Om Prakash vs Pratap Singh & Ors.
2012 Latest Caselaw 4445 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 27th July, 2012

+                        LPA No.328/2006

%     OM PRAKASH                                          ....Appellant
                         Through:     Mr. U.K. Shandilya, Adv.

                                  Versus

      PRATAP SINGH & ORS.                                ..... Respondents
                   Through:           Mr. Sudhanshu Tomar, Adv. for R-1.
                                      Mr. S.P. Sharma, Adv. for R-2.
                                      Mr. H.S. Sachdeva, Adv. for
                                      GNCTD.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                               JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. This intra-court appeal impugns the judgment dated 25.11.2005 of the

learned Single Judge in W.P.(C) No.4730/1998 preferred by the respondent

No.1 Partap Singh. The said writ petition was filed impugning the order

dated 20.08.1996 of the Financial Commissioner in the First Appeal under

Section 185(3) of the Delhi Land Reforms Act, 1954 preferred by the

appellant herein against the order dated 11.12.1995 of the Additional

Collector, Delhi on a petition under Section 185 r/w Section 75(2) of the

Act filed by the respondent No.1 Partap Singh for setting aside of the order

dated 22.12.1986 of the Sub Divisional Magistrate (SDM) / Revenue

Assistant declaring (under Section 74(4) of the Act) the appellant herein as

bhumidhar of land ad-measuring 4 Bighas 16 Biswas in Khasra No.525

situated in the Revenue Estate of village Kadipur, Delhi. This appeal was

admitted for hearing and it was directed that if the appellant is in possession

of the land in dispute, he shall not be dispossessed therefrom. The counsels

have been heard and the written arguments filed by them perused.

2. It is the case of the respondent No.1 that the said land was part of his

holding and remained so even after the consolidation proceedings held in

the village in the years 1951-52; however the status of the land, in the

revenue records was recorded as „banjar kadim‟. It is further the case of the

respondent No.1 that owing to the status of the land being recorded as

„banjar kadim‟, upon the Delhi Land Reforms Act coming into force in the

year 1954 and which provided for vesting of all uncultivated waste land in

the Gaon Sabha, the said land was treated as vested in the Gaon Sabha of

village Kadipur (respondent No.2 in this appeal). The respondent No.1

further admits to have not challenged the said vesting order but claims that

notwithstanding the same he continued to be in possession of the land and

over the years re-claimed the land and started cultivating the same.

3. It is also not in dispute that the respondent No.2 Gaon Sabha in or

about the year 1976 allotted the said land under Section 74 of the Act to the

appellant herein.

4. The point of controversy is whether such allotment was only on

paper, as contended by the respondent no.1 or the appellant, in pursuance to

such allotment was also put into possession of the land, as contended by the

appellant.

5. The respondent No.1, in or about the year 1976 i.e. just when the

Gaon Sabha had allotted the said land to the appellant, instituted a suit in the

Civil Court for declaration that the entries in the Khasra Girdawari of the

said land in the name of the appellant and one Sh. Jai Singh were illegal and

gave no power or authority to them to dispossess the respondent No.1 from

the land without due process of law; injunction was also claimed against the

appellant, the said Sh. Jai Singh and the Gaon Sabha from dispossessing the

respondent No.1 from the said land. The case of the respondent No.1 in the

plaint of the said suit was the same as recorded hereinabove. It was further

the case of the respondent No.1 that since the Gaon Sabha had not filed any

suit for his ejectment and the period of limitation therefor had lapsed, the

respondent No.1 had become entitled to be declared a bhumidhar under

Section 85 of the Act, of the said land. The said suit was decided vide

judgment dated 14.11.1980; though the respondent No.1 and not the

appellant was held to be in cultivatory possession of the land but it was held

that the Civil Court had no jurisdiction; it was also held that though the

respondent No.1 was in possession but was not entitled to the discretionary

relief of injunction against dispossession because he was neither the

bhumidhar nor the asami of the land and his possession thereof was of a

trespasser; the suit was accordingly dismissed.

6. The respondent No.1 preferred an appeal against the dismissal

aforesaid of his suit and which appeal came to be decided by the learned

Additional District Judge vide judgment dated 25.02.1983. The learned

Additional District Judge noticed that in the Khasra Girdawari pertaining to

Kharif 1975 and Rabi 1976, Gaon Sabha was shown as the bhumidhar of

the land, though the name of the respondent No.1 was mentioned as in

unauthorized possession. It was further noticed that in the Khasra Girdawari

for the period of pendency of the suit, the name of the appellant herein and

Sh. Jai Singh was mentioned. The learned Additional District Judge held

that since the name of the appellant herein and Sh. Jai Singh did not find

mention in the Khasra Girdawari of before 1976-77 when the suit was filed,

the respondent No.1 was not entitled to any relief against them. On the

statement of the counsel for the Gaon Sabha that the respondent No.1 would

not be dispossessed otherwise in due course of law, the respondent No.1

was granted a decree for injunction restraining the Gaon Sabha from

dispossessing him from the said land otherwise than in due course of law.

