Shri Fateh Singh vs The Financial Commissioner
2011 Latest Caselaw 337 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 20th January, 2011

+                                  W.P.(C) 101/2011
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         SHRI FATEH SINGH                                  .... PETITIONER
                       Through:           Mr. Ravinder Sethi, Sr. Advocate
                                          with Mr. Vipin K. Singh, Advocate.

                                      Versus

         THE FINANCIAL COMMISSIONER           ..... RESPONDENT
                      Through: Mr. V.K. Tandon, Advocate for R-1
                               to 3.
                               Mr. B.S. Mann with Mr. V.P. Rana
                               and Mr. Arvind Rana, Advocates for
                               R- 4 to 7.

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 writ petition impugns the consistent orders of the Revenue

Assistant, Additional Collector and the Financial Commissioner decreeing

the suit for ejectment under Section 84 of the Delhi Land Reforms Act, 1954

(Reforms Act) filed by the respondents no. 4 to 7 against the petitioner and

also allowing the application of the respondents no.4 to 7 for review of order

correcting the Khasra Girdawari for the year 1984 and recording the name of

the petitioner to be in cultivatory possession of the land.

2. The defence of the petitioner to the suit inter alia was that he was in

possession since prior to 1968 and therefore suit for ejectment instituted in

the year 1985 was barred by time. The petitioner in support thereof relied

upon a suit for declaration and injunction filed by him against the

predecessor in interest of the respondents no.4 to 7, which suit was

dismissed by the Civil Judge but the Senior Civil Judge in appeal, with the

consent of the predecessor of the respondents no.4 to 7 vide judgment dated

30th September, 1968 had declared the petitioner to be in possession of the

land and injuncted the predecessor of the respondents no.4 to 7 from

forcibly dispossessing the petitioner therefrom. The petitioner thus

contended that he had been in possession since prior to 1968.

3. It was inter alia the case of the respondents 4 to 7 that the petitioner

had entered into possession of the land after surreptitiously obtaining

correction of Khasra Girdawari in his favour in 1984.

4. The Financial Commissioner on discussion of the provisions of the

Delhi Land Revenue Act, 1954 (Revenue Act) and Reforms Act has held

that under the said laws the possession is required to be recorded every

agricultural season and that for none of the years from 1968 till 1984 the

possession of the petitioner had been recorded. It was further held that had

the petitioner been in possession, his possession would have definitely been

recorded but on the contrary the recorded possession was of the respondents

no.4 to 7 / their predecessor. It was thus held that the suit was within

limitation and time.

5. The matter had come up before this Court first on 10 th January, 2011

when it was inquired from the senior counsel for the petitioner as to what

was wrong in the order of the Financial Commissioner. It was put to him

that this Court in exercise of writ jurisdiction would interfere only upon

being shown that the reasoning given by the Financial Commissioner was

untenable in law. It was felt that the land being agricultural and possession

whereof in accordance with law governing the said land is required to be

recorded regularly, the orders of the foras below were based on cogent legal

logic and did not require any interference.

6. The senior counsel for the petitioner had however contended that the

possession of the petitioner having been admitted in the Civil Court and the

predecessor of the respondents 4 to 7 having been injuncted from forcibly

dispossessing the petitioner, the respondents 4 to 7 without pleading as to

how and when the petitioner had been dispossessed thereafter, could not

have filed a suit for ejectment claiming to have been in possession of the

land. The senior counsel had then sought adjournment to cite case law on

the presumption of continuity of possession qua agricultural land governed

by the law aforesaid.

7. The counsel for the respondents 1 to 3 and the counsel for the

respondents 4 to 7 appear on advance notice and have also been heard.

8. The senior counsel for the petitioner has today relied on Nathoo Lal

Vs. Durga Prasad AIR 1954 SC 355, in paragraph 12 whereof it has been

observed that the law presumes in favour of continuity of possession.

Attention in this regard is also invited to the Full Bench judgment of the

Patna High Court in Sudama Devi Vs. Jogendra Choudhary AIR 1987

Patna 239 also observing that there is a settled general rule that if a person is

specifically found in possession of an estate at a prior date, there is a

presumption of continuity of such possession till the contrary is established;

reliance was placed on Ghoghar Raut Vs. Jagannath Prasad Singh AIR

1947 Patna 475 laying down that the general rule of evidence is in favour of

presuming the continuity of things shown to exist at a prior date. The

senior counsel for the petitioner in this regard has also referred to Section

114 of the Indian Evidence Act.

