Gaon Sabha Samalka vs Sher Singh & Ors
2018 Latest Caselaw 4667 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.226/1998

%                                                     9th August, 2018

GAON SABHA SAMALKA                                      ..... Appellant
                Through:                 Mr. Sanjay Dewan, Advocate.
                          versus

SHER SINGH & ORS.                                     ..... Respondents

                          Through:       Mr. Rajender Dutt and Mr.
                                         Somdutt Kaushik, Advocates
                                         for R-26.
                                         Mr. L.K.Singh and Ms. Saira
                                         Parveen, Advocates for R-
                                         29(b).
                                         Mr. Abhilash Vashisht, Adv.
                                         for R-32.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure,1908(CPC) is filed by the defendant in the suit

impugning the Judgment of the Trial Court dated 19.12.1997 by which

the trial court has decreed the suit for declaration and injunction filed

by the respondents/plaintiffs. By the impugned judgment and decree

respondents/plaintiffs have been granted declaration that they are the

owners of the suit land which comprises of 32 bighas and 6 biswas of

land in village Samalkha, Delhi, bearing Kila Nos. 2, 3, 9 of rectangle

No. 31, Kila No. 22/2, 23, 24/1, 17/1 of rectangle No. 25 and Kila No.

15 of rectangle No. 56 (hereinafter referred to as „suit property/suit

land‟).

2. The subject suit was filed by the respondents/plaintiffs

pleading their entitlement to the suit land on account of the same

having been of their forefathers and which ultimately came to be

vested in them. It was pleaded that disputes arose between the

respondent/plaintiff, through their predecessors, with the Gaon Sabha

with respect to whether or not the suit land stood vested in the Gaon

Sabha after coming into force the Delhi Land Reforms Act, 1954 and

this issue was decided in favour of the respondents/plaintiffs in a suit

which was filed by the respondents/plaintiffs being Civil Suit

No.246/1965 and which was decided by the court of Sh. H.C.Gupta,

Sub-Judge First Class Delhi on 22.9.1966. It was therefore contended

by the respondents/plaintiffs that the issue of ownership became final

in terms of the said judgment which became final as it was not

appealed from. It was also pleaded in the plaint that in fact the Union

of India subsequently has filed a suit to question the Judgment and

Decree dated 22.3.1966, however even this suit was dismissed as

abated and appeal against the order of abatement was dismissed by the

Judgment dated 7.5.1976 passed by Mr N.L. Kakkar, ADJ Delhi. The

subject suit was filed on the ground that entries which have now been

made in the revenue record without following any due process of law,

and whereby Gaon Sabha is once again shown as owner of the suit

land, is an illegal act and the same would not affect the ownership

rights of the respondents/plaintiffs in the suit land, with the fact that

the concerned entries showing Gaon Sabha as owner of the suit land

be directed to be changed by showing the respondents/plaintiffs as

owners and not the Gaon Sabha/appellant/defendant. Accordingly, the

respondents/plaintiffs sought the reliefs of declaration and injunction

with respect to the suit land.

3. The suit was contested by the appellant/defendant and it

was pleaded by the appellant/defendant that relief claimed in the suit

could not be granted by the civil court but could only be granted by

the Revenue Court inasmuch as the jurisdiction of civil court is barred

under Section 185 of the Delhi Land Reforms Act. It was contended

by the appellant/defendant that bhumidhari rights can only be declared

by the Revenue Court and not by a civil court. The Union of India

was pleaded to be a necessary party and in the absence of whom the

suit could not be decided in view of the provision of Sections 161-A

and 161-B of the Delhi Land Reforms Act. The suit was also pleaded

to be barred by limitation and also that the suit was not maintainable

in the absence of notices under Section 80 CPC to Union of India and

notice under Section 99 of the Panchayat Raj Act. A Decree passed

by the civil court on 22.9.1966 was argued to be without jurisdiction

and therefore non-est/void.

4. After pleadings were complete the trial court framed the

following issues:-

"i) Whether this court has jurisdiction to entertain and to try this suit?

      OPP
      ii)    Whether the suit is within limitation? OPP
      iii)    Whether the suit has been properly valued for purpose of court fee
      and jurisdiction? OPP
      iv)    Whether the suit is maintainable in the present form and frame?
      OPP
      v)      Whether the plaintiff has a cause of action and locus standi to file
      the present suit? OPP





       vi)     Whether the suit is bad for non-joinder of necessary parties? OPD
      vii)    Whether notice u/s 80 of CPC was necessary? OPD

viii) Whether the suit is barred by S-185 of DLR Act? OPD

ix) Whether notice u/s 99 of Panchayat Raj Act is necessary before filing the suit? OPD

x) Whether the plaintiff being in possession of the land are entitled to Decree for declaration and injunction? OPP

xi) Relief."

