Nathi Ram vs Govt. Of Nct Of Delhi & Ors.
2010 Latest Caselaw 5225 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 18th November, 2010.

+                           W.P.(C) No.12887/2006
%

NATHI RAM                                                 ..... PETITIONER
                            Through:      Mr. Shaju Francis, Advocate

                                       Versus

GOVT. OF NCT OF DELHI & ORS.             ..... RESPONDENTS
                  Through: Ms. Ruchi Sindhwani, Advocate

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                             No

2.       To be referred to the reporter or not?               No

3.       Whether the judgment should be reported              No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner, claiming to be in possession of land admeasuring

approximately 1000 sq.yds. in Khasra No.1658 in village Aya Nagar, Delhi,

has filed this petition for restraining the respondents from forcibly and / or

otherwise dispossessing him from the said land and / or for demolishing the

structures built on the said land. It is inter alia the case of the petitioner that

the said land is his ancestral land and he is the bhoomidar thereof within the

meaning of Delhi Land Reforms Act, 1954 and he along with his family and

his brothers has been in continuous uninterrupted possession of the said land

since times immemorial. The petitioner however admits that proceedings

under Section 86A of the Delhi Land Reforms Act were instituted in or

about the year 1968 against the predecessors of the petitioner and an order of

ejectment passed on 9th July, 1971; that the predecessors of the petitioner

preferred a statutory appeal to the Court of Collector, Delhi which was also

dismissed on 15th January, 1973. The petitioner claims that the said decree

of ejectment from the land remained unexecuted, crystallizing into a

valuable right, title and interest in accordance with the provisions of the

Delhi Land Reforms Act; several provisions are cited in para 3B of the

petition. It is also claimed that the petitioner has become owner by adverse

possession of the said land. The present petition was filed when the

respondents attempted to dispossess the petitioner from the said land.

2. Notice of the petition was issued and on the argument of the counsel

for the petitioner that no period of limitation for execution of an ejectment

order has been prescribed in the Act and in terms of Section 190 of the Act,

the limitation prescribed in the Limitation Act, 1963 of 12 years for

execution would apply and which had elapsed, the respondents were directed

to maintain status quo in respect of the aforesaid land during the pendency

of the petition.

3. The respondents have filed a counter affidavit in which it is stated that

the petitioner is not a Bhoomidar but an encroacher; that the Gaon Sabha has

several times demolished the structures built on the land and the petitioner

repeatedly enters upon the land and illegally makes construction thereon.

4. No rejoinder has been filed by the petitioner.

5. Though this petition was being listed along with WP(C) No.12260-

62/2006 and several other petitions relating to village Aya Nagar and it is

also the case of the petitioner that the matter in controversy in the present

petition is the same as in WP(C) No.12260-62/2006 but there is no order of

ejectment in WP(C) No.12260-62/2006 as in the present case.

6. Section 84 of the Delhi Land Reforms Act provides for ejectment of

persons occupying land without title; the same contemplates a suit by the

Gaon Sabha also. Section 86A inserted by the amendment of the year 1965

merely enables the Revenue Assistant also to on his own, initiate

proceedings for ejectment from the land of the Gaon Sabha and not

necessarily on the suit of the Gaon Sabha as provided for in Section 84.

Section 84(2) provides that where any person against whom a decree for

ejectment from any land has been executed in pursuance to a suit under

Section 84(1) re-enters or attempts to re-enter upon such land otherwise than

under the authority of law, he shall be presumed to have done so with intent

to intimidate or annoy the person in possession or the Gaon Sabha as the

case may be, within the meaning of Section 441 of the Indian Penal Code.

7. Section 85 provides for the consequences of failure to file a suit under

Section 84 or failure to execute a decree within the period of limitation

provided therefor. The same inter alia provides that in such eventuality the

person in possession becomes a Bhoomidar or Asami as if he has been

admitted to the possession of the land by the Gaon Sabha. Section 86

provides for ejectment of a person becoming a Bhoomidar under Section 85.

8. However, in the present case, the defence of the respondent is that the

petitioner / his predecessors in pursuance of the admitted decree for

ejectment were ejected and have illegally repossessed. If that be the case,

then the possession of the petitioner would be as of a trespasser making him

guilty of the offence of trespass under Section 441, IPC and not of a

Bhoomidar.

9. The counsel for the petitioner during the hearing has orally denied that

the decree for ejectment was ever executed or that the petitioner or his

predecessors in pursuance thereto removed from the land. However, the

same becomes a question of fact and which cannot be adjudicated in writ

jurisdiction. Even otherwise writ is an equitable remedy. The petitioner was

admittedly found to be a trespasser over the land of Gaon Sabha and ordered

to be ejected therefrom. The said order has attained finality. The trespasser

over Gaon Sabha land is not found entitled to invoke the equitable

jurisdiction of this Court particularly when the petitioner did not take any

steps whatsoever for declaration of his rights as a Bhoomidar under Section

85 of the Act. Had the decree for ejectment remained unexecuted as is

alleged by the petitioner and had the petitioner owing thereto acquired any

lawful title to the land with respect wherefrom he had earlier been ordered to

be ejected, the petitioner ought to have approached the Courts under the

Delhi Land Reforms Act for declaration of his rights and which Courts were

competent to go into the factual controversy as to whether the decree for

ejectment was executed or not.

10. The counsel for the petitioner has also argued that the respondents

have not produced any documents showing that the decree for ejectment was

executed. However, the petitioner himself has not produced before this

Court any document as would have been in his possession showing that his

possession / cultivatory possession of the land was recorded in the revenue

records after the decree for ejectment. It is the petitioner who has

approached this Court and the burden of making out a case for grant of relief

was on the petitioner and the petitioner has utterly failed to discharge the

same and cannot succeed by picking holes in the defence of the respondents.

Even otherwise, the version of the respondents is more in consonance with

the ordinary course of human conduct, of the decree for ejectment having

been executed. Had the decree not been executed, not only would have

been the possession of the petitioner been recorded in the revenue record

made on annual basis or the petitioner would have taken care to have his

name/possession recorded with respect to the land aforesaid but the

petitioner would also have had his rights / title as Bhoomidar got declared.

This Court in Jawahar Singh Vs. Financial Commissioner 144 (2007) DLT

53 in the context of Section 85 held that while proof of possession may be a

strong presumption in favour of claimant, such claimant cannot succeed in

getting Bhumidari rights recorded when the evidence in the form of Record

of Rights suggest to the contrary.

11. Rather the petitioner is not sure of his case. While he has on the one

hand pleaded that he has become Bhoomidar on failure to execute decree for

ejectment, he on the other hand claims title by adverse possession also

against Gaon Sabha. The two pleas are mutually destructive as reiterated

recently in L.N. Aswathama Vs. P. Prakash (2009) 13 SCC 229. The

Supreme Court in Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai

Harijan AIR 2009 SC 103 also held that the law of adverse possession

which ousts an owner on the basis of inaction within limitation is irrational,

illogical and wholly disproportionate and recommended suitable changes

therein. Moreover, as aforesaid the petitioner has not filed any document to

make out a case of uninterrupted peaceful possession for over 12 years or of

having asserted any rights adversely to the Gaon Sabha.

12. There is no merit in the petition. The same is dismissed. The interim

order is vacated. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 18th November, 2010 'gsr'