Delhi High Court High Court

Bhagwana vs Kanwal Singh & Others on 26 August, 2010

Delhi High Court
Bhagwana vs Kanwal Singh & Others on 26 August, 2010
Author: Indermeet Kaur
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Reserved on: 16.08.2010
                   Judgment Delivered on: 26.08.2010

+                        R.S.A.No.50/1983

       BHAGWANA                                  ...........Appellant
              Through:         Mr.R.K.Saini, Advocate with
                               Mr. Sitab Ali Chaudary, Advocate.

                   Versus

       KANWAL SINGH & OTHERS                     ..........Respondents
                Through: None.

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                   Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J.

1. This appeal has impugned the judgment dated 5.1.1983

passed by the first appellate court which had reversed the

judgment of the trial judge dated 5.7.1980. The trial judge had

decreed the suit of the plaintiff. The first appellate court had set

aside this decree; suit of the plaintiff stood dismissed.

2. Appellant before this court is the plaintiff. Briefly stated the

facts of the case are as follows:

(i) Plainitiff/appellant had filed a suit for permanent

injunction against the defendants restraining them from

dispossessing the plaintiff from the suit property. The suit

property comprised of

(a) 3 bighas 14 biswas land in Khasra no.43/13 min.

(b) 1 bigha 2 biswas land in Khasra no.43/13 min.

(c) 4 bighas 16 biswas land in Khasra no.43/18 and
RSA No.50/1983 Page 1 of 8

(d) 4 bighas 16 biswas land in Khasra no.43/22

all situated in the revenue estate of village Daryapur Kalan,

Delhi and also restraining the defendants from uprooting the

crops of the plaintiff or interfering in his cultivation.

(ii) Plaintiff is stated to be in continuous and exclusive

possession of the suit property since 1958.

(iii) Defendant no.9 i.e. Gaon Sabha was the bhumidar of

the suit land.

(iv) On 17.7.1958 the Gaon Sabha instituted suit

no.216/1958 against the plaintiff under Section 84 (I) (a) and

84 (I) (b) of the Delhi Land Reform Act (hereinafter referred

to as „the said Act‟).

(v) Suit was decreed on 30.5.1961. Decree however was

not executed within the period of limitation.

(vi) On 30.5.1973 (after 12 years) plaintiff by virtue of

adverse possession acquired bhumidari rights in respect of

the suit land under Section 85 read with Section 13(2) of the

said Act.

(vii) Defendant no.9 however in connivance with the other

defendants in April 1976 illegally allotted the disputed land

in favour of defendants no.3 to 8.

(viii) On 21.4.1976 the said defendants forcibly tried to

interfere with the crop cultivation of the plaintiff.

      (ix)    The suit was accordingly filed.

      (x)     A joint written statement was filed by the defendants.

Preliminary objection was that the suit is not maintainable as

the land is vested in the Gaon Sabha through its Pradhan i.e.

defendant no.1. Further the plaintiff had surrendered the

RSA No.50/1983 Page 2 of 8
possession of the suit land which on 19.04.1976 had been

handed over to defendants no.3 to 8 after the decree passed

by the Assistant Collector/Revenue Assistant in proceedings

under Section 86 A of the said Act.

(xi) Trial court framed six issues. All the issues were

decided in favour of the plaintiff. Crucial issue was issue

no.3. The court held that the plaintiff is in exclusive

cultivatory possession since 1958. Ex.D-10 dated 19.4.1976

upon which the defendants had relied was discarded. It was

held that the said document is contrary to the pleadings of

the defendant. Certified copy of the order Ex.P-9 dated

16.3.1978 of Financial Commissioner had held that the

plaintiff is in possession of the suit land in his own right. The

decree dated 30.5.1961 in proceedings initiated by the Gaon

Sabha under Section 84 of the said Act had not been

executed; in the absence of which the plaintiff had became

bhumidar under Section 85 of the said Act on 30.5.1973. As

such Gaon Sabha was not legally authorized to take

possession of the suit land; plaintiff had acquired title as a

bhumidar under Section 85 of the said Act. Suit was decreed

in his favour.