9. However all the aforesaid judgments did not relate to agricultural land

and/or did not relate to property covered by legislation as the Revenue Act

or the Reforms Act which are special law relating to agricultural land and

the Supreme Court in Hatti v. Sunder Singh (1970) 2 SCC 841 held the

Reforms Act to be a complete code in itself. The counsel for the

respondents 4 to 7 has in this regard rightly drawn attention to Section 20 of

the Revenue Act which provides for maintenance of a Record of Rights for

each village consisting of a register of all persons cultivating or otherwise

occupying land and specifying other prescribed particulars; Section 21

requiring the Deputy Commissioner to maintain the Record-of Rights, and

for that purpose to, annually or at such longer intervals as may be directed,

cause to be prepared an amended register mentioned in Section 20 and to

cause to be recorded in the Annual Register all changes that may take place

and any transaction that may affect any of the rights or interests recorded;

Section 26 enabling the Deputy Commissioner to either on his own or on the

application of any person, correct any mistake or error in the Annual

Register; and Sections 30 and 41 creating a statutory presumption of

correctness of the entries in the Annual Registers unless the contrary is

proved. Attention is also invited to Rule 49 of the Delhi Land Revenue

Rules, 1962 requiring the patwari to make three field-to-field inspections

every year and Rule 56 requiring entries to be made in accordance with the

actual facts found at site. It is contended that under the said rules if the

patwari finds the bhumidar of the land himself in cutivatory possession of

the land, entry in that regard is to be made in Form P-4 prescribed under the

rules; if the person other than bhumidar is found in cultivatory possession

then entry is to be made in Form P-5 and if the land belongs to the gaon

sabha, entry is to be made in Form P-5A. Attention is next invited to Rules

66 and 67 which require the partwari to send Form P5 to the kanungo and in

which case a notice is required to be sent to the bhumidar. It is argued that

since the respondents 4 to 7 and/or their predecessors are admittedly the

recorded bhumidars of the land, had the petitioner been in cultivatory

possession of the land as claimed by him, not only would his cultivatory

possession have been recorded in Form P-5 and which has not been done but

notice thereof would have been also sent by the kanungo to the respondents

4 to 7 or their predecessors and which also has not been done.

10. The counsel for the respondents 4 to 7 in this regard also relies upon

Balwant Singh Vs. Daulat Singh (1997) 7 SCC 137 laying down that

entries under the Tenancy and Land Laws must be taken as correct unless

the contrary is established and to Vishwa Vijay Bharati Vs. Fakhrul

Hassan (1976) 3 SCC 642 also laying down that the entries in revenue

record ought generally to be accepted at their face value and Courts should

not embark upon an appellate inquiry into their correctness and also laying

down that the said presumption of correctness would however not extend to

forged or fraudulent entries.

11. To meet the arguments of the senior counsel for the petitioner of

continuity of possession, reliance is placed on Raj Bali Singh Vs. The

Deputy Director of Consolidation AIR 1972 Allahabad 291 laying down

that there is no presumption about continuity of possession by a trespasser

and on Phoolwati Vs Ram Dei 150 (2008) DLT 105 laying down that

possession of agricultural land goes with title and revenue record and the

person aggrieved is provided remedy under the Delhi Land Reforms Act.

12. I am of the considered opinion that the judgments relied upon by the

senior counsel for the petitioner on presumption as to continuity of

possession have no application to the facts of the present case. The said

judgments relate to built-up urban property. We are here, concerned with

open agricultural land which is governed by special legislation. The

presumption with respect to possession of open land even otherwise is, of

the same being in possession of the owner/title holder (see Ishmali Devi v.

DDA MANU/DE/1838/2009), while there is no such presumption with

respect to the built-up property. The Reforms Act has done away with the

concept of ownership of land and has created titles only as a bhumidar and

as an asami with respect to the said land.

13. Section 22 of the Reforms Act vests in bhumidar or asami the right of

exclusive possession of the land and special provisions have been made with

respect to the mortgage, transfer, letting and inheritance and partitioning of

the said land. Section 65A makes a provision for extinguishment of a right

as a bhumidar or asami in the event of non user of the land for two

consecutive agricultural years for purposes connected with agriculture.

