Smt. Usha Gupta vs Sh. Subash Chand Tyagi
2011 Latest Caselaw 5756 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 2191/2007 and IA No. 7454/2009 (u/O 7 R 11 r/w
       Sec. 151 CPC)

                                 Decided on: 28th November, 2011


       SMT. USHA GUPTA                             ..... Plaintiff
                    Through           : Mr. M.F. Khan and Mr.
                                      G.S. Chauhan, Adv. for Mr.
                                      A.K. Bajpai, Adv.

                      versus

       SH. SUBASH CHAND TYAGI             ..... Defendant
                    Through  : Mr. I.P. Singh, Adv.


CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK,J. (ORAL)

1. By this application under Order 7 Rule 11 CPC defendant

has prayed that the plaint be rejected being barred by Section 185

of the Delhi Land Reforms Act, 1954 ("DLR Act", for short).

2. Plaintiff has filed this suit for possession against the

defendant in respect of the land admeasuring 4120 sq. yds. forming

part of khasra nos. 35/9/1, 35/9/2, 35/10 min, 35/12 min situated at

Shankarpura, Kaushik Enclave, Village Burari, Nathu Pura Road,

Delhi, more particularly, shown in green colour in the site plan

attached with the plaint.

3. Case of the plaintiff as set out in the plaint is that he was the

owner of land admeasuring 5280 sq. yds. (approximately) forming

part of khasra nos. 35/9/1, 35/9/2, 35/10 min, 35/12 min situated at

Hoover Farm, Shankar Pura, Kaushik Enclave, Village Burari,

Delhi. Plaintiff had sold a piece of land admeasuring 1160 sq yds.

forming part of khasra nos. 35/12 min and 35/9/1 to the defendant

on 10th August, 2005 and on the same day handed over the

possession of the said land to the defendant. On 13th May, 2006

plaintiff came to know that defendant had sold 4120 sq. yds. abadi

land shown in green colour forming part of khasra nos. 35/9/1,

35/9/2, 35/10 min, 35/12 min situated at Shankar Pura (adjoining to

the land admeasuring 1160 sq. yds., which he had sold to

defendant) and had transferred the same to several persons, who

had constructed rooms and boundaries over the said land of the

plaintiff. A complaint was lodged with DCP (North) on 4th June,

2006, but no action was taken. In nutshell, case of the plaintiff is

that the defendant has illegally sold the land admeasuring 4120 sq.

yds. forming part of khasra nos. 35/9/1, 35/9/2, 35/10 min, 35/12

min to some unknown persons and such persons were trespassers/

unauthorized occupants on the land of plaintiff. In these facts,

plaintiff has prayed for a decree of possession.

4. It may be worthwhile to mention here that while considering

an application under Order 7 Rule 11 CPC, the Court has to look at

the averments made in the plaint by taking the same as correct on

its face value as also the documents filed in support thereof.

Neither defence of the defendant nor averments made in the

application have to be given any weightage. Plaint has to be read

as a whole together with the documents filed by the plaintiff. In

Sri Kishan Vs. Shri Ram Kishan and Ors.159 (2009) DLT 470, a

Single Judge of this Court observed thus, "Order 7 Rule 11 of the

Civil Procedure Code contemplates that where the suit appears

from the averments made in the plaint to be barred by any law, then

the plaint can be rejected. The legal position is that to decide

whether a plaint is laible to be rejected under Order 7 Rule 11,

averments in the plaint have to be read without looking at the

defence and thereupon it has to be seen whether on the averments

made in the plaint under Order 7 Rule 11 of the Code of Civil

Procedure gets attracted. For rejection of the plaint under Order 7

Rule 11 the averments in the plaint should be unequivocal,

categorical and specific leading to only conclusion that the plaint is

barred.................."

5. From the plaint and documents it is borne out that the land

involved in this case is an agricultural land situated at village

Shankarpura, Burari, Delhi. This is so evident from the fact that

khasra numbers, as per revenue record, have been mentioned in the

plaint and not the municipal numbers. In the reply to the

application under Order 7 Rule 11 CPC, plaintiff has claimed that

the land has already been declared "abadi land", thus, DLR Act is

not applicable. Plaintiff has placed reliance on the notification No.

183 dated 18th November, 1983 published in the Delhi Gazette

issued by the Government of India (Delhi Administration) in

support of his contention. However, a perusal of notification

makes it clear that the same has been issued under the provisions of

the DLR Act and the rules made therein. Vide the said notification,

Administrator has declared the area specified in column I of the

table as a village "abadi", which contains khasra nos. 35/27 and

36/26, „Shankarpura‟, falling within the local area of Village Burari

declared as village "abadi". This notification has not been issued

under Section 507 of the Delhi Municipal Corporation Act, 1957

thereby notifying the area as urbanized area. First of all, this

notification will not shed the character of the land from agricultural

to "abadi land", which forms part of khasra nos. 35/9/1, 35/9/2,

35/10 min, 35/12 min situated at Shankar Pura as the notification is

in respect of land bearing khasra nos. 35/27 and 36/26. Secondly,

the land forming part of khasra nos. 35/27 and 36/26 has not been

declared as urbanized area, inasmuch as, it has only been notified

that the khasra numbers mentioned in the notification will be

recorded as separate revenue village (Abadi) in the revenue records

maintained under the provisions of the DLR Act. Thus, in my

view, DLR Act would be applicable to the land in question.

