DEBI SINGH Vs. BHIM SINGH

JUDGEMENT

(1.) Debi Singh, the appellant in the present case instituted a suit against the respondents for possession of the land in suit which measures 9 Bighas 2 Biswas and is situated in village Ladpur, Delhi. The defendants in the suit, who are respondents in the appeal, were Bhim Singh and Mehar Singh, who were in possession of the land and Khem Ram, who is the father of the appellant. The allegation in the plaint was that the plaintiff and his father were joint owners of the land in dispute, and the said Bhim Singh and Mehar Singh had entered into possession of the land some three years before the institution of the suit. Bhim Singh and Mehar Singh, respondents, as defendants Nos. 1 and 2 disputed the plaintiff's title. They alleged that Khem Ram alone was in possession of the land and he had mortgaged the same to them with possession and they were in possession of the land in their capacity as mortgagees. The trial Court decreed the suit on the ground that the defendants Nos. 1 and 2 were in possession of the land as trespassers. The reason for this was that the document on which they relied was unregistered. It was also held that the father of the plaintiff, Khem Ram, aforementioned, being only a co-owner of the land along with the plaintiff was not entitled to mortgage the land without the consent of his co-sharer. It was also held that it was not established that Khem Ram was in sole cultivating possession of the land as the Khasra Girdwari, Exhibits D-2 and D-3 showed that the plaintiff and his father were in joint possession of the land in suit as co-owners. On the basis that the appellant was entitled to dispossess the said Bhim Singh and Mehar Singh a decree for possession was passed against them.

(2.) Bhim Singh and Mehar Singh then appealed to the Senior Sub Judge, who came to the conclusion that it was clear that the land owned by the plaintiff and his father had been divided by them for the purposes of cultivation and that the area in suit had been in the sole possession of the father, who had himself let in defendants Nos. 1 and 2. The plaintiff not being in actual physical possession and his father having let defendants Nos. 1 and 2 into possession, it was held that the plaintiff could not be permitted to evict the said defendants without the settlement of the dispute between the father and his creditors. The Senior Sub Judge also felt that the son had been put up merely to dislodge defendants Nos. 1 and 2 from the possession of the land in suit. It was also held that as the plaintiff was not in actual physical possession before defendants Nos. 1 and 2 were let in, he was not entitled to a decree for possession of the land. The only relief that could have been granted was a decree for joint possession and actual possession could not be granted without the separation of the joint Khata. In the circumstances, the appeal was accepted and the suit was dismissed. Thereafter the plaintiff appealed to this Court.

(3.) Mr. Ramesh Chandra on behalf of the alleged trespassers, Bhim Singh and Mehar Singh, has raised an interesting preliminary objection. He says that the concept of proprietorship of agricultural land has been abolished by the passing of the Delhi Land Reforms Act, 1954, as has been held by the Supreme Court in Hatti v. Sunder Singh, (1970) 2 SCC 841 = ( AIR 1971 NSC 160). He says that the appellant is disentitled to get a decree for possession from the Civil Court and consequently, it should be held that the Civil Courts have no jurisdiction to grant the relief prayed for in the present suit. His further submission is that the appellant should seek his relief under the Delhi Land Reforms Act wherein provision has been made for a Bhumidar to evict a trespasser. I have given my anxious consideration to this objection. The alleged trespassers entered into the land, according to the agreed case of the parties, after the Delhi Land Reforms Act had come into force. At that time, no Bhumidari had been declared. The suit. was also brought before any Bhumidari declaration had been made, because there was a considerable time lag between the coming into force of the Act and the declaration regarding Bhumidari made thereunder. At the time the suit was brought, there was no other remedy open to the appellant to evict the trespassers except by recourse to the civil Courts. It is no doubt true that the Act visualizes the grant of Bhumidari rights to proprietors and tenants including non-occupancy tenants. The alleged trespassers came into possession by virtue of a mortgage agreement which has been held to be non-admissible in evidence because of lack of registration. He is, therefore, neither a tenant nor a proprietor. In the circumstances, I do not know what relief the appellant could have sought against these persons under the Delhi Land Reforms Act. I, therefore, come to the conclusion that before the Bhumidari declaration was made the appellant could not seek any remedy under the Delhi Land Reforms Act and, therefore, was entitled to seek his remedy only under the ordinary civil law. Even otherwise, unless there is any provision in the Delhi Land Reforms Act, whereby the appellant's title had been abolished before the suit was brought, I see no reason why the suit for possession based on title could not be instituted in the Civil Court. No such provision has been brought to my notice. As I read it, the rights of a proprietor only cease to exist under the Delhi Land Reforms Act, when somebody else is granted Bhumidari rights with respect to the land owned by him. If no such rights are granted, he continues to be the proprietor to all intents and purposes and is entitled under the Specific Relief Act to claim a decree for possession on the basis of his title. I, therefore, overrule the preliminary objection.