Gaon Sabha Samalka v. Sher Singh & Ors.

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure,1908(CPC) is filed by the defendant in the suit impugning the Judgment of the Trial Court dated 19.12.1997 by which the trial court has decreed the suit for declaration and injunction filed by the respondents/plaintiffs. By the impugned judgment and decree 2018:DHC:4986 respondents/plaintiffs have been granted declaration that they are the owners of the suit land which comprises of 32 bighas and 6 biswas of land in village Samalkha, Delhi, bearing Kila Nos. 2, 3, 9 of rectangle No. 31, Kila No. 22/2, 23, 24/1, 17/1 of rectangle No. 25 and Kila NO. 15 of rectangle No. 56 (hereinafter referred to as „suit property/suit land‟).

2. The subject suit was filed by the respondents/plaintiffs pleading their entitlement to the suit land on account of the same having been of their forefathers and which ultimately came to be vested in them. It was pleaded that disputes arose between the respondent/plaintiff, through their predecessors, with the Gaon Sabha with respect to whether or not the suit land stood vested in the Gaon Sabha after coming into force the Delhi Land Reforms Act, 1954 and this issue was decided in favour of the respondents/plaintiffs in a suit which was filed by the respondents/plaintiffs being Civil Suit No.246/1965 and which was decided by the court of Sh. H.C.Gupta, Sub-Judge First Class Delhi on 22.9.1966. It was therefore contended by the respondents/plaintiffs that the issue of ownership became final in terms of the said judgment which became final as it was not appealed from. It was also pleaded in the plaint that in fact the Union of India subsequently has filed a suit to question the Judgment and Decree dated 22.3.1966, however even this suit was dismissed as abated and appeal against the order of abatement was dismissed by the Judgment dated 7.5.1976 passed by Mr N.L. Kakkar, ADJ Delhi. The subject suit was filed on the ground that entries which have now been made in the revenue record without following any due process of law, and whereby Gaon Sabha is once again shown as owner of the suit land, is an illegal act and the same would not affect the ownership rights of the respondents/plaintiffs in the suit land, with the fact that the concerned entries showing Gaon Sabha as owner of the suit land be directed to be changed by showing the respondents/plaintiffs as owners and not the Gaon Sabha/appellant/defendant. Accordingly, the respondents/plaintiffs sought the reliefs of declaration and injunction with respect to the suit land.

3. The suit was contested by the appellant/defendant and it was pleaded by the appellant/defendant that relief claimed in the suit could not be granted by the civil court but could only be granted by the Revenue Court inasmuch as the jurisdiction of civil court is barred under Section 185 of the Delhi Land Reforms Act. It was contended by the appellant/defendant that bhumidhari rights can only be declared by the Revenue Court and not by a civil court. The Union of India was pleaded to be a necessary party and in the absence of whom the suit could not be decided in view of the provision of Sections 161-A and 161-B of the Delhi Land Reforms Act. The suit was also pleaded to be barred by limitation and also that the suit was not maintainable in the absence of notices under Section 80 CPC to Union of India and notice under Section 99 of the Panchayat Raj Act. A Decree passed by the civil court on 22.9.1966 was argued to be without jurisdiction and therefore non-est/void.

4. After pleadings were complete the trial court framed the following issues:- “i) Whether this court has jurisdiction to entertain and to try this suit? OPP ii) Whether the suit is within limitation? OPP iii) Whether the suit has been properly valued for purpose of court fee and jurisdiction? OPP iv) Whether the suit is maintainable in the present form and frame? OPP v) Whether the plaintiff has a cause of action and locus standi to file the present suit? OPP vi) Whether the suit is bad for non-joinder of necessary parties? OPD vii) Whether notice u/s 80 of CPC was necessary? OPD viii) Whether the suit is barred by S-185 of DLR Act? OPD ix) Whether notice u/s 99 of Panchayat Raj Act is necessary before filing the suit? OPD x) Whether the plaintiff being in possession of the land are entitled to Decree for declaration and injunction? OPP xi) Relief.”

