RFA No. 381/2004 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 15th July, 2009 + RFA NO. 381 OF 2004 # BIMLA CHAUDHARY ...Appellant ! Through: Mr. J.P. Sengh, Sr. Advocate with Ms. Gurkamal, Adv. Versus $ UOI & ORS. ...Respondents ^ Through: Mr. Ajay Verma, Advocate for R- 2 (DDA) CORAM: * HON'BLE MR. JUSTICE P.K.BHASIN 1. Whether Reporters of local papers may be allowed to see the judgment?(No) 2. To be referred to the Reporter or not?(No) 3. Whether the judgment should be reported in the digest?(No) JUDGMENT P.K.BHASIN, J: The appellant-plaintiff had filed a suit for permanent injunction for restraining the Union of India, Government of Delhi, Delhi Development Authority and Municipal Corporation of Delhi from dispossessing her from a piece of land bearing Khasra No. 2731/1674 measuring 7 Bighas 18 Biswas situated in the revenue estate and abadi area of village Kishangarh, Tehsil Mehrauli, New Delhi and also from RFA No. 381/2004 2 demolishing the super-structures existing there. That suit was dismissed by the learned Additional District Judge vide order dated 3rd July,2004 and that has led to the filing of the present appeal by the unsuccessful plaintiff. 2. The plaintiff‟s case has been summarized by the learned trial Court in para no.2 of the impugned judgment as under: “The brief facts of the case are that the plaintiff is the bhumidar/co-owner and in possession of land bearing khasra no. 2731/1674 measuring 7 Bighas 18 Biswas situated in the revenue estate and abadi area of village Kishangarh, Tehsil Mehrauli, New Delhi. According to the plaintiff, the first man who settled in Village Kishangarh was one Sh. Kishan Chand and after his name the village was named as Kishan Garh. At the time of settlement and rehabilitation of this village landless labourers and other persons like carpenters, black smith, potters also settled in Village Kishan Garh. The village Kishangarh was inhabited in 1940 and predecessors of the plaintiff and other persons have been residing in the village. The name of the owners of the land, forming the part of aforesaid Khasra No. 2731/1674 were recorded as “Shamlat Taraf Dulle‟ and Sh. Dulle was recorded as the owner of the land in question. In the year 1946, the predecessor of the plaintiff and proprietors of village Mehrauli settled in Khasra No. 2731/1674 and constructed rooms for their residence. According to the plaintiff, the suit property never vested in the Gram Sabha and it was used for residential and agricultural purposes. According to the plaintiff, the land was joint undivided holding of the proprietors known as „Shamlat Taraf Dulle‟. According to the plaintiff, the aforesaid land was shown in the revenue records till the year 1946-1950 in the possession of the proprietors. Notification u/s 7 of the Act was never issued in respect of the aforesaid land and in the absence of compliance of Section 7 the land could not vest in Gaon Sabha. According to the plaintiff, land situated in village Abadi cannot vest in Gaon Sabha. According to the plaintiff, false entries have been made in the revenue records. Request was made to Halqa Patwari and Kanungo to make correct Khasra Girdawari entries in respect of the above said land but they refused. Request has been made by the plaintiff to pass decree of permanent injunction restraining the defendants from demolishing the properties of the plaintiff situated in Khasra No. 2731/1674 measuring 7 Bighas 18 Biswas and from interfering with the possession of the plaintiff.” The plaintiff had also pleaded in her plaint that neither the suit land had ever vested in the Gaon Sabha nor the same could vest in it after the RFA No. 381/2004 3 promulgation of the Delhi Land Reforms Act,1954 since no notification under Section 7 thereof was ever issued nor it could even be issued since it was a private land and that false entries had been made in the revenue records showing the suit land to be Gaon Sabha land before 1966 and thereafter of the Central Government. The only prayer made in the plaint was for a decree of permanent injunction restraining the defendants- respondents from interfering with the plaintiff‟s possession over the suit land and from demolishing the construction existing there. 