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2006 DIGILAW 1484 (DEL)

SAMAYDIN v. GAON SABHA VILLAGE MANDOLI

2006-08-29

J.P.SINGH

body2006
( 1 ) THIS civil revision petition under Section 115 of Code of Civil Procedure is directed against order dated 1. 10. 2005 passed by Civil Judge, Delhi, rejecting an application under Order VII Rule 11 CPC. I have heard Mr. P. S. Bindra, Advocate, learned counsel for the petitioners, and Mr. Sanjay Pathak, Advocate, learned counsel for the respondents, and have gone through the file. ( 2 ) BRIEFLY, the facts are that petitioners herein (defendants in the trial court) claim to be in lawful continuous possession of land situated in the revenue estate of village Mandoli, Shahdara, Delhi. Their plea is that they have constructed residential houses and shops on the said land. The Revenue assistant, Shahdara, had passed an ex-parte decree on 30. 4. 1982 for ejectment of the petitioners-defendants. However, the said ex-parte decree was not executed and again on 7. 9. 1989 proceedings under Section 86-A of Delhi Land Reforms Act 1954 were initiated but the said proceedings were also dropped by the Revenue assistant on 20. 8. 1990 after making observations in favour of the petitioners-defendants. ( 3 ) THE order dated 20. 8. 1990 was challenged by the Gaon Sabha before the additional Collector. The said appeal was dismissed on 25. 11. 1993 but liberty was given to the Gaon Sabha for execution of the order dated 30. 4. 1982. Again in 1994 fresh proceedings under Section 86-A of Delhi Land Reforms Act were initiated by the Gaon Sabha against the petitioners-defendants but the same too were dismissed on 29. 3. 1995 opining that the Gaon Sabha should have gone for execution of the decree dated 30. 4. 1982. Accordingly, the Gaon Sabha filed execution application before the revenue Assistant. Objections were raised by the petitioners-defendants. The revenue Assistant vide order dated 13. 9. 1995 held that the land in question was excluded from purview of the Delhi Land Reforms Act 1954 in view of Section 2 (c) of the said Act which is reproduced here under: (1 ). . . . . . (2) It extends to the whole of the Union territory of Delhi but shall not apply to- (a ). . . . . . (b ). . . . . . . . . . . (2) It extends to the whole of the Union territory of Delhi but shall not apply to- (a ). . . . . . (b ). . . . . . (c) areas held and occupied for a public purpose or a work of public utility and declared as such by the Chief Commissioner or acquired under the Land acquisition Act, 1894, or any other enactment other than this Act, relating to acquisition of land for a public purpose. (3 ). . . . . . . . " ( 4 ) THE Revenue Assistant held that the Act did not provide any limitation for ejectment of a person who had occupied the land which was meant for a public purpose and he allowed the execution. The petitioners-defendants challenged the said order in Writ Petition (C) No. 3460/1995 titled Gur Bux Singh and Anr. v. K. K. Dahiya and ors. in the High Court. The High Court quashed the execution order dated 13. 9. 1995 passed by Sub-Divisional Magistrate/revenue Assistant. The High Court relied upon the judgment titled Delhi Peasant Cooperative Multi purpose Society vs. State of U. P. and Ors. passed in RFA (OS) No. 10/1976, decided on 29. 11. 1999 wherein it was held that the land covered by sub-clause "c" of Section (2) of Delhi Land Reforms Act 1954 fell outside the ambit of the delhi Land Reforms Act, 1954 and that revenue authorities had no jurisdiction to eject unauthorised occupant from such land and that the remedy was a civil suit. After this the Gaon Sabha filed a civil suit alleging that the land in question had been earmarked for panchayat ghar, youth club and dispensary and also referred to the High Court order dated 16. 8. 2004 (supra) wherein it was held that the proper remedy was the civil suit. The prayer in the suit was a decree for possession, decree for pendente-lite and future damages and a decree for perpetual injunction. ( 5 ) THE petitioners-defendants filed written statement. The Gaon Sabha and union of India filed replication and thereafter an application under Order VII rule 11 CPC was moved by the petitioners-defendants alleging that they were in possession as already referred to above. ( 5 ) THE petitioners-defendants filed written statement. The Gaon Sabha and union of India filed replication and thereafter an application under Order VII rule 11 CPC was moved by the petitioners-defendants alleging that they were in possession as already referred to above. They also mentioned about the reports of Halqa Patwari in the proceedings under Section 86-A of Delhi Land Reforms Act 1954 and quashing of the execution proceedings. They also referred to the provisions of Delhi Land Reforms Act 1954 regarding the exclusion of the areas as mentioned in Section 2 (c) of the said Act. It was alleged that no notification/ publication in the official gazette had been made in accordance with Rule 1 (c) (i) of the Delhi Land Reforms Rules 1954 implying thereby that the matter still was within the jurisdiction of the Revenue Assistant. In the reply by the plaintiffs, preliminary objections were raised that already the defendants had raised such objections in the written statement, therefore, a separate application under Order VII Rule 11 CPC was not required. On merits the pleas raised in the application were generally not admitted. ( 6 ) LEARNED counsel for the petitioners-defendants has read out Section (2) (c) of the Delhi Land Reforms Act 1954 and the Rules (supra) and submits that the civil court has no jurisdiction, therefore, the plaint should be rejected at the threshold. On the other hand, learned counsel for the respondents-plaintiffs has submitted that they have filed the present suit after the High court held in a matter between the same parties that only the civil court had jurisdiction and the said finding was final, therefore, the respondents-plaintiffs have no option but to file the suit to eject encroachers and unauthorized occupants. ( 7 ) PERUSAL of the impugned order shows that the learned Civil Judge has referred to the facts of the case, as already mentioned above, and has discussed the contentions of both the parties and has referred to the judgments relied upon by the petitioner-defendants and has distinguished the same. Learned civil Judge has opined that while deciding the application under Order VII Rule 11 CPC only averments in the plaint are to be seen. Perusal of the file shows that both the parties are relying upon a lot of documentary evidence. Learned civil Judge has opined that while deciding the application under Order VII Rule 11 CPC only averments in the plaint are to be seen. Perusal of the file shows that both the parties are relying upon a lot of documentary evidence. In my view, the learned Civil Judge has rightly held that the questions being raised are not purely questions of law but also require appreciation of evidence being relied upon by both the parties and has left the questions open. Therefore, no prejudice is being caused to the petitioners-defendants. In my view, the impugned order is well reasoned and is based on precedents. ( 8 ) CONSIDERING all the facts and circumstances of the case, in my opinion, there is no illegality, gross irregularity or jurisdictional error in the impugned order so as to invite interference under Section 115 of CPC. The petition is, therefore, dismissed. Nothing said herein above will tantamount to expression of opinion on the merits of the case.