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
No comments:
Post a Comment