Bhagwana vs Kanwal Singh and Others

Indermeet Kaur, J.—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.

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

(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 u/s 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 u/s 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 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 u/s 86A 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 u/s 84 of the said Act had not been executed; in the absence of which the plaintiff had became bhumidar u/s 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 u/s 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.

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.

Record has been perused. It is not in dispute that the Gaon Sabha had initiated proceedings vide Suit No. 216 u/s 84 of the said Act. This provision of law inter alia reads as follows:

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.

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 u/s 85 of the said Act. Section 85 of the Said Act inter alia reads as follows:

Failure to file suit u/s 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 -

(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.

Contention of the appellant is that the provisions of Section 85(iii) are applicable.

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.

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.

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 bhumidar under the provisions of Section 85(iii) of the said Act. Revenue Assistant initiated proceedings u/s 86A 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.

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 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.D2 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.

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.

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 u/s 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 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.

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.