Mange Ram & Ors. vs Union Of India & Ors.
2010 Latest Caselaw 4454 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                  Judgment Reserved on: 17.9.2010
                  Judgment Delivered on: 22.9.2010

+                        RSA No.8/1996

MANGE RAM & ORS.                         ...........Appellant
             Through:          Mr.Arun Kumar Verma & Ms.Mansi
                               Wadhera, Advocates.

              Versus
UNION OF INDIA & ORS.                      ..........Respondents
              Through:         Mr.Sachin Datta & Ms.Gayatri Verma
                               & Mr.Abhimanyu Kumar,Advocate for
                               UOI.
                               Mr.Sanjay Kr. Pathak, Advocate for
                               R-4 to R-6.
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. Appellant before this Court was the plaintiff before the Trial

Judge. Appellant/plaintiff had filed a suit for declaration and

permanent injunction. There were eight defendants of whom

defendants no.1 to3 were government bodies i.e. the Union of

India, National Capital Territory of Delhi and the concerned Sub

Divisional Magistrate (SDM). Defendants no.4 to 8 were the

private persons i.e againt whom the plaintiff was apprehending a

threat of dispossession. The averments in the plaint, disclose that

the plaintiff claims to be the owner and in possession of the

property shown as in the site plan in a part of Khasra No.86, Lal

Dora Abadi Deh, Nizampur, Delhi. Proceedings under Section

86(A) of the Delhi Land Reforms Act, 1954 (hereinafter referred to

as the „DLR Act‟) had been initiated against the plaintiff. On false

complaints initiated by various persons including defendants no.4

to 8 proceedings under Delhi Police Act and thereafter under

Section 133(1) of the Cr.P.C. had been initiated. Orders dated

09.4.1990 and 10.5.1990 were passed; matter was agitated in

revision and thereafter in appeal. On 7.2.1991 this order ordering

the plaintiff to remove illegal encroachments was confirmed in a

revision petition and thereafter by the High Court. Para 14 of the

plaint has detailed the various grounds on which this order had

illegally been passed by the SDM; further these orders which

were passed in the criminal proceeding are not binding on the Civil

Court. The prayer sought for in the present is contained in para

23; it inter alia reads as follows:

".... it is, therefore, most respectively prayed that this Hon‟ble Court may very kindly be pleased to pass a Decree of Declaration in favour of plaintiffs as against the defendants, thereby declaring the plaintiffs to be lawful owners and in possession of suit properties, as shown in RED colour in the site-plan annexed with this plaint and comprising in Khasra No-86, Old Lal Dora Abadi Deh of Village Nizampur, Delhi.

Further, this Hon‟ble Court may also very kindly be pleased to pass a Decree of Permanent Injunction in favour of plaintiffs as against the defendants, thereby restraining the said defendants, their agents, servants, successors, nominees, survivors, LRs, Attorneys, employees, Executors, men, labourers etc. from in any manner, dispossessing the plaintiffs from their said properties, as shown in RED colour in the site-plan annexed with the plaint and comprising in Khsra No-86, Old Lal Dora, Abadi Deh of Village Nizampur, Delhi and from in any manner, demolishing their said properties of plaintiffs or any part thereof and also from in any manner, interfering with the peaceful use, enjoyment and occupation of plaintiffs with respect to their said properties, in the interest of natural justice."

2. The written statement filed by defendants no.1 to3 had

contested the proceeding. It was pointed out that the proceedings

under Section 86A of the DLR Act are pending; suit is not

maintainable in the present form. The land in desputebelongs to

the Gaon Sabha Nizampur, Rashidpur who is the owner of Khasra

No.86 and is in possession thereof; possession of the plaintiff was

denied. In the written statement of defendants no.4 to 8, it had

been pointed out that the order of the SDM had since attained a

finality and could not now be re-agitated. Suit was not

maintainable.

3. Trial Judge had framed a single issue which reads as follows:

"Whether the suit of the plaintiff is maintainable in the present form?"

4. The findings of the Trial Judge in this context inter alia reads

as follows.