3. The suit was contested by Delhi Development Authority(DDA) and Municipal Corporation of Delhi but main contest was between the plaintiff and the DDA. MCD in its written statment pleaded that the main relief of injunction being against DDA only MCD was not a necessary party to the suit and in fact not even a proper party. The DDA in its written statement, inter-alia, took an objection that the plaint was liable to be rejected under Order VII Rule 11 CPC since suit for permanent injunction was misconceived and was not maintainable. It was also pleaded that the land in question was a part of village Kishangarh in Mehrauli which was Gaon Sabha land and later on had ceased to be rural area when a notification dated 3rd June, 1966 was issued under Section 507(A) of the Delhi Municipal Corporation Act in respect of the whole of Kishangarh. Consequently the Gaon Sabha stood dissolved and the entire village Kishangarh stood vested in the Central Government which, in turn, had placed it at the disposal of DDA vide notification dated 20.08.1974 issued RFA No. 381/2004 4 under Section 22(1) of the Delhi Development Act and that the plaintiff‟s predecessors-in-interest had at no time any title or interest in the suit land and so rightly they were not shown as the bhumidars or in possession of suit land. Regarding the plaintiff‟s claim that she was in possession of the suit land the defence of DDA was that the plaintiff or her predecessors were never in possession of the suit land and that in fact she had been attempting to encroach upon the suit land by constructing temporary structures without permission of the Government but her attempts were thwarted by DDA and the structures put up were removed. As per the further case of the DDA, after the plaintiff filed the present suit and got stay order she again tried to grab the suit land under the protection of the stay order passed in her favour in this suit by trying to remove the fencing and boundary wall raised by the DDA before the grant of stay but the DDA had re-constructed the wall. 4. The learned Additional District Judge framed the following issues for his decision:- 1. Whether the suit filed by the plaintiff is not maintainable? OPD. 2. Whether the suit is barred u/s 53-B of Delhi Development Act? OPD. 3. Whether the suit of the plaintiff is barred under provisions of Specific Relief Act as plaintiff has no legal right over the suit property? OPD. 4. Whether the suit property vests in Central Govt. and has been placed at RFA No. 381/2004 5 the disposal of DDA U/S 22 of the DDA Act? OPD 5. Whether plaintiff are in lawful possession of the suit property? 6. Whether plaintiff is entitled for the relief claimed? 7. Relief.” 5. Issues no. 1 and 4 were treated as preliminary issues by the learned trial Judge as requested by the counsel for the DDA who had submitted that these issues required no evidence as DDA had placed on record the notifications regarding vesting of village Kishangarh in the Central Government and its entrustment to the DDA for development as green area of which the Court could take judicial notice. Then after hearing the arguments advanced on behalf of the parties by their counsel and perusing the documents placed on record by the plaintiff and the DDA the learned trial Judge decided both these preliminary issues against the plaintiff. The relevant observations and the reasons given by the trial Court for deciding the two issues against the plaintiff and which reasons are now being challenged in this appeal by the plaintiff are to be found in paras no.5 to 8 of the impugned order dated 3rd July,2004. Relevant portions from these paras to which my special attention was drawn by the learned senior counsel for the appellant- plaintiff while challenging the correctness thereof are re-produced below:- “5…………. Ld. Cl. for the plaintiff has also brought to the notice of the court Jamabandhi of the village for the year 1946-1950 to show that the land in RFA No. 381/2004 6 question was not shamlat deh but it was Sham taraf Dulley and Majkur. Plaintiff has also placed on record Khasra Girdawri for the year 1957-1959 to show that the land in question was in the name of Shamlat Taraf……………On the other hand, Ld. Cl. for the DDA has brought to the notice of the court, attested copy of the notification dated 03.06.1966. Vide this notification, the whole of the area of Village Kishangarh ceases to be a rural area. The attested copy of notification dated 20.08.1974 has also been placed on record by DDA showing that the suit land was placed at the disposal of the DDA…………………. 6.……………The documents placed on record by the plaintiff are unattested copies whereas the revenue records placed on record by the DDA are certified copies and attested by the Tehsildar, DDA. As the documents placed on record by the plaintiff are not certified, it shows that the same have been obtained in unauthorized way………..Therefore I do not want to attach any importance to uncertified and unattested copies furnished by the plaintiff……On the other hand, copies placed on record by the DDA are certified and attested by the Tehsildar…………………………………………………………………………………………………….. 