Hardwari Lal (Deceased) Through ... vs Rai Singh (Deceased) Through ...
2008 Latest Caselaw 2177 Del

*                   HIGH COURT OF DELHI : NEW DELHI

+                 RFA No.348/1987 & CM No.3508/2005

                                  Reserved on :    22nd September, 2008
%                                 Decided on:          5th December, 2008

Hardwari Lal (Deceased)
Through Legal Representatives                      ...Appellant
                     Through : Mr. Ravi Bakshi, Adv. with
                               Mr. Rajinder K. Nagpal, Adv.

                                  Vs.

Rai Singh (Deceased)
Through Legal Representatives                      ....Respondent
                     Through : Mr. S.S. Tomar, Adv.

Coram:

HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported                    Yes
   in the Digest?

MANMOHAN SINGH, J.

1. This appeal has been filed by Hardwari Lal (deceased

through LR) against the order dated 18th May, 1987 passed by learned

Additional District Judge, Delhi whereby in a reference made under

Section 30/31 of the Land Acquisition Act for apportionment of

compensation of land bearing Khasra No.7/3(2-4), 8 (4-16) in total 7

bighas situated Village Rithala, Delhi.

2. The facts are that on 22.7.1968, an application for

correction of the revenue record was filed by the appellant in the court

of the Revenue Assistant, Delhi alleging that he was the Bhumidar of

Khasra No. 710/188 measuring 1 bigha and 12 biswas. The actual

possession of the land, however was with respondent who was not

ready to hand over the possession to the appellant. There was another

plot number 17 adjacent to the above land which was also occupied by

Rai Singh. He stated that he be delivered possession of the plot

measuring 1 bigha 12 biswas and necessary demarcation of the land be

also carried out.

3. The application was referred to the Tehsildar for necessary

enquiry and in the report filed after recording the evidence of both the

parties it was stated that on 14.10.1968, the land was not being used

for cultivation for the last 15 years upon which now stands a temple.

The learned Revenue Assistant after hearing both the parties vide his

order dated 16.8.1969 rejected the application of the appellant.

4. Aggrieved by the above said order, the appellant preferred

an appeal in the court of Additional Collector, Delhi, which was also

dismissed and the order of Revenue Assistant was upheld.

The findings given in those decisions were conclusive as the

appellant had not preferred any appeal against the said orders.

5. Thereafter the appellant filed a reference under Section

30/31 of the Land Acquisition Act for apportionment of compensation

of the land before the Additional District Judge.

6. The notices to the said reference were issued to the

interesting parties. The appellant had claimed compensation on the

ground of his being Bhumidar of the land. On the other hand

respondent has claimed compensation on the ground that the land was

under a temple which was used for charitable purposes. Previous

khasra No. of this land was 710/188 measuring 1 bigha 12 biswas. The

land was of superior class. So this land was allotted in lieu of that

previous khasra No. The present Khasra Nos. were allotted to the same

land in consolidation proceedings. He has further submitted that the

land formed a part of the Shiv Mandir and the same was donated in the

year 1952-53 by Smt. Chander Kali widow of late Siri Chand and Smt.

Bhariyan Widow of late Raja Singh to the said Temple for charitable

purposes and the same has been used for the charitable purposes only

since then.

7. Both the parties led their evidence before the Additional

District Judge, who disposed of the said reference under Section 30/31

of the Land Acquisition Act and have given his finding in para 7 of the

impugned order which reads as under:-

"I have gone through the record. It is admitted by I.P. 1 that previously Khasra no. Of the land was 710/188 and after consolidation the present Khasra No. was allotted in lieu thereof. Land was not cultivated nor possessed by Hardwari Lal as is clear from the judgment of the Court of Shr. Dharam Dutt, Add. Collector, Delhi, dated 7.2.70. Khasra girdwari was entered in the name of the temple. The property was used for chartitable purposes for more than 30 years. So I.P. 1 has no right to receive compensation of the land inquestion. Only temple is

entitled to receive the compensation. Rai Singh I.P. 2 has claimed compensation on behalf of the temple. The purpose of the trust has ceased because the land has been acquired and there is no temple in existence at present.

