Delhi High Court
Sh. Chander Bhan Deceased Through ... vs Financial Commissioner & Ors. on 24 December, 2021
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 24.12.2021
+ LPA 481/2021 & CM APPLs. 45571-72/2021
SH. CHANDER BHAN DECEASED THR. HIS LRS & ORS.
..... Appellants
Through Mr.Sudhir Nandrajog,
Sr.Advocate with Mr.Sunil
Chauhan and Ms.Vatsala
Chauhan, Advocates.
versus
FINANCIAL COMMISSIONER & ORS. ..... Respondents
Through Mr.Anjum Javed, ASC with
Mr.Devendra Kumar, Adv. for
R-1.
Mr.Rajesh Yadav, Sr. Adv. with
Mr.V.P. Rana, Advocate for
Private Respondents 2 to 21.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
CM APPL. 45572/2021 (exemption)
Allowed, subject to all just exceptions.
LPA 481/2021 & CM APPL. 45571/2021
1. The present appeal has been filed by the appellants challenging
the judgment and order dated 30.11.2021 passed in W.P.(C)
6365/2019 dismissing the writ petition filed by the appellants herein
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which in turn had challenged the order dated 04.04.2019 passed by the
Financial Commissioner, Delhi.
2. The dispute between the parties arises out of a suit filed by the
respondents under Section 84 of the Delhi Land Reforms Act, 1954
(hereinafter referred to as 'DLR Act') in respect of the land bearing
Khasra No.1196/1 (4-16) situated within the Revenue Estate of
Village Karala, Delhi. The suit was filed by the respondents claiming
that the respondents are the joint co-bhumidars of the above said land.
They claimed that the land was allotted to them in the consolidation
proceedings. It was further claimed that the respondent nos.2 to 21
were in possession of the said land, with respondent no. 2 staying on
the said land. It was further claimed that while the respondent no.2
had gone to attend some Court proceedings in Jaipur, the appellants
had forcibly and illegally encroached upon the land in question and
started construction over it. When respondent no.2 came back from
Jaipur on 27.04.1998, he came to know of the illegal encroachment. A
police complaint was filed against the appellants and thereafter a suit
for permanent and mandatory injunction was filed in a Civil Court,
which was later withdrawn. The present suit under Section 84 of the
DLR Act was thereafter filed.
3. In defence, the appellants claimed that the predecessor of the
respondent nos.2 to 21 herein had sold the land to the appellants by
way of an oral sale and put them in actual physical possession of the
land in 1970. They further claimed that in the consolidation
proceedings conducted in 1975-76, they were recorded as being in
possession of the land. They further claimed that a General Power of
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Attorney dated 06.01.1988 and a receipt of Rs.25,000/- was also
executed by the erstwhile owner of the land in their favour. They
claimed that as they were in continuous possession since 1970 or at
least since 1988, the suit was barred by limitation.
4. The Revenue Assistant vide his order dated 15.01.2003 decreed
the suit in favour of the respondents.
5. Aggrieved of the above order, the appellants preferred an appeal
before the Deputy Commissioner, which was allowed vide order dated
24.10.2014.
6. The respondents being aggrieved of the above order, filed a
Revision Petition before the learned Financial Commissioner, Delhi,
which was allowed in their favour vide order dated 04.04.2019. The
said order was challenged by the appellants in the writ petition, which
has been dismissed vide the Impugned Order.
7. The learned senior counsel for the appellants contends that the
learned Financial Commissioner as also the learned Single Judge have
failed to appreciate that the suit filed by the respondents was barred by
limitation having been filed beyond the period of limitation of three
years. He submits that in defence to the said suit, the appellants were
not to prove their title over land; their claim of being in continuous
possession for more than three years prior to the filing of the Suit was
enough.
8. Placing reliance on the copy of the list of 'Kayami', he submits
that the names of the appellants appear as an occupier of the land
during the consolidation proceedings conducted in 1975-76. He
submits that therefore, the appellants were found to be in possession of
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the land since 1975-76 and the suit filed beyond a period of three
years was clearly barred by limitation.
9. On the other hand, the learned senior counsel for the respondent
nos.2 to 21, who appears on advance notice, submits that no credence
can be placed to the document filed as list of 'Kayami' with the appeal
inasmuch as in the consolidation proceedings, it was the respondents
who were put in possession of the land when the consolidation was
closed. The appellants never objected or challenged the same. He
submits that the respondents have been in possession of the land
throughout.
10. We have considered the submissions made by the learned
counsels for the parties.
11. The learned Financial Commissioner in his order dated
04.04.2019, on the claim of the appellants to be in the continuous
possession of the land, has held as under:
"7. The Deputy Commissioner has relied
upon the entry of "Scheme kabizan" in respect
of suit property but said list was never
recognized by the consolidation authorities as
the land was never allotted to the Respondent
no. 1 under section 21(1) of the Consolidation
Act. The suit land stood allotted to the
petitioners' right from the date of
consolidation of year 1975-76 and this
allotment was never challenged by the
contesting Respondents on the basis of list of
"Scheme kabizan". Petitioners have been in
possession since then and the same was also
reflected in "Khasra-Girdawari".
No "Khasra-Girdawari" of any year
was placed by Respondents to prove their
possession. No evidence was laid on record to
prove possession over the land for more than 3
years, therefore, petition under section 84 of
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DLR Act was rightly allowed against
Respondents. This legal aspect has completely
been ignored by the Deputy Commissioner."
12. The learned Single Judge in his impugned order has also
considered the record and has observed as under:
"6. Having perused the record, the Court
notes that the petitioners do not rest their case
on any part of the final consolidation scheme
which may have recognised their proprietary
rights over the premises in question. The writ
petition also does not place on the record any
final order of allotment that may have been
made in favor of the petitioners upon the final
consolidation scheme being published. The
lists which are relied upon by the petitioners
and which have been placed on the record
have not been established to have been drawn
after or as a consequence to the promulgation
of the final consolidation scheme. The
Financial Commissioner has lastly taken into
consideration the fact that no "Khasra
Girdawari" of any year was placed by the
petitioners which may have established or
recognised they being in possession of the
premises in 1970. The Financial
Commissioner has also found the case set up
by the petitioner as being wholly suspect and
unworthy of acceptance bearing in mind that
they claimed to have been inducted in
possession in 1970 and then placed reliance
upon a power of attorney allegedly executed
17 years thereafter."
13. Admittedly, the appellants were unable to show any title to the
land. As submitted by the learned senior counsel for the appellants,
the claim of the appellants is to be considered as one of being in
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continuous possession. For this, the only document relied upon by
the learned senior counsel for the appellants is a list of 'Kayami'. The
said document, however, is not accompanied by any other record of
the consolidation proceedings. The claim of the respondent nos.2 to
21 that in such consolidation proceedings, they were, in fact, put in
possession of the land, which was never challenged by the appellants,
has in fact been accepted by the learned Financial Commissioner. The
appellants have placed no document on record to rebut such finding.
14. In view of the above, the suit filed by the respondent no.2 to 21
under Section 84 of the DLR of the Act could not be said to be barred
by limitation as the appellants have failed to prove their continuous
possession of the land for a period prior to three years from the filing
of the said suit.
15. Accordingly, we find no merit in the present appeal, the same
along with the application is dismissed. There shall be no order as to
costs.
NAVIN CHAWLA, J
MANMOHAN, J
DECEMBER 24, 2021
RN
Signature Not Verified
Digitally Signed
By:SHALOO BATRA
28.12.2021 09:49:16