7. Now it is to be seen if the relief of injunction can be granted to the said persons who are in possession of Govt. land in unauthorized way. Mere possession is not sufficient. Lawful possession has to be proved……………The plaintiffs have only sought relief of injunction. It is of discretionary nature and should not be granted to the person occupying the Govt. land unauthorisedly. Holding full-fledged trial in such type of cases, will amount to wasting public money. If such cases are disposed of at the initial stage, it will save the time of the court to enable it to devote more time to other cases which require trial……………The Govt. is owner of the land and hence, the occupation of the plaintiff over the suit property is that of a rank trespasser…………………………….. 8. Moreover, the suit land has been placed at the disposal of DDA. It may take years together to dispose of the case finally if full fledged trial is held. It will give premium to the plaintiff allowing them to remain over the Government land unauthorisedly till the decision of the case. One must nip the evil in the bud. Such steps are necessary in public interest. Under these circumstances, I am of the view that plaintiffs are having no legal right over the property in dispute having been placed at the disposal of DDA after its acquisition and hence, the suit filed by the plaintiffs is not maintainable. It is dismissed.” 6. It was submitted by Shri J.P. Sengh, learned senior counsel for the appellant-plaintiff that the learned trial Court was,firstly, not justified in treating the two issues as preliminary issues since the same were not pure issues of law and the trial Court was further not right in dismissing RFA No. 381/2004 7 the suit as being not maintainable on the ground that the plaintiff had not established any title over the suit land and particularly without affording an opportunity to the plaintiff to adduce necessary evidence. Mr. Sengh, thus, made a prayer for setting aside the impugned order and remanding back the matter to the trial Court for deciding all the issues together after giving opportunity to the parties to adduce evidence to substantiate their respective pleas. 7. Arguing for the DDA its counsel Shri Ajay Verma submitted that the question of title over the suit land cannot be decided by a Civil Court in view of the bar created under Section 185(1) of the Delhi Land Reforms Act,1954 and this is what the plaintiff wants the Court to do. Mr. Verma supported the conclusion of the trial Judge that the suit was not maintainable. Learned counsel contended that it was the plaintiff‟s own case in the plaint itself that the entire village Kishangarh had ceased to be rural area way back in the year 1966 with the issuance of necessary notification under the Delhi Municipal Corporation Act and the village came to be vested in the Central Government and in 1974 the same was placed at the disposal of DDA for development as green area. It was also submitted that although the plaintiff had also claimed that the revenue records which showed the suit land to be belonging to Gaon Sabha before 1966 and in its possession were falsely prepared and needed to be corrected but that relief also could not be sought from the Civil Court by the plaintiff in the garb of a suit for injunction RFA No. 381/2004 8 which relief has been claimed only to avoid the bar to the jurisdiction of the Civil Court created under Section 185(1) of the Delhi Land Reforms Act,1954. In this regard the learned counsel placed reliance on a judgment of a Division Bench of this Court in “ Gaon Sabha of Lado Sarai vs Jage Ram”, ILR 1973 Delhi 984. Mr. Verma also contended that even though the trial Court has not dismissed the suit for the reason that in fact the plaintiff was claiming the decree of declaration of her bhumidari rights in the garb of suit for injunction and so suit was not maintainable under Section 185(1) of the Delhi Land Reforms Act,1954 this Court can also in this appeal without remanding the suit back to the trial Court return that finding while affirming the trial Court‟s final conclusion dismissing the plaintiff‟s suit since no evidence is required to be adduced from either side for deciding this legal point and whole matter can be decided here itself by looking at the averments in the plaint alone. 