JUDGMENT
J.D. Kapoor, J.
1. This case has chequered history. Petitioner No. 2 Vijay Kumar Gupta claims to have purchased the plot bearing No. D-126, Mahendaru Enclave, Delhi in the name of his minor son Master Nikunj Kumar Gupta, petitioner No. 1 who was about eight years of age at the relevant time from its owners Nirmal Singh and Randhir Singh in the year 1984 with possession for a consideration of Rs. 20, 000/-. He mainly relies upon the Khasra Girdhwari i.e. revenue record from 1984 to October 1986. Interestingly he also relies upon one voucher showing the purchase of Palak seeds by him which he stored in the room constructed by him in the said plot. According to him, the sale deed could not be executed and registered though possession was handed over to him.
2. As against this, respondent No. 4-Vinod Kumar Gupta claims to have purchased the plot with boundary wall and a room from the owners for a consideration of Rs. 68, 000/- in the year 1984 with possession. However, the Halka Patwari issued Khasra Girdwari on 14.11.1986 showing possession of respondent No. 4 Vinod Kumar Gupta in column No. 3. Petitioners lodged a report with the SHO that respondent No. 4 had threatened to take possession forcibly. Respondent No. 4- Vinod Kumar Gupta also made a complaint to the Deputy Commissioner of police that though he visited the plot almost every week but on 1.2.1987, one Mr. Vijay Gupta who has been known to him for quiet some time as earlier he had business dealings with him, wanted to occupy the plot along with some persons but due to his presence he could not succeed and went away after threatening him and his friends for life.
3. However, the SHO wrote a letter dated 13.2.1987 to the Tehsilder Revenue informing that they had received complaints from petitioner No. 2 Mr. Vijay Kumar Gupta and respondent No. 4 Mr. Vinod Kumar Gupta regarding a dispute over a plot and that petitioner No. 2 has produced photostat copies of Khasra Girdwari w.e.f.1984 to October 1986 whereas respondent No. 4 has produced photostat copy of Khasra Girdwari of 31.10.1986 only and requested the Tehsildar to enable him to correct the ownership of the plot and a copy of the revenue record in support of his version.
4. On 18.2.1987 Deputy Commissioner of Police took the possession of said disputed property under Section 33 of the Delhi Police Act by way of sealing it. On 19.2.1987, the petitioners moved an application before the Tehsildar Revenue for rectification in revenue record wherein respondent No. 4 was shown to be in possession of the property vide entry made in October, 1986. However, on 13.4.1987, preliminary order was made by the S.D.M under Section 145(1) Cr.P.C
5. On 9th October, 1987 Tehsildar passed an order under section 39 of the Delhi Land Revenue Act, 1954 holding the petitioners to be in lawful possession of the disputed property and directed correction of the entry of 1986 in favor of respondent No. 4 in revenue record in accordance with the provisions of section 27(3) of the Act. On 2.3.1988 Kanungo corrected the said entry of 1986 making it in favor of the petitioner. Before this could be done, the S.D.M inspected the property on 28.10.1987 and submitted a report along with statement of witnesses. However on 29.8.1988 in criminal writ petition No. 99/1988, this court quashed the sealing order passed by the D.C.P under section 33 of the Delhi Police Act and ordered for maintaining status quo ante with regard to the possession that existed prior to the passing of order dated 18.2.1987 by the D.C.P. This order was passed on the admitted position that no order had been passed by the S.D.M for attachment of disputed property.
6. On 22.5.1990 this court stayed further proceedings before the S.D.M but on that day, the S.D.M had already rendered the decision on the proceedings under section 145 Cr.P.C in favor of respondent No. 4 wherein he dealt with contention and claims of both the parties in extenso and referred to entire evidence produced by the parties and to put the respondent No. 4 in possession. Since then respondent No. 4 continues to be in possession. It is this order which is now under challenge through this petition.
7. In order to appreciate the rival contentions, the conclusions of the S.D.M need to be put in brief. These are as under:-
(i) Both the parties agreed on one point that the disputed property originally belonged to Sh.Nirmal Singh and Randhir Singh and both claimed to have acquired the rights over the property in the shape of possession from them;
(ii) Petitioner had sworn in their affidavit that he had obtained the possession by paying a sum of Rs. 20, 000 but at the same time, he stated that the receipt of said payment had been lost though petitioner took refuge for the non-production of this document by stating that he had lodged a police report and also made an effort to obtain a duplicate receipt from the original owners but no document in this regard i.e. copy of F.I.R was produced.
