Appeal
No. 91/07
Daryao
Singh & Ors. v/s Gaon Sabha Goela Khurd
IN
THE COURT OF DY. COMMISSIONER & COLLECTOR
DISTRICT
SOUTH WEST, KAPASHERA, DELHI
Daryao
Singh & Ors
..............................................
Appellants
Vs.
Gaon
Sabha Goela Khurd ..................................... Respondent
JUDGEMENT
This
shall dispose of the appeal dated 07/06/2007 filed by the appellants
herein above u/s 185 of
the Delhi Land Revenue Act, 1954 against the
order dated 01/06/2007 passed by RA/SDM (Delhi Cantt.)
in Case No.
286/NG/RA/2001 u/s 85 of DLR Act, 1954. Vide the impugned order the
case of the
appellants has been dismissed in respect of land bearing
Rect. No. 3 Khasra No.9 (4-16), 12 (4-15) and 13
(4-16) in village
Goela Khurd, Najafgarh, New Delhi.
Both
the parties were heard at length. The case of the appellant is that
he is in adverse cultivatory
possession of the suit land since 1969
& enough evidence was produced by the appellant to prove his
possession for more than 3 years. Further it is argued that the
cultivatory possession of the
father/predecessor of the appellants
was duly proved before the Ld. RA who was pleased to dismiss the
proceedings under section 86 - A vide order dated 30.5.1973 after
holding appellant's father to be in
continuous physical cultivatory
possession of the land which stood proved for a period of more than
6
years. That the Gaon Sabha did not file any appeal against the
order dated 30.5.1973. Further, it is stated
that neither appellants
admitted nor there is anything on record to prove that the suit land
is a cremation
ground. Respondent has argued that the order of the
RA is correct and it is clearly held that the said land
is a
cremation ground and the appellant has encroached upon the same.
Regarding the order dated
30.05.1973 of the RA u/s 86A of the DLR
Act. 1954 the same was dismissed in default of appearance of
the
Gaon Sabha without giving the Gaon Sabha any opportunity and the suit
land is a vacant land in
continuous possession of the Gaon Sabha.
Thus the appeal is liable to be dismissed.
After
hearing the appellant and perusing the material on record it is seen
that the appellant
hereinabove
has been encroaching upon the suit land which is a Govt. land since
long time. The only plea taken by the appellant is that he is in the
possession on Govt. land for long time therefore he should be
declared Bhumidar u/s 85 of the DLR Act, 1954 on the basis of adverse
possession. The issue is duly
considered by the RA and after
appreciation of all facts and records has issued a reasoned order on
merits.
Notwithstanding
the above, it is observed by the Hon'ble Supreme Court in the matter
Hemaji
Waghaji Jat v/s Bhikhabhai Khengarbhai Harijan & Others
(AIR 2009 SC 103) that-
"the
law of adverse possession which ousts an owner on the basis of
inaction within limitation
is irrational, illogical and wholly
disproportionate. The law as it exists is extremely harsh for the
true
owner and a windfall for a dishonest person who had illegally
taken possession of the property of the
true owner. The law ought
not to benefit a person who is a clandestine manner takes possession
of the
property of the owner in contravention of law. This in
substance would mean that the law gives seal of
approval to the
illegal action or activities of a rank trespasser or who had
wrongfully taken possession
of the property of the true owner. "
Further the Apex Court has gone on to emphasize as to "why
the law
should place premium on dishonesty by legitimizing
possession of a rank trespasser and compelling the owner to loose its
possession only because of his inaction in taking back the possession
within
limitation. "
In
view of the above, I am of the considered opinion that the appeal of
the appellant hereinabove
lacks merit. Further 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, appeal dated
07/06/2007 filed by the
appellants herein above u/s 185 of the Delhi
Land Revenue Act, 1954 against the order dated 01 /06/2007
passed by
RA/SDM (Delhi Cantt.) in Case No. 286/NG/RA/2001 u/s 85 of DLR Act,
1954 is hereby
dismissed. The BDO, South West is hereby directed to
take necessary action in time bound manner.
Given
under my hand and seal of this court on this 14th day of
January 2013.
Vikas
Anand, IAS
Dy.
Commissioner & Collector
Copy
to:
- SDM, Najafgarh
- BDO, South West
- Both the parties
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