Delhi High Court
Nanak Chand & Ors vs Samay Singh & Anr on 28 November, 2018
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 370/2016 & IA No.8864/2016 (u/O XXXIX R-1&2 CPC)
NANAK CHAND & ORS ..... Plaintiffs
Through: Mr. Yeeshu Jain, Adv.
Versus
SAMAY SINGH & ANR ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 28.11.2018
1. The three plaintiffs viz. (i) Nanak Chand, (ii) Avar Singh and (iii)
Mukesh have instituted this suit against the two defendants viz. (1)(a)
Savitri, (b) Kanchan @ Kusum (c) Anita, (d) Chanchal, (e) Sunil and (f)
Neeraj, being the heirs of defendant no.1 Samay Singh, and (2) Dharam
Veer, for recovery of possession of land measuring 1 Bigha 14 Biswas of
Khasra No.905/442 in village Saboli, Delhi, claimed to be in the ownership
of the plaintiffs and in illegal use and occupation of the defendants, and for
recovery of mesne profits and injunction.
2. The suit came up first before this Court on 28th July, 2016 and since
then is being repeatedly adjourned without summons thereof being ordered
to be issued.
3. The suit was listed last on 12th November, 2018, when also the
counsel for the plaintiffs sought adjournment. Making it clear that no
further adjournment shall be granted, the suit was adjourned to today.
4. It is evident from a reading of the plaint and the documents that the
suit is governed by the provisions of Delhi Land Reforms Act, 1954. It has
CS(OS) 370/2016 Pave 1 of 4
thus been enquired from the counsel for the plaintiffs, whether not the
jurisdiction of this Court, being a Civil Court, is barred by the provisions of
the Reforms Act.
5. The counsel for the plaintiffs states that there is no bar because there
is no provision for suing in the Revenue Courts for recovery of possession.
6. Attention of the counsel for the plaintiffs is drawn to Section 84 (read
with Schedule I, serial No.19) of the Reforms Act which is as under:
"84. Ejectment of persons occupying land without title. -- (1) A person
taking or retaining possession of land otherwise than in accordance with
the provisions of the law for the time being in force, and -
(a) Where the land forms part of the holding of a Bhumidhar or Asami
without the consent of such Bhumidhar or Asami, or
(b) Where the land does not form part of the holding of a Bhumidhar or
Asami without the consent of the Gaon Sabha, 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.
(2) Where any person against whom a decree for ejectment from any land
has been executed in pursuance of a suit under sub-section (1) re-enters or
attempts to re-enter upon such land otherwise than under authority of law,
he shall be presumed to have done so with intent to intimidate or annoy the
person in possession or the Gaon Sabha, as the case may be, within the
meaning of section 441 of the Indian Penal Code."
7. The counsel states that a suit under Section 84 of the Reforms Act can
be filed only by a Gaon Sabha.
8. However, neither does a reading of Section 84 of the Reforms Act nor
a reading of Serial no.19 of Schedule I of the Reforms Act indicates so.
9. The counsel for the plaintiffs then states that the plaintiffs have not
been recorded as bhumidar with respect to the land of which possession is
sought.
CS(OS) 370/2016 Pave 2 of 4
10. If the plaintiffs have not been recorded as bhumidar, it is not
understandable as to what right they can have of recovering possession from
the defendants. The Reforms Act did away with the concept of ownership
of agricultural land and brought in the concept of only two rights / title with
respect to agricultural land i.e. either as bhumidar or as asami. The
plaintiffs, without being bhumidar, cannot claim any rights, even if claim
transfer of title in their favour as is claimed. Reference in this regard can be
made to Hatti Vs. Sunder Singh (1970) 2 SCC 841, Nathu Vs. Hukam
Singh AIR 1983 Del 214 and Gaon Sabha Vs. Nathi (2004) 12 SCC 555.
The remedy of the plaintiffs is to, first on the basis of deed of title, have
themselves declared as bhumidar and proceedings wherefor will also lie
under the Reforms Act before the Revenue Courts and thereafter or
simultaneously therewith seek ejectment of the defendants claimed to be in
unauthorized occupation of the land.
11. The counsel for the plaintiff states that the Revenue Authorities are
refusing to carry out mutation of bhumidari rights in the name of the
plaintiffs.
12. If the plaintiffs are aggrieved by such refusal of the Revenue
Authorities, their remedy is against the said refusal and cannot file this civil
suit.
13. The Reforms Act having recognized only bhumidari and Asami rights
with respect to agricultural land and having done away with the ownership
rights and having provided modes for declaration of bhumidari rights, the
Reforms Act and its provisions cannot be given a go bye, by claiming
ownership rights and recovery of possession before the Civil Court.
CS(OS) 370/2016 Pave 3 of 4
In fact, the counsel for the plaintiffs has himself handed over a copy of the
judgment in Nanak Chand Vs. Raja Rakesh (2012) 191 DLT 454, filed by
the plaintiffs and in which, though the suit for injunction with respect to
same land governed by the Reforms Act was held to be maintainable in the
Suit Court but a suit for declaration of rights was held to be not
maintainable.
14. The counsel for the plaintiffs then contends that the subject land has
been urbanized and the provisions of the Reforms Act do not apply thereto
and seeks passover to show a notification in this regard. However, the
counsel for the plaintiffs admits that it is not so pleaded in the plaint and no
document is filed in that respect.
15. The suit, as filed is not found to be maintainable and the plaint is
rejected. The plaint having been rejected, if the plaintiffs find that they are
entitled to approach the Civil Court for the reliefs claimed, would have a
right to file again but on the condition that the plaintiffs, along with the fresh
proceedings if any filed in the Civil Court, file a copy of this order.
16. The plaint is rejected.
17. The counsel for the plaintiffs now states that the plaintiffs have paid
court fees of Rs.2,25,000/- on this suit.
18. Though the plaintiffs have consumed the time of this Court but it is
ordered that a Certificate entitling the plaintiffs to, out of court fees paid,
receive refund of Rs.2,00,000/- be issued and handed over to the counsel for
the plaintiffs.
RAJIV SAHAI ENDLAW, J
NOVEMBER 28, 2018/'gsr'..
CS(OS) 370/2016 Pave 4 of 4
