Raghubir Singh & Ors vs Mauji Ram & Ors
2013 Latest Caselaw 1667 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.274/2007


                                       Decided on : 12th April, 2013


RAGHUBIR SINGH & ORS.                  ...... Appellants
             Through: Mr.K.K.Jha, Advocate.


                       Versus


MAUJI RAM & ORS.                         ......                  Respondents
             Through Mr.Sanjay Rathi, Advocate

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a regular second appeal filed by the appellants against the

judgment dated 28.7.2007 passed by the learned ADJ by virtue of

which the first appeal filed by the appellant was dismissed.

2. I have heard the learned counsel for the appellants as well as

learned counsel for the respondents.

3. The main contention of the learned counsel for the appellants is

that the regular second appeal involves a substantial question of

law as to whether the civil court has the jurisdiction to entertain the

suit itself in view of Section 185 of the Delhi Land Reforms Act,

1954(hereinafter referred to as the 'Act'). He has sought to place

reliance on case titled Hatti Vs. Sunder Singh 1970(2) SCC 841

and Rajender Singh Vs. Vijay Pal @ Jai Pal & Ors. JT 2008 (6)

SC 67.

4. The learned counsel for the respondents has refuted the contention

and stated that no question of law is arising from the present

regular second appeal, much less, the substantial question of law.

It has been stated that there is a concurrent finding returned by the

two courts below that the bar of Section 185 of the Act does not

apply to the case of the appellants because of the fact that the land

in question is abadi land.

5. In addition to this, it has been stated that this objection was given

up by the appellants before the first appellate Court.

6. In this regard, my attention has been drawn to the judgment of the

first appellate Court wherein this fact is recorded.

7. The learned counsel has placed reliance on the Division Bench

judgment in Ram Kishore Vs. Jai Singh & Ors. 187 (2012) DLT 37

(DB) and Gyanender Singh Vs. Narain Singh & Ors. 190(2012)

DLT 469 wherein it has been held that the bar u/S 185 of the Act

would apply only to the partition of such lands which constitute

holding of a Bhumidari and not to abadi lands in a village.

8. I have carefully considered the submissions made by the learned

counsel for the parties and gone through the judgments cited by

them.

9. Briefly stated the facts of the case are that the respondent

no.1/Mauji Ram (hereinafter referred to as 'plaintiffs') had filed a

suit for possession of abadi land. It was alleged that the abadi land

in village Kanjhawala was partitioned by metes and bounds by a

decree passed in a partition suit bearing nos.648/1936, 62/1938

decided on 15.5.1940 by the sub-Judge, Delhi. In the suit for

possession, it was averred that according to the decree and

khatauni, the name of the plaintiff no.1, his father Kanwal Singh

and predecessor in interest along with the plaintiffs 2 to 4 and

defendants 22 to 29 were entered in Khatauni. It was alleged that

the defendant Nos.1 to 21(who are appellants before this Court)

had encroached upon a portion of land measuring 500 sq. yds. in

khasra No.256 owned by the plaintiffs to the east and north of 256

(Alif) and had built temporary structures and are still in possession.

Accordingly, the suit was filed.

10. The defendants/appellants who were the tenants had filed their

written statement and contested the claim of the

plaintiffs/respondents. On the pleadings of the parties, the

following issues were framed:-

(i) Whether the suit of the plaintiff is barred by time? OPD

(ii) Whether the suit of plaintiff is barred vide objection No.1? OPD

(iii) Whether the defendants as claimed are in adverse possession of the suit land/property? OPD

(iv) Whether the suit is barred by the principles of estoppel and acquiescence?

(v) Whether the suit is bad under the provisions of Order 7 Rule 11 CPC?

(vi) Whether the suit is not properly valued for purposes of court fee and jurisdiction?

(vii) Whether this court has no jurisdiction in view of the provisions of DLR Act?

(viii) Whether the plaintiffs are entitled to the relief prayed for?

(ix) Relief.

11. The parties adduced their respective evidence and so far as issue

no.7 is concerned, which is relevant for our purpose, to the effect

as to 'whether the Court has no jurisdiction in view of the

provisions of Delhi Land Reforms Act', this issue was dealt in

detail by the trial court and a finding was returned to the effect

since the suit was for possession of abadi land and the abadi land

continue to belong to or held by the proprietor, tenant or other

person even after the passing of the Act, and therefore, the suit for

possession of the abadi land was maintainable.

12. The trial court vide judgment dated 7th May, 2004 decreed the suit

for possession in favour of the plaintiffs/respondents. The

defendants/appellants herein feeling aggrieved, filed the appeal

against the said impugned judgment which was heard by the

learned ADJ. It has been recorded in the order of the ADJ that the

appellants during the course of arguments had given up the plea

with regard to the jurisdiction of the court to entertain and

adjudicate the matter with regard to the possession in view of

Section 185 of the Act. The appeal of the appellants was dismissed

on merits.

13. Still not feeling satisfied, the present appeal has been filed raising

the only question with regard to the jurisdiction contending that

Section 185 of the Act bars the jurisdiction of Civil court and

therefore, the suit for possession filed by the plaintiffs/respondents

could not have been entertained. Reliance in this regard has been

placed on the judgment of the Supreme Court in Hatti's case

(supra) to contend that in terms of Section 185 of the Act, the Civil

Court's jurisdiction is barred.

14. There is no doubt about the fact that Section 185 of the Delhi Land

Reforms Act, clearly bars the jurisdiction of the civil court in

respect of the suit which are detailed in the Schedule-I attached to

the Act. If one sees the said Schedule, the jurisdiction of civil

court is barred only in respect of the suit for partition or possession

of Bhumidari rights or a holding. Since in the instant case, the suit

for possession is in respect of the abadi land, the same is not barred

by the provisions of the Delhi Land Reforms Act.

15. The judgments of the Division Bench of this Court in Ram

Kishore's case (supra) and Gyanender Singh's case (supra) clearly

deals with this issue and states that the abadi lands in a village do

not constitute holding and accordingly, they are not governed by

Section 185 of the Act.

16. In view of the aforesaid legal position, I am of the view that the

present regular second appeal does not raises any substantial

question of law and accordingly, the same is dismissed.

V.K. SHALI, J.

APRIL 12, 2013 RN