Shri Ram Her & Ors. vs Shri Ram Chander & Ors
2010 Latest Caselaw 5826 Del

S-5B
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


%                  Judgment Reserved on: 20.12.2010
                  Judgment Delivered on: 22.12.2010


+      RSA No.105/2007 & CM Nos.5044-5045/2007



SHRI RAM HER & ORS.                 ...........Appellants
              Through:         Mr.M.R.Chawla & Mr.N.Vinoba
                               Bhoopathy, Advocates

                   Versus

SHRI RAM CHANDER & ORS     ..........Respondents
             Through: Mr.Ashok Sethi and Mr. S.K.Jain,
                      Advocates

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

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

     2. To be referred to the Reporter or not?                Yes

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

INDERMEET KAUR, J.

1. This present appeal has impugned the judgment and

decree dated 08.7.2005 whereby the suit of the plaintiff Ram

Chander & Ors. seeking permanent injunction had been

dismissed. Vide the impugned judgment and decree dated

23.3.2007 the judgment and decree of the trial judge had been

reversed; suit of the plaintiff stood decreed.

2. Briefly stated the factual matrix is as follows:

i. Plaintiffs (five in number) claimed to be owners of a plot

in Khasra No.98, Lal Dora in the extended Lal Dora of

Village Samaspur , Khalsa Delhi 1/4th share was owned by

plaintiffs no.1 to 4 and 1/4th share was owned by plaintiff

no.5. This was in terms of a khatoni dated 19.12.1994.

ii. Defendants were stated to be powerful muscleman

having an evil design over the property of the plaintiffs.

On 18.1.1995 they threatened the plaintiff. Suit for

permanent injunction was accordingly filed.

iii. Defendant contested the suit. It was stated the suit

is not maintainable. It was stated that out of 1600 sq.

yards (1 Bigha and 12 Biswas) comprised in the Khasra

No.98 of which the plaintiffs claimed 800 sq. yards was

actually in their possession. The present suit is a malafide

garb to grab the property of the defendant on which the

plaintiffs have no right or title.

iv. Trial judge had framed the following five issues; they

inter alia read as follows:

"1. Whether plaintiffs are entitled to the relief of permanent injunction as sought for? OPP

2. Whether the present suit is not maintainable in view of the fact that defendants are owners and in possession of the suit property? OPD

3. Whether there is no cause of action for filing the present suit? OPD

4. Whether the present suit is bad on account of mis-joinder and non-joinder of necessary parties? OPD

5. Relief."

v. Plaintiff has examined three witnesses of whom

PW-2 was the Patwari. Defendant had examined six

witnesses. Trial Judge held that entries relied upon by the

plaintiffs in the revenue record were most likely wrong

entries; there was no occasion for the plaintiff to get extra

land in the Consolidation Proceedings then what they

possessed earlier. The suit was dismissed.

vi. In appeal vide impugned judgment the findings of

the trial judge were reversed. The impugned judgment

had called for the record of the Consolidation Officer;

relying upon the certified copy of the said record coupled

with the documentary evidence i.e. the site plan (proved

as Ex.PW-1/1) khatoni entries for the year 1991 evidencing

the name of the plaintiff in the said revenue record

(proved as Ex.PW-2/1) had decreed the suit of the plaintiff.

3. This is a second appeal. It was admitted on 07.7.2009; the

following substantial questions of law (contained in page 13 of

the memo of appeal) were framed:

"i. Whether the first appellate court had the jurisdiction under the Land Reforms Act to declare the title of the respondents? ii. Whether the ld.Trial Court had the jurisdiction to declare the title of the respondents/plaintiffs which was neither claimed in the plaint nor in the Ground of appeal?

iii. Whether the learned trial court had jurisdiction to decide the title on the basis of the alleged Revenue Entries."

