relied upon the khatauni Ex. PW4/2. He brought the original field book and deposed that the area of khasra no. 83 is one bigha seven biswas and area of khasra no. 89 is one bigha and area of khasra no. 91 is one bigha three biswas. Plaintiff produced PW5 Sh. Ramphal, Office Kanoongo, Tehsil Najafgarh and he produced the demarcation report Ex.PW5/1 after which plaintiff evidence was closed.
14. The defendants have not led any evidence and they had joined the proceedings at the stage of final arguments.
15.This Court has heard Ld. Advocates for parties and perused the record.
Findings
16.Issuewise findings of this Court are as under:
Suit No. 28/15Naval Singh vs. Sukhi Ram and ors. Page No. 8 of 16 Issue no. 1: Whether the plaintiff is entitled for the decree of possession and permanent injunction as prayed? OPP
17. Onus to prove this issue is on the plaintiff. PW1 has deposed that he had been alloted a residential plot bearing khasra no. 89 measuring one bigha situated in the extended abadi of village Mundela Kalan along with other coowners Sh. Hanwant Singh and Sh. Amar Singh and during a family partition, the plot bearing no. 89 had fell to the share of plaintiff while plots no. 83 and 91 fell to the share of other two coowners. He has reiterated the contents of the plaint in the evidence affidavit. He has further relied upon the site plan Ex. PW1/1. Plaintiff has relied upon the khatauni Ex. PW4/2 and demarcation report Ex. PW5/1. The demarcation report states that after the demarcation of khasra no. 89, it was found that 12 ghatthas of khasra no. 89 get complete by moving three ghatthas inside khasra no. 88. The testimony of plaintiff witnesses remain unchallenged as they have not been crossexamined by the defendants.
18.During final arguments, the only objection raised by Ld. Advocate for defendants was that suit is barred by the provisions of Delhi Land Reforms Act (hereinafter referred to as "DLR Act") since the village Mundela Kalan is not urbanised. On the other hand, Ld. Advocate for plaintiff had contended that the suit property falls in the extended laldora and is not an agricultural land but was alloted Suit No. 28/15 Naval Singh vs. Sukhi Ram and ors. Page No. 9 of 16 for residential purpose and the provisions of DLR Act will not be applicable. It is noted that plaintiff has mentioned in the plaint itself that the suit property is a residential plot allotted to the plaintiff but in the written statement, the defendants have not denied the said fact but have merely raised a bald objection that the jurisdiction is of Revenue Court.
19.In Anand J. Datwani vs Geeti Bhagat Datwani, CS(OS) 758/2008, decision dated 30th April 2013, (High Court of Delhi), it was observed as under:
"In the light of the aforesaid submissions, the real issue before the court for consideration is whether the provisions of Delhi Land Reforms Act would apply to a land which was initially an agricultural land but is no longer being used for the agricultural purposes.
13. In order to decide the aforesaid issue it would be pertinent to reproduce the relevant provisions of the Delhi Land Reforms Act.
14. Section 3 (13) of Delhi Land Reforms Act, 1954 defines "land" and reads as under: (13) "land" except in Sections 23 and 24, means land held or occupied for purpose connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming and includes:
(a) buildings appurtenant thereto,
(b) village abadis,
(c) grovelands,
(d) lands for village pasture or land covered by water and used for growing singharas and other Suit No. 28/15 Naval Singh vs. Sukhi Ram and ors. Page No. 10 of 16 produce or land in the bed of a river and used for casual or occasional cultivation, but does not include:
land occupied by building in belts or areas adjacent to Delhi town, which the Chief Commissioner may be a notification in the Official Gazette declare as an acquisition thereto;
15. From the aforesaid definition of the word „land„, it is evident that the term "land" within the Delhi Land Reforms Act necessarily means the land occupied for the purpose of agriculture, horticulture, animal husbandry, pisciculture and poultry farming. Further, several provisions of Delhi Land Reforms Act makes it abundantly clear that the said Act was primarily enacted for the purpose of governing agricultural land.
18. In Ram Lubbaya Kapoor's case (supra) this court has held that any land before it can be termed "land" for the purpose of the Delhi Land Reforms Act,1954 must be held or occupied for purposes connected with agriculture, horticulture or animal husbandry etc. and if it is not used for the said purposes, it ceased to be a land for the purposes of the Act and the provisions thereof will no longer apply and the remedy of the aggrieved party, if any, would be under the general law of the land.
Similar view was taken by this Court in Narain Singh & Anr. vs. Financial Commissioner, 152 (2008) DLT 167.
19. In Nilima Gupta's case (supra), it was held by the learned single judge of this court that:
"The Delhi Land Reforms Act was not meant to decide the Civil Disputes of unauthorized colonies, which emerged on agricultural land. The hard reality of today is that though large chunks of land stand in the revenue record as 'khasra Suit No. 28/15 Naval Singh vs. Sukhi Ram and ors. Page No. 11 of 16 numbers' but in fact the land has been converted into unauthorized/authorized colonies, where people have either built houses or have plots and civil disputes are arising day in and day out in respect of these plots. Sometimes, plots are sold twice, sometimes there are disputes regarding possession of plots, sometimes there are disputes regarding encroachment, sometimes there are disputes regarding invalid/valid sale of the plots. The Legislature while framing the Delhi Land Reforms Act had not envisaged these kinds of disputes to be referred to the Revenue Authorities. A perusal of chart given in Schedule I pertaining to Section 185 itself shows that all disputes which are envisaged by the Delhi Land Reforms Act to be decided by the Revenue Assistant or Deputy Commissioner are those, which pertain to agricultural land and they are not those disputes which arise when agricultural land is converted into unauthorized colonies or authorized colonies. The Courts cannot be divorced from the ground realities and live in an imaginary world of jurisdiction. Once the agricultural land loses its basic character of 'agricultural land' and changes hands several times and gets converted into an authorized/unauthorized colony by dividing it into plots, the disputes of plotholders are not those, which can be decided by the Revenue Authorities and these disputes have to be decided by the Civil Courts."
