Delhi District Court
Sh. Moti Lal vs Sh. Lakhi Ram on 15 September, 2007
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IN THE COURT OF SH. RAJ KUMAR CHAUHAN
ADDITIONAL DISTRICT JUDGE : DELHI
RCA No. 21/2006
Date of Institution : 04-10-2006
Date on which the
Judgment has been
Reserved : 06-09-2007
Date of Judgment : 15-09-2007
In the matter of :-
1. Sh. Moti Lal
2. Sh. Ram Kumar
Both sons of Sh Chhottu Ram.
3. Sh. Parbhu Dayal
S/o Sh. Bakhtawar
All R/o Village Pehladpur Bangar,
Delhi - 110042. .....Appellants.
VERSUS
1. Sh. Lakhi Ram
S/o Sh. Shish Ram.
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2. Sh. Prem Singh (Deceased)
S/o Sh. Jaggan
Through his L.Rs
(i) Smt. Bhagwani Dai
Widow of Late Sh. Prem Singh
(ii) Smt. Santra, W/o Late Sh. Rajbir Singh
and D/o Late Sh. Prem Singh.
(iii) Sudesh Kumar, S/o Late Sh. Prem Singh.
All R/o Village and PO Pahladpur Bangar,
Delhi - 110042.
(iv) Smt. Sheela Devi, W/o Sh. Raj Singh,
and D/o Late Sh. Prem Singh,
R/o H.No.1, Main Bazar Road, Udhan Pana,
Opp. Yatri Nursing Home, Safiabad Morh,
Narela, Delhi.
(v) Smt. Urmila, W/o Sh. Dilbagh Singh,
D/o Late Sh. Prem Singh,
R/o Village & PO Pipli, the, Kharkhoda,
Distt. Sonepat, Haryana.
(vi) Smt. Rishalo @ Prakasho @ Moti
W/o Sh. Satpal (Parpanchiwale),
D/o Sh. Prem Singh, R/o H.No. 383-A/15,
Parpanchi Road, Gannor, Distt. Sonepat,
Haryana.
(vii) Smt. Bala, W/o Sh. Krishan Kumar,
D/o Late Sh. Prem Singh, R/o 383-A/15,
Parpanchi Road, Gannor, Distt. Sonepat,
Haryana.
(viii) Smt. Meena, W/o Sh. Pardeep,
D/o Late Sh. Prem Singh, R/o Vill. & PO
Rewada, Distt. Sonepat, Haryana.
3. Sh. Om Parkash (Deceased)
S/o Sh. Sri Chand
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Through his Legal Heirs
(i) Smt. Mewa, widow of Sh. Om Prakash
(ii) Sh. Krishan Kumar
(iii) Sh. Ashok Kumar
(iv) Sh. Suresh Kumar
Sons of Late Sh. Om Parkash.
(v) Smt. Pushpa, D/o Late Sh. Om Parkash.
All R/o Village & PO Pahlad Pur Bangar, Delhi
(substituted vide order dt. 09-09-1997)
4. Smt. Kala Wati,
W/o Sh. Tara Chand,
All R/o Village Pehlad Pur Bangar,
Delhi - 110042. .....Respondents.
O R D E R :-
In this regular civil appeal, the appellant has challenged the judgment dated 22-08-06 of the Ld. Civil Judge, Delhi wherein the suit instituted by the appellant for permanent and mandatory injunction was dismissed. The matter before the Ld. Trial Court in brief was that the plot of land measuring 150 sq. yds. in Khasra No. 86/7 situated in village Pehlad Pur was allotted to Sh. Chhottu Ram, father of plaintiff No. 1 and 2 in the year 1954 by the Gaon Sabha of Village Pehlad Pur Bangar, Delhi; another plot measuring 150 ...4...
