Delhi District Court
Guggan And Ors.Through Its Lrs vs State And Ors on 8 July, 2024
IN THE COURT OF MS. SHEFALI SHARMA,
ADDITTIONAL SESSIONS JUDGE-02, NORTH DISTRICT,
ROHINI COURTS, DELHI
In the matter of:
Criminal Revision No. 114/2021
Sh. Guggan (since deceased)
Through LRs
1. Smt. Lali Devi W/o Late Sh. Mange Ram,
2. Sh. Krishan S/o Late Sh. Mange Ram,
3. Sh. Jaidev S/o Late Sh. Mange Ram,
4. Sh. Rinku S/o Late Sh. Mange Ram,
5. Sh. Rohtas S/o Late Sh. Hukmi,
6. Sh. Sultan S/o Late Sh. Hukmi,
7. Sh. Chand S/o Late Sh. Hukmi,
8. Sh. Dharambir S/o Late Sh. Hukmi,
9. Sh. Satbir S/o Late Sh. Hukmi,
10.Smt. Nanho Devi W/o Late Sh. Jagdish,
11.Sh. Ajay S/o Late Sh. Jagdish,
12.Sh. Sanjay S/o Late Sh. Jagdish,
13.Sh. Ranbir S/o Late Sh. Bhagwan Singh,
14.Sh. Harbir S/o Late Sh. Bhagwan Singh,
15.Smt. Kamla W/o Late Sh. Sukhbir,
16.Sh. Neeraj S/o Late Sh. Sukhbir,
17.Sh. Vijay S/o. Late Sh. Sukhbir,
18.Smt. Murti Devi W/o Late Sh. Om Parkash
19.Sh. Kanwar Singh S/o Late Sh. Tale Ram
20.Sh. Jagpal S/o Late Sh. Tale Ram
21.Sh. Pawan S/o Late Sh. Tale Ram
22.Sh. Ishwar S/o Late Sh. Tale Ram
23.Sh. Ramphal S/o Late Sh. Guggan
For Himself and above said Revisionist Through SPA
All Resident Of V.P.O. Auchandi, Delhi-110039.
......Revisionists
VERSUS
CR No. 114/2021
Guggan & Ors. Vs. State & Ors.
Page 1 of 30
1. State
Through Chief Secretary,
Delhi Secretariat, 7th Level, B-Wing,
IP Estate, New Delhi.
2. SDM
Sub- Division, Narela,
MPCC Building, Naya Bans, Delhi-110082.
3. SHO,
Police Station Bawana, Delhi-110039.
4. Sh. Chander Bhan (since deceased)
Through LRs
A) Sh. Ram Rattan S / o Late Sh. Chander Bhan
B) Sh. Bal Kishan S / o Late Sh. Rampat GS / o Late Sh.
Chander Bhan
C) Sh. Ram Karan S / o Late Sh. Tej Ram GS / o Late Sh.
Chander Bhan
D) Sh. Ramphal (since deceased) Through LRs
I) Sh. Indervir
II) Sh. Satyaveer
III) Sh. Dharamvir
All S/o Late Sh. Ramphal Gs/o Late Sh. Tej Ram GGs/o
Late Sh. Chander Bhan
5. Sh. Tika Ram (since deceased)
S/o Late Sh. Shiv Lal
A) Sh. Ishwar Chander S/o Late Sh. Tika Ram
B) Sh. Rohtash S/o Late Sh. Tika Ram
C) Smt. Sushila D/o Late Sh. Tika Ram
D) Smt. Sunita D/o Late Sh. Tika Ram
E) Smt. Pushpa D/o Late Sh. Tika Ram
Above all R/o V.P.O. Auchandi, Delhi-110039
6. Sh. Abhay Ram (since deceased)
CR No. 114/2021
Guggan & Ors. Vs. State & Ors.
Page 2 of 30
Through LRs
A) Sh. Ramesh Chand S /o Late Sh. Abhay Ram
B) Sh. Mange Ram (since deceased)
Through LRs.
i) Smt. Kanta W/o Late Sh. Mange Ram
ii) Smt. Manju D/o Late Sh. Mange Ram
iii) Smt. Anju D/o Late Sh. Mange Ram
iv) Sh. Sanjay S/o Late Sh. Mange Ram
v) Smt. Monika D/o Late Sh. Mange Ram
7. Sh. Digh Ram (since deceased)
Through LRs
A) Sh. Shyam Lal S/o Late Sh. Digh Ram
B) Sh. Rajender S/o Late Sh. Digh Ram
C) Sh. Ishwar Chander (since deceased)
S/o Late Sh. Digi Ram
Through LR
i) Sh. Neeraj
8. Sh. Ram Chander (since deceased)
Through LRs
A) Sh. Shambhu Dayal (since deceased)
Through LRs
i) Sh. Rameshwar (since deceased)
Through LRs
a) Sh. Vinod S/o Late Sh. Rameshwar GS/o Late Sh.