"The short question which arises for consideration is whether said suit for the plaintiff is maintainable. It is an admitted case of the parties that an order of removal of the encroachment on Khasra No. 86 has been passed by the Ld. S.D.M. U/s 133 Cr.P.C. The said order has been upheld by Ld: A.S.J. and also confirmed by Hon‟ble High Court. Vide this order dated 07.02.1991 the Ld. S.D.M. had directed the defendants to remove the said encroachment on the khasra No. 86. The perusal of the record further reveals that proceeding U/s 86-A are pending aginst the plaintiffs in the court of Revenue Assistant. In these proceedings, it has been alleged by the Gaon Sabha that plaintiff has encroached upon the Gaon Sabha land, therefore, he has been asked to surrender the possession. In view of these facts appearing on record, I am of the opinion that no decree for declaration or permanent injunction can be passed by this court. If this court passes such a decree, it will frustrate the order passed by the Ld. S.D.M. and in my opinion it will further frustrate the proceedings pending in the court of Revenue Assistant for a ejectment of the plaintiffs from the dispute land, however, ld. Counsel for the plaintiff has submitted that the findings given by the SDM are not final and the same can be challenged in the Civil Court. In this connection he has also relied upon an authority reported in Vol. L-I-1944 Punjab Law Reporter Page 175. I have carefully perused the authority and am of the opinion it does not help the plaintiff. In the present case, I am of the opinion that

land in dispute belongs to Gaon Sabha and since the Gaon Sabha has initiated proceeding against plaintiff U/s 86-A. The first suit is barred by virtue of Delhi Land Reforms Act. The Delhi Land Reforms is a complete code in itself and it clearly bars the jurisdiction of the Civil Court to entertain the matter falling in its domain. In the present case any order passed by this court will thus frustrate the proceedings initiated by the Gaon Sabha in the court of Revenue Assistant. Now it is for the Revenue Assistant to decide whether the plaintiffs have encroached upon the Gaon Sabha land or are holding the same on the basis of valid title. In these circumstances, I am of the opinion that suit of the plaintiff is not maintainable and the same is, therefore, dismissed."

5. The Additional District vide the impugned judgment dated

19.10.1995 had endorsed this finding.

6. This is a second appeal. On 24.1.1996 the appeal was

admitted and the following substantial question of law was

formulated which read as follows:-

"Whether the appellant cannot approach the civil court during the pendency of the proceedings under Section 86-A of the Delhi Land Reform Act"

7. On behalf of the appellant, it has been urged that the finding

of the two Courts below are perverse; merely because proceedings

under Section 86A of the DLR Act are pending it could not have

barred the suit filed by the plaintiff. If this position is held to be

correct, the plaintiff would be left remedy-less. Defendants no.4 to

8 were threatening him from dispossession. There was no other

alternate with the plaintiff except to file the present proceedings.

It is submitted that as is evident from the plaintiff, the suit

property is a residential house located in the Lal Dora Abadi. Such

a „building‟ is covered under Section 8 of the DLR Act; it is

excluded from the purview of the DLR Act. The jurisdiction of the

Civil Court is not barred as it is not covered the exclusion clause as

contained in Section 185 of the said Act. The land does not belong

to the Gaon Sabha. Further under Section 186 of the said Act the

question of title to a disputed property is always open and has to

be decided by a Civil Court. In fact, a decision on the question of

title by Civil Court is a condition precedent to a decision by

Revenue Court and under no circumstances the proceedings under

Section 86A of the said Act can be frustrated by a decision of the

Civil Court. Finding of the two Courts below clearly calls for an

interference. Reliance has been placed upon 25(1984) DLT 394

Gaon Sabha Budhela & Anr. Vs. Dharam Singh to support his

submission that the decision of the Revenue Assistant is curtailed

by the decision of the Civil Court; aggrieved party has a right to

institute a suit to establish the rights claimed by him. Learned

counsel for the appellant has also placed reliance upon a judgment

of this Court reported in 1991 RLR 275 Siri Ram Vs. Jai Parkash &

Ors. to support his submission that a suit for declaration and

injunction is maintainable in a Civil Court; bar of section 185 of the

said Act is not attracted.

8. Arguments have been countered by the learned counsel for

the respondents. Learned counsel for the respondents had drawn

the attention of this Court to the plaint and prayer made therein; it

is pointed out that this is a suit for declaration wherein the plaintiff

is seeking a declaration of his title. Such a suit is clearly barred

under Section 185 of the DLR Act. It is pointed out that the tone

and tenor of the averments made in the plaint, on perusal, clearly

show that what has been agitated in the plaint is the various orders

passed by the SDM which orders have since attained a finality and

right up to the High court and as such cannot be the subject matter

of these proceedings. Admittedly, proceedings under Section 86A

of the said Act are pending; a suit of this nature was rightly held by

the two Courts below as being barred. Learned counsel for the

respondents has placed reliance upon a judgment of the Supreme

Court reported in 1970(2) SCC 841 Hatti Vs. Sunder Singh as also

subsequent judgment of the Apex Court reported in (2004) 12 SCC

555 Gaon Sabha & Anr. Vs. Nathi & Ors. to advance his stand.

9. This is a second appeal Court. This Court has to answer the

substantial question of law as has been formulated by it

on24.1.1996. There is no dispute to the factum that proceedings

under Section 86A of the DLR Act which had been initiated by the

Revenue Assistant against the appellant are yet pending. There is

also no dispute that the order passed by the SDM including the

orders dated 9.4.1990 and 10.5.1990 have since attained a finality.

