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2008 DIGILAW 811 (DEL)

KIRPA RAM (DECD) THR. LRS. v. SURENDRA DEO GAUR

2008-08-25

REKHA SHARMA

body2008
JUDGMENT Rekha Sharma, J. (Oral)-The appellants are aggrieved by the order of the Additional District Judge Shri G.S. Jugti, dated September 15,1997, affirming the order of the Sub-Judge Mr. A.K. Srivastava, dated September 21, 1984. 2. It so happened that on July 31,1971, respondent No.1 and the predecessor-in-interest of respondent No.2, namely, Smt. Veena Gaur had filed a suit for injunction against the appellants herein as well as against the Refugee Co-operative Housing Society Ltd. and its office bearers for a decree of permanent injunction seeking a restraint order against the appellants collectively and individually from dispossessing them from a portion of the land comprising Khasra No. 231, Basai Darapur, Delhi, measuring 4 bighas 3 biswas. 3. The appellants in response to the suit filed written statement and therein claimed that the land in respect of which the respondents were seeking decree of injunction was in fact in their possession and it comprised Khasra No. 79, Basai Darapur, Delhi, which in all measured , 17 bighas 3 biswas out of which the suit land pertained to 2 bighas 6 biswas. The learned Sub-Judge, 1st Class, decreed the suit in favour of the respondents. In appeal before the Additional District Judge the order so passed was affirmed. Hence, the present appeal. 4. It is submitted before me that the Sub-Judge 1st Class had no jurisdiction to entertain the suit in view of the bar imposed on the Civil Courts by Section 185 of the Delhi Land Reforms Act, 1984 and Section 28 of the Delhi Land Revenue Act, 1954 not to deal with matters relating to bhumidhari and boundary disputes. 5. Admittedly, the appellants in their written statement before the Sub-Judge 1st Class, raised no issue of jurisdiction. It was only Refugee Co-operative Housing Society and its office-bearers who had raised the issue of jurisdiction. The trial Court in its judgment dated September 21, 1984 framed as many as 9 issues of which issue No.2 pertained to jurisdiction. The Court felt that the relief claimed in the suit was for injunction and it, therefore, had the competence to find out in which Khasra number, the land in dispute fell. Accordingly, it was held that the Court had the jurisdiction to try the suit. 6. The Court felt that the relief claimed in the suit was for injunction and it, therefore, had the competence to find out in which Khasra number, the land in dispute fell. Accordingly, it was held that the Court had the jurisdiction to try the suit. 6. It is submitted by learned Counsel for the appellants that the respondents in the garb of a suit for injunction got the Bhumidari rights determined from a civil Court and also got the demarcation done which was outside the scope of civil Courts. Those rights, it is stated could only be determined by the revenue authorities. When the matter was taken in appeal, it was observed by the Additional District Judge in his judgment dated September 15, 1997 that the appellants never raised the question of jurisdiction before the Civil Judge while those who had raised the same preferred no appeal against the finding of the Sub-Judge. Therefore, it was further held that so far as the appellants were concerned, the issue of jurisdiction never arose. 7. It is submitted by learned Counsel for the appellants before this Court that the issue of jurisdiction is a legal issue and can be raised at any stage of the proceedings. Therefore, learned Counsel has called upon this Court to deal with the issue regardless of the fact that it was not raised by them before the trial Court. 8. It is pointed out by learned Counsel for the respondents that prior to the filing of the suit for injunction by them, their rights qua the land in question stood determined by an earlier judgment of the civil Court dated October 7, 1960 wherein it was held that they were the Bhumidars of the land in dispute as against Gaon Sabha of village Basai Darapur which also was claiming Bhumidhari rights vis-a-vis the same property. Based on the said judgment, the respondents had filed the suit before the Sub-Judge 1st Class. What is of significance is that this fact is not disputed by learned Counsel for the appellants. What is disputed is that the said judgment rendered in the year 1960 was a nullity because the civil Court could not have dealt with the question of Bhumidhari in view of Section 185 of the Delhi Land Reforms Act. 9. What is of significance is that this fact is not disputed by learned Counsel for the appellants. What is disputed is that the said judgment rendered in the year 1960 was a nullity because the civil Court could not have dealt with the question of Bhumidhari in view of Section 185 of the Delhi Land Reforms Act. 9. From what has been noticed above, it follows that the appellants were declared Bhumidhars of the land in question 48 years ago in the year 1960. Much water has flown under the bridge since then. If the appellants felt aggrieved by the judgment even though they were not party to the same, they could have got the same declared a nullity after they acquired knowledge thereof. They exercised no such option. Now it is too late in the day for them to contend that the judgment passed by the civil Court in the year 1960 was a nullity and no right could be claimed by the respondents on the basis of that judgment. Apart from this, I am told that the respondents have already sold the land in question though the appellants still claim to be in possession of the same. It is not for this Court to give a finding whether the appellants are in possession of the suit land. This is not an issue before me. 10. For the foregoing reasons, the appeal is dismissed. Appeal dismissed.