Shambhu Dayal
ii) Sh. Jai Parkash (since deceased)
Through LR
(a). Sh. Naveen S/o Late Sh. Jai Parkash
GS/o Late Sh. Shambhu Dayal
iii) Sh. Naresh
9. Sh. Shiv Narayan (since deceased)
Through LRs
A) Sh. Krishan (since deceased)
Through LRs
i) Sh. Birender
CR No. 114/2021
Guggan & Ors. Vs. State & Ors.
Page 3 of 30
ii) Sh. Sukhbir
iii) Sh. Jagbir
iv) Sh. Pawan Kumar
B) Sh. Raj Kishan
C) Sh. Hari Ram (since deceased)
Through LRs
i) Sh. Rishi Pal
ii) Sh. Ravinder
iii) Sh.Parmesh
D) Sh. Radhey Shyam
10. Sh. Mahavir (since deceased)
Through LRs
A) Sh. Rattan (since deceased)
Through LRs
i) Smt. Mano Devi W/o Late Sh. Rattan
ii) Smt. Poonam D/o Late Sh. Rattan
B) Sh. Suresh Chand (since deceased)
(1) Sh. Dinesh Sharma
C) Sh. Ramesh Chand
D) Sh. Rama Kant
E) Sh. Sushil Sharma
11. Sh. Sisram (since deceased)
Through LRs
A) Sh. Mohinder
B) Sh. Surender
12. Sh. Krishan (since deceased)
Through LRs
A) Sh. Hari Dutt
13. Sh. Geeta Ram (since deceased)
Through LRs
A) Sh. Anand
B) Sh. Satbir
C) Sh. Dharambir
D) Sh. Prem (since deceased)
CR No. 114/2021
Guggan & Ors. Vs. State & Ors.
Page 4 of 30
Through LRs
a) Sh. Narender
b) Sh. Rakesh
14. Sh. Chatarbhuj (since deceased)
Through LRS
A) Sh. Jai Kishan
B) Sh. Surender
C) Sh. Ashok
D) Sh. Ravinder
E) Sh. Mohan
F) Sh. Vijayender
15. Sh. Raghubir (since deceased)
Through LRs
A) Sh. Mahender (since deceased)
Through LR
i) Sh. Jagdeep
B) Sh. Rajender (since deceased)
Through LR
i) Sh. Sunil
ii) Sh. Narender
iii) Sh. Ravinder (since deceased)
Through LR
(a) Sh. Sumit,
16. Sh. Devi Singh (since deceased)
Through LRs
(a) Sh. Dayanand
(b) Sh. Ramesh (since deceased)
Through LRs.
i) Sh. Sanjeev
ii) Sh. Satish
(c) Sh. Krishan
(d) Sh. Mahesh
(e) Sh. Naresh
(f) Sh. Kailash
Above all R/o V.P.O. Auchandi, Delhi-110039
CR No. 114/2021
Guggan & Ors. Vs. State & Ors.
Page 5 of 30
17. Sh. Rajender S/o Late Sh. Yad Ram
Grand Son of Late Sh. Bhartu (Performa Respondent)
18. Sh. Ravi S/o Late Sh. Karamvir
GS/o Late Sh. Bhagwan Singh (Performa Respondent)
19. Sh. Dinesh S/o Late Sh. Karamvir GS/o Late Sh. Bhagwan
Singh (Performa Respondent)
20. Sh. Mahender S/o Late Sh. Bhagwan Singh
Grand Son of Late Sh. Guggan (Performa Respondent)
21. Sh. Kuldeep S/o Late Sh. Bhagwan Singh
Grand Son of Late Sh. Guggan (Performa Respondent)
22. Sh. Pardeep S/o Late Sh. Bhagwan Singh
Grand Son of Late Sh. Guggan (Performa Respondent)
23. Sh. Jagbir S/o Late Sh. Karan Singh
Grand Son of Late Sh. Guggan (Performa Respondent)
24. Sh. Suresh S/o Late Sh, Karan Singh
Grand Son of Late Sh. Guggan (Performa Respondent)
Above All R/o V.P.O. Auchandi, Delhi-110039.
(Respondent No. 17-24 are Performa Respondent being LRs of
Original Second Party before SDM)
..... Respondents
Date of Institution : 11.11.2021
Date of conclusion of arguments : 02.07.2024
Date of Order : 08.07.2024
ORDER
1. The present revision petition has been preferred against the order dated 27.10.2021 passed by Ld. SDM, Naya CR No. 114/2021 Guggan & Ors. Vs. State & Ors.
Page 6 of 30Bans, under Section 145 Cr.P.C.
FACTIAL MATRIX
2. Brief facts of the case are that the respondents Chander Bhan & Ors. are the bhumidhars of the land Khasra No.32/27 and 32/28 measuring 12 bighas 5 biswas, situated at Village Auchandi, New Delhi, known as Brahman Bagh/grove (referred to as said land henceforth in the order) and the revisionists Guggan and Ors. claim themselves to be the asamis of the land, being the LRs of Kheema and Bhartu.
