Hari Singh (Deceased) Through His ... vs Union Of India & Ors.
2011 Latest Caselaw 2395 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of judgment: 04.05.2011


+                  R.S.A.No.268/2007


HARI SINGH (DECEASED) THROUGH HIS LRS.
                                ...........Appellants
                  Through: Mr.Rohit Kumar, Advocate.

                   Versus

UNION OF INDIA & ORS.                     ..........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.

1. This appeal has impugned the judgment and decree dated

23.7.2007 which had endorsed the finding of the trial judge dated

01.10.2004 whereby the suit filed by the plaintiff Hari Singh

(seeking a declaration to the effect that he be declared as an

owner of the agricultural land comprised in khasra no.304,

measuring 6 bighas 2 biswas situated in village Bhalaswa,

Jahangirpur, Delhi with the further prayer that the notification

dated 11.7.1986 be declared null, void and not binding upon the

plaintiff; prayer of permanent injunction had also been sought

restraining the defendants from interfering in the suit property)

had been dismissed.

2. Plaintiff claimed himself to the cultivator of agricultural land

as aforenoted i.e. the land measuring 6 bighas 2 biswas in Khasra

No.304 in the revenue estate of village Bhalswa, Jahangirpur,

P.O.Samaypur, Delhi. He was in possession and harvesting the

land since 1952 without any interference from any quarter. The

Halka Patwari in 1960 wrongly showed this land as vacant land;

thereafter it was shown in the name of one Jumma who had no

right or title in the land. This was in connivance with the

defendants. Plaintiff had filed a petition for correction of the

entries in the khasra girdawari before the Revenue Assistant

which application was rejected. Appeal was filed; order of the

Revenue Assistant was set aside. On 11.7.1986 a notification had

been issued by the defendants wherein the suit land came to be

declared as public land for a public purpose; this was wrongfully

shown in the gazette notification; this notification is invalid and

not binding upon the plaintiff. Further case of the plaintiff that

his name has not been shown in khasra girdawari since 1981-82

and thereafter up to 1992; it was last shown in the record for the

year 1979-80; plaintiff is a harvester and growing his crops in the

suit land since 1952. Suit land since 1986 had been declared

public land and for public purpose; notification dated 11.7.1986 is

also not binding upon him. Accordingly prayer has been made as

aforenoted.

3. Written statement has contested the suit. It was denied that

the plaintiff has been in possession of the suit land or there is any

collusion with the defendants. The forest department vide

notification dated 11.7.1986 had since acquired the land. It

cannot be the subject matter of the challenge; jurisdiction of this

Court is barred; suit is liable to be dismissed.

4. Trial judge had framed the following nine issues:

i. Whether the plaintiff is entitled to the relief of declaration as prayed for?

ii. Whether the plaintiff has become owner of the land by way of adverse possession? OPP iii. Whether the notification dated 11.7.86 bearing No.F 11(16)-SK/revenue/86 is illegal, void etc.? OPP iv. Whether the plaintiff is entitled to the decree of permanent injunction regarding restraining of defendant from interfering in possession of the suit land comprised in Khasra No.304 measuring 2 bighas and 6 biswas? OPP v. Whether the suit of the plaintiff is not maintainable of non-

joinder/mis-joinder? OPD vi. Whether the suit is hit by Section 80 CPC? OPD

vii. Whether the suit is hit by section 99 of Delhi Panchayat Raj Act ?

viii. Whether the suit is hit by Limitation Act? ix. Whether the suit is not maintainable in view of the objections taken by the defendant in their WS?

      x.      Relief.


5.    Issues no.5 to 9 were treated as preliminary issues.                   The

trial judge was of the view that the plaintiff is claiming himself to

the bhumidari of the suit land. Such a declaration can only be

granted by a Revenue Court. Provision of Section 185 of the

DLRA the jurisdiction of the Civil Court is barred qua relief of

declaration that the notification dated 11.7.1986 be declared null

and void. Court was of the opinion that the same cannot be

challenged in a Civil Court; land has been declared as public land;

under Section 1(2)(4) of the DLRA, the declaration of a Chief

Commissioner under sub Section 2(C) shall be conclusive evidence

that the land is held and occupied for a public purpose. Court was

of the view that the notification cannot be subject matter of

challenge; suit was accordingly dismissed. This was affirmed in

first appeal. The impugned judgment inter alia recorded its

finding as under:

"10.In the present case also, the appellant is trying to claim possession of an agricultural land by way of adverse possession which cannot be protected by civil courts unless and until

declaration about the rights of the appellant as Bhommidar are recognized by revenue authorities for which appellant could have approached the revenue authorities to do the needful. In fact, the appellant has already approached the revenue authorities for the requisite relief and are waiting for the outcome.