sq. yds. was allotted to Sh. Bakhtawar, grand father of the plaintiff No. 1 and 2 and father of plaintiff No. 3; both the plots were demarcated by the Revenue Department and the possession of the same was handed over at the same time; both the plots later on merged into a single unit and were used jointly for the purpose of gitwar / gher; that after the death of father of plaintiff No. 1 and 2 in the year 1980 and death of their grand father in the year 1957, the plaintiffs being the legal heirs became the owners of the said two plots of land by operation of law; the plaintiffs have been occupying and enjoying the exclusive possession of the plots for tethering their cattles and other purposes; the said plots were alloted to Harijans and landless people of the villages in the year 1953-54 and the "rastas" were also demarcated by the revenue estate staff. It is further alleged that "rasta" of 25 ft. on the northern side passing by the eastern side of house of Smt. Murti Devi joined with the "rasta" of 15 ft. existing on eastern side starting from Delhi-Bawana Road; that Smt. Murti Devi built-up her house and encroached upon the "rasta". Similarly, Naresh Kumar, defendant, also built-up his house and took the land of "rasta" inside his house by encroaching the same;
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the other residents of area also encroached upon the "rasta" in question; there is a turn in the aforesaid "rasta" and the same comes to eastern side of the plot of the plaintiff and plaintiffs have been using the same in such manner from the time of allotment of the plots; that the defendants in collusion to each other made a "rasta" over the land of the plaintiff forcibly and the said "rasta" is shown in red colour in the dotted lines in the site plan; despite intervention of respective member of panchayat, the defendants did not clear the plot of the plaintiff and has, thus, made "rasta" over the plot of the plaintiff forcibly. A relief of permanent injunction was sought against the defendants alongwith mandatory direction for removal of malba and bitora from the plot of the plaintiffs.
2 The defendant No. 1, 2, 3 and 5 contested thesuit by filing the written statement. The defendants contested the claim of the plaintiff stating that the suit was not maintainable because the plaintiffs were neither owner nor in possession of the land in question because the land vested in Gaon Sabha and was admittedly in possession of defendant No. 5 Smt. ...6...
Kalavati, wife of Sh Tara Chand. The defendants have taken various other objections stating that the suit was bad for non-joinder of Gaon Sabha of Village Pehladpur and was, therefore, barred by the provision of Delhi Land Reforms Act, 1954, hereinafter referred as the DLR Act. It was further stated that the plaintiffs were not member of scheduled cast as they belonged to backward class and the plots in question were not alloted to the father or grand father of the plaintiffs. All other averments have been categorically denied stating that the defendant No. 1 and 5 are in possession of Gaon Sabha land since 1953-54 and the plaintiffs wanted to dispossess them illegally and forcibly.
3 From the pleadings of the parties, Ld. Trial Court has framed the following issues :-
1) Whether the plaintiff is entitled to relief of permanent injunction as prayed for ? OPP.
2) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for ? OPP.
3) Whether the suit property vests in Gaon Sabha ? OPD.
4) Whether the suit is bad for non-joinder ...7...
of necessary parties ? OPD.
5) Whether the suit of plaintiff is time barred ? OPD.
6) Relief. 4 I have heard the Ld. counsel for appellant
and no-one argued on behalf of the respondents. The Ld. counsel for appellant at the very outset pointed out that the findings recorded by the Ld. Trial Court on issue No. 1 and 2 particularly, para No. 23 of the impugned judgment is contrary and inconsistent with the findings recorded on issue No. 3 particularly contained in para No. 25 of the impugned judgment.
It is argued that while deciding the issue No. 1 and 2 against the plaintiff and in favour of the defendants, the Ld. Trial Court has held that "the existence of the electricity poles on the alleged "rasta" makes the case of the defendant stronger that the land in the alleged "rasta" belongs to the Gaon Sabha and not to the plaintiff as alleged by him." It is further pointed out that while deciding issue No. 3 to the effect "Whether the suit property vests in Gaon Sabha ? OPD", the Ld. Trial Court held that "the defendant has failed to prove the khasra girdawari of the year 1987 wherein the land ...8...
in khasra No. 86/7 appears to have been registered in the name of Gaon Sabha and the said document has not been proved in accordance with law, therefore, the said issue is accordingly, decided against the defendant."
5 The Ld. counsel for appellant vehemently argued that the latter finding is inconsistent with the finding on issue No. 1 and 2 and, therefore, the findings recorded by the Ld. Trial Court are not legally sustainable in the eyes of law and the impugned judgment is liable to be set aside. It is further prayed that in these circumstances, the case may remanded back to the Ld. Trial Court for giving appropriate findings on the issue No. 1 and 2 as well as on issue No. 3.
6 I have considered the submissions of the Ld. counsel for appellant and gone through para No. 23, 24 and 25 of the judgment which are reproduced as under :-
"23. From the aforesaid circumstances, it can be easily inferred that plaintiff has admitted that there are two electricity poles on the "rasta" in dispute.
