Delhi District Court
ScjCumRc (N/W) : Rohini Courts : Delhi vs Ram Dei on 20 January, 2015
IN THE COURT OF SH. SHAILENDER MALIK
SCJCUMRC (N/W) : ROHINI COURTS : DELHI
Suit No. 475/13
Mahender Singh
S/o Late Sh. Jhuttar
R/o Village Kanjhawala, Delhi
Vs.
Satish Kumar
S/o Sh. Balbir Singh
R/o Village Kanjhawala, Delhi
Sh. Ravinder
S/o Late Sh. Rajinder Singh
Mrs. Prakash Wati
W/o Late Sh. Rajender Singh
Both R/o Village Kanjhawala, Delhi
Gram Sabha, Kanjhawala
Through BDO
5, Sham Nath Marg, Delhi
JUDGMENT
This order of mine will decide the following preliminary issue framed on 22.11.2014 regarding maintainability of the present suit:
"Whether the present suit is maintainable in the present form and is barred under the provision of law."Page No. 1/8
Factual background of the matter for deciding the above mentioned preliminary issue are :
Plaintiff has filed the present suit regarding the above mentioned suit land with the facts that plaintiff belongs to weaker section of society and father of the plaintiff was alloted the suit land as per the scheme of Delhi Land Reforms Act, by Gram Panchayat on 16.11.1971. it is stated that plaintiff's father by dint of hard work made the barren land in to cultivable and made fit for agricultural purpose. It is stated that suit land has been in physical and cultivable possession of present plaintiff. Though as per scheme of DLR Act, suit land was initially alloted to the plaintiff's father for 5 years on lease and thereafter, as per the requirement of DLR Act, Gram Panchayat was required was required to file report before Revenue Assistant regarding reclamation of suit land and on the basis of said report of Gram Panchayat, only Revenue Assistant / SDM has power to cancel the lease or extend the same. It is stated that father of the plaintiff had expired in year 1991 and thereafter, present plaintiff had filed the petition u/s 74 (4) of DLR Act seeking declaration of bhumidhari right in respect of suit land. The case of plaintiff further is that since the petition u/s 74 (4) of DLR Act is pending, in the meantime consolidation, as per the provisions of "East Punjab (Consolidation & Prevention of Fragmentation), Act 1948" had started in the village Kajhawala for better cultivation. Plaintiff apprehension of change of center of land in his possession, had earlier filed the writ petition no.734270/2005 before Hon'ble High Court wherein order dated 25.10.2005 was passed giving directions to Revenue Assistant/SDM to complete the pending proceedings filed by plaintiff within period of six months and till then plaintiff's possession would not be disturbed. It is stated that despite that order of Hon'ble High Court, Revenue Department, (consolidation officer) did not pay any heed to the order of Hon'ble High Court and therefore, plaintiff had again approached the Hon'ble High Court by filling contempt petition in which order dated 06.02.2008 was passed giving directions to Gram Panchayat / Revenue Officials not to dispossess the plaintiff till the decision of the plaintiff's petition filed u/s 74 (4) of DLR Act. It is stated that since the Page No. 2/8 allotment of the suit land to plaintiff has never been canceled nor any proceedings for ejectment was initiated by Gram Panchayat therefore, it is stated that substantive petition of plaintiff u/s 74 (4) of DLR Act is pending regarding declaratory right but defendant no.1 and 2 are allegedly threatening the plaintiff to dispossess from the suit land forcibly by claiming that they have been alloted above said suit land. Therefore, plaintiff stated to have approached Financial Commissioner by filling the petition u/s 42 of Consolidation Act, challenging the allotment if any in favor of the defendant and said petition was admitted and respondent's were restrained not to dispossess the plaintiff from the suit property. It is stated that plaintiff is in settled possession of the suit land hence, the present suit was filed with the prayer for decree of permanent injunction to restrain defendant or their agent / associates etc from claiming title or interest on their behalf or form dispossessing the plaintiff forcibly from the suit land.
Defendant no.1 and 2 have filed the WS taking various objections inter alia that suit is false and frivolous and has been filed with mala fide intention to blackmail the defendants for illegal demand of plaintiff. Suit is barred u/s 10 of CPC as admittedly petition u/s 74 (4) of DLR Act seeking declaration of Bhumihdhari right is pending regarding the suit land. Moreover, suit is barred by u /s 44 of "East Punjab" (consolidation & fragmentation), Act 1948 which ousts the jurisdiction of Civil Court. Moreover, suit is barred by u/s 9 CPC and under Section 185 of Delhi Land Reforms Act because admittedly suit land is agricultural land is governed by provisions of DLR Act. Since plaintiff has already filed petition before Revenue Assistant seeking declaration of bhumidhari right, Civil Court does not have jurisdiction to entertain the suit as plaintiff had efficacious remedy to seek relief before Revenue Assistant as such suit is barred u/s 41 (h) of Specific Relief Act. While denying the case of the plaintiff on merits it is specifically denied that plaintiff is in cultivatory possession of the suit land. It is pleaded that defendant no.1 and 2 are duly recorded owner in possession of the suit land as per the khasra girdawari annexed with WS.