That in the year 1974, a dispute arose between the parties over the said land and two FIRs bearing no.203/1974 & 4/1974 PS Narela were got registered. Considering the situation, SHO PS Narela, placed the matter before the SDM concerned. The Ld. SDM initiated proceeding under Section 145 Cr.P.C. qua the said land and on 06.11.1974 directed for the attachment of the said land under the provision of Order 146 Cr.P.C. by the SHO until further orders.
That on 25.10.1977, another dispute arose and the SDM vide the said order opined that the since the subject matter of the dispute had been attached under Section 146 Cr.P.C., the proceedings under Section 145 Cr.P.C. came to an end and parties were left to approach the competent civil court to determine their rights.
Thereafter, both the parties approached the civil courts and two cross cases were filed bearing Civil Suit No. CR No. 114/2021 Guggan & Ors. Vs. State & Ors.
Page 7 of 30238/1985 and 236/1985, which were tried together and vide the judgment dated 22.03.1990 by the court of Sh. Pawan Kumar, the then Ld. Civil Sub Judge, Delhi, the matters were disposed off in favour of the revisionists/asami party.
The above-said judgment was challenged but the appeal was dismissed by the Court of Sh.A.K. Garg, then Ld. Additional Sr. Sub Judge, Delhi, vide judgment dated 14.11.1994 again in favour of the revisionists.
Thereafter, the respondents challenged the said order dated 14.11.1994 before the Hon'ble High Court of Delhi but eventually the said second appeal was dismissed as withdrawn on 15.09.2003.
After the withdrawal of the second appeal before the Hon'ble High Court in the civil litigation, by the respondents, on 15.09.2003, application under Section 145 Cr.P.C. read 146 Cr.P.C. had been revived and the fresh notice was issued to both the parties for 30.01.2004 to appear before the Ld. SDM for claiming their respective possession over the land in question at/before the time of attachment order.
Vide the impugned order dated 27.10.2021, the Ld. SDM passed the orders in favour of the respondent/bhumidhars holding that owing to the attachment to the SHO on 06.11.1974, none of the parties were in possession of the said land since 1974 and hence, the possession has to be restored back to the bhumidhars with immediate effect viz-a-viz. the asamis, the revisionists herein.
CR No. 114/2021Guggan & Ors. Vs. State & Ors.
Page 8 of 30ARGUMENTS
3. Detailed arguments had been heard from Mr. Rahul Mehta and Mr.Ajay Bansal for the revisionists and from Mr.Nishant Kumar, Ld. Addl. PP for the State, Mr. Sanjeev Ralli, Ld. Sr. Advocate along with Mr. Mohit Mudgal and Ms. Anita Sharma for the respondents and Mr. Sunil Kumar, ld. Counsel appeared for the SDM.
As per the case of the respondents herein, the 2nd appeal before the Hon'ble High Court was withdrawn on 15.09.2003 against the judgment dated 14.11.1994 in the wake of judgment of Hatti Vs. Sunder Singh (1970) 2 SCC 841 as the civil courts had no jurisdiction to entertain such matters and the same lied with the Special Court under DLR.
The respondents claimed that in the FIR 203/1974 U/s 302/307/323/324/325/147/148/34 IPC PS Narela, they had been acquitted vide judgment dated 30.11.1977 passed by Ld. Additional Sessions Judge Mr. P.L. Singla, whereby it was specifically held that respondents were in possession of the suit property at the time of incident which took place on 29.09.1974. A revision petition was preferred before Hon'ble High Court of Delhi on behalf of the revisionists herein against the judgment dated 30.11.1977, however, the said judgment was upheld and the revision was dismissed by the Hon'ble High Court of Delhi, vide orders dated 01.05.1978 holding that the landlord/respondents/bhumidhars had caused injuries in self defence.
CR No. 114/2021Guggan & Ors. Vs. State & Ors.
Page 9 of 30In another FIR 4/1974, registered on 05.01.1974 against the respondents under Section 147/148/447/379/506/436 IPC on the complaint of the revisionists, again all the accused/ respondents were acquitted by the order of the then Ld. Magistrate Mr.P.S. Gupta on 20.05.1987.
It is the case of the respondents that the civil court had no jurisdiction and the said judgment passed by Ld. Sub Judge dated 22.03.1990 and the judgment in appeal passed by the Additional Sr. Civil Judge dated 14.11.1994 are non est as the same are barred under the statutory provisions of DLR Act as the ld. Sub Judge was not the competent authority to decide over the issues of right or title of a property (the land in question) which comes under the ambit of DLR Act.
4. On the other hand, vide the instant revision petition, the revisionist have challenged the order dated 27.10.2021 mainly on the grounds that the Ld. SDM has over looked the findings of the civil court of Sh. Pawan Kumar, Ld. Sub Judge and Sh.A.K. Garg, Ld. Sr. Civil Judge and ignoring the findings given by them, has directed the restoration of the land to the bhumidhars/ respondents without any basis.
