Rajesh Kumar vs Shanta Vashisht
2013 Latest Caselaw 4667 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                    Date of decision: 08th October, 2013
+                                  RFA 519/2009
       RAJESH KUMAR                                       ..... Appellant
                   Through:             Mr. R.D. Chauhan & Mr. Arun K.
                                        Chauhan, Advs.

                                     versus
       SHANTA VASHISHT                                 ..... Respondent

                   Through:             Mr. M.R. Chawla & Mr. Pranav
                                        Sarthi, Advs.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The appeal impugns the judgment and decree dated 5 th December, 2009 of the Court of the Addl. District Judge, Central-14 Delhi, (in Suit No.1087/2008 filed by the respondent/plaintiff) of possession, use and occupation charges @ Rs.3,000/- per month and for mandatory injunction against the appellant/defendant.

2. Notice of the appeal and the application for interim relief was issued and the Trial Court record requisitioned. Vide order dated 13 th July, 2011, subject to the appellant/defendant depositing the decretal amount towards mesne profits and filing an undertaking to maintain status quo with respect to possession till the disposal of the appeal, the execution of the impugned judgment and decree was stayed and the appeal admitted for hearing. The hearing was expedited for the reason of the respondent/plaintiff being a senior citizen. The appeal was dismissed in default of appearance of the

appellant/defendant on 2nd May, 2013. An application for restoration was preferred by the appellant/defendant but the same was also dismissed in default on 4th September, 2013. Yet another application for restoration was filed which was allowed on 1st October, 2013 and the counsels also heard on the appeal.

3. It was inter alia the contention of the counsel for the appellant/defendant on 1st October, 2013 that the suit for possession from which this appeal arises, was with respect to agricultural land governed by the Delhi Land Reforms Act, 1954 ("Reforms Act") and was not maintainable before the Civil Court.

4. The counsel for the respondent/plaintiff on that date drew attention to the order dated 21st September, 2006 in the suit, framing the issues and in which it was also noticed that the suit was for recovery of possession in respect of agricultural land, the rights with respect of which are governed by the Reforms Act and the declaration of bhumidari rights in respect of agricultural land can only be given by the Revenue Assistant and not by Civil Court.

5. It was in the circumstances enquired from the counsel for the respondent/plaintiff on 1st October, 2013 as to how the suit for the relief of possession was maintainable before the Civil Court. Attention of the counsel in this regard was invited to Serial No.19 of Schedule-I to the Reforms Act and Section 185 thereof.

6. On request of the counsel for the respondent/plaintiff on 1 st October, 2013, the appeal was adjourned to today for hearing.

7. The counsel for the respondent/plaintiff has today referred to Raj Kishore Tyagi Vs. Radhey Shyam 149 (2008) DLT 754 and Nilima Gupta Vs. Yogesh Saroha 156 (2009) DLT 129 to contend that it is the case of the appellant/defendant himself in the written statement as well as in the evidence that the property subject matter of the suit is part of an unauthorized colony though over agricultural land; it is thus contended that the provisions of the Reforms Act would not apply. Reliance is also placed on Dwarka Prasad Agarwal Vs. Ramesh Chander Agarwal (2003) 6 SCC 220 para 19 to contend that exclusion of jurisdiction of the Civil Court should not be readily inferred. Reliance is yet further placed N.B. Singh (HUF) Vs. Perfexa Solutions Pvt. Ltd. 159 (2009) DLT 729 where a suit for possession with respect to a farm house which was assessed to Property Tax by the MCD was held to be maintainable before the Civil Court.

8. It is however the case of the respondent/plaintiff in the plaint itself that the property qua which the suit is filed is agricultural land and the relief claimed also is of possession of land after directing the appellant/defendant to demolish the unauthorized construction raised thereon.

9. Unfortunately no issue was framed by the Trial Court on the aforesaid jurisdictional aspect. Before pronouncing on the said aspect, it has thus been deemed expedient to enquire from the counsel for the respondent/plaintiff whether the respondent/plaintiff desires to lead any evidence on the said aspect or wants the said aspect to be decided on the basis of the material on record.

10. The counsel for the respondent/plaintiff states that evidence would be required to be adduced and an opportunity be also given to the respondent/plaintiff to amend the plaint if so required, only with respect to the said aspect of the matter.

11. The counsel for the appellant/defendant has no objection to an issue on the aforesaid aspect being framed and to recording of the evidence thereon. He has however opposed grant of liberty to the respondent/plaintiff to amend the plaint in this regard.

12. After having heard the counsels at length, I am of the opinion that the appellant/defendant having not taken the said objection in his written statement and having not got an issue framed on the said aspect and on the contrary having pleaded and proved facts akin to those in the aforesaid three judgments of this Court cited by the counsel for the respondent/plaintiff, has no right to object to the amendment if any sought by the respondent/plaintiff on the limited aspect of applicability of the Reforms Act and jurisdiction of the Civil Court. The said amendments are rather found necessary for adjudication of the said jurisdictional aspect of the matter.

13. Accordingly the following additional issue is framed:-

(i). Whether the jurisdiction of the Civil Court with respect to the relief of possession is barred by Section 185 of the Delhi Land Reforms Act, 1954? OPPr

14. The appeal is disposed of by exercising the powers under Order 41 Rule 25 of the CPC and remanding the matter to the Trial Court to, after the parties have adduced evidence on the aforesaid issue, decide the same and to

return the evidence together with its findings thereon to this Court within six months of the date of first appearance of the parties before the Trial Court.

15. Liberty is also granted to the respondent/plaintiff to amend the plaint, by supplying advance copy of the amended plaint, limited to the said aspect, to the counsel for the appellant/defendant or to the appellant/defendant within four weeks of today. The amended plaint be filed before the Trial Court on the date of first appearance of the parties before the Trial Court. The appellant/defendant to, on the same day file written statement to the amended plaint, confining the response to the amended paragraphs. The Trial Court to thereafter proceed to record evidence and decide the said issue.

16. The parties to appear before the Addl. District Judge, Central-14 on 7th December, 2013. The Trial Court file be forthwith returned to the Trial Court.

17. The appellant/defendant to continue to deposit the amount subject to deposit of which the interim order was granted in this appeal, in this Court.

18. The appeal to be listed after the findings with reasons have been received back from the Trial Court.

RAJIV SAHAI ENDLAW, J OCTOBER 8, 2013 pp..