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And it is incredible that the Government authorities will erect the electricity poles on the private land of an individual. The existence of the electricity poles on the alleged "rasta" makes the case of the defendant stronger that the land in the alleged "rasta" belongs to the Gaon Sabha and not to the plaintiff as alleged by him. From the aforesaid circumstances, I feel no hesitation in holding that plaintiff has miserably failed to discharge the onus of proving the said issues. The issues are accordingly decided against the plaintiffs and in favour of the defendants.
24. ISSUE NO. 3 :- Whether the suit property vests in Gaon Sabha ? OPD.
The onus of proving the said issue was upon the defendants. The defendants in their written statement have taken the plea that the suit land vests in Gaon Sabha and Gaon Sabha is the owner of the same. As has already been held above, no evidence has come on record on behalf of the defendant. Plaintiff in his cross- examination admitted the suggestion to be correct that as per the revenue entries, Gaon Sabha is the owner of khasra No. 86/87. Counsel for the defendant at the time of final arguments argued that the said issue stands proved in view of the aforesaid admission made by the plaintiff during the cross-examination. However, I am not convinced with the said argument for the reason that admittedly, the plot in dispute lies in khasra No. 86/7 and not in khasra No. ...10...
86/87 and as the admission appears to have been made with regard to khasra No. 86/87, I am of the opinion that the said admission cannot be said to be sufficient for discharging the onus of aforementioned issue.
25. Furthermore, the defendant despite being having ample opportunities failed to lead any evidence for substantiating the said plea. Although, the perusal of the judicial files shows that the defendant has filed on record the khasra girdawari of the year 1987 wherein the land in khasra No. 86/7 appears to have been registered in the name of Gaon Sabha. But the defendant has failed to prove the said document in accordance with law as no evidence has been lead by the defendant nor any witness was summoned from the concerned department for proving the said document. Hence, the issue is accordingly decided against the defendants."
7 On perusal of the para No. 23, it is found that the Ld. Trial Court seems to have been guided by surmises wherein it is held that it is incredible that the Govt. authority will erect the electricity poles on the Pvt. Land of an individual. The further observation of the Ld. Trial Court in the same para is also not based on legal basis and the Ld. Trial Court seems to have ...11...
been guided by conjectures and surmises wherein it was held that the existence of electricity poles on the alleged "rasta" makes the case of the defendant stronger that the land in the alleged "rasta" belongs to the Gaon Sabha and not to the plaintiff as alleged.
8 While deciding issue No. 3, the observation in para No. 25 in the impugned judgment shows that the Ld. Trial Court was guided by the fact that the defendant has failed to prove the khasra girdawari of the year 1987 in the absence of any witness of the concerned department for proving the said document and the issue was accordingly decided against the defendant. Since this observation of the Ld. Trial Court was going to be inconsistent to the observation made in para No. 23 of the impugned judgment, the Ld. Trial Court should have asked the defendant to summon the revenue official to prove the khasra girdawari of the year 1987 to ascertain whether the land in dispute vested in Gaon Sabha or not. If the defendant has failed to summon the said witness, the Ld. Trial Court could have directed the defendant to summon the revenue official or on its own could summon the revenue official in order to ...12...
discover or to obtain proper proof of relevant facts. For deciding the controversy in this suit, it was a relevant fact to ascertain as to whether the land in dispute was owned by Gaon Sabha or by the plaintiff. In these circumstances, the Ld. Trial court should have exercised its power u/s 165 of the Indian Evidence Act, 1872 by directing the production of documents relating to khasra girdawari of the year 1987 with regard to the land in khasra No. 86/7. For these reasons, the findings recorded on issue No. 3 is not legally sustainable in the eyes of law. For this reason as well as for the reason that the findings recorded on issue No. 1 and 2 in para No. 23 of the impugned judgment is inconsistent with the findings recorded in para No. 25 of the impugned judgment, the impugned judgment is found not to be legally sustainable in the eyes of law. The impugned judgment is accordingly, set aside. The case is remanded back to the Ld. Trial Court u/s 107 CPC with the further direction to take additional evidence for deciding issue No. 3 and other issues afresh. The Ld. Trial Court is directed to conduct a de novo trial of the matter and to pass a fresh judgment. The appeal is, accordingly, accepted in above terms. Copy of this ...13...
order be sent to the Ld. Trial Court alongwith TCR. Parties are directed to appear before the Ld. Trial Court/Successor Court on 24-09-07. The appeal file be consigned to the Record Room.
Announced in the open Court on 15-09-07 (Raj Kumar Chauhan) Additional District Judge, Delhi.