FINDINGS
5. At the very outset, it is pertinent to mention that the office record/the original file of the SDM was summoned by this Court for effective adjudication of the instant revision petition CR No. 114/2021 Guggan & Ors. Vs. State & Ors.
Page 10 of 30vide orders dated 09.12.2023, however, it was submitted on behalf of the SDM, Mr. Sunil Kumar, Advocate that the office file of the SDM was missing and vide orders dated 09.04.2024, statements of Mr.Mahavir Singh, Bailiff had been recorded in the presence of government counsel Mr.Sunil Kumar, Advocate which is as under:
"When this Court called for the original file of SDM proceedings, the same was traced in the department but could not be found. A search notice dated 20.12.2023 was issued by Tehsildar Narela as an attempt to trace the file, however, when the same could not be traced out despite all efforts, an NCR dated 21.03.2024 had been lodged with SHO, PS Narela Indl. Area.
Today, a separate detailed report of SDM, Narela Rakesh Das in this regard dated 05.04.2024 has been filed in this Court. Same is marked as Mark X, accompanied by Annexure A i.e. the Search Notice and Annexure B i.e. copy of the NCR.
I am making this statement voluntarily on behalf of the SDM, Narela."
6. A separate NCR dated 21.03.2024 had been lodged. Both the parties had placed on record their written arguments and certified copy of the proceedings which was in their possession prior to the missing of the trial record/office record of the SDM.
The parties had placed on record the certified copies of the relevant orders and as such, the proceedings before the SDM in which the impugned order dated 27.10.2021 was eventually passed, is not disputed by either of the parties.
CR No. 114/2021Guggan & Ors. Vs. State & Ors.
Page 11 of 307. At this stage, it is imperative to note the impugned order of Ld. SDM dated 27.10.2021 which is reproduced herein for the sake of clarity:
"That 1st Party is Bhumidar of the suit land and none of the parties are in possession of the suit land since 1974. Hence, the possession of the suit land under Khasra No.32/27(8-01) and 32/28(4-4) situated in the revenue estate of village Auchandi is to be restored back to the bhumidars. The SHO concerned is directed to hand over the possession of the above land to the 1st party i.e. Chander Bhan etc. (Bhumidars) with immediate effect.
Sd/-
SDM"
8. The present revision arises out of impugned order dated 27.10.2021 passed by Ld. SDM in proceedings under Section 145 Cr.P.C. At this stage, it is relevant to note the law on point:
Section 145 (1) Cr.P.C:
Procedure where dispute concerning land or water is likely to cause breach of peace.
(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a CR No. 114/2021 Guggan & Ors. Vs. State & Ors.Page 12 of 30
specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.(2) ............
(3) ....................
(4) The Magistrate shall then, without, reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub- section (1), in possession of the subject of dispute:
Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub- section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub- section (1).
Section 145 (7) Cr.P.C.:
(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry.
9. The main object of proceedings under Section 145 Cr.P.C. is to secure maintenance of peace and tranquility the breach of which is threatened on account of dispute regarding actual possession of the immovable property.
CR No. 114/2021Guggan & Ors. Vs. State & Ors.
Page 13 of 30In the light of the law as mentioned above and the provisions of Section 145 Cr.P.C., it is required that;
(i) A preliminary order be drawn by the Magistrate setting out reasons for holding that he is satisfied that a breach of peace concerning any land etc. exists;
(ii) That such dispute is likely to cause breach of peace;
(ii) When the Magistrate is satisfied of the above first and second condition, he shall proceed to pass a preliminary order under Sub Section (1) of 145 Cr.P.C;
(iv) Thereafter, he shall make an inquiry under Sub Section (4) of Section 145 Cr.P.C.;
(v) And thereafter, pass a order under Sub Section (6) of Section 145 Cr.P.C.;
(vi) The inquiry under Section 145 Cr.P.C. is limited to the question as to who was in actual possession on the date of passing of preliminary order irrespective of the rights of the parties;
The preliminary order is required to be in writing and thereafter, recording its satisfaction upon the report of a police officer stating the grounds, a notice has to be issued to the other party, who may attend the court proceeding in person or by a pleader on a specific date and time and both parties may put their written statements of the respective claims as regard the factum of actual possession of the subject of dispute. Section 145(1) Cr.P.C. explicitly talks of such a preliminary order.
CR No. 114/2021Guggan & Ors. Vs. State & Ors.
Page 14 of 3010. In the case of Satish Sadan Vs. Prithvi Raj 1989 SCC Online Delhi 134 passed by Hon'ble High Court of Delhi, it has been held that in the absence of any formal (preliminary) order made under Section 145(1) by the Magistrate, the whole proceedings culminating in the final order would become vitiated.