5. This Court has only to decide two aspects which have

been urged by the appellant/defendant before this Court. The first

aspect is as to whether the suit filed by the respondents/plaintiffs was

barred by Section 185 of the Delhi Land Reforms Act inasmuch as

civil court did not have jurisdiction but the jurisdiction with respect to

the cause of action and the reliefs claimed in the suit could only be

decided by the revenue authorities under the Delhi Land Reforms Act,

and as per details found in Schedule I of the Delhi Land Reforms Act.

The second aspect which is argued is that as to whether or not the

Judgment passed by Sub-Judge dated 22.9.1966 would or would not

operate as res judicata as against the appellant/defendant for the

appellant/defendant not to rake up the issue of entitlement of the

appellant/defendant/Gaon Sabha to ownership of the suit land and

denial of ownership of the respondents/plaintiffs of the suit.

6. On the first aspect as to whether Section 185 of the Delhi

Land Reforms Act bars the jurisdiction of the civil court, it is seen that

the bar under Section 185 of the Delhi Land Reforms Act is only with

respect to those subject matters and those Sections of Delhi Land

Reforms Act which are provided in Column 2 of Schedule I of the

Delhi Land Reforms Act. In Column 2 of the Schedule I of the Delhi

Land Reforms Act there is no section which is specified as per which

Bhoomidar/owner can seek any relief for rectification of entries in the

revenue record, and that too and especially when the issue of

ownership with respect to the suit land stands concluded by 1966

Judgment of the civil court. Counsel for the appellant/defendant has

not been able to show to this Court any of the Sections as mentioned

in Column 2 of the Schedule I of the Delhi Land Reforms Act and as

per which section the subject suit seeking declaration of ownership of

rights in the suit land as the respondents/plaintiffs are bhoomidars and

for consequent correction of the entry in the revenue record can be

decided by the Revenue Courts. In fact I would like to note that onus

that the suit land is not in the ownership of the respondents/plaintiffs,

but that the ownership is with the Gaon Sabha, lies upon the

appellant/defendant/Gaon Sabha for being established, and this is so

provided in Section 104 of the Delhi Land Reforms Act which

provides that it is the Gaon Sabha who has to institute a suit for

claiming to be entitled to right in the lands claimed by it, and that the

person who claims ownership in the land is not entitled to ownership

in the lands. This provision is required to be read with Section 7 of

the Delhi Land Reforms Act and as per which section the village

common land, public wells, tanks, etc., all of which are jointly owned

by the residents of the concerned village, on passing of the Delhi Land

Reforms Act in the year of 1954 stood vested in the Gaon Sabha. With

respect to any proceedings to be initiated under Section 7 that the

common lands in a village do not vest in an individual/private person

and the common village lands etc vest in the Gaon Sabha, Section 7

proceedings/its subject matters are not those which fall in Column 2 of

Schedule I of the Delhi Land Reforms Act. Therefore issues as

regards whether Gaon Sabha became owner of the suit land or the

respondents/plaintiffs and their forefathers were owners of the suit

land cannot be decided by the Revenue Courts under Schedule I of the

Delhi Land Reforms Act. This is all the more so in the present case on

account of principle of res judicata which will be discussed below.

7. The second aspect to be decided is whether the claim of

the appellant/defendant of ownership of the suit land and therefore for

continuation of the entry in the revenue to show Gaon Sabha to be the

owner, is barred by the principle of res judicata. For this purpose

when we examine the earlier judgment between the parties, it is seen

that Judgment dated 22.9.1966 makes it clear while deciding issue no.

4 in the said suit by the respondents/plaintiffs, that it has been held

that the respondents/plaintiffs and their forefathers are the owners of

the suit land. This Judgment of the year 1966 came to be passed as the

Deputy Commissioner had in the revenue record with respect to the

suit land shown the ownership to be of the Gaon Sabha, and this action

of the Deputy Commissioner was challenged by the forefathers of the

respondents/plaintiffs, and the order of the Deputy Commissioner was

set aside by the Judgment dated 22.9.1966 holding that the forefather

of the respondents/plaintiffs are the owners of the suit land and the

order passed by the Deputy Commissioner was set aside.

8. Accordingly, even assuming for the sake of arguments

that the subject suit could be decided under any particular Section of

the Delhi Land Reforms Act by the concerned Revenue Courts,

although it cannot be decided by Revenue Courts as discussed above,

even in such an assumed scenario, Section 185 of the Delhi Land

Reforms Act will not act as a bar to the suit because the issue already

stands concluded of ownership of the suit land in favour of the

respondents/plaintiffs and their forefathers by the 1966 Judgment. The

issue being no longer alive, there is nothing to be decided by the

Revenue Courts, and therefore, there is no need for the

respondents/plaintiffs to approach the Revenue Courts.

9. In view of the aforesaid discussion there is no merit in the

appeal. Dismissed.

AUGUST 09, 2018/ib                          VALMIKI J. MEHTA, J