Under Section 85, the person in possession of agricultural land becomes the

bhumidar thereof if the bhumidar does not bring a suit under Section 84 of

the Act within the period provided therefor.

14. It would thus be seen that the possession of agricultural land under the

Reforms Act is entirely different from the possession of other properties to

which the judgments cited by the senior counsel for the petitioner pertain. I

therefore find that the view taken in the impugned order by the Financial

Commissioner of the respondents 4 to 7 being in possession of the land as

evident from the revenue entries and thus the suit for ejectment of the

petitioner filed by them being within time is a reasonable plausible view.

This Court in exercise of jurisdiction under Article 226 would not interfere

with a view taken by the fora below which is a plausible view, even if this

Court may have taken a different view. If the same were to be permitted, it

would reduce the jurisdiction under Article 226 to that of appellate

jurisdiction and which has not been permitted by the legislature. The finding

of the petitioner being not in possession and respondents 4 to 7 being in

possession is essentially a finding of fact. The Apex Court in Ashok Kumar

v. Sita Ram (2001) 4 SCC 478 held that a finding of fact recorded by the

final court of fact should not ordinarily be interfered with by the High Court

in exercise of writ jurisdiction, unless the Court is satisfied that the finding

is vitiated by manifest error of law or is patently perverse. The High Court

should not interfere with a finding of fact simply because it feels persuaded

to take a different view on the material on record. Further it was held that

where order passed by the statutory authority vested with power to act quasi-

judicially is challenged before the High Court, the role of the Court is

supervisory and corrective. In exercise of such jurisdiction the High Court is

not expected to interfere with the final order passed by the statutory

authority unless the order suffers from manifest error and if it is allowed to

stand it would amount to perpetuation of grave injustice. The Court should

bear in mind that it is not acting as yet another appellate Court in the matter.

15. Therefore in the case of agricultural land and in the absence of the

cultivatory possession of the petitioner being recorded with respect to the

land at any time, merely on the basis of the consent order/decree of the year

1968 of the Civil Court, it cannot be said that the petitioner is presumed to

have been in possession or that the respondents 4 to 7 were required to show

as to when they took possession from the petitioner. The respondents 4 to 7

have shown their possession from the revenue records and on which the fora

below have rightly placed reliance. There is another aspect of the matter.

The petitioner if had been in possession, in view of the litigious nature of the

relationship with the respondents 4 to 7 and/or their predecessor, in the

normal course of human behavior would have applied under Section 85 of

the Reforms Act for declaration of himself as the bhumidar. Nothing of this

nature was done by the petitioner. The same also indicates that the

petitioner was not in possession of the land.

16. It is not as if the petitioner was ignorant of his rights. The petitioner

in the year 1984 did get his cultivatory possession recorded with respect to

the said land. The petitioner even then did not contend that the entries in the

revenue record for the earlier years of the respondents 4 to 7 / their

predecessors being in cultivatory possession were erroneous and did not

apply for rectification thereof. As aforesaid, it was open to the petitioner to

contend that the entries of cultivatory possession of the respondents 4 to 7

were fraudulent. Not only was any such step not taken but there is no such

plea in any of the proceedings also. All this is also supportive of the

reasoning in the order of the Financial Commissioner.

17. The senior counsel for the petitioner has vehemently contended that

the Revenue Courts were in error in casting doubts about the decree of the

Civil Courts or in observing that the same was obtained by the petitioner by

putting forward some persons other than the predecessor of the respondents

4 to 7. He contends that the orders of the fora below are liable to be

interfered with on this ground alone.

18. Though the counsel for the respondents 4 to 7 has contended that the

petitioner failed to prove the decree of the Civil Court before the fora below

but in my opinion there is merit in the contention of the petitioner that it was

not open to the Revenue Courts to cast any doubt about the decree of the

Civil Court. The senior counsel for the petitioner in this regard has rightly

relied upon Kirpa Ram (Decd) Thr. LRS. Vs. Surendra Deo Gaur 153

(2008) DLT 526 and order of the Financial Commissioner in Mehar Chand

Vs. Ram Parwar 23(1983) DLT 509 in this regard. However in my opinion,

a wrong reasoning given by the fora below on one aspect would still not call

for interference by this Court if the reasoning on other aspects and on which

aspects alone the orders can stand is cogent and valid.