WS has also been filed on behalf of Gram Sabha (defendant no.4) taking Page No. 3/8 similar objection as taken by defendant no.1 and 2 in their WS. It is further pleaded in the WS of defendant no.4 that plaintiff is though seeking injunction but he is neither in possession of suit land nor owner of the same, as same has been alloted to Private Right Holders in year 1998 during consolidation proceedings as per the power of Consolidation Officer u/s 21 (1) of the Act of 1948. It is pleaded while denying the case of the plaintiff that suit is barred by limitation as plaintiff was well aware that Consolidation Officers has alloted the land in question during the consolidation from 05.05.98 to 29.05.1998 u/s 21 (1) of the Act. Suit is bad for want of prior notice u/s 80 of CPC. While denying the case of the plaintiff on merits though it is not disputed that father of the plaintiff was alloted land on lease for 5 years but it is pleaded that thereafter, suit land was canceled and plaintiff had filed the petition u/s 74 (4) of DLR Act seeking bhumidhari right. It is stated that land in question has already been alloted to Private Right Holders in year 1998. It is stated that plaintiff filed the false writ petition before Hon'ble High Court and on the basis of wrong assertion of fact that he is in possession of suit land, he obtained the orders whereas during the consolidation proceedings in year 1998 itself entire land of village Kanjhawala was put into the common pool and old khasra were abolished and new khasra were alloted. Thereafter, land was alloted a fresh to right holders as per their entitlement and as per scheme of consolidation.
It is argued by counsel for plaintiff that there is no provisions of law which bars the maintainability of the present suit as the question and objections raised by defendants are only mixed question of law and facts. It is argued that since the plaintiff has filed the suit for injunction based on possession, therefore, provisions of Section 185 of DLR Act will not be attracted. He further submits that even the provisions of "East Punjab (Consolidation and Prevention of Fragmentation) Act, 1948" are also not relevant as plaintiff is not raising any grievance regarding the consolidation proceedings carried on under that Act. It is submitted that since plaintiff is seeking the relief of simplicitor injunction, therefore, the suit is maintainable.Page No. 4/8
On the other hand both counsels for defendant no. 1 and 2 and of defendant no. 4 submit that the suit though may be for relief of injunction but is not maintainable firstly because the plaintiff has not relied upon even a singly document to establish his possession of the suit land. It is argued that since plaintiff by his own admission as stated in para 4 and 5 of plaint has admitted that land was given to his father for a period of 5 years in terms of provisions of Section 74(4) of DLR Act, Gram Panchayat has to file the report to Revenue Assistant for reclamation of land as lease was never extended. It is argued that there is a khasra girdawari in favor of defendant no. 1 to 3, clearly indicating that in fact defendants are in possession and not the plaintiff and in that sense the suit is neither maintainable nor sustainable in law. It is submitted that revenue record as to possession of defendants cannot be overlooked to mere oral claim of plaintiff regarding possession. It is also argued on behalf of defendants that since admittedly the land of village kanjhawala has been under consolidation, therefore, the suit is otherwise barred because of the provisions of Section 44 of "East Punjab (Consolidation and Prevention of Fragmentation) Act, 1948".
Reliance in this regard has been placed on Phoolwati and ors vs. Ram Dei 150(2008) DLT 105 Delhi High Court and Hoshiar Singh etc. Vs Gaon Sabha, Daryapur Kalan and ors. 36(1988) DLT 428 Delhi High Court.
Having heard the submissions and having gone through the written arguments filed on behalf of plaintiff, there is no denial to the legal proposition that civil suit can be dismissed at the initial stages only when such suit is not maintainable in law. Therefore, when the present issue under consideration is being decided, facts of present case will be considered to see whether the suit is barred in any of the provisions of law or not. If the question is mixed question of law and fact and then obviously suit cannot be dismissed. There is distinction between maintainability and sustainability of the suit.
