Sh.Shri Bhagwan vs Gaon Sabha Of Village Nasirpur & ...
2011 Latest Caselaw 2234 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 27.4.2011


+            R.S.A.No.162/2007 & CM No.8531/2007


SH.SHRI BHAGWAN                                   ...........Appellant
                         Through:    None.

                   Versus

GAON SABHA OF VILLAGE NASIRPUR & ANR.
                                    ..........Respondents
                  Through: None.

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. (Oral)

1. This appeal has impugned the judgment and decree dated

23.4.2007 which had endorsed the finding of the trial judge dated

17.3.2003 whereby the suit filed by the plaintiff Shri Bhagwan

seeking declaration and permanent injunction against the

defendant (Gaon Sabha Nasirpur) had been dismissed.

2. The case of the plaintiff is that Khasra No.384 measuring 1

bigha 2 biswas situated in the revenue estate of village Nasirpur

was in the recorded ownership of one Kheemoo and Shanker both

sons of Malook Chand, both had equal share. Kheemoo died living

behind his brother Shanker who is the father of the plaintiff and

the sole legal heir of Kheemoo. Father of the plaintiff thus

became exclusive owner of the aforenoted suit property.

Contention is that under some misconception the Halka Patwari

had recorded the suit land as "Gair Mumkin shore"; result was

that the Revenue Assistant treated this land as waste land and

vested the same in the Gaon Sabha. The suit land had a kucha

boundary; it was thus exempted from the provisions of Delhi Land

Reforms Act by virtue of Section 8. The vesting of this land in the

Gaon Sabha was illegal. The father of the plaintiff had constructed

a pucca house on the site. Because of the wrong vesting of the

land with the Gaon Sabha, the Revenue Assistant had initiated

proceedings under Section 86A of Delhi Land Reforms Act

(hereinafter referred to as „DLRA‟) against the father of the

plaintiff seeking his ejectment. Order of ejectment was passed on

26.2.1991. Appeal was preferred and the matter was remanded

back for disposal and was held to be time barred. Land continues

to be in the name of the Gaon Sabha. Further contention of the

plaintiff is that the he apprehends that he will be dispossessed

illegally without due process of law by the defendant. Suit was

accordingly filed.

3. The defendant contested the proceedings. It was stated that

the jurisdiction of the civil court is barred under Section 185 of

the DLRA; suit is also bad for want of notice under Section 99 of

the Delhi Panchayati Raj Act; it was denied that the suit land has

wrongly been mentioned as „Gair Mumkin Shore‟.

4. On the pleadings of the parties a preliminary issue was

framed; it reads as a follows:

"Whether the present suit is maintainable in its present form?"

5. The court had examined oral and documentary evidence and

drawn a conclusion that Jamabandi shows that the suit land is

agricultural land; in view of the provisions of Section 185 of the

said Act Civil Court has no jurisdiction to deal with the Bhumidari

rights; claim of the plaintiff qua Bhumidari rights; suit being

barred by the aforenoted provisions of law it was dismissed. This

was endorsed in first appeal.

6. The finding in the impugned judgment reads as under:

"9. The cursory look at the aforesaid provision makes it abundantly clear that the matters delineated in schedule 1shall be entertained by the Revenue Authorities. Ld.Counsel for the appellant relied upon authority reported in DLT Vol. 76 1998 page 258, titled Cdr. Bhupinder Singh Rekhi Versus C. S. Rekhi, in

which our own High court laid down that provisions of the section 185 of DLR Act are confined only to the matters mentioned in the schedule and none others. In the aforesaid case the Hon'ble court also held that suit for declaration of title on the basis of mere agreement to sell, was found not maintainable before the civil court. It was further held in the aforesaid authority that the jurisdiction of the court would primarily depend upon the allegations made in the plaint and not on the allegation in the written statement and cause of action which determines the jurisdiction of the court. I have gone through the contents of plaint with great circumspection which clearly stipulate that the plaintiff sought declaration of agricultural land which once upon a time belonged to his forefathers. The trial court rightly held that the appellant could not place on record any document to show that there was any building or old construction on the khasra in dispute. Hence section 8 of DLR Act does not apply. Admittedly, khasra No. 385 of village Nasirpur, Delhi was an agricultural land to which the plaintiff claimed right. It is but natural that unless the plaintiff is declared bhoomidar of said land he cannot claim the relief of injunction from the Civil court. The tenor of the contents of plaint goes to show that in a suit for declaration the appellant was infact seeking declaration of his bhoomidari rights which he cannot seek before the Civil Court because of the bar created by section 185 of DLR Act. Accordingly, I do not see any illegality or infirmity in the impugned order passed by Ld. Civil Judge. The result is appeal fails being without any merit."

7. This is a second appeal. It has been admitted and on

23.7.2008 the following substantial questions of law were

formulated.

"a) Whether the court below could have dismissed the suit on account of the provisions of Section 185 of DLR Act, when rights

of the parties qua the land in question stood already decided by the competent revenue court under the provisions of Delhi Land Reforms Act?

b) Whether the plaintiffs/appellants being in settled and established possession of the land in question for more than 50 years and the pucca houses for 25 years over there, were entitled to the decree for injunction?

c) Whether the provisions of Section 185 of the Delhi Land Reforms Act were attracted and created bar to the suit of the plaintiff?

d) Whether the rights of the respondent to take action against the appellant was barred in view of the provisions of resjudicata?

e) Whether the provisions of Section 8 of DLR Act were attracted and applicable in favour of plaintiffs."

8. None has appeared for the appellant although the counsel

for the appellant Mr.J.K.Jain has been informed. The concurrent

findings returned by the two courts below holding that the suit of

the present nature is not maintainable in view of the specific bar

under Section 185 of the DLRA calls for no interference.

Substantial question of law is answered against the appellant.

There is no merit in the appeal. The appeal as also the pending

application is dismissed.

INDERMEET KAUR, J.

APRIL 27, 2011 nandan