Thereafter the following additional substantial question of

law had been formulated:

"Whether the impugned judgment dated 23.3.2007 relying upon the Consolidation Proceedings could be read in evidence when the said proceedings saw the light of the day for the first time before the first Appellate Court? If so, its effect? "

4. On behalf of the appellant arguments have been addressed

at legnth. It is pointed out that the findings in the impugned

judgment are an illegality; they are perverse and liable to be set

aside. Attention has been drawn to the order of the Appellate

Court dated 24.1.2006 and the subsequent order dated

22.12.2006. It is pointed out that the certified copy of the

record of the Consolidation Officer had been taken on record by

the Appellate Court without examining the person who had

produced the record from the Consolidation Department. What

was the record was not detailed; no opportunity to cross-

examine or examine this record has been granted to the

appellant/defendant. It is pointed out that even as per the

case of the plaintiffs, it was in the Consolidation Proceedings

which has culminated in the year 1972 when the plaintiffs had

allegedly acquired right and title in the suit property; he is,

however, relying upon khatoni entries of the year 1991 i.e. after

a lapse of more than 17 years thereby establishing that this

record was fabricated and manipulated. It is pointed out that

the father of the plaintiff was probably alive in 1972 when the

Consolidation Proceedings had taken place and not the plaintiffs

themselves; they could not have deposed qua that period. The

provisions of Section 41 of Delhi Land Revenue Act, 1954 on

which the impugned judgment had placed reliance have been

misunderstood and misread; there has been no compliance of

the said provision. Attention has been drawn to para 11 of the

impugned judgment where the Court had returned a finding that

the entries in the khatoni are conclusive on ownership and

possession. It is submitted that this finding is perverse and

liable to be set aside. Reliance has been placed upon (1996) 6

SCC 223 Swarni Vs. Inder Kaur (2003) 10 SCC 352 Dalip Singh

& Ors. Vs. Sikh Gurdwara Prabbandak Committee (2004) 12

SCC 58 Suman Verma Vs. Union of India & Ors. to substantiate

his submission that entries in the revenue record do not

establish title or ownership. It is submitted that even otherwise

the jurisdiction of the Civil Court was barred qua the present

proceedings; a suit relating to entries if the revenue record

could not be agitated before a Civil Court; for this proposition

reliance has been placed upon (1995) 4 SCCC 496 Vidya Devi

Vs. Prem Prakash & Ors. , 1970 (2) SCC 841 Hatti Vs. Sunder

Singh as also another judgment of (2007) 4 SCCC 213 Kamla

Prasad & Ors. Vs. Kishna Kant Pathak & Ors. It is pointed out

that the impugned judgment could not have reversed the

findings of the Trial Court without assigning sufficient and

cogent reasons; which has not been done so in the instant case

and for this proposition reliance has been placed upon (2007) 4

SCCC 163 Chintamani Ammal Vs. Nandagopal Gounder and Anr.

It is submitted that a judgment which has been obtained by

fraud is a nullity; in this case, the plaintiff had relied upon the

entries in the khatoni which were fabricated. To support this

proposition reliance has been placed upon (2007) 4 SCC 221

A.V. Papayya Sastry & Ors. Vs. Govt. of A.P. & Ors. It is pointed

out that the present suit was a suit for injunction simplicter;

question of title could not have been gone into on which the

impugned judgment had incorrectly returned a finding. The

findings being perverse are liable to be set aside.

5. Arguments have been countered. It is pointed out that the

Consolidation Proceedings had been completed in the year

1972; there is a provision under The East Punjab Holdings

(Consolidation and Prevention of Fragmentation) Act, 1948

(hereinafter referred to as „the Act‟) to file an appeal within a

stipulated period; this provision had not been adhered to by the

appellants/defendants; they had given up all their rights. They

have not disputed the record of the Consolidation Proceedings;

only defence being that the entries were incorrectly recorded;

yet the appellant did not take any action against the said record.

The impugned judgment has not recorded any finding on title or

ownership; the suit was merely for injunction as the plaintiff was

confident about his ownership and possession qua the suit

property. Reliance has been placed upon (1996) 3 SCR 617

Abdul Waheed Vs. Bhawani to support a submission that entries

in the register of rights is a presumptive piece of evidence and is

presumed to be correct until the contrary is proved. In this

case, the Consolidation Record and the khatoni evidenced a

presumption in favour of the plaintiff of ownership and

possession which the defendant had failed to rebut. For the

same proposal reliance has been placed upon AIR 1976 SC 2299

M.Kallappa Setty Vs. M.V. Lakshminarayan Rao. It is submitted

that the impugned judgment calls for no interference.

