Delhi District Court
Gaon Sabha Village Mandoli vs Sh. Nirmal Singh on 26 November, 2011
In the court of Sh. Devender Kumar CCJ/ARC (N/E),
Karkardooma Courts Delhi.
UNIQUE I.D. NO.: 02402C0288372005
CIVIL SUIT NO. 383/09
IN THE MATTER OF :
1. GAON SABHA VILLAGE MANDOLI,
THROUGH ITS B.D.O. (NORTH EAST)
GOVT. OF NCT DELHI
ROOM NO. 12, C BLOCK,
D.C. OFFICE COMPLEX, NAND NAGARI,
DELHI
2. UNION OF INDIA
THROUGH SECRETARY (REVENUE)
5SHAM NATH MARG,
DELHI 110054 PLAINTIFFS
Versus
1. SH. NIRMAL SINGH
S/O SH. SURJIT SINGH
TEA SHOP, KHASRA NO. 533,
VILLAGE MANDOLI,
FANNEY KHAN MOR, DELHI 110093
2. SH. SAMAYDIN
S/O SH. SAEEDUDDIN
R/O VILLAGE MANDOLI,
NEAR BADI MASJID,
DELHI 110093
3. SH. GUR BUX SINGH
S/O SH. JEEWAN SINGH
R/O VILLAGE MANDOLI, SHAHDARA,
DELHI DEFENDANTS
C.S. No. : 383/09 Page No. 1/24
Date of Institution of the Suit : 03.06.05
Arguments Heard : 26.11.11
Date of Judgment : 26.11.11
SUIT FOR RECOVERY OF POSSESSION AND RECOVERY OF FUTURE
DAMAGES/MESNE PROFITS, PERMANENT INJUNCTION
Judgment :
1. Vide this judgment, I shall dispose off a suit for recovery of possession,
future damages/mesne profits and permanent injunction filed by the plaintiffs
against the defendants. The brief facts of the case are as under :
2. Plaintiffs have alleged that the land measuring about 3 bighas and 13 biswas
in Khasra No. 531 (10), 532 (011) and 533 (22) in Village Mandoli, Delhi
belongs to the plaintiffs and was earmarked and reserved for public purposes U/s
1 (2) (c) of the Delhi Land Reforms Act. It is further alleged that the defendants
have illegally and unauthorizedly encroached upon a portion of the said land
measuring 34"x19" (646 Sq. Ft.) & 34" x 14" (476 Sq. Ft.) forming part of the
land bearing Kh. No. 533 (22) out of entire land and started doing 'Kabari'
business in the said land. It is further alleged that plaintiffs had initiated the
proceedings U/s 86A of DLR Act, 1954 against the defendants and Ld. Revenue
Assistant also passed an eviction order dated 30.04.82 against the defendants in
respect of the suit property. It is further alleged that the defendants had also filed
objections against the order of Ld. Revenue Assistant which were also dismissed
by Ld. SDM/R.A. and again the defendants were directed to evict the suit property.
C.S. No. : 383/09 Page No. 2/24
It is further alleged that the defendants filed a civil writ petition bearing no.
3460/1995 titled Gurbux Singh Vs. K. K. Dahiya, BDO & Ors., but during the
pendency of the said petition, the defendants removed the Goan Sabha Board
affixed in the suit property and cantenna wire erected on the suit property to avoid
any encroachment. It is further alleged that the Hon. High Court vide order dated
16.08.04 directed the respondents i.e. plaintiffs herein to file a civil suit for
possession of the suit property, hence present suit. By the way of present suit, the plaintiffs have prayed that a decree of possession, permanent injunction and decree for mesne profits U/o 20 Rule 12 CPC be passed in favour of plaintiffs and against the defendants along with cost.
3. All the defendants were served and filed WS. Defendant no. 1 has filed WS thereby alleging that the plaintiffs have no locus standi to file this case and suit is liable to be dismissed. It is further alleged that defendant no. 1 is occupying the suit property as tenant under the landlordship of Sh. Gur Bux Singh and Sh. Samaiddin who are the absolute owners and in possession of the suit property since 1970 without any interruption. It is further alleged that the defendant no. 1 cannot be evicted and dispossessed by the plaintiffs without due process of law and only Sh. Gur Bux Singh and Sh. Samaiddin have right to get the suit property evicted from the defendant no. 1. It is prayed that the plaintiffs have filed this suit just to harass the defendants and the suit is liable to be dismissed with cost.
