Delhi High Court
Sh. Kashi Ram & Anr. vs Gaon Sabha Nasirpur on 14 March, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 14.03.2011
+ RSA No. 106/2004
SH. KASHI RAM & ANR. ...........Appellants
Through: Mr. Ankit Jain, Advocate.
Versus
GAON SABHA NASIRPUR ..........Respondent.
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 is directed against the impugned judgment and
decree dated 12.02.2004 which has endorsed the finding of the
trial judge dated 07.02.2000 whereby the suit filed by the plaintiff,
Sh. Kashi Ram seeking permanent injunction against the defendant
i.e. Gaon Sabha Nasipur, had been dismissed.
2. The case of the plaintiff is that they are co-owners in
possession of 4 Bhigha 14 Biswas land in khasra No. 365, 8 bighas
11 Biswas in Khasra No. 66 of the Village Nasirpur, Palam since
1948-49. In 1975, the Pradhan of the village tried to dispossess
the plaintiff. A suit was filed wherein a decree was passed in
favour of the plaintiff in terms of which it was held that after 1954,
plaintiffs were in possession of the aforenoted property. It is
contented that the defendants are threatening to interfere with the
peaceful possession of the plaintiff. Present suit for permanent
injunction was filed.
3. In the written statement, defence was that the defendants
are the owners and in possession of the suit land.
4. Replication was filed reiterating the averments made in the
plaint and denying the defence of the defendant.
5. The trial judge had framed four preliminary issues. They
read as follows:-
"1. Whether the suit of the plaintiff is not
maintainable in view of Section 99 of Delhi
Panchayat Raj Act? OPD.
2. Whether suit of plaintiff is not maintainable
for non-joinder of necessary party u/s 161 of Delhi
Land Reform Act? OPD.
3. Whether this court has no jurisdiction to try
this suit? OPD.
4. Whether this suit is hit by Section 41 (h) of
the Specific Relief Act? OPD"
6. Issue no. 3 was decided in favour of the plaintiff. It was held
that the civil court has no jurisdiction to entertain the present suit.
All other issues were decided against the plaintiff. This finding of
the trial judge was endorsed in first appeal.
7. This is a second appeal. It had been admitted and on
16.07.2004, the substantial question of law had been formulated
which reads as follows:-
" Whether service of Notice under Section 99 of
the Delhi Panchayat Raj Act, 1954 is necessary
before filing the suit."
On 14.02.2011, in view of the additional arguments urged
before this court, two additional questions of law had been
formulated. They read as follows:-
"1. Whether the finding in the impugned
judgment dated 12.02.2004 qua the interpretation
of the provisions of Order 1 Rule 9 of the Code of
Civil Procedure are perverse and if so, its effect?
2. Whether the finding in the impugned
judgment dated 12.02.2004 qua Section 41 (h) of
Specific Relief Act are perverse and if so, its
effect?"
8. Arguments have been heard. No one has appeared for the
respondent although notice has been sent to the respondent and on
09.03.2011, it had been recorded that the respondent has been
served.
9. Learned counsel for the appellant has submitted that the
findings in the impugned judgment suffers from illegality. Section
99 of the Delhi Panchayat Raj Act, 1954 reads as follows:-
"Suits against Gaon Panchayat or Circle Panchayat
or its Officer:- (1) No suit or other legal
proceedings shall be instituted against a Gaon
Sabha or a Gaon Panchayat or against a member.
Panch officer of servant of the Gaon Panchayat or
Circle Panchayat or against any person acting
under it or his direction for any thing done or
purporting to have been done in any official
capacity under this Act, until the expiration of two
months next after notice, in writing has been, in
the case of a Gaon Panchayat or Circle Panchayat
and in the case Gaon Sabha, delivered in or left at
the office of the Gaon Panchayat or Circle
Panchayat and in the case of a member, Panch
officer or servant or any person acting under this
direction or the direction of the Gaon Panchayat or
Gaon Circle Panchayat, delivered to him or left at
his office or place of abode, explicitly stating the
cause of action, the nature of the relie sought, the
amount of compensation, if any, claimed and the
name and place of abode of the intending Plaintiff
and the plaintiff and the plaint shall contain a
statement that such notice has been so delivered
of left.
(2) No action such as is described in sub-section
(1) shall be commenced otherwise than within
six months next after the accrual of the cause of
action."
This section specifically postulates that no suit shall be
instituted against a Gaon Sabha or a Gaon Panchayat or against a
member, Panch officer of servant of the Gaon Panchayat or Circle
Panchayat or against any person acting under it or his direction for
any thing done or purporting to have been done in any official
capacity, until a two months notice has served, in writing. It is
urged that the act of the defendants was not in any official
capacity; the impugned judgment has erred in holding that the suit
is not maintainable in view of the aforenoted provision. There is
force in this submission. Parties should have been granted an
opportunity to lead evidence before deciding this issue as to
whether the acts of the defendant qualified in an official capacity
or not.
10. Learned counsel for the appellant has next urged that the
finding on Section 161 ((A) of Delhi Land Reform Act, 1954 is also
an illegality as the Union of India is not a necessary party in a suit
of the present nature which was simplicitor a suit for permanent
injunction. Attention has also been drawn to the provision of
Section 36 (2) of the Delhi Land Reform Act, 1954 and the finding
in the impugned judgment which had expanded the scope of
Section 36 (2) of the said Act. Finding of this issue is also liable to
be set aside.
11. The impugned judgment had thus illegally returned findings
on issue nos. 1 and 2 without giving an opportunity to the
respective parties to adduce their evidence. These issues could not
have been decided as preliminary issues. The finding on issue no.
4 is also liable to be set aside for the same reason.
12. The appeal is accordingly allowed. Matter is remanded back
to the concerned District & Sessions Judge, Tis Hazari Courts,
Central District. Parties are directed to appear before the
concerned court at 10.30 am on 21.03.2011 who shall assign the
case to the concerned civil court to decide the case on its merits
after giving opportunity to the parties to adduce evidence. Appeal
disposed of in the above terms.
INDERMEET KAUR, J.
MARCH 14, 2011
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