The said judgment had attained finality.

8. The appellant, claiming to have with his labour and money re-claimed

the land, in the year 1982 sought declaration under Section 74(4) of the Act,

as bhumidhar of the said land. Notice of the said application of the appellant

was sent by the SDM / Revenue Assistant to the Gaon Sabha and upon the

statement of the Pradhan of the Gaon Sabha that the appellant had been

continuously cultivating the land and the Gaon Sabha had no objection to

the appellant being declared as the bhumidhar thereof, the SDM / Revenue

Assistant vide order dated 22.12.1986 supra, declared (under Section 74(4)

of the Act) the appellant as the bhumidhar of the said land. No notice of this

proceeding was sent to the respondent no.1, though he as aforesaid was

claiming adversely to the appellant with respect to the said land.

9. The respondent No.1 in or about the year 1988 filed (in the Court of

the Additional Collector) Objection Petition under Section 185 read with

Section 75(2) of the Act against the order dated 22.12.1986 (supra) of the

SDM / Revenue Assistant declaring the appellant as the bhumidhar of the

land. It was the case of the respondent No.1 that he came to know of the

order dated 22.12.1986 only on 24.09.1987. The Additional Collector, vide

order dated 11.12.1995 supra, finding that the respondent No.1 was not a

party to the proceedings before the Revenue Assistant / SDM, treated the

said proceeding as an appeal under Section 75(2) of the Act against the

order aforesaid of the SDM / Revenue Assistant and condoned the delay in

filing the appeal. Further finding that it was the plea of the Gaon Sabha

before the Additional Collector that the land had never been allotted to the

appellant and the possession thereof was with the Gaon Sabha, the

Additional Collector held that Revenue Assistant / SDM had passed the

order dated 22.12.1986 declaring the respondent No.1 as the bhumidhar in a

mechanical manner on cyclostyled papers, without recording any evidence

and accordingly set aside the order dated 22.12.1986 and remanded the

matter to the Revenue Assistant / SDM for decision afresh after conferring

opportunity to all concerned. The order also records that a proceeding under

Section 86 of the Act was also pending; the Additional Collector thus

directed the said proceeding also to be decided along with the remanded

matter.

10. Aggrieved from the setting aside by the Additional Collector of his

status as bhumidhar, the appellant approached the Financial Commissioner

as aforesaid. The order dated 20.08.1996 (supra) of the Financial

Commissioner records that the counsel for the Gaon Sabha admitted that the

land was allotted to the appellant and the appellant was vide order dated

22.12.1986 (supra), declared its bhumidhar. The Financial Commissioner

however held that the Objection Petition (under Section 75(2) of the Act)

preferred by the respondent No.1 before the Additional Collector could not

have been entertained and the Additional Collector thus committed an

illegality in treating the said Objection Petition as an appeal against the

order dated 22.12.1986 of the SDM / Revenue Assistant. It was further held

that an appeal could have been filed by a competent person only that too

within the period of limitation; the respondent No.1 being not a party to the

proceeding before the Revenue Assistant / SDM had no locus standi to file

or maintain any petition or appeal against the said order. The plea of the

respondent No.1, that being in possession, he had the right to file the appeal

was negated. Accordingly the order of the Additional Collector was set

aside.

11. Impugning the aforesaid order of the Financial Commissioner, the

writ petition from which this appeal arises was filed.

12. The learned Single Judge though has held that a proceeding under

Section 74(4) of the Act is between the person to whom the land is allotted

as asami by the Gaon Sabha and who claims a right to be declared as

bhumidar thereof and the Gaon Sabha only but has further held that the

position would be different where another person claims to have been

throughout in possession of the land. It was further held that since the order

in a proceeding under Section 74(4) of the Act declaring appellant as the

bhumidhar would necessarily prejudice the rights of the respondent No.1

who claims to be in cultivatory possession of the land; the respondent No.1

would become a necessary party to the said proceedings and would also

have a right of appeal therein. Weightage was also given to the finding in

the civil proceedings of the respondent No.1 being in possession of the land.

Accordingly, the order of the Financial Commissioner was set aside and the

matter remanded to the Revenue Assistant / SDM for decision afresh on the

application of the appellant under Section 74(4) of the Act.

13. The thrust of the argument of the appellant as also in the

memorandum of appeal and the synopsis of submissions, is on the reference

by the learned Single Judge in the judgment dated 25.11.2005 to the

proceedings under Section 86 of the Act by the Gaon Sabha against the

respondent No.1 and which the learned Single Judge has directed to be

tagged to the remanded proceedings under Section 74(4) of the Act. It is the

contention of the appellant that the said proceeding under Section 86 of the

Act does not relate to the said land but is with respect to land village

Ibrahimpur and the learned Single Judge has misconstrued documents on

record and the said fact alone shows error in the judgment of the learned

Single Judge.