They cannot now be re-agitated. Vide the aforenoted orders, first

of which was a conditional order passed by the SDM under Section

133(1) of the Cr.P.C.; the second order dated 10.5.1990 confirmed

it with certain modification. Vide the aforenoted orders, plaintiff

was directed to remove the encroachments from the disputed land

and not to cause a nuisance.

10. Section 86(A) of the DLR Act reads as under:-

"86A. Ejectment by Revenue Assistant of persons occupying land without title - Notwithstanding anything contained in sections 84,85 and 86, the Revenue Assistant also may, on receiving information or on his own motion, eject any person who is liable to be eject from any land on a suit of the Gaon Sabha under any of those sections, after following such procedure as may be prescribed."

This Section starts with a non-obstente clause. Under this

provision the Revenue Assistant may suo moto eject any person

who is occupying land without title. These proceedings are

admittedly pending before the Revenue Assistant. By way of the

present suit, the plaintiff is seeking a declaration that the subject

matter of the proceedings which are pending before the Revenue

Assistant i.e. the suit land; be declared by a decree of declaration

in his name; he should be given a title of ownership over this land.

This would obviously bring to a close the proceedings which are yet

pending before the Revenue Assistant. Further, such a suit

claiming possession and title, if decreed would in fact nullify the

orders of the SDM which have since attained a finality, ordering

the removal of encroachment by the plaintiff. This statutory

provision read with Rule 170(6) of the DLR Rules clearly stipulate

that such a suit can be filed only after the order of ejectment has

been passed by the Revenue Assistant.

11. Section 185 of the DLR Act also specifically excludes the

jurisdiction of the Civil Courts. As per the details in Column 3, all

suits, applications or proceedings shall be dealt with by the Court

mentioned in Column 7 of the Schedule I of the said Act. In the

judgment of Hatti case (supra), the Supreme Court relying upon

ILR (1964) Vol. 17, 428 Lal Singh Vs. Sardara & Anr. in this

context has held as follows:-

"The jurisdiction of the Civil Court is clearly barred by Section 185 of the Act read with the various items of the First Schedule mentioned above. If a Bhumidar seeks a declaration of his right, he has to approach the Revenue Assistant by an application under Item 4, while, if a Gaon Sabha wants a clarification in respect of any person claiming to be entitled to any right in any land, it can institute a suit for declaration under Item 28 and the Revenue Assistant can make a declaration of the right of such person. So far as suits for possession are concerned, we have already held earlier that Section 84, read with Item 19 of the First Schedule gives the jurisdiction to the Revenue Assistant to grant decree for possession, and that the suit for possession in respect of agricultural land, after the commencement of the Act, can only be

instituted either by a Bhumidar or an Asami or the Gaon Sabha. There can be no suit by any person claiming to be a proprietor, because the Act does not envisage a proprietor as such continuing to have rights after the commencement of the Act. The First Schedule and Section 81 of the Act provide full remedy for suit for possession to persons who can hold rights in agricultural land under the Act."

12. Section 186 of the DLR Act also does not come to the

aid of the appellant. In this context the Supreme Court in the

aforenoted judgment of the Hatti (supra) had held as follows:

"Inference was sought to be drawn from this provisions that questions of title could be competently agitated by a suit in the Civil Court, as the jurisdiction of the Civil Courts was not barred. It appears to us that there is no justification for drawing such an inference. On the contrary, Section 186 envisages that questions of title will arise before the Revenue Courts in suits or proceedings under the First Schedule and, only if such a question arises in a competent proceeding pending in a Revenue Court, an issue will be framed and referred to the Civil Court. Such a provision does not give jurisdiction to the Civil Court to entertain the suit itself on a question of title. The jurisdiction of the Civil Court is limited to deciding the issue of title referred to it by the Revenue Court. This clearly implies that, if a question of title is raised in an application for declaration of Bhumidari rights under Item 4 of Schedule I of the Act, the question will then be referred by the Revenue Assistant to the Civil Court; but a party wanting to raise such a question of title in order to claim Bhumidari right cannot directly approach the Civil Court."