4. Defendant no. 2 & 3 were impleaded U/o 1 Rule 10 CPC during the pendency of the suit. Both the defendants have alleged that the suit of the plaintiffs is based upon the false and fabricated facts and the same is liable to be C.S. No. : 383/09 Page No. 3/24 dismissed. It is further alleged that the plaintiffs have suppressed the material facts from this court as they are neither the owner nor in possession of the suit property and the suit is liable to be dismissed. It is further alleged that the plaint has not been duly instituted by authorized person on behalf of plaintiff no. 2 and liable to be dismissed. It is further alleged that the plaintiffs have not filed any official Gazette passed by Chief Commissioner thereby declaring the said area for the use of public purposes and defendants no. 2 & 3 are in actual physical possession of the land since 1970 and have acquired the ownership/bhumindari rights due to their long adverse and hostile possession over the suit property. It is further alleged that Ld. Revenue Assistant had also passed a decree for ejectment against the defendants in respect of suit property, but no execution proceedings have been initiated by Tehsildar till date. It is further alleged that Ld. Revenue Assistant, Shahdara, Delhi again got served a notice U/s 86A of DLR Act on 07.09.89 which was duly replied by the defendants but the same was withdrawn by Ld. Revenue Assistant thereby stating that there is neither any Dispensary nor any Panchayat Ghar or Youth Club at the site. It is further alleged that the plaintiff no. 1 filed an appeal before Ld. Add. Collector, Delhi against the order which was also dismissed and maintained the order passed by Ld. Revenue Assistant. It is further alleged that the plaintiff no. 1 again got an eviction order against the defendants from Ld. Revenue Assistant vide order dated 13.09.95 which was got quashed by the defendants from the Hon. High Court of Delhi vide order dated 16.08.04. It is further alleged that the area was never notified for public purposes by Chief Commissioner and this court has no jurisdiction to entertain this suit and even suit C.S. No. : 383/09 Page No. 4/24 is barred by limitation. The defendant no. 2 & 3 have denied all the allegations of the plaintiffs and have prayed that the plaintiffs have filed this suit just to harass the defendants and the suit is liable to be dismissed with cost.
5. The plaintiffs have filed replication to the WS of all the defendants and have denied all the allegations of all the defendants and reaffirmed its pleadings.
6. As per the pleadings of the parties following issues have been framed by this court vide order dated 08.08.06 as under:
ISSUES :
1. Whether plaintiff is entitled to a decree for possession as prayed for ? OPP
2. Whether the plaintiff is entitled to damages and measne profit as claimed ?
OPP
3. Whether the plaintiff is entitled to a decree for permanent injunction as prayed? OPP
4. Whether the plaintiff has no locus standi to file the present suit ? OPD
5. Whether the suit of the plaintiff is barred by limitation ? OPD
6. Relief claimed ?
7. To prove the case, the plaintiffs have examined Sh. Mangal Singh as PW1, Sh. Naresh Kumar as PW2, Sh. Rajeev Sharma as PW3, Sh. N. D. Vashisth as PW4, Sh. Narender Kumar as PW5, Sh. Suresh Kumar as PW5 and closed PE. The defendants have also examined Sh. Nirmal Singh as DW1, Sh. Samaydin as DW2 and closed DE.