6. Perusal of the record shows that in 1972 Consolidation

Proceedings had taken place qua the suit land. Prior to the

Consolidation Proceedings khasra No.228 (earlier khasra

number) compromised of 1 bigha 14 biswas; thereafter after the

Consolidation Proceedings the land forming part of khasra

No.98 (new number) compromised of 1 bigha 12 biswas. The

record of the Jamabandi for the year 1962-63, 1964-65 were all

prior to the Consolidation Proceedings where the title of the

defendants was evident; however, the record shows that there is

not a single document brought by the defendants/appellant

before the Courts below evidencing their title or claim to the

suit land after the Consolidation.

7. The said Act was extended to the Union Territory of Delhi

vide a Government Notification of the Ministry of Home Affairs

dated 18.12.1951. The object of the Act is to provide for the

compulsory consolidation of agricultural holdings and for

preventing the fragmentation of agricultural holdings and for

the assignment or reservation of land for common purposes of

the village. A reading of the various provisions of the said Act

shows that the persons who were in possession of certain land,

either as tenants or mortgagees or owners or otherwise were

entitled to allotment of that land in the same capacity after the

consolidation. According to this scheme of this Consolidation

the entire land of the village had been brought under the

common pool. The plaintiff was thereafter allotted the land

comprised in khasra No.98 along with another co-sharer.

Section 14 declares the intention of the Government to make a

scheme for the consolidation of holdings publication has to be

effected for the said purpose and a Consolidation Officer is

appointed who shall prepare scheme of consolidation of holdings

after advice of the land owners of the concerned estate. The

scheme also provides for payment of compensation to any owner

who is allotted any holding of less market value than that of his

original holdings and vice-a-versa. Darft Scheme published and

persons likely to be affected by the scheme are permitted to file

objections within 30 days. Scheme is confirmed only thereafter

and repartition is then carried in accordance with the scheme of

consolidation which has to be then confirmed under Section 20

of the said Act. At this stage as well a person aggrieved by the

repartition may file written objections within 15 days. Persons

aggrieved with the order of the Consolidation Officer can file an

appeal before the Settlement Officer; thereafter to the Chief

Commissioner and the Appellate Authority may entertain the

appeals even after the expiry of the period of limitation if

sufficient cause is shown for the said purpose. Under Section

22 of the said Act, the record of rights is prepared and if there is

no objection the parties are permitted to enter into possession

forthwith.

8. Admittedly in this case, the Consolidation proceedings

had been completed in the year 1972-73; no appeal had been

filed by the defendant under Section 21 of the Act. Contention

of the defendants is that they were not aware of the wrong

entries in the khatoni till the present suit was filed; he had

thereafter filed an application under Section 43A of the said Act;

contention being that the consolidation record had incorrectly

not mentioned the name of the defendants. This application had

been dismissed on 26.3.1996 vide a speaking order. The

Consolidation Officer had held that the record being very old it

had been consigned to record room; the proceedings had long

since culminated; the application under Section 43 A was

accordingly dismissed. Admittedly the defendants had not taken

any remedy or recourse to any legal proceedings after the order

dated 26.3.1996.

9. The impugned judgment has correctly noted that the

defendants were trying to confuse the Court by setting up a plea

of their title to the suit land which was prior in time to the

Consolidation Proceedings. Once the Consolidation Proceedings

had culminated in the year 1972-73 all records prior thereto

were irrelevant; there was not a single document produced on

record by the defendants to show that they were in possession of

the suit land after the consolidation had been effected.

10. The plaintiff had filed a suit for permanent injunction. To

support his case they has produced the Patwari who had been

examined as PW-2. He had proved Ex.PW-2/1 which was the

khatoni for the year 1990-91 evidencing the possession of the

plaintiff in the suit land i.e. the half of khasra No.98. In his

cross-examination he had admitted that he had not brought the

record of the consolidation officer as the same had not been

summoned. Pw-3 was a neighbour; he was the owner of the half

share in khasra No.98 of Village Samaspur. He had certified

that the consolidation proceedings had taken place in 1972 and

khasra No.98 was partitioned; all allottees were in possession of

their properties. PW-1 was the plaintiff himself. In defence the

defendants/appellants had brought five witnesses. DW-1 Satbir

Was defendant no.4. In his cross-examination he had admitted

that the disputed khasra No.98 was never allotted to him after

the consolidation. DW-4 had produced the khatoni for the year

1964-65. DW-5 had produced the summoned record who had

deposed that pre-consolidation suit land comprised in khasra

no.98 which was the new khasra; old khasra was khasra No.288;

the pre-consolidation land comprised in khasra No.228 was 2

bighas 14 biswas and after consolidation khasra no.98 was

comprised of 1 bigha 12 biswas. In his cross-examination he

had admitted that the consolidation of the residential plots was

made on the basis of the demand made by the respective

individuals.

