MEHARBAN Vs. GNCT OF DELHI

JUDGEMENT

(1.) This regular second appeal impugns the judgment of the first appellate court dated 23.4.2013 by which the first appellate court set aside the judgment of trial court dated 20.9.2010. Trial court by its judgment dated 20.9.2010 had decreed the suit for possession filed by the appellant/plaintiff to the extent of holding that appellant will not be entitled to possession but he will have a right to claim damages/compensation on account of illegal dispossession by the respondent/Govt. of NCT of Delhi from the suit land.

(2.) THE facts of the case are that suit land comprising of 6 bighas and 12 biswas (approx 6600 sq. yds) in village Saqdarpur, Delhi was owned by one Shamir who was the second husband of Mst. Jainab/Jenab. From the wedlock of Shamir and Mst. Jainab one son Kabir was born and who expired before Mst. Jainab. Mst. Jainab, therefore, became the non -occupancy tenant with life interest in place of her husband Shamir by virtue of Section 22 of the Agra Tenancy Act, 1901. Appellant/plaintiff is the son of Mst. Jainab, not through Shamir, but through her earlier husband Hakim Ali. Appellant/plaintiff on the death of Mst. Jainab got himself substituted as an occupancy tenant of the suit land on the basis of a Will dated 27.1.1949 of Mst. Jainab in his favour. In favour of the appellant/plaintiff a mutation order was passed and which is dated 22.10.1955 Ex. DW -1/2. This was followed by the judgment dated 9.2.1957 passed by the court of competent officer Ex. DW -1/3 in favour of the appellant/plaintiff under the Evacuee Interest (Separation) Act, 1951. At a later point of time a report was made by an Assistant Custodian (New Delhi) in the year 1969 Ex. DW -1/4 for cancelling the rights of appellant/plaintiff, and in which it was stated that the appellant/plaintiff had made an application on 12.7.1968 to the Chief Settlement Commissioner claiming that the land in his possession was for more than 20 years and his rights be separated in the mutated land on account of the death of Mst. Jainab the earlier recorded occupancy tenant of the suit land, however the mutation was wrongly effected by mutation No. 609 as rights under Section 22 cannot be bequeathed by a Will. Thus mutation order in favour of appellant/plaintiff was hence set aside by the Assistant Collector First Grade vide order dated 9.3.1959 on finding that appellant Meharban was not a successor of Shamir in terms of Section 22 of the Agra Tenancy Act, 1901 because he was not the natural son of Shamir but was the son of Hakim Ali the first husband of Mst. Jainab. An order was passed by the Dy. Custodian, Delhi dated 16.3.1970 Ex. DW -1/5 holding that the appellant/plaintiff was not entitled to rights of an occupancy tenant because of the fact that he is not the natural son and, therefore, not the legal heir of Shamir, and had no entitlement under Section 22 of the Agra Tenancy Act, 1901 which is only for a natural son. This order of Dy. Custodian dated 16.3.1970 became final and the appellant was dispossessed from the suit land. At this stage, the subject suit was filed claiming that appellant/plaintiff was in fact the son of Shamir and Mst. Jainab. As already stated above, trial court decreed the suit to the extent of granting compensation, but the appellate court reversed their judgment and held that the appellant/plaintiff has no right as an occupancy tenant of the suit land on both grounds that rights claimed by the appellant/plaintiff did not come within Section 22 or Section 11 of the Agra Tenancy Act.

(3.) I completely agree with the aforesaid findings and conclusions of the first appellate court because appellant himself had made statements in the proceedings before the Dy. Custodian, Ex. DW -1/6 and DW -1/8 and in which appellant/plaintiff specifically stated that he was the son not from Shamir but from Hakim Ali. Therefore, the first appellate court was justified in holding that the appellant/plaintiff was not the natural son of Shamir but was the natural son of Hakim Ali through his wedlock with Mst. Jainab.