8. Replying to the argument of Mr. Verma regarding non- maintainability of the suit in view of the bar under Section 185(1) of the Delhi Reforms Act,1954 Mr. Sengh had submitted that the plaintiff‟s suit was for injunction only based on her settled possession and not for a declaration of her title over the suit land and under none of the entries in the Schedule to the Delhi Land Reforms Act,1954 a suit for injunction is barred in a Civil Court. So, Section 185(1) is not attracted in the facts of the present case. And even if the possession of the RFA No. 381/2004 9 plaintiff is considered to be not lawful, counsel contended, she cannot be dispossessed by anyone, including the Government, except by following due process of law. Mr. Sengh placed reliance on one decision of the Supreme Court in “Muddanna and others vs Panthanagere Group Panchayat Kengeri Hobli”, (2003) 10 Supreme Court Cases 349 and two judgments of this Court reported as “2002(100) Delhi Law Times, “Rattan Lal vs Municipal Corporation of Delhi” and (1994) 54 Delhi Law Times, “Amrik Singh Sabharwal vs Kanta Devi.” in support of the submission that even a trespasser cannot be forcibly evicted from the trespassed land. 9. Now, as far as the power of the Court to decide some issues only in a suit as preliminary issues is concerned the Court is empowered to frame and decide certain issues as preliminary issues under Order XIV Rule 2 of the Code of Civil Procedure but only in case the issues proposed to be decided as preliminary issues relate to the jurisdiction of the Court or any bar to the suit created by any law for the time being in force and while deciding such legal issues the Court is expected to consider if on the basis of the averments made in the plaint the suit of the plaintiff appears to be barred or not maintainable because of any bar created under any law for the time being in force or that the Court has no jurisdiction to try the suit and nothing beyond that. Now, I shall proceed further to examine the merits of the rival submissions but before I do that it would be appropriate to notice here certain RFA No. 381/2004 10 averments made in the plaint to which my special attention was drawn by the counsel for the DDA and which according to him this Court should keep in mind while appreciating the arguments advanced from both the sides: “7. The suit property in question never vested in the Gram Sabha, as it was never a wasteland as it was used for residential and agricultural purposes. The said property has never been acquired.…………..The plaintiff being the absolute owner in the possession of the same is entitled to enjoy the same without any interference from the defendants. 8. That the aforesaid land was joint undivided holding of the proprietors known as Shamlat Taraf Dulle, who were the owners since 1940, and the entries in the revenue records showed the said land as such, namely, in possession of the proprietors of Shamlat Taraf Dulle. This land was in the possession and occupation of the predecessors-in-interest of the plaintiff who also became the Bhoomidar/owner of the suit land u/s 85 of the Delhi Land Reform Act, 1954. 10. That it is significant to mention herein that the aforesaid land was shown in the revenue records till the year 1946-50, in possession of the proprietors, that is “Maqbooza Malkan” and in the column of ownership it was shown as that of “Shamlat Taraf Dulle”. It was never shown as wasteland at any point of time. The aforesaid suit land was in use and possession of the predecessors-in-interest during their lifetime and after the death of the predecessors-in-interest in the said suit land has been in use and possession of the plaintiff. The plaintiff is the co-owner/Bhoomidar of the suit land even otherwise, has the possessory title to the said land. 11. That it would be further pertinent to mention here that under Section 7 of Delhi Land Reforms Act, proprietary rights in wasteland, pasture lands of common utility etc., vest in Gaon Sabha after the commencement of Delhi Land Reforms Act, 1954 by the Notification to be issued by the Deputy Commissioner of Delhi……………………………………………………………………………….. 12. That the Notification u/s 7 of the Act, after the commencement of Delhi Reforms Act or the proclamation thereof as required under Rules 2 & 3 of Delhi Land Reforms Rules 1954 was never issued in respect of the aforesaid land. In the absence of compliance of Sec.7 of the Act and Rules 2 & 3 of the rules the land in question did not/could not vest in Gaon Sabha. Assuming for the sake of argument, though not admitting that any notification purporting to be under Section 7 of the Delhi Land Reforms Act was issued and the proclamation was published as required under Rules 2 & 3 of the Delhi Land Reforms Act in respect of the land in question, even then it is submitted that such a Notification was wholly wrongfully, illegal, ultra vires, without jurisdiction and a nullity. ……………………………………………………. RFA No. 381/2004 11 13. Further, assuming for the sake of argument, though not admitting that the aforesaid land was regarded as wasteland and the requisite notification under Section 7 of the Delhi Land Reforms Act was issued validly and the proclamation as required under Rules 2 and 3 of the said Act was made, even then, it is stated that the said land continued to remain in use and possession of the owners and their predecessors-in-interest and the possession of the land was not taken by Gaon Sabha and nor the Gaon Sabha even came into possession of the said land at any point of time………………………………. 