I have heard the arguments and perused the record. My issues wise findings are as under :
C.S. No. : 383/09 Page No. 5/24
8. ISSUE NO. 5 :
I am taking up issue no. 5 first as the same is with regard to the limitation of the suit. The onus to prove this issue was fixed upon the defendants. Though the onus has been fixed upon the defendants, yet it was the duty of the plaintiff to prove that the suit has been filed within the period of limitation. To discharge the onus the defendants have examined DWs and have also cross examined PWs. Defendant no. 1 has alleged to be the tenant of the defendants no. 2 & 3 and now has left the possession of the suit property. In the WS, the defendants no. 2 & 3 have alleged that they are in actual and physical possession of the suit property since 1970 and have acquired their ownership rights due to their long and hostile possession over the land. It is further submitted that the plaintiffs had initiated the eviction proceedings against the defendants including Sh. Gur Bux Singh U/s 86A of DLR Act way back in the year 1982 itself and even an eviction order was also passed against the defendants with regard to the entire suit property in case titled Gaon Sabha Village Mandoli Vs. Gur Bux Singh and Samaydin which was decided on 30.04.82. It is further submitted that no execution proceedings were initiated on the basis of the said eviction order, but again another eviction proceedings were initiated which were dismissed, but thereafter again no execution was filed and ultimately the period of execution was lapsed. Thereafter the execution was dismissed and even the appeal was also dismissed by the Ld. Additional Collector on 25.11.92. It is further submitted that Sh. K. K. Dhaiya, Ld. Revenue Assistant also passed an eviction order regarding the suit property, but the same was challenged before the Hon. High Court of Delhi in civil writ petition C.S. No. : 383/09 Page No. 6/24 and the proceedings were quashed by the Hon. High Court of Delhi. It is further submitted that at the time of quashing the proceedings, the court observed that only civil court is having jurisdiction to entertain this petition and now the plaintiffs have filed this suit which is again barred by limitation and the suit is liable to be dismissed.
9. On the other hand, counsel for plaintiffs has opposed the submissions and has submitted that earlier the proceedings were initiated against the defendants which were quashed by the Hon. High Court of Delhi in civil writ petition and in the order/judgment of writ petition, the Hon. High Court of Delhi has observed that only Civil Court has jurisdiction to entertain this suit and the proceedings before Revenue Authority were initiated in good faith and bonafide due to the plaintiffs are entitled for the benefits U/s 14 of Limitation Act and the suit filed before this court is within the period of limitation. It is further submitted that a period of limitation to recover the Government land is 30 years and the period of 30 years is yet to be lapsed and case filed before this court is within the period of limitation and liable to be decreed.
10. I have heard the arguments and perused the record. As per section 111 & 112 of Schedule 1 of Limitation Act, a period of 30 years has been prescribed for the limitation to recover a public land from a private person. The defendant no. 1 was the tenant of the defendants no. 2 & 3 and now has left the premises. Now premises is in exclusive possession of the defendants no. 2 & 3. The defendants no. 2 & 3 have alleged in the WS as well as in the examinationinchief of DW2 that they are in possession of land bearing Kh. No. 531, 532 and 533 measuring 3 C.S. No. : 383/09 Page No. 7/24 bigha and 3 biswa since 1970 and have acquired the valuable right of ownership by the way of adverse possession. During the cross examination, the DW2 has deposed that the land in question was never used for cultivation purpose after consolidation of holdings. It is further admitted that his name or name of Sh. Gur Bux Singh have never been shown in the column of Bhumidari before/after the consolidation. It is further deposed that his name has been shown in the revenue records prior to 1980. It is further admitted that the defendant no. 2 & 3 are in actual physical possession of land measuring 3 bigha and 13 biswas in equal share with Sh. Gur Bax Singh and land has not been partitioned by meets and bounds. It is further admitted that since the year 1980, the Revenue Department is taking action for their eviction from the suit property measuring 3 bigha and 13 biswa land. It is further admitted that they have not filed any petition for declaring themselves as bhumidar of the land mentioned above. It is further admitted that no cultivation activities are going on in the property in question. It is further deposed that other persons against whom this case has been filed are mostly tenant or licensee of the defendants i.e. Sh. Samaydin and Sh. Gur Bux Singh. It is admitted that in the column of bhumidari, in documents Ex. DW2/9 to DW2/12, the name of Gaon Sabha has been shown as bhumidar, but in the possession column, his name along with Sh. Gur Bax Singh have been shown. By the cross examination of DW2, it is revealed that the testimony of DW2 is unrebutted on the point of the period of his possession as the DW2 has mentioned in his examinationinchief that the defendants are in possession of the suit property since 1970 and the plaintiffs have not put even a single suggestion to the defendants that they are not C.S. No. : 383/09 Page No. 8/24 in possession of the suit property since 1970. Rather, DW2 has also been suggested that the Gaon Sabha is taking action against the defendant since 1980. This fact itself suggest that the defendants are in possession of the suit property prior to 1980. The document Ex. DW2/9 pertaining to the year 198182 and is suggesting that the defendants are in unauthorized possession of the suit property, whereas other documents Ex. DW2/10 to DW2/12 are showing that Gaon Sabha is the owner/bhumidar of the suit property, but the plaintiffs have not filed any document on record to prove that the suit property was in their possession prior to 1980. The plaintiffs lodged eviction proceedings against the defendants in the year 1981 itself and it may be presumed that the defendants were already in possession of the suit property prior to 1980 and oral testimony on the point of possession is already unrebutted in the absence of any denial by plaintiffs, accordingly the period of 30 years was lapsed in the year 2010 itself and the suit filed by the plaintiffs is barred by limitation.