(iii) On the request of the parties for spot inspection, the S.D.M made the following report:-
“Since the first gate was locked the entry was from the back where the wall is of about 3-4 feet high the entire plot of wheat and heaps of bricks were seen and it was noticed the marking of the bricks of the year 1986-87. Bricks were removed from the boundary wall which was marked MV. There is a built of a room North and East side of the gate which was locked and sealed. The walls of the room were constructed with mud and bricks. Three bricks were got removed from different side in 2 walls of the room in the presence of the parties and these bricks were bearing the marking MBK & yr.1982-83. The roof of the wall consist ASS bester sheets. Sh.Vijay Gupta father of Nikunj Gupta stated that inside the room the Palak seeds and Cement which belongs to him are lying. But the fact could not be verified as the room was locked and sealed. The contention of Vijay Gupta was that he has raised a boundary wall and constructed a room for which he filed a photo copy of the receipt dated 31.1.87 and 1.2.87 whereas Vinod Gupta that he has purchased the plot along with the boundary wall and room from Nirmal Singh /o Gurdev and Randhir Singh s/o Rajender Singh in the year 1984 and also he had produced the copy of receipt dated 1.8.84.”
(iv) Nirmal Singh and Randhir Singh had filed affidavits by way of evidence that they had sold the property in question along with boundary wall and one room to respondent No. 4 Vinod Kumar Gupta for a consideration of Rs. 68, 000/- and in support thereof photocopy of receipt was also filed;
(v) The claim of the petitioner that he had constructed the room and the boundary wall himself in the year 1987 was found to be false as physical verification showed that bricks used were of 1982-83. This substantiated the version of respondent No. 4 that he had purchased the property along with boundary wall and the room thereupon in 1984. The gist of the inspection showed that the bricks were found to be bearing the mark MBK and of the year 1982-83 and therefore it does not appeal to reason as to how the first party claims the construction of the boundary wall and the room having been made by them in 1987 and or even in 1986
(vi) Perusal of the cash memos of purchases made by the petitioners shows that these receipts of building material like bricks, badarpur etc related to the period 31.1.87 to 19.2.87.
(vii) Similarly the affidavit of M/s Agro Impex Corporation wherein the deponent stated about verbal orders for the supply of 1120 kg of palak seeds at the disputed property against the advance payment of Rs. 3360/- but the quantity of palak seeds has not been the same as in the written statement which again is material contradiction in the case.
(viii) Though petitioner claimed that the payment of Rs. 20, 000/- for the purchase of the disputed plot had been accounted for by him in the Income Tax assessment returns filed right from 1984 onwards but it is not understood as to what had prevented the petitioner in submitting any order from the Income Tax Authorities or any other such valid document to authenticate this claim.
8. The main contention of the counsel for the petitioners is that once the Tehsilder had determined the possessor y right over the suit property and pursuant to that Kanungo changed the entry of 1986 under the provisions of Section 39 of the Delhi Land Revenue Act, 1954, it was not challengable and therefore it was not within the competence of S.D.M to pass an order under section 145 Cr.P.C and handover the possession of premises to respondent No. 4 as the competent court in the said case was Court of Tehsildar who had already determined the possessory title.
9. The next contention of the learned counsel for the petitioners is that mere filing of civil suit seeking declaration of title and injunction subsequent to the proceedings under section 145 Cr.P.C by any party does not bar the continuation of proceedings under Section 145 Cr.P.C and as such the S.D.M was required to pass an order under Section 146(1) Cr.P.C and hand over the possession to the petitioners in whose favor the possessory title had been determined by the Tehsildar.
10. May be the aforesaid contention of the counsel may be available in those cases where status quo ante is ordered but once possession has been delivered the pendency of civil suit bars the proceedings under Section 145 Cr.P.C. Moreover in the instant case the proceedings under Section 145 Cr.P.C were initiated prior to the filing of civil suit and therefore at the most the proceedings under section 145 Cr.P.C were required to be adjudicated independently. In the instant case respondent No. 4 has been in continuous possession of the property for the last 15 years or so and therefore orders of S.D.M handing over the possession to respondent No. 4 subject to the final outcome of civil suit.
11. As against this, Mr. K.T.S.Tulsi, learned senior counsel appearing for respondent No. 4 contended at the outset that entries in Khasra Girdwari are of no use as the suit property was declared as urban area by way of notification dated 28.5.1966 and even otherwise the plot in question was not of the size as are size of agricultural land and therefore the decision of Tehsildar is redundant. He further contended that the falsehood of the claim of the petitioners having constructed the boundary wall and room in 1986-87 was exposed by physical verification of the bricks by the S.D.M. Mr. Tulsi urged that the consideration amount of Rs. 20, 000/- against that of Rs. 68, 000/- appear to be such a sum that nobdy will sell plot of the size as in question for such a paltry amount. Lastly Mr. Tulsi contended that unless the findings of facts required by the S.D.M are perverse, these should not be disturbed under the provisions of Section 482 as the Court does not sit in appeal.