20. In N.B. Singh's case (Supra), the defendant company had taken the premises on lease for the residence of its managing director at monthly rent of Rs.1,60,000. The learned single judge held that a property ceases to be an agricultural property if it is not used for agricultural purposes and the defendant is Suit No. 28/15 Naval Singh vs. Sukhi Ram and ors. Page No. 12 of 16 estopped from contending that the suit property is an agricultural land covered by the Delhi Land Reforms Act. It was further contended that the description of the plaintiff as Bhumidar in revenue records is of no consequence.
21. After having heard both the parties and perusing the judgments being relied upon by them, I am of the view that the provisions of the Delhi Land Reforms Act, 1954 shall not apply to a land which at the outset was an agricultural land but is no longer being used for the agricultural purposes.
22. Section 13(3) of the Act specifically lays down that the term "land" means land held or occupied for purpose connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming. The definition of land is inclusive but is not wide enough to include the land which has ceased to be an agricultural land by reason of its no longer being used for the agricultural purposes. In cases titled Ram Lubbaya, Narain Singh, N.B. Singh and Nilima Gupta (Supra), this court has clearly and consistently held that the provisions of Delhi Land Reforms Act ceases to apply as soon as the land ceases to be an agricultural land.
23. A perusal of Section 22 of the Act shows that a Bhumidar has the right to exclusive possession of the land in his holding and to use it for any purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming and Section 23 prevents a Bhumidar from using the land in his possession for purposes other than agriculture except with the consent of the Chief Commissioner. Under Section 35 of the Act a Bhumidar is debarred from affecting any lease of his land unless Suit No. 28/15 Naval Singh vs. Sukhi Ram and ors. Page No. 13 of 16 he is a disabled person within the meaning of Section 36 of the Act.
24. It is further provided in Section 76 of the Act that a Bhumidar will not be ejected except under Section 33, 42, 81, 86 and 87 of the Act. Sections 33, 42 and 46 deal with transfers of a Bhumidar's interest made contrary to the Act and Sections 81, 86 and 87 deal with the ejectment of a Bhumidar in certain circumstances. Under Section 81, a Bhumidar is liable to be ejected if he uses the land for any purpose other than a purpose connected with agriculture.
25. It is quite clear from the various provisions of the Act detailed above that a Bhumidar do not have an unrestricted interest in his land. He is given the right to use the land in a particular manner. He cannot lease out the land, he cannot transfer possession of it and he has to use it only for the agricultural purposes. Further as per the preamble of the Act, the purpose of the Act is as under: "to provide for modification of zamindari system so as to create uniform body of peasant proprietors without intermediaries and for the unification of existing tenancy laws".
26. Above discussion makes it amply clear that an agricultural land must be used for the agricultural purposes only if the Land Reforms Laws are to be made applicable and if it is not so used, it will cease to be an agricultural land. In the instant case, admittedly, the land in question has not been used for any purposes contemplated therein under the Land Reforms Act, instead, the land has been built upon. Admittedly, two residential units have been constructed on the land in question out of which one is used by the parties as their residence and the other one was rented out and so far, Suit No. 28/15 Naval Singh vs. Sukhi Ram and ors. Page No. 14 of 16 the land has not been, in fact had never been used for the agricultural purposes. It is not the case of the defendants that they are carrying out any agricultural activity or any other allied permissible activity on the land in question. Therefore, as per the aforesaid reasoning and the view taken consistently by this court in number of judgments, the land in my considered view, has ceased to be an agricultural land and will no longer be governed by the provisions of the Delhi Land Reforms Act. Thus, the jurisdiction of civil court cannot be said to be barred by virtue of the provisions of section 185 of the Act."
20.In view of the observations made in the above caselaw and the fact that in the present suit, it has been the case of the plaintiff that a residential plot was allotted to the plaintiff and his coowners which included the suit property, the provisions of DLR Act will not be applicable to the present case and the bar under Section 185 of DLR Act will not be applicable.
21. The demarcation report Ex.PW5/1 clearly proves the case of the plaintiff and, therefore, the plaintiff is entitled to the decree of possession against the defendants in respect of the red portion depicted in the site plan Ex. PW1/1 forming part of residential plot no. 89 situated within the Revenue Estate of Mundela Kalan, Delhi. Plaintiff is further entitled to the decree of permanent injunction against the defendants from interfering with the peaceful possession of the plaintiff or from raising any construction on the suit property.
Suit No. 28/15Naval Singh vs. Sukhi Ram and ors. Page No. 15 of 16 This issue is decided in favour of the plaintiff and against the defendants.
Issue no. 2: Relief
22.In view of the findings of this Court on the above issue, the plaintiff is entitled to the decree of possession against the defendants in respect of the red portion depicted in the site plan Ex. PW1/1 forming part of residential plot no. 89 situated within the Revenue Estate of Mundela Kalan, Delhi to be handed over to the plaintiff within two weeks. Plaintiff is further entitled to the decree of permanent injunction against the defendants from interfering with the peaceful possession of the plaintiff or from raising any construction on the suit property. The suit is decreed in above terms alongwith costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the Open Court Apoorv Sarvaria, on the day 08th February, 2016 Civil Judge14, Central, Tis Hazari Courts, Delhi Suit No. 28/15 Naval Singh vs. Sukhi Ram and ors. Page No. 16 of 16