11. So far the plea of the plaintiffs that the earlier proceedings were initiated under DLR Act were bonafide is concerned, plea taken by plaintiffs has no substance as it was the case before the Revenue Authority that the land is covered under DLR Act and this plea was contested by the plaintiffs before various authorities and ultimately the same was got quashed from the Hon. High Court of Delhi vide judgment in writ petition which is Ex. DW1/6. Judgment of the Ld. Revenue Assistant was quashed on the ground that the land is reserved for social purposes like Youth Club, Dispensary and Panchayat Ghar and the same is covered U/s 1 (c) of the DLR Act and only civil courts have jurisdiction to entertain this C.S. No. : 383/09 Page No. 9/24 case, but the Hon. High Court of Delhi has no where granted any liberty to the plaintiffs to file this suit before the court due to this judgment is not sufficient to condone delay in filing this case and this suit shall govern by the limitation prescribed by Limitation Act. Further the plea of section 14 is also not applicable in this case as the same is only available in those cases where the plaintiffs were bonafidely contesting the proceedings before any other court of jurisdiction under the bonafide belief, but ignorance of law is no excuse. Even otherwise this benefit was only available till the first proceedings which were never got executed and subsequent proceedings after earlier eviction order is not continuation of earlier proceedings and double benefit is not available to plaintiffs. In the present case, the conduct of the plaintiffs is so lethargic and negligent since beginning that the eviction proceedings were initiated against the defendants in the year 1981 itself under section 86A of DLR Act, but the same were not got executed by the way of execution. Instead of executing the order of Revenue Assistant, Revenue Assistant again served a fresh Show Cause notice upon defendants on 20.08.90 vide Ex. DW2/2, but the proceedings were withdrawn by the Ld. ADM vide Ex. DW2/3, but still no execution petition was filed despite the period of 12 years as granted and admitted by the plaintiff. But thereafter on 13.09.95, an order Ex. DW2/5 was passed by Ld. Revenue Assistant for demolition of suit property, but the same was challenged before Hon. High Court of Delhi vide Ex. DW2/6 and was quashed. As per the above said orders, it is clear that Sh. K. K. Saini, Ld. Revenue Assistant had specifically observed in the order that there was no Youth Club, Dispensary or Panchayat Ghar at the spot and even the document Ex. DW2/9 is showing the C.S. No. : 383/09 Page No. 10/24 unauthorized possession of the defendants in the suit property regarding all three Khasra Nos. Documents Ex. DW2/10 to DW2/12 are showing that Sh. Gur Bax Singh was in possession of the suit land, whereas in Ex. PW3/A, which is Khatoni for the year 8889, a Dispensary, Panchayat Ghar and Youth Club have been shown, but again in the year 200506, Sh. Gur Bax Singh has been shown as illegal occupant vide Ex. DW2/10. All the documents clearly suggest that the claim of the plaintiffs is defective since beginning.
12. Further, the plaintiffs are claiming that the land is reserved for Panchayat Ghar, Youth Club and Dispensary whereas the same is not in existence till date, but certain Khatonies are showing that the Gaon Sabha is in the possession of the land as bhumidar. It is beyond explanation as to why the land kept reserved for Dispensary, Panchayat Ghar and Youth Club was again converted in the ownership of Gaon Sabha as Bhumidar. Admittedly the defendants have not vacated the land since beginning and changes in the documents clearly suggest that the entries maintained by Revenue Record are not correct. If the entries maintained by the authorities are not correct, then no presumption can be raised about the bonafide of those documents that the documents are reflecting the correct situation of the possession of the land. As such, this suit filed by the plaintiffs is beyond the period of limitation and the defendants have discharged the onus to prove this issue and this issue is decided in favour of the defendants and against the plaintiffs.
