* 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 beenhanded 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