The parties disputed about the existence of the trust through Rail Singh and others have got it registered in Dec. 1986 u/s 92 of C.P.C. the court can frame policy for the execution of the trust. Money cannot be given back to the previous owners. So Shiv Mandir is entitled to receive the compensation. Representative of Shiv Mandir can withdraw this amount only with the permission of the Ld. District Judge, Delhi after getting permission U/s 92 C.P.C. Till then the money will remain in the Court."

8. Against this order, this appeal has been filed by the appellant

on the ground that he was the bhumidar of the land and as such was

entitled to its possession. The land in question was acquired by

Government vide order no. 16 of 1985-86. The previous khasra number

of the land in dispute was 710/188 measuring 1 bigha 12 biswas. During

the consolidation proceedings, khasra no. 710/188 measuring 1 bigha

12 biswas was allotted for the land in dispute i.e. Khasra No. 7/3(2-4),

7/8(4-16). All the revenue entries and bhumidari certificate issued by

the Revenue Authority in respect of the land are in favour of the

appellant.

9. It is further argued by the learned counsel that the appellant

produced on record copy of khatauni for the years 1965-1969 which

clearly shows that the appellant was the owner/bhumidar in possession

of Khasra no. 710/188. There is no Khasra girdwari on record which

shows that there remained temple on the land in dispute at any time.

The Govt. took the possession of the land from the appellant. The date

of commencement of Bhumidar rights have been shown from 1954-55.

10. On the other hand, the learned counsel for the respondent

argued that the land was never in the possession of the appellant. The

land was in the name and possession of Smt. Chander Kali, widow of Sh.

Siri Shand and Smt. Bharyan, widow of Raja Singh who donated the said

property for the construction of a mandir and dharmshala. Since then

the temple stands on this khasra. The land has never been cultivated

nor it was possessed by the appellant.

11. It was further argued by the learned counsel for the

respondents that the only contention of the appellant is that he is the

Bhumidar of the land as his name stands recorded in the khasra

Girdwari for the year 1967-68 for which no record has been produced

by him. The entries of the khasra Girdwari shows the land recorded as

'ghairmumkin Mandir'. The Tehsildar had reported that the land had

not been cultivated for the last 15 years and it was 'Banjar Qadim'. No

regular suit has been filed by the appellant for possession. The

statement of the witnesses recorded by Tehsildar shows that the land

was cultivated by Ms. Imarti and Chander Kali. In the year 1958, the

land was nominated by these two women for the construction of a

temple and no record or evidence prior to 1967-68 has been produced

by the appellant to support his case. Only the statement of Up-Pradhan

of the village supports the case of the appellant.

12. We consider that in the present case, it is not in dispute that

the land in question has not been cultivated by the appellant. The land

is being used for charitable purposes since 1953-54 and is held to be the

charitable land by the Revenue Assistant and Additional Collector

against which no appeal is preferred by the appellant. The appellant

was not in possession of the land. The land is used as a temple. Even in

the report of the Tehsildar, the land has been shown as 'ghairmumkin

Mandir' and 'Banjar Qadim'.

13. The case of the appellant is that he is the Bhumidar of the

suit property and the respondents are only in possession. On the

documents placed on record, the learned trial court has come to a right

conclusion that in a reference under Section 30, compensation be given

to Shiv Mandir Trust and not to the appellant. Mere assertion of the

appellant that he is the Bhumidar cannot entitle him for compensation.

14. We are of the opinion that there is no infirmity in the

impugned order. The Trial Court is right in observing that only Shiv

Mandir is entitled to receive the compensation through its

representative.

We find no merit in the appeal, it is hereby dismissed.

MANMOHAN SINGH, J.

DECEMBER 05, 2008                                        A.K. SIKRI, J.
sa/nn