11. Ex.PW-1/1 was the site plan filed by the

plaintiff/respondent. The plot in question was bounded by two

gallies on two sides of the property; on one side was the house

of Subh Ram and Balram sons of Kanwar Lal; their names have

been depicted in Ex.PW-1/1. PW-3 came into witness box and

had deposed to the said effect. It is pointed out by learned

counsel for the respondents that the name of Subh Ram was

wrongly hand written as Shri Singh Singh but correctly noted as

son of Kanwar Lal. This submission is not disputed by learned

counsel for the appellant as is also evident from the signature of

PW-3 wherein he had signed his deposition in hindi as Subh

Ram. Ex.PW-1/1 is the correct site plan depicting the identity of

the suit property.

12. This oral and documentary evidence had been adverted to

into the impugned judgment. The present suit had not decided

the question of title; the documents adduced by the plaintiff had

prima facie proved his possession in the suit property entitling

him to a decree of permanent injunction. There was no bar to

such a suit under Section 185 of the Delhi Land Reforms Act,

1954. Defendant per contra had only produced record prior to

consolidation whereas the documents of the plaintiff which was

the khatoni for the year 1990-91; his site plan Ex.PW-1/1 and the

certified copy of the Consolidation Officer‟s order dated

26.3.1996 Ex.Pw-1/2 evidenced the fact that consolidation of the

disputed land had taken place as way back as in the year 1972.

The defendant in his written statement had not disputed that the

consolidation had not taken place; only defence being that the

entries were wrongly made by the Revenue Authority. No

action or legal recourse was resorted to as was provided for in

the Act. On 26.3.1996, the application of the defendant under

Section 43A i.e. for correction in the revenue record was

dismissed; even thereafter no recourse or remedy was availed of

by the defendant.

13. There is no dispute to the proposition that entries in the

khatoni do not per se establish ownership. This is a relevant

piece of evidence which the court can look into and which the

court had rightly done so in decreeing the suit for permanent

injunction in favour of the plaintiff. Title was not the question

before the trial judge and no such issue was also framed in this

regard. Para 17 of the impugned judgment which has been

highlighted by learned counsel for the appellant has only

recorded that the khatoni was a record of rights and was

admissible as evidence under the provisions of Section 41 of the

said Act; there was a presumption in favour of the person

producing that document which was a rebuttable presumption

but the defendant/appellant had failed to rebut this

presumption. In these circumstances, Section 41 of the said Act

had been relied upon in favour of the plaintiff. This is a

statutory provision and there is no fault in the impugned

judgment qua this proposition.

14. The contention of the defendant always was that he was in

physical possession of the suit property. He had in fact filed an

application under order 26 Rule 9 of the Code seeking

appointment of a local commissioner to verify the factum of

possession. This application was dismissed by a speaking order

on 03.9.1996. No revision or appeal was filed against the said

order that order had attained finality. Plaintiff was claiming

right over the suit land which he averred was owned by him and

was in his possession. Defendant did not lead any evidence to

subvert that proposition. The judgments relied upon by the

learned counsel for the appellant in this scenario does not come

to his aid.

15. The orders dated 24.01.2006 and 22.12.2006 of the first

Appellate Court clearly show that it was with the consent of the

parties that the record of the Consolidation Officer had been

requisitioned. Further perusal of the record shows that at no

point did the appellant/defendant ever contended that he wished

to cross check the said record; it was never his case before the

Courts below that the record of the Consolidation Officer which

was summoned from the Tis Hazari Courts (as is evident from

the summons appended in the file) was manipulated or not

correct. In this back ground the first Appellate Court had rightly

relied upon the said record to arrive at the correct findings.

16. There is no fault in the finding in the impugned judgment.

Substantial questions of law are answered accordingly. Appeal

as also the pending applications are dismissed.

INDERMEET KAUR, J.

DECEMBER 22, 2010 nandan