5. This Court has only to decide two aspects which have been urged by the appellant/defendant before this Court. The first aspect is as to whether the suit filed by the respondents/plaintiffs was barred by Section 185 of the Delhi Land Reforms Act inasmuch as civil court did not have jurisdiction but the jurisdiction with respect to the cause of action and the reliefs claimed in the suit could only be decided by the revenue authorities under the Delhi Land Reforms Act, and as per details found in Schedule I of the Delhi Land Reforms Act. The second aspect which is argued is that as to whether or not the Judgment passed by Sub-Judge dated 22.9.1966 would or would not operate as res judicata as against the appellant/defendant for the appellant/defendant not to rake up the issue of entitlement of the appellant/defendant/Gaon Sabha to ownership of the suit land and denial of ownership of the respondents/plaintiffs of the suit.

6. On the first aspect as to whether Section 185 of the Delhi Land Reforms Act bars the jurisdiction of the civil court, it is seen that the bar under Section 185 of the Delhi Land Reforms Act is only with respect to those subject matters and those Sections of Delhi Land Reforms Act which are provided in Column 2 of Schedule I of the Delhi Land Reforms Act. In Column 2 of the Schedule I of the Delhi Land Reforms Act there is no section which is specified as per which Bhoomidar/owner can seek any relief for rectification of entries in the revenue record, and that too and especially when the issue of ownership with respect to the suit land stands concluded by 1966 Judgment of the civil court. Counsel for the appellant/defendant has not been able to show to this Court any of the Sections as mentioned in Column 2 of the Schedule I of the Delhi Land Reforms Act and as per which section the subject suit seeking declaration of ownership of rights in the suit land as the respondents/plaintiffs are bhoomidars and for consequent correction of the entry in the revenue record can be decided by the Revenue Courts. In fact I would like to note that onus that the suit land is not in the ownership of the respondents/plaintiffs, but that the ownership is with the Gaon Sabha, lies upon the appellant/defendant/Gaon Sabha for being established, and this is so provided in Section 104 of the Delhi Land Reforms Act which provides that it is the Gaon Sabha who has to institute a suit for claiming to be entitled to right in the lands claimed by it, and that the person who claims ownership in the land is not entitled to ownership in the lands. This provision is required to be read with Section 7 of the Delhi Land Reforms Act and as per which section the village common land, public wells, tanks, etc., all of which are jointly owned by the residents of the concerned village, on passing of the Delhi Land Reforms Act in the year of 1954 stood vested in the Gaon Sabha. With respect to any proceedings to be initiated under Section 7 that the common lands in a village do not vest in an individual/private person and the common village lands etc vest in the Gaon Sabha, Section 7 proceedings/its subject matters are not those which fall in Column 2 of Schedule I of the Delhi Land Reforms Act. Therefore issues as regards whether Gaon Sabha became owner of the suit land or the respondents/plaintiffs and their forefathers were owners of the suit land cannot be decided by the Revenue Courts under Schedule I of the Delhi Land Reforms Act. This is all the more so in the present case on account of principle of res judicata which will be discussed below.

7. The second aspect to be decided is whether the claim of the appellant/defendant of ownership of the suit land and therefore for continuation of the entry in the revenue to show Gaon Sabha to be the owner, is barred by the principle of res judicata. For this purpose when we examine the earlier judgment between the parties, it is seen that Judgment dated 22.9.1966 makes it clear while deciding issue NO. 4 in the said suit by the respondents/plaintiffs, that it has been held that the respondents/plaintiffs and their forefathers are the owners of the suit land. This Judgment of the year 1966 came to be passed as the Deputy Commissioner had in the revenue record with respect to the suit land shown the ownership to be of the Gaon Sabha, and this action of the Deputy Commissioner was challenged by the forefathers of the respondents/plaintiffs, and the order of the Deputy Commissioner was set aside by the Judgment dated 22.9.1966 holding that the forefather of the respondents/plaintiffs are the owners of the suit land and the order passed by the Deputy Commissioner was set aside.

8. Accordingly, even assuming for the sake of arguments that the subject suit could be decided under any particular Section of the Delhi Land Reforms Act by the concerned Revenue Courts, although it cannot be decided by Revenue Courts as discussed above, even in such an assumed scenario, Section 185 of the Delhi Land Reforms Act will not act as a bar to the suit because the issue already stands concluded of ownership of the suit land in favour of the respondents/plaintiffs and their forefathers by the 1966 Judgment. The issue being no longer alive, there is nothing to be decided by the Revenue Courts, and therefore, there is no need for the respondents/plaintiffs to approach the Revenue Courts.

9. In view of the aforesaid discussion there is no merit in the appeal. Dismissed.

AUGUST 09, 2018/ib VALMIKI J. MEHTA, J