In the case of R.S. Bhutani Vs. Ms. Mani 1968 AIR 1444, 1969 SCR (1) 80, the Hon'ble Supreme Court laid down the law with respect to the satisfaction of the Magistrate pertaining to the proceedings. For passing a preliminary order under Section 145(1) Cr.P.C. it was held that the satisfaction under sub-s. (1) of s. 145 is that of the Magistrate. The question whether on the materials before him be should initiate proceedings or not is, therefore, in his discretion which, no doubt, has to be exercised in accordance with the well recognised rules in that behalf.
In Sardari Lal Vs. State of Punjab 1980 Crl. LJ 1151, it was laid down that the Magistrate must record in his order the grounds of being satisfied regarding existence of a dispute with regard to possession of premises which my give apprehension of breach of peace before passing the final order. The subjective satisfaction is a pre requisite in the preliminary order under Section 145(1) Cr.P.C. Similar was the law reiterated in Ghasi Ram Vs. Surender Singh 1984 (2) Crime 724.
CR No. 114/2021Guggan & Ors. Vs. State & Ors.
Page 15 of 3011. Perusal of the proceedings before SDM reveals that no preliminary order had been passed by the SDM. There is no expression of any satisfaction that there was breach of peace of land and no police official is examined.
12. Report of Halka Patwari was called by the SDM on 06.02.2004 and Halka patwari was directed to produce the khasra girdawari of the said property starting from 1954 to 1955 to determine the status of possession, on 25.02.2015 passed by the ld. SDM. Thereafter, parties were called to give their documentary proof on 02.09.2015, the Ld. SDM correctly observed that the issue between the parties to be decided was of possession prior to the attachment on 06.11.1974 and it was also necessary to find out if one of the party was forcibly dispossessed by other within few months before the institution of the proceedings under Section 145 Cr.P.C., but there is no such finding given by the Ld. SDM.
13. Eventually impugned order 27.10.2021 had been passed stating that 1st Party is Bhumidar of the suit land and none of the parties are in possession of the suit land since 1974. Hence, the possession of the suit land under Khasra No.32/27(8-
01) and 32/28(4-4) situated in the revenue estate of village Auchandi is to be restored back to the bhumidars. The SHO concerned was directed to hand over the possession of the above CR No. 114/2021 Guggan & Ors. Vs. State & Ors.
Page 16 of 30land to the 1st party i.e. Chander Bhan etc. (Bhumidars) with immediate effect.
Ld. Counsel for the respondents had heavily argued that since Bhartu and Kheema had already died and the entries continued to show them as asamies, the rights could not have been accrued to their LRs automatically and Ld. Counsel for the respondents had relied upon the judgment 1978 SCC Online Allahabad High Court 287 Raghunandan Singh Vs. Yashwant Singh.
At this stage, it is pertinent to note that an order dated 04.01.1984 had been passed where Surjan Singh Patwari was penalized under Rule 13 read with Rule 11 of CCS (CCA) Rules by Addl. District Magistrate Mr. L.D. Gupta, since he was required to submit his representation on the imputation of his misconduct and made false entry in the revenue records pertaining from 197-71, 1971-22, 1972-73 and 1973-74 when Bhartu and Kheema were shown as asamis although, they had already died before, but the Ld. SDM has not mentioned any such fact in the impugned order dated 27.10.2021 when the very basis of the order which are the revenue records was under cloud.
However, in the judgment of Hatti Vs. Sunder Singh AIR 1971 SC 2320, passed by Hon'ble Supreme Court, relied by the respondent themselves, it was observed that the declaration made by revenue authorities without going through the procedure are subject to due adjudication of rights. The petition CR No. 114/2021 Guggan & Ors. Vs. State & Ors.
Page 17 of 30for adjudication must however be made promptly as soon as one feels aggrieved from the declaration.
In this present case, declaration of asamis rights were made in the year 1959 but the respondents remained silent upto 1973. The revenue assistant must have declared the sub tenure holders on the basis of LR Form 4 prepared as per the Rule 6(A) of Delhi Land Reforms Rules, 1954 and must have been guided by khara girdwaries from the period 1953 to 1957, which reflect that both Kheema and Bhartu, ancestors of the revisionists were tenants of grove holdings during the agricultural year immediately before the commencement of the Act and therefore, the asamis rights conferred upon them were correctly done and it is not the case of the respondents that they were not asamis at all.
Further, it is an admitted fact that both the parties approached the civil courts and two cross cases were filed bearing Civil Suit No. 238/1985 and 236/1985, which were tried together and vide the judgment dated 22.03.1990 by the court of Sh. Pawan Kumar, the then Ld. Sub Judge, Delhi, the matters were disposed off in favour of the revisionists.
The above-said judgment was challenged and the appeal was dismissed by the Court of Sh.A.K. Garg, then Ld. Additional Sr. Sub Judge, Delhi, vide judgment dated 14.11.1994 again in favour of the revisionists.
These were appeals from two cross suits each side seeking the relief of restraining the other from interfering with the possession over the land. After considering the revenue CR No. 114/2021 Guggan & Ors. Vs. State & Ors.