11. Now coming to the relief of declaration that notification issued by the Government under the provisions of Land Acquisition be set aside. It is well settled that such notification declared by the then commissioner under clause (e) of sub section (2) are presumed conclusive. Moreover, having gone through the record there is nothing which may point out that there was any infirmity in the process adopted by the respondents in acquiring the land and thereafter declaring it as public land for public purposes which might have enable the civil court to cause any interference that also after period of 6 years. Even according to the provisions of Limitation Act such a suit should have been filed within 3 years from the date of cause of action which certainly arose on 11.7.86 as per article 59 thereof which has not been done. Thus, I do not find any error in the Judgment of the trial."

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

04.3.2008 the following substantial questions of law were

formulated:

1. Whether the notification dated 1.7.1986 could be challenged by way of a civil suit?

2. Whether the suit as framed was maintainable before the Civil Court?

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

jurisdiction of the Civil Court qua the second relief i.e. the relief of

declaration of the status of the plaintiff as bhuimdar may not be

the subject matter of decision by a Civil Court but the second

prayer i.e. the prayer seeking a declaration to the effect that the

notification dated 11.7.1986 be declared null and void can only be

gone into by the Civil Court; the Revenue Court would in fact have

no jurisdiction to decide this question. A party cannot be left

remediless. Learned counsel for the appellant has placed reliance

upon AIR 1969 SC 78 Dhulabhai Vs. State of M.P. as also another

judgment reported in 44(991) DLT 713(DB) Sher Singh & Ors. Vs.

Goan Sabha & Ors. None has appeared for the respondent.

8. There is no infirmity in the finding of the two courts below.

What the plaintiff had sought was a declaration to the effect that

he be declared bhumidar of the agricultural land. The bar of

Section 185 of the DLRA was operational. Such a suit as framed

could not have been agitated before the Civil Court; the bhumidari

rights can be decided only by the Revenue Court. Finding on this

score suffers from no infirmity. Substantial question of law no.2 is

answered against the appellant and in favour of the respondent.

9. The notification dated 11.7.1986, as is evident from the date

of the notification, is of the year 1986. Present suit challenging

the notification had been filed in the year 1992. This was

admittedly after the prescribed period of limitation which

prescribes a period of three years for a relief of declaration. This

is evident from Article 58 of Limitation Act. It is also not the case

of the plaintiff that knowledge of this notification came to him at

any stage later than the date of notification.

10. That apart the effect of declaring the notification to be valid

or invalid was essentially entwined with the declaration of the

status of the plaintiff as a bhumidar. One cannot be segregated

from the other. The plaintiff can be declared as a bhumidar only if

the notification dated 11.7.1986 is declared invalid; vice-versa if

the notification dated 11.7.1986 is declared as valid, the

necessary corollary would be that the plaintiff would lose his

status of a bhumidar. As already aforenoted bhumidari rights can

only be dealt with by the Revenue Court; the bar of Section 185 of

the DLRA prohibits the Civil Court to go into this issue.

11. The judgments relied upon by the learned counsel for the

appellant are inapplicable. In the case of Dhulabhai (supra) the

refund of tax illegally collected was under challenge; the

jurisdiction of the Civil Court was discussed in that context. In

the judgment of Sher Singh (supra) the word „holding‟ as

appearing in Section 3 of the DLRA had been expounded. In this

case the challenge was about the wasting of land under Section 7;

what is waste land and the explanation to Section 7 of the Act had

been dealt with. This judgment does not in any manner advance

the case of the appellant.

12. Substantial question no.2 is also answered against the

appellant and in favour of the respondent. There is no merit in

the appeal. Dismissed.

INDERMEET KAUR, J.

MAY 04, 2011 nandan