6. Section 84(1)(a) of the DLR Act provides that a person

taking or retaining possession of land otherwise than in accordance

with the provisions of the law, forming part of holding of a

Bhumidhar or Asami without the consent of such Bhumidhar or

Asami, shall be liable to ejectment on the suit of the Bhumidhar,

Asami or Gaon Sabha, as the case may be and shall also be liable

to pay damages. Remedy is provided under this Section for

ejectment of a trespasser or unauthorized occupant.

7. Section 185 of the DLR Act provides that no court other than

a court mentioned in column 7 of Schedule I shall, notwithstanding

anything contained in the Code of Civil Procedure, 1908, take

cognizance of any suit, application, or proceedings mentioned in

column 3 thereof. Article 19 of Schedule I under Section 84 of the

DLR Act provides that a suit for ejectment of a person occupying

land without title and damages, by a Bhumidhar declared under

Chapter III of the DLR Act or by an Asami falling under Section 6

of the Act, where such unlawful occupant was in possession of the

land before the issue of the prescribed declaration form, shall be

filed within three years from the date of issue of the prescribed

declaration form to the tenure holder or the sub tenure holder

concerned before the „Revenue Assistant‟. Appeal against the

order of Revenue Assistant lies before the Deputy Commissioner.

Thus, it is clear that no suit for ejectment and/or possession in

respect of land to which DLR Act is applicable, is maintainable

before the Civil Court, as the remedy lies before the „Revenue

Assistant‟ in this regard. The jurisdiction of the Civil Court is

ousted under Section 185 of the DLR Act.

8. In Hatti vs. Sunder Singh, AIR 1971 SC 2320, Supreme

Court has held that with regard to the suits for possession, under

Section 84 read with item 19 of the First Schedule gives

jurisdiction to the Revenue Assistant to grant decree for possession

and a suit for possession in respect of agricultural land, after the

commencement of the Act, can only be instituted either by a

Bhumidar or by an Asami or the Gram Sabha and not 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 84 of

DLR Act provide full remedy for suit for possession to a person

who holds right in the agricultural land under the Act. It has been

further observed that the Act is a complete Code under which it is

clear that anyone wanting a declaration of his right as a Bhumidhar

or aggrieved by a declaration issued without notice to him in

favour of another, can approach the Revenue Assistant under item

4 of the First Schedule and this, he is allowed to do without any

period of limitation because he may not be aware of the fact that a

declaration has been issued in respect of his holding in favour of

another. A declaration by a Gaon Sabha of the right of any person

can, thus, be sought without any period of limitation. If there is

dispute as to possession of agricultural land, the remedy has to be

sought under Section 84 read with item 19 of the First Schedule.

All the reliefs claimed by the respondent in the present suit were,

thus, within the competent jurisdiction of the Revenue Assistant,

and the Civil Court had no jurisdiction to entertain the suit.

9. A Single Judge of this Court in Sri Kishan (supra) has held

that a suit for declaration and partition of agricultural land shall be

barred under Section 185 of the DLR Act. In the context of

Section 185 of the DLR Act, Supreme Court in Gaon Sabha and

Anr. Vs. Nathi and Ors. (2004) 12 SCC 555 has held as under:-

"The legal position is therefore absolutely clear and there cannot be even a slightest doubt that the civil court had no jurisdiction to entertain the suit which was filed seeking a declaration that the order of

vesting of land in Gaon Sabha is illegal. It is indeed surprising that in spite of the aforesaid Division Bench decision of the Delhi High Court which was rendered in 1973 which had settled the legal position and was a binding precedent and the decision of this Court in Hatti v. Sundar Singh (supra) which was also brought to the notice of the learned Single Judge hearing the second appeal (RSA No. 73 of 1972), he chose to bye-pass the same by some queer logic and went on to hold that the civil suit was maintainable. Once we come to the legal position that the civil court had no jurisdiction to entertain the suit, the inevitable consequence is that the decree passed in the aforesaid suit including that of the High Court is wholly without jurisdiction........"

10. Judgment in Rajender Singh vs. Vijay Pal @ Jai Pal and

Others, 2008 (148) DLT 596, reliance whereupon has been placed

by the plaintiff‟s counsel is in the context of different facts and is

of no help to the plaintiff. Reliefs claimed in the said suit were

with regard to declaration and permanent injunction. The scope of

Section 84 DLR Act read with item 19(i) of Schedule I which

provides0 a remedy of possession under the said Act, was not in

issue nor it has been held that suit for declaration and/or possession

is maintainable in a civil court in respect of an agricultural land

governed under the DLR Act.

11. For the forgoing reasons, I am of the view that the present

suit is not maintainable. Plaint is, thus, rejected. Application is

disposed of in the above terms.

12. All the pending applications are disposed of as infructuous.

A.K. PATHAK, J.

NOVEMBER 28, 2011 rb