Page 18 of 30records, following issues had been framed:
(I) Whether Chander Bhan Etc. are in possession of the suit land etc. (check whether revisionist or respondent part). (II) Whether Yad Ram Etc. are in possession of the suit land etc. (check whether revisionist or respondent part). (III) Whether the suit filed by Chander Bhan is bad for non joinder of necessary parties?
(IV) Which of the parties is entitled to the decree of permanent injunction, as prayed for?
It was observed by Ld. ADJ specifically in para 12 of the Judgment that possession is the basis of asamis right. As long as asamis right exists, there is a presumption that sub tenure holders are in possession of land and any entry inconsistent with such possession shall have to be ignored. It was further observed in para 14 that it is not the case of the appellants (respondents herein/bhumidhars), that the respondents in the appeal (revisionists herein/asamis) had ever surrendered or abandoned the holding at any stage. It is not the case that the asamis rights declared in favour of Bhartu and Khema, ancestors of revisionists herein, has become instinct in any manner.
The record further reveals that the respondents herein filed the petition for correction of entries before Revenue Assistant, who declined to assume jurisdiction. The appeals from the said order were also dismissed. Eventually, the appeal from the judgment dated 22.03.1990 was dismissed and the matter was decided in favour of the revisionists herein vide judgment dated CR No. 114/2021 Guggan & Ors. Vs. State & Ors.
Page 19 of 3014.11.1994.
Thereafter, the respondents challenged the said order dated 14.11.1994 before the Hon'ble High Court of Delhi but eventually the said appeal was withdrawn on 15.09.2003. As per the case of the respondents herein, the same was withdrawn in the wake of judgment of Hatti Vs. Sunder Singh (1970) 2 SCC 841 as the civil courts had no jurisdiction to entertain such matters and the same lied with the Special Court under DLR. Per contra, the revisionists herein, have argued that since the appeal was dismissed the judgment dated 14.11.1994 has attained finality.
14. Ld. Counsel for the respondents has argued that the very judgment passed by the Ld. Civil Courts are non est and without any jurisdiction.
The ld. Counsel for the respondents relied on the following judgments:
In Ram Karan Vs. Jagdeep Rai 1999 SCC Online, Delhi 266, it is held as under:
I am of the considered opinion that the present suit is barred under the provisions of Section 185 of the Delhi Land Reforms Act as the issues raised in the present suit could be effectively decided by the Revenue Court and the jurisdiction of this Court is barred under the provisions of Section 185 of Delhi Land Reforms Act. The plaintiffs in the present suit claim a right to the suit property as a Bhoomidar which right is denied on the ground that the plaintiffs have sold out their rights in the suit land. The rights, if any, of the CR No. 114/2021 Guggan & Ors. Vs. State & Ors.Page 20 of 30
plaintiffs in respect of the suit land are under cloud, and therefore, for all practical purposes the plaintiffs are seeking for a declaration of their right as a Bhoomidar and also seeking for a declaration of their possession in respect of the suit land. There is apparently a dispute as to possession of the agricultural land and therefore, such dispute as to possession of agricultural land could be effectively adjudicated upon and decided under the provisions of Delhi Land Reforms Act, remedy being under Section 84 read with Item No.19 of the First Schedule. All the reliefs claimed by the plaintiffs, therefore, in the present suit are within the competent jurisdiction of the Revenue Assistant where a suit is pending and this court has no jurisdiction to entertain this suit in view of the provisions of Section 185 of Delhi Land Reforms Act. The plaint is rejected. The suit stands dismissed with costs of Rs. 5,000/-.
In DDA Vs. Pushplata and Ors. 2020 SCC Online, Delhi 2118, Delhi High Court, it is held as under:
..........
23. However the judgments of the Court of Sh. Hukum Chand Gupta, Sub-Judge, Delhi and of the Court of Sh. Ravi Kumar, Sub-
Judge, Delhi, being of the Courts which did not have subject jurisdiction over the orders / actions of the office of the Revenue Assistant in exercise of powers under the Land Reforms Act, the said judgments are null and void and are to be ignored.
In Hatti Vs. Sunder Singh (1970) 2 SCC 841, it is held as under:
......."Section 186 envisages that questions of title will arise before the Revenue Courts in suits or proceedings under the First Schedule and, only if such a question arises in a CR No. 114/2021 Guggan & Ors. Vs. State & Ors.Page 21 of 30
competent proceeding pending in a revenue Court, an issue will be framed and referred to the Civil Court. Such a provision does not give jurisdiction to the Civil Court to entertain the suit itself on a question of title. The jurisdiction of the Civil Court is limited to deciding the issue of title referred to it by the Revenue Court. This clearly implies that, if a question of title is raised in an application for declaration of Bhumidari rights under item 4 of Schedule I of the Act, that question will then be referred by the Revenue Assistant to the Civil Court; but a party wanting to raise such a question of title in order to claim Bhumidari right cannot directly approach the Civil Court. If there is dispute as to possession of agricultural land, the remedy has to be sought under section 84 read with item 19 of the First Schedule."