13. ISSUE NO. 4 :
The onus to prove this issue was fixed upon the defendants. To discharge the onus, the defendants have examined their witnesses and have also cross C.S. No. : 383/09 Page No. 11/24 examined the PWs. It is submitted by counsel for defendants that the plaintiffs have no locus standi to file this case as the suit has been filed by one Sh. Mangal Singh BDO, North East, whereas he was not authorized on behalf of Gaon Sabha or Union of India to file this suit. It is further submitted that a specific cross examination has been carried out by the defendants on this point and Sh. Mangal Singh has specifically deposed that Union of India has not given him any specific authority to file this suit and in the presence of admission of the PW1 on this aspect, it is clear that the plaintiffs have no locus standi to file this case on behalf of Union of India and the suit is liable to be dismissed.
On the other hand, counsel for plaintiffs has submitted that the then DC, North East, had authorized Sh. Mangal Singh, who was the BDO of the area, to file this case and no separate authority on behalf of Union of India was required as notification has already been filed by PW1 on record which is showing that the BDO is authorized to institute the suit on behalf of the Government and the plaintiffs have locus standi to file this case.
14. I have heard the arguments and perused the record. PW1, Sh. Mangal Singh has filed this suit on behalf of Gaon Sabha and Union of India which is to be represented by DC of the concerned area. PW1 Sh. Mangal Singh has deposed that his authorization Ex. PW1/1 has been issued by concerned DC, who has authorized him to institute this suit on behalf of Gaon Sabha as well as Union of India, which was to be represented by concerned DC. It is further deposed that the DC, North East has not issued any authority letter to him with regard to the present case and it is further admitted that Ex. PW1/1 does not authorize him to C.S. No. : 383/09 Page No. 12/24 depose as a witness in this case before this court. It is further deposed that he has been remained BDO in the area in which suit property falls since July 2004 to 30 June 2006 approximately. It is further deposed that he has been authorized by DC, North East vide Ex. PW1/1 and as per Gazette Notification which is Ex. PW1/2. It is further deposed that he is not aware about the status/ownership of the land measuring about 3 bigha and 13 biswas in Kh. No. 531, 532 & 533 in Village Mandoli before consolidation.
15. After going through the material available on record, it is revealed though no specific authorization of DC on behalf of the Government of India has been filed on record thereby authorizing the concerned BDO to institute this case on behalf of Gaon Sabha or Union of India, yet the documents Ex. PW1/1 and Ex. PW1/2, which is Government Notification, has specifically authorized the concerned DC to institute suit on behalf of the Gaon Sabha under Panchayat Raj Act and this Government Notification is sufficient to prove that the DC concerned was authorized to represent the Union of India for recovery of unauthorized land of the Gaon Sabha. Further, if the DC concerned has authorized the BDO to institute this suit vide Mark B, then it is sufficient to prove the authorization of the BDO concerned to institute this suit. Admittedly this land belongs to Gaon Sabha and the defendants have also conceded that they are in unauthorized possession of the suit property since 1970, due to the Gaon Sabha has locus standi to file this case against the defendants. As such the defendants have failed to discharge the onus to prove this issue and this issue is decided in favour of the plaintiffs and against the defendants.