(xii) In appeal on 5.1.1983 the findings of the trial judge

were reversed. Appellate Court held that Ex.D-10 dated

08.4.1976 i.e. the report the Kanungo had conclusively

established the taking over of peaceful possession of the suit

property by the Gaon Sabha after notice to the plaintiff. The

Gaon Sabha was legally entitled to do so. Suit of the

defendant was accordingly dismissed.

RSA No.50/1983 Page 3 of 8

3. On 14.9.1983, this second appeal was admitted and the

substantial question of law was formulated which inter alia reads

as follows:

“Whether the findings recorded by the First Appellate Court are
contrary and the revenue records which have been placed on
record and as such are vitiated.”

4. Record has been perused. It is not in dispute that the Gaon

Sabha had initiated proceedings vide Suit No.216 under Section 84

of the said Act. This provision of law inter alia reads as follows:

“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.”

5. Under this provision a person can be ejected from land

occupied by him over which he has no title. This suit was decreed

in favour of the Gaon Sabha on 30.5.1961. It is not disputed that

this decree was not executed within the period of limitation. After

the period of limitation which expired on 30.5.1973 plaintiff

acquired bhumidari rights under Section 85 of the said Act.

Section 85 of the Said Act inter alia reads as follows:

“85. Failure to file suit under section 84 or to execute decree
obtained there under. – If a suit is not brought under [Sub-
section(1) of section 84] or a decree obtained in any such suit is
not executed within the period of limitation provided for the filing
of the suit or the execution of the decree, the person taking or
retaining possession shall –

RSA No.50/1983 Page 4 of 8

(i) Where the land forms part of the holding of a
Bhumidhar, become a Bhumidhar thereof;

(ii) Where the land forms part of the holding of an Asami on
behalf of the Gaon Sabha, become an Asami thereof

(iii) in any case to which the provisions of clause (b) of
(sub- section (1) of section 84) apply, become a Bhumidar or
Asami as if he had been admitted to the possession of the
land by the Gaon Sabha.”

6. Contention of the appellant is that the provisions of Section

85 (iii) are applicable.

7. Section 86A of the said Act reads as under:

“86A. Ejectment by Revenue Assistant of persons occupying land
without title. – Notwithstanding anything contained in section
84,85 and 86, the Revenue Assistant also may, on receiving
information or on his own motion, eject any person who is liable to
be eject from any land on a suit of the Gaon Sabha under any of
those sections, after following such procedure as may be
prescribed”.

This provision had been inserted by the amendment

of 1965 in the said Act. As per this provision the Revenue

Assistant may suo moto initiate proceedings against the

persons occupying land without title after following the

procedure.

8. Pursuant thereto the Revenue Assistant had initiated

proceedings against the plaintiff; a warrant of possession was

ordered against him on 8.4.1976. Ex.D-10 is the proceedings dated

08.4.1976 certifying that on the said date i.e on 8.4.1976 pursuant

to warrant no.15/1976 passed by the court of Sh.Padmanabhan,

Revenue Assistant, Kingsway Camp the possession of the disputed

land (details mentioned in Ex.D-10) has been handed over to the

Pradhan of the Gaon Sabha i.e. Kanwal Singh.

9. In the instant case, plaintiff has claimed the land in dispute

not because he is the owner or the bhumidar of this land but for

the reason that the decree dated 30.5.1961 (Ex.P-1) had not been

executed within the period of limitation; he had thus become a

RSA No.50/1983 Page 5 of 8
bhumidar under the provisions of Section 85 (iii) of the said Act.

Revenue Assistant initiated proceedings under Section 86 A of the

said Act on 8.4.1976 and obtained a warrant of possession dated

8.4.1976; on the same day i.e. on 8.4.1976 vide Ex.D-10 the report

of the field Kanungo signed by the Patwari and Pradhan evidenced

that the peaceful possession of the land was delivered to the Gaon

Sabha through its Pradhan i.e. to defendant no.1. Plaintiff

Bhagwana had been notified but he did not join the proceedings.