14. We have intentionally not forayed into the matter concerning the said

proceeding under Section 86 of the Act inasmuch as we are of the opinion

that irrespective of the said proceeding, on the admitted facts as recorded

above, the direction passed by the learned Single Judge in the writ petition

is justified.

15. We are unable to agree with the reasoning given by the Financial

Commissioner that the respondent No.1 was not a necessary party to the

proceeding before the S.D.M./Revenue Assistant under Section 74(4) of the

Act or had no locus to prefer appeal against order in the said proceeding.

An order under Section 74(4) of the Act necessarily presumes not only

allotment of the land as asami but also reclamation thereof and which

reclamation necessarily entails cultivation by possession over the land. If a

third party claims to be in possession of the land since prior to the allotment

thereof under Section 74(1) of the Act and further claims to have throughout

continued in possession and the same is proved, it would necessarily mean

that the asami / allottee has not reclaimed the land - if he has not reclaimed

the land, the question of his being declared as bhumidhar does not arise.

16. We find the Additional Collector in the present case to have correctly

applied the law in treating the objections filed by the respondent No.1 as an

appeal against the order of the Revenue Assistant / SDM and in condoning

the delay in filing the said appeal and in setting aside the order of the

Revenue Assistant / SDM and in directing the Revenue Assistant to decide

the application of the appellant under Section 74(4) of the Act afresh after

hearing the respondent No.1 as well.

17. We are unable to agree also with the finding of the Financial

Commissioner that the respondent no.1 had no locus to file or maintain

appeal against the order of the SDM/Revenue Assistant declaring the

appellant as bhumidhar of the land. Section 75(2) which provides for such

appeal, is as under:

"(2) Deputy Commissioner may, on his own motion and shall on the application of any person aggrieved by an Order of the Gaon Sabha passed under sub-section (1), enquire in the prescribed manner and if he is satisfied that the Gaon Sabha has acted with substantial irregularity or otherwise than in accordance with the provisions of this Act, he may cancel such order."

As the language aforesaid would show, the right to appeal has been

conferred on "any person aggrieved....". The respondent no.1, who, by

filing the civil suit and appeal aforesaid, was claiming adversely to the

respondent no.1 qua the said land and who had also obtained injunction

against his dispossession (though against the Gaon Sabha only but in the

presence of the appellant) was certainly „a person aggrieved‟ and had locus

to appeal. As far back as in State of Punjab Vs. Amar Singh (1974) 2 SCC

70 it was held that a person not a party to a decree or order may with the

leave of the Court, prefer an appeal from such decree or order if either

bound by the order or is aggrieved by it or is prejudicially affected by it. „A

person aggrieved‟, was in Baldev Singh Vs. Surinder Mohan Sharma

(2003) 1 SCC 34 was defined as one whose right is affected by reason of the

judgment and decree sought to be impugned. The Supreme Court in Raj

Kumar Vs. Sardari Lal (2004) 2 SCC 601 held that a person who is laible

to be proceeded against in execution of the decree, can file an appeal against

the decree and though not a party to the suit or decree, has locus standi to

move an application for setting aside of the decree. The declaration by

SDM/Revenue Assistant of appellant as bhumidhar, certainly affected the

respondent no.1 who was/is setting up rights in himself qua the said land.

18. The counsel for the appellant has argued that the learned Single Judge

erred in relying on the judgment in the appeal in the civil proceedings

inasmuch as the said judgment is bad. It is argued that once the jurisdiction

of the Civil Court was barred, no relief of injunction even could have been

granted.

19. However what the aforesaid argument loses sight of is that the

appellant was very much a party to the civil proceedings and had failed in

proving that he and not the respondent No.1 was in possession. In fact, the

Gaon Sabha also before the learned Additional District Judge had admitted

the respondent No.1 to be in possession. The said admission of the Gaon

Sabha in the presence of the appellant will bind not only the Gaon Sabha but

also the appellant. If the appellant had any grievance against the said

judgment in the civil proceedings, the appellant ought to have challenged

the same. However the appellant allowed the same to attain finality and

cannot now in these proceedings be allowed to urge the same to be bad.

20. We therefore do not find any merit in this appeal and dismiss the

same. The learned Single Judge had directed the Revenue Assistant / SDM

to complete the remanded proceedings within one year. If no progress has

been made in the remanded proceedings till now, even though there was no

stay thereof, the same be now concluded forthwith and in any case within

six months from today. We further clarify that if the proceedings under

Section 86 of the Act are not with respect to the same land, the remanded

proceedings under Section 74(4) of the Act be in any case concluded as

directed. We further clarify that our observations herein including qua the

decree of injunction in civil proceedings are only in the context of the right

of the respondent no.1 to be heard in the proceeding under Section 74(4)

and should not be construed as an expression of opinion on the merits of the

claim/objections of the respondent no.1, which is to be gone into by the

Revenue Assistant/SDM.

No costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

JULY 27th, 2012/„gsr‟