13. Submission of the learned counsel for the appellant that a

decision of the Civil Court is pre-condition to a decision of the

Revenue Assistant on the question of title is totally misconceived

and not a correct interpretation of Section 186 of the said Act.

14. This Act is a complete Code under which, it is clear that

anyone wanting a declaration of his right must approach the

Revenue Assistant under Item 4 of the First Schedule. What the

plaintiff is seeking in the instant case is a declaration of his title as

an owner and in possession of the suit property. The defendant

had disputed his possession categorically stating that he is not in

possession of the suit land. Further the Gaon Sabha, Nizampur,

Rashidpur was its owner. The remedy on a dispute for possession

is also to be sought for under Section 84 read with Item 19 of the

First Schedule. All the reliefs claimed by the respondent in the

present suit are within the competent jurisdiction of the Revenue

Assistant; the Civil Court has no jurisdiction to entertain the suit.

15. Section 8 of the DLR Act is also not attracted. Section 8 of

the DLR Act reads as follows:

"8. Private wells, trees in abadi and buildings.- (1) All private wells in or outside holdings, all tanks, groves and abadis, all trees in abadi, and all buildings situate within the limits of an estate belonging to or held by a proprietor tenant or other person, whether residing in the village or not, shall continue to belong to or be held by such proprietor, tenant or person, as the case may be, on such terms and conditions as may be prescribed by the Chief Commissioner."

This Section protects the private wells and trees in abadi and

buildings. The rule pertaining to this Section is Rule 5 of the DLR

Rules. It is only the private wells and trees which fall in the abadi

and buildings which are protected under the order of the Chief

Commissioner.

16. Counsel for the appellant has laid much emphasis on the

word „building‟. It is pointed out that the disputed land is a

building in a abadi which is covered under Section 8 and for this

proposition he has place reliance upon para 11 of the judgment

reported in the Nathi & Ors case (supra). A clear reading of this

statutory provision along with the judgment cited above makes it

amply clear that-

"Except to this limited extent of certain rights in private wells, trees in abadi and buildings the proprietors of agricultural land as such ceased to exist after the Act came into force"

17. Proceedings under Section 86A initiated by the Revenue

Assistant seeking ejectment of the plaintiff on the ground that he

being an encroacher having no legal title are yet pending.

Reliance on this provision is clearly misconceived.

18. The legal position which emerges is that a person can be

either a bhumidhar or an asami of the agricultural land in village.

He can also be an owner of the property of the type which has been

detailed in section 8 of the Act, like private wells, tanks, groves and

abadis, trees and buildings. Except for these, all other kinds of

land and property would vest in the Gaon Sabha. The plaintiff has

claimed himself to be the owner and in possession of the

aforestated property. By the orders of the SDM (confirmed by the

High Court) on 7.2.1991, plaintiff had been directed to remove

encroachments from this disputed land. Proceedings under

Section 86A of the said Act are also pending which had been

initiated by the Revenue Assistant. These proceedings have not yet

attained a finality. Gaon Sabha had alleged that the plaintiff had

encroached upon this land. The land is owned and in possession of

the Gaon Sabha; plaintiff has no title to it.

19. The present suit as encompased shows that the plaintiff is

seeking a declaration about his ownership. As held by the Supreme

Court in the Hathi case (supra), the jurisdiction of the Civil Court is

limited only to deciding issues of title which are referred to it by

the Revenue Court; clearly implying that if a question of title arises

the same will be referred by the Revenue Assistant to the Civil

Court; the party cannot directly approach the Civil Court for

declaration of title. Judgment of Budhela (supra) had challenged

the order of the Revenue Assistant; in this case proceedings before

the Revenue Assistant are yet pending; this judgment is

inapplicable. The second judgment of Siri Ram (supra) is also a

distinct; that was a suit for declaration of succession rights.

20. The findings of the two Courts below call for no interference;

suit was not maintainable. During the pendency of the

proceedings under Section 86A of the DLR Act the

appellant/plaintiff could not have approached the Civil court

seeking a declaration of title in his favour. Such a prayer could not

have been granted as had been rightly held by to fact finding Court

below; the question of title can be raised before the Revenue

Assistant who may thereafter frame a question of title to be

referred to the Civil Court. Civil Court can then be seized of the

jurisdiction; this was not a simplicitor suit for permanent injunction

which could be alone is excluded as held in (10) 1974 DLT 227

Mam Raj Vs. Ram Chander. The suit having prayed for declaration

of title coupled with a prayer for injunction was not maintainable

in this form. Question of law is answered accordingly.

20. There is no merit in the appeal. It is dismissed.

INDERMEET KAUR, J.

SEPTEMBER 22, 2010 nandan