Let us now examine the facts of the case keeping that proposition in mind. No doubt plaintiff has filed the present suit for injunction and relief of injunction no Page No. 5/8 doubt can be given by Civil Court and in that sense suit cannot be held to be barred by the provisions of Section 185 of DLR Act. However, at the same time, the facts of the case must be understood in totality and not merely because the plaintiff is seeking relief of injunction. If we carefully read the facts as stated in the plaint as a whole, it would be clear that plaintiff appears to be claiming right in respect of land comprised in survey no. 115/20 (old) and/ survey no. 75/20(new) measuring 4 bhiga 16 biswa of Village Kanjhawala on the ground that said land was given to his father as per the scheme of DLR Act by Gram Panchayat of Village Kanjhawala. Admittedly, said land was allotted to the father of the plaintiff only for a period of 5 years. Though, the case of the plaintiff however is that lease of said land was never canceled and Gram Panchayat never filed any report to Revenue Assistant regarding reclamation of the said land. However, in the para 5 of plaint itself, plaintiff has stated that he has already filed the petition under Section 74(4) of DLR Act seeking bhoomidari rights in respect of land in question. Now, when plaintiff is seeking the relief of injunction in the present civil suit on one hand and on the other hand plaintiff is seeking bhoomidari rights before the Revenue Assistant, it is to be seen whether plaintiff has possession of the suit land. It is admitted proposition of fact that land of the village Kanjhawala was subjected to consolidation and admittedly consolidation officer as per the provisions of East Punjab (Consolidation and Prevention of Fragmentation) Act, 1948, partitioned the whole land and land in question was allotted to defendants in 1998. Plaintiff has not placed on record any document of being in possession. On the other hand defendant no. 1 and 2 have relied upon khasra girdawri along with their WS as Annex. A of year 200910 which show that suit land shown under survey no. 75/10 is in the possession of defendant no. 1 and 2. Thus, evidently there is a revenue record showing the possession of the defendant no. 1 and 2 and not with the plaintiff and admittedly plaintiff has already filed the petition under Section 74(4) of DLR Act, seeking the bhoomidari right. In such situation I find that suit is not maintainable , even according Section 185 of DLR Act because plaintiff is essentially and indirectly trying to seek the relief regarding declaration of bhoomidari right under the garb of a suit for injunction. When there being no evidence of plaintiff being in possession of suit land and there being revenue Page No. 6/8 record showing defendant no. 1 and 2 being in possession, I find that observation as given by the Hon'ble High Court in Phoolwati and ors vs. Ram Dei (supra) that possession of agriculture land goes with the title of the revenue record. Revenue record are prepared on the basis of physical verification by patwari entries in the revenue record are presumed to be correct on the question of possession. When it is not disputed that said land is subject to the provisions of DLR Act revenue record i.e. khasra girdawri is against the plaintiff, merely because that plaintiff has filed a suit for injunction, would not make the suit to be maintainable in law when essentially relief is for bhoomidari in respect of land which is barred under the provisions of Section 185 of DLR Act. It is for revenue court to decide the title or interest of the plaintiff herein and also to decided the question of his possession when he has admittedly filed the petition under Section 74(4) of DLR Act.
No doubt ld. Counsel for plaintiff has tried to take benefit of directions given by the Hon'ble High Court in order dated 25.10.2005 and 06.02.2008 in writ petition no. 734270/2005 and contempt petition respectively. These, orders of Hon'ble High Court passed in year 2005 and 2008 do not establish the factum of possession of the plaintiff in the suit land when the present suit has been filed in year 2013 because in between the suit land has already been allotted to defendant no. 1 and 2 by the order of Consolidation Officer passed as per Section 21 of Consolidation Act which was also challenged by the plaintiff before Financial Commissioner. In such situation when on one hand regarding consolidation proceedings matter is pending before Financial Commissioner and regarding the bhoomidari right matter is pending before Revenue Assistant, in such situation I find that the present suit is not maintainable in Civil Court only with oral claim of being in possession which is apparently believed by Revenue record like khasra girdawri and also by challenging of order of CO by plaintiff before Financial Commissioner.
Matter can be appreciated from another angle. Section 44 of East Punjab (Consolidation and Prevention of Fragmentation) Act, 1948 reads as under:Page No. 7/8
"No Civil Court shall entertain any suit instituted or application made, to obtain a decision or order in respect of any matter which the [State] Government or any officer is, by this Act, empowered to determine, decide or dispose of."
Thus from the reading of the provisions of Section 44 of above mentioned Act it is clear that Civil Court has no jurisdiction to entertain the suit in respect of decision or order in respect of matter of consolidation proceedings. Admittedly, in the present case suit land has already been allotted to defendant no. 1 and 2 and khasra girdawri also establish the possession of defendant no.1 and 2 in the suit land, in such situation when the order passed by Consolidation Officer, has already been challenged before Financial Commissioner, I find that present suit is also barred by the provisions of Section 44 of East Punjab (Consolidation and Prevention of Fragmentation) Act, 1948.
Thus, for the reasons discussed above, issue under consideration is decided against plaintiff I find the suit to be not maintainable. Hence, dismissed. File be consigned to RR.
Announced in open court on 20th January 2015 SH. SHAILENDER MALIK (SCJRC, ROHINI COURTS, DELHI) Page No. 8/8