14……………..Even otherwise, the land situated in village abadi cannot vest in Gaon Sabha under Section 7 or any other provision of the Delhi Land Reforms Act. The entry in Revenue Records showing the land in question that of Gaon Sabha is ex-facie false, bogus, fictitious and manipulated besides being illegal and void………………Even assuming, though not admitting, the land in question was notified to vest in Gaon Sabha under Section 7 of the Act and Rules 2 and 3 of the Rules, as already stated above, even then the vesting order of the Deputy Commissioner was wholly illegal……………………………………………………… 15.………………………The said land is in possession and occupation and enjoyment of the plaintiff. As stated herein above the plaintiff is the owner/ bhoomidar of the land, subject matter of the present suit. The plaintiff is utilizing the said land for her own purposes. 19. That on coming to know of the illegal designs of the defendants, the plaintiff applied for copies of Khasra Girdwaris and other records of the above said land and were shocked to learn that the revenue records have been incorrectly maintained and the plaintiff and/or their predecessors-in-interest have neither been shown as owner/Bhoomidar nor in possession of the above said land. The land has been wrongly and illegally shown to be vested in Gaon Sabha/Central Government/ DDA. 20. That no notification u/s 7 of the Delhi Land Reforms Act, 1954 after the commencement of Delhi Land Reforms Act nor the proclamation thereof as required under Rules 2 & 3 of Delhi Land Reforms Rules 1954 was ever issued in respect of the aforesaid land. Even, otherwise this land could not have been legally vested in Gaon Sabha as it was built up Abadi property. It was in use and occupation of the predecessors-in-interest of the plaintiff. Since the aforesaid land did not vest in the Gaon Sabha under any requisite or valid notification etc. and nor its possession was ever taken by the Gaon Sabha and nor any suit for ejectment was taken by the Gaon Sabha and nor any suit for ejectment was filed within limitation against the predecessors-in- interest of the plaintiff, Gaon Sabha did not acquire any right or interest of any nature, whatsoever, in the said land. The Central Government had also no power, competence or authority to issue any notification under Section 507 of Municipal Corporation Act. The land never remained in the possession of Gaon Sabha or Central Government and the entries to this effect are wholly false, wrong, illegal, fictitious and mere paper entries. The plaintiff and/or her predecessors-in-interest have been continuously in settled RFA No. 381/2004 12 possession of the land/property in question as owners/Bhumidars thereof………………………………………………………………………………………………………… 21. ………………………….. Even, unauthorized possession has to be shown in the record of Khasra Girdwari. The correct entries have not been maintained. The record of Khasra Girdwari and Jamabandi require immediate correction in respect of true status of the above said land.” 10. Now I come to the merits of the rival submissions. In the present case there was an objection raised on behalf of the DDA that the plaintiff‟s suit was not maintainable. According to the submission of the learned counsel for DDA that objection could very well be decided as a preliminary issue since it was purely a legal point whether the Civil Court could entertain the suit of the plaintiff in view of the averments in the plaint itself and that point required no evidence. I am in full agreement with this submission of the learned counsel for the DDA that the objection of DDA was purely legal in nature and I do not find any merit in the argument of the learned senior counsel for the appellant- plaintiff that the point raised by the DDA was a mixed question of law and fact. I, therefore, do not find any fault in the trial Court‟s decision to decide the DDA‟s objection regarding the maintainability of the suit as a preliminary issue. 11. However, the learned trial Judge has not dealt with the legal point involved correctly and