19. The senior counsel for the petitioner has next contended that the

entries in the records of the Irrigation Department were in favour of the

petitioner and have been wrongly rejected by the Financial Commissioner.

The counsel for the respondents 4 to 7 in opposition to the said plea has

referred to the order dated 15th May, 1984 in RSA 16/1984 titled Laxman

Singh Vs. Nathoo Singh rejecting the girdawari of Irrigation Department

on the ground that the same are not prepared at the spot but in the office

itself. I am even otherwise of the opinion that in the face of the statutory

provisions in Reforms Act and the Revenue Act and the Rules framed

thereunder, the entries of the Irrigation Department which have no statutory

basis cannot come to the rescue of the petitioner.

20. The senior counsel for the petitioner has next contended that the order

dated 19th October, 2010 of the Financial Commissioner impugned in the

present petition is diametrically opposite to the earlier order dated 30th

November, 1995 of the Financial Commissioner in favour of the petitioner

and whereagainst the respondents 4 to 7 had preferred WP(C) 4798/1995;

the said writ petition was disposed of by consent order dated 14 th January,

2010 wherein the petitioner had agreed to the order dated 30 th November,

1995 of the Financial Commissioner being set aside and to the remand of the

matter to the Financial Commissioner for decision afresh. I am of the view

that once the petitioner had consented to setting aside of the order dated 30th

November, 1995 of the Financial Commissioner and to remand for decision

afresh, the petitioner cannot now place any reliance on the earlier order

which has been set aside.

21. The senior counsel for the petitioner has in rejoinder lastly contended

that vide order dated 14th January, 2010 in W.P.(C) No.4798/1995 earlier

preferred by respondents 4 to 7, only decision dated 30th November, 1995 of

the Financial Commissioner dismissing the suit of the respondents 4 to 7

against the petitioner was set aside and matter remanded for adjudication

afresh but the order of the Financial Commissioner also dated 30th

November, 1995 dismissing the review by the respondents 4 to 7 of the

entry of the name of the petitioner as in cultivatory possession of the land

for the year 1984 was not set aside. It is contended that though respondents

4 to 7 had preferred a writ petition being W.P.(C) No.53/1996 against the

said order also but the same was disposed of as infructuous in view of the

order dated 14th January, 2010 in WP(C)4798/1995. It is contended that

thus the earlier order of the Financial Commissioner dismissing the review

has attained finality. It is argued that the order now impugned of the

Financial Commissioner is inconsistent with the order dismissing the

review.

22. Not finding the said plea to have been urged by the petitioner before

the Financial Commissioner on remand or even in the present petition, it

was inquired from the senior counsel for the petitioner whether any such

plea was taken. The senior counsel fairly concedes that no such plea was

taken. The same cannot be allowed. Moreover, the earlier orders in the writ

petitions were made and the parties have proceeded on the premise that the

two proceedings were linked. There is thus no merit in the said plea also.

23. The counsel for the respondents 4 to 7 has also contended that the

petitioner even otherwise has no defence to the suit for ejectment, having

not pleaded adverse possession. It is contended that mere possession for

howsoever long would not enure any right in favour of the petitioner and the

suit of the respondent for ejectment would still be within time. Reliance in

this regard is placed on Jagamohan Garnaik Vs. Sankar Samal AIR 1990

Orissa 124.

24. However in view of the aforesaid, need is not felt to deal with the said

contention. I may however note that the Apex Court in Hemaji Waghaji Jat

v. Bhikhabhai Khengarbhai Harijan AIR 2009 SC 103 has held that the

plea of adverse possession is a highly iniquitous plea and a person taking the

said plea has no equity in his favour. Here admittedly the petitioner is not a

bhumidar of the land, he has never bothered to have his name recorded in

the revenue records as in cultivatory possession of the land and is seeking to

rely upon technical plea of limitation to defend the suit for his ejectment by

the bhumidar of the land. There is indeed no equity in favour of the

petitioner.

25. The petition is dismissed. The matter having been considered at the

stage of admission only, I refrain from imposing any costs.

RAJIV SAHAI ENDLAW (JUDGE) 20th January, 2011 M