15. Relying on these judgments, ld. Counsel for the respondents argued vehemently that the judgment passed of Ld. Sub Judge dated 22.03.1990 and Appellate Court dated 14.11.1994 is non est and apart from that there is no other document with the revisionists to show their possession over the disputed land prior to attachment on 06.11.1974.
However, admittedly, no suit for declaration had been filed by the respondents to declare the judgments of the civil courts as null and void on the grounds that the said civil courts did not have competent jurisdiction to pass the orders, as was the case of the respondents from 14.11.1994 till today in a span of almost 30 years.
It was argued by the ld. Counsel that the same can be taken note at this stage, however, this Court in revisional jurisdiction has very limited powers.
CR No. 114/2021Guggan & Ors. Vs. State & Ors.
Page 22 of 3016. As regards the powers of Revision U/s 397 Cr.P.C the Ho'ble Supreme Court in the latest judgment dated 17.02.2022 in the case of Directorate of enforcement Vs. Gagandeep Singh 2022 SCC online Delhi 514 has reiterated the law that:
"the provision of revision in Cr.P.C. suggests that the court shall limit itself to the findings sentence or order pass by the subordinate court, against which the revisionists is seeking relief before the court concerned and shall not go beyond the analysis and observations made by the subordinate court."
Section 397 Cr.P.C. unequivocally states that the High Court and Sessions Courts which is exercising its revisional jurisdiction shall apprise itself solely of the question of correctness, legality and properity of the order of the subordinate court.
The Hon'ble Supreme Court in Directorate of enforcement Vs. Gagandeep Singh (supra) again emphasised that:
"in its revisional jurisdiction court will not proceed into the enquiry of the records, documents and other evidence in consideration before the Trial Court but shall constrain itself to the findings of the lower court in the impugned order and to the question whether there is any patent, illegality, error apparent on record or incorrectness."
17. Further ld. Counsel for the respondents has argued that the revisionists have failed to place LRs certificate on record to show that they were the asamis at the relevant time. However, it was not disputed that asamis rights declared in favour of Bhartu CR No. 114/2021 Guggan & Ors. Vs. State & Ors.
Page 23 of 30and Kheema, ancestors of revisionists herein, had become instinct in any manner as there is nothing on record to suggest that the revisionists had ever surrendered or abandoned those asamis rights at any stage. A similar observation was made by Ld. Addl. Sr. Sub Judge in judgment dated 14.11.1994 which has attained finality. Ld. Counsel for the respondents relied on the findings of criminal court in judgment dated 30.11.1977 passed in session court in case no. 240/1974 in FIR No. 203/74. However, on internal page 74 para 115 of the judgment, ld. Sessions Court observed that possibility of accused (respondents herein) were in possession cannot be ruled out, but no conclusive finding had been given.
18. At this stage, reliance is placed upon the case of Iqbal Singh Marwah & Anr. Vs. Meenakshi Marwah & Anr., (2005) 4 SCC 370, the Hon'ble Court held as under :-
"Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein."CR No. 114/2021
Guggan & Ors. Vs. State & Ors.
Page 24 of 30Thus, a criminal court of Sessions that too under revisional jurisdiction cannot be brush aside the findings of Appellant Civil Court as two are independent proceedings and judgment dated 14.11.1994 has attained finality.
19. Going a step further, not only this Sessions Court (a criminal court under Revisional jurisdiction), infact even the Ld. SDM while passing the impugned order, was not the competent authority to treat the judgment of the Ld. Appellant Civil Court dated 14.11.1994 as non est. It is highly surprising that despite specifically mentioning in the impugned order that from the judgment dated 14.11.1994, it appears that second party i.e. the revisionists herein are in possession of the suit property, but still the Ld. SDM ordered for immediate transfer of the possession to the respondents.
The Ld. SDM merely on the basis that the possession of the property was with the SHO after the attachment order dated 06.11.1974 came to a conclusion that none of the parties are in possession of the suit land. However, there is no finding given by the Ld. SDM that who was actually in physical possession of the said property from 1954 to 2021 at the time of passing of the impugned order. There is multiple litigation between the parties both on civil an criminal side directly and indirectly qua the factum of possession of the suit land in this time period but the Ld. SDM, although mentioning the same set of judgments both on civil and criminal side between the parties, CR No. 114/2021 Guggan & Ors. Vs. State & Ors.
Page 25 of 30failed to make any observation and straightaway directed restoration to the respondents after almost more than 40 years of dispute between the parties. Admittedly, the property in question is a "bagh"/orchard/grove and it is not clear from the impugned order as to who was cultivating the same for several years and more importantly immediately prior to the attachment order in 1974. Ld. SDM has ignored the observations made by the Ld. Civil Court in Appellant jurisdiction passed vide order dated 14.11.1994.
As already discussed above, there is no preliminary order which seems to have been looked into by the SDM before passing the order.