C.S. No. : 383/09 Page No. 13/24
16. ISSUES NO. 1 TO 3 :
The onus to prove all these issues was fixed upon the plaintiffs. To discharge the onus, the plaintiffs have examined PWs and have also cross examined DWs. PW1 has deposed that the plaintiff no. 1 is the Bhumidar of the land measuring 3 bigha 13 biswas arising out of Kh. No. 531, 532 & 533 in Village Mandoli, Delhi and the copy of the Khasra Girdawari and Khatoni are Ex. PW3/A and Ex. PW3/B. It is further deposed that the land was left for common utility i.e. Dispensary, Youth Club and Panchayat Ghar for the welfare of the public at large U/s 1 (2) (c) of DLR Act, but the defendants are in unauthorized possession of the suit property shown in the site plan Ex. PW5/1 (should be PW6/1). It is further deposed that the proceedings U/s 86A of DLR Act, 1954 were initiated against the defendants and even the same were decided in favour of the plaintiffs, but the defendants challenged the same before Hon. High Court of Delhi and the Hon. High Court of Delhi has quashed the proceedings. During the cross examination, PW1 has deposed that he is neither aware about the status/ownership of the property before consolidation nor about the details of consolidation of land which falls in village Mandoli. It is further admitted that he was not involved in the process of consolidation at any stage. It is further deposed that he is also not aware as to what number was given to what portion of land at the time of consideration. It is further deposed that he is not aware whether any notification of public utility has been issued by Commissioner or not. It is further admitted that a notification from competent authority is required as per the provisions of DLR Act, but he is not aware whether any objections were invited by Chief C.S. No. : 383/09 Page No. 14/24 Commissioner, Delhi qua the land in question. It is further deposed that he is not aware as to whether any order has been passed by Consolidation Officer. It is further deposed that in document Mark DX1, it has nowhere mentioned that the land has been marked for public utility. It is admitted that the translation document mark DX1 does not bear the name and signature of the translator. It is further deposed that the consolidation process was prior to the year 2004 and he was possessed in the year 2004, due to not aware about consolidation proceedings. It is admitted that in the Khatauni, the name of bhumidar of the land is mentioned as per revenue record and the name of Gaon Sabha has been mentioned in the Khatauni pertaining to year 19881989 which is document Ex. PW3/B. It is further admitted that till date, no construction of Dispensary, Youth Club and Panchayat Ghar has been raised over the land in question. It is further deposed that the Khasra Girdawari was recorded by the Halka Patwari after visiting the site and the entries of the possession and structure existed on the site are also recorded in the said Khasra Girdawari. It is further admitted that as per document Mark B, no Panchayat Ghar, Youth Club or Dispensary is under construction. It is further deposed that he does not possess any document to show that this land was allotted to Panchayat Ghar, Youth Club and Dispensary or it was left during the consolidation. It is further deposed that he has no knowledge about the orders passed by Revenue Assistant against the defendants. It is further deposed that he cannot give the details of other persons, but Khasra nos. 531, 532 & 533 are governed by the provisions of DLR Act, 1954. It is further deposed that he cannot tell the market value of the suit property. It is further deposed that he does not C.S. No. : 383/09 Page No. 15/24 know the period from which the defendants are in possession of the suit property. It is further deposed that he is not aware about the status of the case filed against the defendants in the year 1982. It is further deposed that he is not aware whether the land is constructed or vacant. It is further deposed that he is not aware whether the land in possession of Samaydeen was constructed or vacant at the time of his visit in the month of March 2005 and the land is pertaining to Khasra no. 533, but he is not aware about the surroundings of the land. It is further deposed that the demarcation of the Kh. No. was not done in his presence. It is further deposed that the site plan was not got prepared by him, but draftsman visited the suit property before drafting the site plan and officials of plaintiffs were accompanied him, but he was not present there. It is further deposed that he cannot tell the date, month and year when the draftsman visited the suit property. It is further deposed that he cannot tell the locations in possession of the defendants as per the site plan.
17. PW2 has proved the document Mark A and has deposed that he has seen the revenue record of Khasra No. 531, 532 & 533. It is further deposed that he does not know the name of the persons who were found in occupation of the land at the time of his visit and also cannot tell as to whether land was lying vacant or not. It is further admitted that the construction of Dispensary, Youth Club and Panchayat Ghar was never made at the property by the competent authority and this land is lying vacant and no construction is in existence. It is further deposed that no proceedings were taken place at the time of his visit except the preparation of his report.
C.S. No. : 383/09 Page No. 16/24
18. PW3 has proved the revenue record as Ex. PW3/A to PW3/B and was not aware who is in possession of the suit land.
19. PW4 has proved the sanction letter of construction as Ex. PW4/A.
20. PW5 has proved the Scheme of ChuckBandi vide document Ex. PW5/1, but was not aware about the consolidation proceedings. PW5 has failed to give any answer about the contents of the document as it was in Urdu language.
21. PW6 (wrongly examined as PW5) has proved the site plan Ex. PW6/1 (wrongly Ex. as PW5/1), but the site plan was prepared at Tis Hazari Courts and he was not aware about the locations of the suit property.