This is clear from the contents of Ex.D-10. It is also recorded

herein that the Munadi (announcement) with regard to the delivery

of the possession of the land was made by the Chowkidar by

beating of drum and the peaceful possession of land was handed

over to the Gaon Sabha. This is a report of Kanungo who had

performed his duties in the discharge of his public office. This is a

public document. The presumption of its correctness is also drawn

from the provision of Section 74 read with Section 79 of the Indian

Evidence Act. From this document it is evident that the Gaon

Sabha had taken possession of this land on 8.4.1976. On 19.4.1976

defendants no.3 to 8 had been allotted this land.

10. Khasra Girdawaris for the years preceding 1976 show the

cultivatory possession of the plaintiff; they are of little relevance as

even as per the case of the respondent, the possession of the land

had been delivered by the plaintiff only on 8.4.1976. The first

appellate court had also scrutinized the Khasra Girdawaris for the

subsequent years i.e. for the years 1978-79 (Ex.P-11) wherein the

plaintiff had been shown in cultivatory possession but as per the

finding of the first appellate court, it appeared that Patwari had not

cared to change the possession of the plaintiff in the revenue

RSA No.50/1983 Page 6 of 8
record as admittedly up to 8.4.1976 the plaintiff was in possession.

Support had also been drawn from the documents Ex.D-1 and Ex.D-

2 which are the Khasra Girdawaris for the years 1977-78 showing

the cultivatory possession of the disputed land in favour of

defendants no.3 to 8. In fact, first appellant court had concluded

that the Khasra Girdawaris which were even otherwise not

documents of title but only raise a presumption of title stand

rebutted of each other by both the parties and as such cannot be

relied upon. There is no fault in this fact finding.

11. The plaintiff on the other had not produced any document to

rebut Ex.D-10 which had established that the possession of the suit

property had been handed over by the plaintiff to the Gaon Sabha

on 8.4.1976. This document had been signed by the Pradhan,

Patwari and Chowkidar; the plaintiff had ample opportunity to

produce any one of such witnesses to rebut this public document;

he did not do so. Document Ex.D-10 had clearly and conclusively

established that the Gaon Sabha had taken peaceful possession of

this land from the plaintiff on the said date and thereafter on

19.4.1976 had allotted it to defendants no.3 to 8.

12. Ex.P-9 is the order of the Financial Commissioner dated

16.3.1978. The Financial Commissioner had passed an order in

revision proceedings preferred against him under Section 187 of

the said Act. This document had only affirmed that the plaintiff is

in continuous possession of part of the land since 1958 i.e. 4 bighas

16 biswas of a part of Khasra no.43/13; there was no reference to

the remaining land i.e. of Khasra no.43/18 or 43/22. This document

is of no help. In fact the Revenue Assistant on 23.1.1976 had

ordered the eviction of the plaintiff from Khasra No.43/18 and

RSA No.50/1983 Page 7 of 8
43/22. Shri S.L.Arora, the Deputy Commissioner on 18.5.1976 had

while deciding the cross appeals of the plaintiff Bhagwana and the

Gaon Sabha had held that the plaintiff Bhagwana is liable to be

ejected from Khasra No.43/13 as well in addition to Khasra

No.43/18 & 43/22.

13. The present suit was filed by the plaintiff on 28.5.1976

seeking an injunction against the defendant; that the defendant be

restrained from interfering with his possession; i.e. uprooting his

crops and interfering with his cultivation and possession. The

plaintiff was not in possession of the suit property at that time.

The suit could not have been decreed in his favour; it was not

maintainable. There is no fault in the findings of the first appellate

court which do not call for any interference. The substantial

question of law is answered accordingly. Appeal has no merit; it is

dismissed.

INDERMEET KAUR, J.

AUGUST 26, 2010
rb

RSA No.50/1983 Page 8 of 8