20. Also, as already discussed above in a catena of judgments viz. Satish Sadan (supra) and R.S. Bhutani (supra), in the absence of any formal preliminary order under Section 145(1) Cr.P.C. the whole proceedings culminating in the final order would be vitiated. The Ld. SDM vide the impugned order has only relied on the attachment order dated 06.11.1974 but has failed to assess as to who was in immediate possession at that time or whether which party was forcibly dispossessed prior to the said order, which is a mandatory requirement.
There is no statements of the independent witnesses, if any, who may have witnessed the dispute which arose in 1974 and could have been material to determine as to who was in actual possession, which have been recorded. This could have CR No. 114/2021 Guggan & Ors. Vs. State & Ors.
Page 26 of 30been a vital piece of evidence, moreso, in the wake of already doubtful revenue records and bunch of civil and criminal litigation between the parties interse.
Further, Section 145 Cr.P.C. requires that there is breach of peace over the disputed land which sets the entire machinery into motion, however, there is no statement of IO or any police official to this effect on record, who must have had the first hand information of the dispute.
21. In view of the aforesaid detailed discussion and observations, the impugned order dated 27.10.2021 is set aside present matter is remanded back to the Ld. SDM with directions to re-appreciate the facts in accordance with law and in the light of the aforesaid findings and re-hear arguments of the parties and also seek further additional evidence, if any required by giving due opportunity to both the parties and pass appropriate orders in accordance with law.
22. Also before parting with this order, this Court expresses a serious concern of the sudden missing of the office file/record of the SDM from his office and Worthy District Magistrate (Revenue) is impressed upon to look into the matter and hold a proper inquiry, as per rules and take necessary action against the erring officials and also ensure immediate reconstitution of the file, if required. Also, since the parties are under dispute over about 50 years now (from 1974 to 2024), the CR No. 114/2021 Guggan & Ors. Vs. State & Ors.
Page 27 of 30Worthy District Magistrate (Revenue) Financial Commissioner shall ensure expeditious disposal of the matter preferably within 03 months from the receipt of this order.
It is further pertinent to mention that during the course of the present revision petition vide orders dated 18.03.2023, this Court had further clarified the order dated 27.01.2023 only for the purpose of harvesting the already standing crops on the land in order to avoid any irreparable loss to the public at large during the pendency of the present revision petition and observed as under:
"In the larger interest of justice and given the present facts and circumstances, the order dated 27.01.2023 is further clarified with the direction to the Area SDM that he may appoint a Receiver not below the rank of Tehsildar to supervise the harvesting process of the alleged crops by the respondents and the money generated from the sale of the produce, be deposited by way a Fixed Deposit by the respondents in the name of the SDM which shall be released to the rightful claimant after the final disposal of the present revision petition and determination of the rights of the parties with regard to the possession of the aforesaid disputed land. It is further clarified that rest of the terms and conditions in the status quo order dated 27.01.2023 shall remain the same and binding on the parties and the present permission granted to the respondents is for the limited purpose of removal/harvesting of the already sown crops only."
23. In the wake of the aforesaid observations made now while disposing off the present revision petition, the Ld. SDM is CR No. 114/2021 Guggan & Ors. Vs. State & Ors.
Page 28 of 30further directed to release the amount deposited so far, to the rightful claimant at the time of disposal of the proceedings before him after rehearing the parties, as directed above.
24. There is also a separate contempt petition bearing no. 16/2023 filed by one Ram Phal/one of the revisionists through his SPA holder alleging that on 27.01.2023 a status quo order was passed by this Court qua the factum of possession, ownership and structure as it existed at the time of the passing of the order dated 27.01.2023 but the respondent party/ proposed contemnors were doing day by day activities and continuing to harvest and cultivating the land. Certain photographs have also been filed.
But from the photographs filed, only some trees are visible and none of the alleged contemnors can be seen doing any activity. Infact, it cannot be exactly determined who has watered the fields. As such, the order dated 27.01.2023 was passed by this Court only for the purpose of preserving the land in in question in its form and status and the order was passed without giving any findings on merits on the impugned order dated 27.10.2021.
In the wake of the the observations above, even the Contempt petition bearing no.16/2023 is also disposed off accordingly.
The copy of this detailed order be kept in the file of contempt petition for record.
CR No. 114/2021Guggan & Ors. Vs. State & Ors.
Page 29 of 3025. Copy of this order be sent to the Ld. SDM and District Magistrate (Revenue) concerned for necessary information and urgent compliance.
26 Revision file and file of contempt petition be consigned to Record Room, after due compliance.
Digitally signed SHEFALI by SHEFALI SHARMA SHARMA Date: 2024.07.08 17:36:39 +0530 Pronounced in open (SHEFALI SHARMA) Court on 08.07.2024 ADDITIONAL SESSIONS JUDGE-02, NORTH DISTRICT, ROHINI COURTS, DELHI CR No. 114/2021 Guggan & Ors. Vs. State & Ors. Page 30 of 30