12. After according careful consideration to the rival contentions, I do not perceive any reason to interfere.
13. As regards the adjudication by Tehsildar, it suffers from gross infirmity. The Tehsildar did not make any proper inquiry as to on what basis and on what documents, the entry in Khasra Girdwari as to the possession of the petitioner was made. Until and unless there is some document executed by the owner of the property either having sold the said property to the persons in whose favor entry is sought to be made in Khasra Girdwari or any other document by virtue of which possession is handed over the Patwari is not expected to suddenly change the name of occupants or possession of the land.
14. It is highly preposterous that without producing any receipt or document of purchase of land the entry was made in the name of the petitioneRs. If entries in the Khasra Girdwari are changed like this, that is, without any documentary proof of possession or purchase, nobody’s property would be safe as with one stroke of pen “Patwari” or “Tehsildar” can change the possessor y or proprietary title of a person in respect of agricultural land. Rather it was expected from the Tehsildar to order inquiry into the conduct of the “Patwari” for changing the entries in “Khasra Girdwari” without any proof of change of possession or ownership. Thus to say that order of Tehsildar as to correctness of entry in Khasra Girdwari is final or unchallengeable under Section 39 of the Act is neither correct nor acceptable.
15. On the contrary respondent No. 4 not only produced the clinching and uncontroverter evidence by way of affidavit of original owners of disputed property but also receipt of payment of consideration amount of Rs. 68, 000/-. It is not understandable as to how the said land could have been sold for Rs. 20, 000/- to the petitioners in the year 1984 whereas the documentary evidence shows that it was sold to respondent No. 4 for a consideration amount of Rs. 68, 000/-.
16. The SDM had given opportunity to both the parties to place the material on the basis of which they had come into possession. Petitioner was not able to produce any material as to how he came into possession of the said property. No document was produced by the petitioner much less evidence of the claim of possession by way of receipt of Rs. 20, 000/- given to him by the erstwhile owner. As against this, the evidence as to possession and ownership of respondent No. 4 far outweighed that of the petitioneRs. Further claim of the petitioner that he had taken the vacant possession of the plot and constructed the wall thereafter was found to be false by the SDM on inspection and physical verification of the suit property and the SDM took out and inspected the bricks himself and found that the brick used were of 1982-83 whereas petitioners claimed to have constructed the boundary wall and the room in the year 1987. That a person would use the bricks of 1982-83 in the year 1986-87 is difficult to accept. The purchase of seeds by the petitioners and the receipts produced in support do not have ring of veracity because of the discrepancy in the data and weight.
17. Last but not the least it is well settled law that the the Court cannot reappraise the evidence or the findings of the SDM on factual matrix unless these are on the face of it perverse and unsustainable. In this regard, observations of the Supreme Court in Bansi Lal & others v. Laxman Singh are quote worthy. These are as follows:-
“Even in an appeal against an order of acquittal no interference will be made with the judgment of the trial court except in rare and exceptional cases where there has been some manifest illegality in the approach to the case or the appreciation of the evidence or where the conclusion of fact recorded by the trial Judge is wholly unreasonable so as to be liable to be characterised as perverse and there has been a resultant miscarriage of justice. The revisional jurisdiction of the High Court while dealing with an order of acquittal passed by the trial court is more narrow in its scope. It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court, that the High Court is empowered to set aside the order of the acquittal and direct a retrial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution.”
18. Even otherwise the entries in the revenue record in respect of a plot measuring 400 sq. yds. or so are of no relevance nor any proof of possession as it, by no stretch of imagination, can be treated or deemed an agricultural land capable of cultivation. So much so the locality in question, by virtue of notification No. F.9(2)66-Land Corp-Delhi dated 28th May, 1966 ceased to be the rural area and therefore it is not understandable how and why ” Patwari” showed the area in revenue record a “rural area”. In such a situation, possession or title has to be determined on the basis of the statements of owners and receipt of payment of consideration amount which , in this case, manifestly demonstrate in favor of respondent No. 4.
19. Findings of the SDM are based on the cogent evidence and cannot be said to be suffering from any infirmity or error or perversity and therefore cannot be interfered with or disturbed.
20. In the result, the petition is dismissed. Even otherwise since respondent No. 4 is in the possession for the last more than 15 years or so, it would be in the interest of justice and fitness of things to wait for the final outcome of the civil suit of declaration and injunction.