Monday, December 10, 2012

In Other Courts: Kanwar Singh v/s Gaon Sabha Samalka...18th June, 2012


Appeal No. 132/2007
Kanwar Singh v/s Gaon Sabha Samalka


IN THE COURT OF DY. COMMISSIONER & COLLECTOR
DISTRICT SOUTH WEST, KAPASHERA, NEW DELHI


Kanwar Singh ..................................... Appellant

Vs.

Gaon Sabha Samalka .................................... Respondent

JUDGEMENT

This shall dispose of the appeal dated 31/08/2007 filed by the appellant herein above against the order of the SDM/RA (Delhi Cantt.) dated 28/08/2007 issued under section 86 - A of the DLR Act. 1954 in Case No. 287/RA/87. Vide the said order the SDM/RA has ordered for ejectment of the respondent from the suit land bearing Khasra No. 15/56/1 (0-8), 15/8/2 (1-11) & 15/13/2 (1-3) in the revenue estate of village Samalka. Aggrieved by the said order the appellant has preferred an appeal before this Court.

The case of the appellant is that a notice dated 23/06/1987 under section 86 (A) of Delhi Land Reforms Act was served on the appellant by the court of Ld. RA in respect of Khasra No. 15/56/1 (0-8), 15/8/2 (1-11) & 15/13/2 (1-3)situated in village Samalka, New Delhi. The appellant filed an application for dropping the proceedings initiated by the respondent under section 86 (A) of Delhi Land Reforms Act, 1954 under section 11 read with section 151 CPC. It is contended that the same matter has already been adjudicated by a competent court having equal jurisdiction. The case adjudicated previously was hopelessly time barred in case no. 20/RA/77 which was instituted by the Gaon Sabha Samalka under section 86(A) of Delhi Land Reforms Act, 1954 against Kanwar Singh and others and was decided on 12/10/1977 by the court of Ms. Lalitha Kumar, SDM/RA, Delhi.

The Revenue Assistant by its order dated 28/08/2007 passed not only an order against the cannon of law rather exceeded his jurisdiction. When the same matter has already been adjudicated by a competent court having equal jurisdiction then the present RA has no jurisdiction to decide the present case as the matter was already decided on the application of Gaon Sabha under section 86 (A) of Delhi Land Reforms Act, 1954. This clearly prove that the present order is not only wrong but has been acted and passed by the Ld. Trial court acting as an appellate court against the order of his predecessor. The Ld. Trial court failed to appreciate and consider the material on record that the appellant was in settled possession of the land in question since 1962 as admitted by, PW1 Sh. Jagdish Sharma, Pradhan Gaon Sabha Samalkha and PW 2 Sh. Hari Chand, Halqua Patwari of village Samalkha which were produced by the Gaon Sabha Samalkha in the proceedings under. Section 86 A of Delhi Land Reforms Act, 1954 in the case No. 20/RA/77. Even after the said order the limitation period ended on 11/10/1980 and no proceedings were started by the Gaon Sabha Samalkha within the period of limitation. Hence no proceedings u/s 86 of Delhi Land Reforms Act, 1954 can be or could be initiated against the present appellant by the Gaon Sabha Samalkha. That in the order dated 28/08/2007 the Ld. Trial court has mentioned that the main contention of the Kanwar Singh the respondent therein was Res judicata under section 11 of CPC. The Ld. Trial court had not gone through the contents of section 11 of Civil Procedure Code, 1908 and ignored the law of the land which shows that the court below had no faith in the proved and embodied law and based order dated 28/08/2007 on the basis of surmises and presumptions and passed the impugned order arbitrarily without application of judicial mind.

The case of respondents is that the contention of the appellant is totally wrong and misplaced and stressed that point of Res Judicata and time barred is not applicable in the instant case because the case no. 20/RA/77 was dismissed in default by the Ld. trial Court. The respondent also contended that the plea of the appellant of the proceedings being barred by time is not substantiated and maintainable. The respondent has strongly denied the contention of possession of the appellant on the suit land and further denied the existence of any evidence in support of the appellant.


After hearing the parties and perusing the material on record it is observed that the case No.20/RA/77 was dismissed in default for non-appearance of the appellant therein (respondent herein). Therefore, the Ld. trial court had been within its jurisdiction to hear the matter and pass the impugned order in case No.287/RAS/87. Further, the claim of the appellant herein that he was in settled possession on the suit land does not hold any ground as far as any documentary evidence is concerned. He has not produced the sufficient proof before the Ld. trial court to establish his settled and undisputed possession. All the other material on the record has also shown that the appellant hereinabove has been encroaching upon the suit land and the claim of respondent for his ejectment is justified. Further, notwithstanding the claims of the appellant, as per the order of the Hon. Supreme Court in Jagpal Singh & Ors Vs . State of Punjab and Ors in Civil Appeal No. 1132/2011 and SLP (c) No. 3109/2011 the encroachers and illegal occupants on the Gram Sabha land needs to be evicted and the Gram Sabha land needs to be retrieved and restored to the Gram Sabha. Hence the order:

ORDER

In view of the observations made in the judgement I am of the opinion that the appeal of the appellant hereinabove filed u/s 185 DLR Act, 1954 against the order of the SDM/RA (Delhi Cantt.) dated 28/08/2007 issued under section 86A of the DLR Act, 1954 in Case No. 287/RAS/87 is devoid of merits. Accordingly the same is dismissed and the SDM/RA (Vasant Vihar) and BDO (South West) are directed to take further necessary action in time bound manner.

Order to be communicated to the parties.

Given under my hand and seal of this court on this 18th day of June, 2012.


Vikas Anand, IAS
Dy. commissioner & Collector
Copy to:
1. SDM, Najafgarh
2. BDO, South West
3. Both the parties

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