22. On the other hand, DW1 Sh. Nirmal Singh has deposed that he was a tenant of defendants no. 2 & 3 in the suit property, but now the same has been vacated.
23. DW2 has deposed that he has cultivated the land in the year 1970 and thereafter running a dairy. It is further deposed that he is not having any Khasra Girdawari pertaining to the year 1970 as the consolidation proceedings were going on. It is denied that the document Ex. DW2/Mark P1 bears the signatures of his father at point A as his father never signed during his life time. It is admitted that the land in question was never used for cultivation purpose after consolidation of holdings. It is further admitted that the name of Sh. Gur Bax Singh has never been shown in the column of Bhumidari before consolidation or after the consolidation. It is further deposed that his name has been shown in the revenue record prior to 1980. It is further deposed that he has no knowledge about the proceedings of beating of drums or public notice given by Deputy Commissioner before the consolidation proceedings. It is further deposed that he along with Sh. Gur Bax C.S. No. : 383/09 Page No. 17/24 Singh is in actual physical possession of the land measuring 3 bigha and 13 biswa in equal shares, but the land has not been partitioned till date. It is admitted that since 1980, the revenue department is taking action for their eviction but he has not filed any objection for declaring them as bhumidar. It is further admitted that no cultivation activities are going on in the suit property. It is further deposed that other persons are either tenant or licensee in the suit property. It is further admitted that the documents Ex. DW2/9 to Ex. DW2/12 have shown Gaon Sabha as Bhumidar.
DW2 has also relied upon the documents Ex. DW2/1 i.e. order of the Ld. Revenue Assistant Sh. A. B. Shukla, Ex. DW2/2 i.e. order of Sh. K. K. Saini, Ex. DW2/3 i.e. the order of Sh. Ramesh Tiwari, Ld. Additional Collector, Delhi, Ex. DW2/4 i.e. again order of Ld. Revenue Assistant, Ex. DW2/5 i.e. the order of Sh. K. K. Dahiya and Ex. DW2/6 i.e. the order of Hon. High Court of Delhi, Ex. DW2/7 i.e. is the notice U/s 86A of DLR Act and Ex. DW2/8 is information received under the RTI, Ex. DW2/9 is Khasra Khatoni for the year 198182 and Ex. DW1/10 to Ex. DW1/12 are Khasra Girdawari.
24. After going through the testimonies of both parties and contents of the documents relied upon by the both parties, it is clear that the plaintiffs are recovering the land reserved for Panchayat Ghar, Dispensary and Youth Club allegedly left by the Government at the time of proceedings of consolidation. As per the provisions of DLR Act, 1954, some legal requirements are necessary to recover a land reserved for public purposes. I have gone through the legal provisions regarding the same. The provisions of Section 1 (2) (c) is as under : C.S. No. : 383/09 Page No. 18/24
1. Short title, extent and commencement - (1) ...
(2) ...
(a) ...
(b) ...
(c) areas held and occupied for a public purpose or a work of public utility and declared as such by the Chief Commissioner or acquired under the Land Acquisition Act, 1894, or any other enactment other than this Act, relating to acquisition of land for a public purpose.
(3) ...
(4) ...
As per the above said section, it is clear that the DLR Act is not applicable on the land reserved for these purposes, but certain legal formalities are also required to declare the land reserved for public utility as per Delhi Land Reforms Rules as under :
Rule 1 :
1. Short title and Commencement
(a) (i) ...
(ii) ...
(b) ...
(i) ...
(ii) ...
(iii) ...
C.S. No. : 383/09 Page No. 19/24
(iv) ...
(c) (1) On the commencement of the Act, the Chief Commissioner shall, with reference to clause (c) of subsection (2) of Section 1, publish for general information in the official Gazette a list of the following areas held in the State as on the said date, viz. :
(i) areas held and occupied for a public purpose,
(ii) areas held and occupied for a work of public utility, and
(iii) areas required under the Land Acquisition Act, 1894, or any enactment other than the Land Reforms Act, 1954 for a public purpose and held as such. (2) ...
(3) ...
(4) ...
25. As per Rule 1 (c) (1), the Chief Commissioner is required to publish a list of the areas held in the State for public purposes for general information in the official Gazette and a period of 30 days is to be given to invite the objections and thereafter a Gazette declaration is also required to declare the area for public utility or public purpose. This rule itself shows that a word "shall" has been used and the same is a mandate of the provisions to declare a land for public utility U/s 1 (2) (c) of DLR Act, 1954 through Gazette Notification. In the present case, the defendants have taken this objection since beginning that the land has not been declared by Chief Commissioner for public purpose, but the plaintiffs have failed to prove any such notification Rather the defendants have filed a RTI before the Revenue Assistant which is Ex. DW2/8 (Colly) to seek the notification, but no C.S. No. : 383/09 Page No. 20/24 notification was even provided to the defendants by the Revenue Assistant which suggest that no such notification was ever issued by the Chief Commissioner. In the absence of proving such notification, it could not be proved that the land in question was kept for public utility. PW1 has already admitted during cross examination that he is not aware whether any notification of the suit property was ever issued by Chief Commissioner, but it is a mandatory requirement as per the provisions of DLR Act. Even he has admitted during cross examination that the Panchayat Ghar, Youth Club and Dispensary are not in existence at the site and has no document to prove that the land was ever allocated for such purposes or left for such purposes during consolidation. Even PW1 has admitted that the Kh. No. 531, 532 & 533 are governed by DLR Act, 1954.
By the deposition and admission of the PWs, it is clear that a necessary notification is required for declaration of land for public utility. In the absence of notification, DLR Act is applicable in this case. It is clear that the suit is not falling within the preview of civil courts.
26. So far the plea of the defendants that they have become the owner/Bhumidar by the way of adverse possession is concerned, it is the admitted case of the defendants that the land is a public land and the Gaon Sabha/Government is the Bhumidar of the land and their names have never been shown in the category of Bhumidar nor defendants have ever filed any declaration to get declared their names as bhumidar in the suit property. Even the documents Ex. DW2/9 to Ex. DW2/12 are clearly showing them as unauthorized occupants. If the defendants are unauthorized occupants and the Gaon Sabha is the Bhumidar C.S. No. : 383/09 Page No. 21/24 of the suit property, then their claim that they have become Bhumidar by the way of adverse possession is of no use. Further, the plea of adverse possession only may be taken if the owner has failed to take any action against the unauthorized occupant despite knowledge of his adverse possession, but in this case, the plaintiffs are taking constant action against the defendants. Even otherwise the plea of adverse possession only may be taken before revenue authorities as the same is within the criteria of Revenue Authorities and this plea is barred before Civil Courts.
To claim the relief of possession by the owner before a Civil Court, the plaintiff has to prove his ownership as well as prima facie jurisdiction of the court, but in this case the plaintiffs have failed to prove the notification before the court despite proving themselves to be the Bhumidar of the land. If the plaintiffs have failed to prove the notification on record thereby proving that the land of which the recovery is being sought by the way of this suit was ever held or kept for public purposes, then the plaintiffs are not entitled for any relief before the Civil Court. As such, the plaintiffs have failed to prove its prayer of possession due to they are also not entitled for any mesne profit against the property.
27. So far the relief of permanent injunction is concerned, though it was the consequential relief of the possession, yet the plaintiffs have not led any evidence on record to prove that the defendants are trying to create any third party interest in the suit property, accordingly the plaintiffs are also not entitled for this relief. All the issues are decided against the plaintiffs and in favour of the defendants. C.S. No. : 383/09 Page No. 22/24
28. RELIEF :
The plaintiffs have failed to prove that they are entitled for the relief, hence suit of the plaintiffs is hereby dismissed. No such order of cost. Decree sheet be prepared accordingly. File be consigned to record room. Announced in the open court (Devender Kumar) CCJ/ARC/MM 26.11.2011 C.S. No. : 383/09 Page No. 23/24 C.S. No. : 383/09 26.11.2011 Pr. : Counsel for plaintiffs Counsel for defendants Arguments heard.
Vide separate judgment, suit of the plaintiffs has been dismissed. No such order of cost. Decree sheet be prepared accordingly. File be consigned to record room.
(Devender Kumar) CCJ/ARC/MM 26.11.2011 C.S. No. : 383/09 Page No. 24/24