Leila Seth, J.
(1) This second appeal is directed against the judgment and order dated 15th November, 1971 passed by Mr. C.D. Vashishta, Senior Sub Judge, Delhi, affirming the Judgment and decree of the trial court dated 2nd April, 1970.
(2) These are the facts, Mr. Dharam Singh, the Plaintiff-respondent, instituted a suit against the appellants, Gaon Sabha Budhela and the Union of India and prayed that the order of Mr. P.N. Gupta, Revenue Assistant, Delhi dated 21st May, 1968 in case No. 610 of 1967 be declared illegal and without jurisdiction.
(3) Mr. Dharam Singh was a proprietor in village Budhela and had shamlat deh rights prior to 1953-54 when the Delhi Land Reforms Act, 1954 (to be referred to in short as 'the Act') came into force. He also had a residential house in the said village. The said house is, admittedly, located inside the 'laldora'. i.e. the village abadi. In front of this house, there is a raised platform measuring 64 sq. yards. According to Mr. Dharam Singh, this platform is in his possession and was owned by him and was in existence prior to 20th July, 1954, i.e. the date on which the Act came into force. The said platform was used as an open space adjacent to the entrance of the residential house. It was customary to have such platforms in front of a residential house in the village abadi. In these circumstances, he claimed to b; entitled to continue to hold and possess the said platform, without disturbance or interference from the appellant Gaon Sabha, under section 8 of the Act. He further, contended that neither the platform nor the land on which it was built vested in the Gaon Sabha.
(4) However, on 13th July, 1967, the Gaon Sabha instituted proceedings under section 86-A of the Act alleging encroachment by way of a 'chabutra'. These proceedings, being Case No. 610 of 1961, were for ejectment of Mr. Dharam Singh from the said platform.
(5) Section 86A of the Act provides for summary proceedings in accordance with the prescribed rules. The rules prescribed are contained in rule 170 of the Delhi Land Reforms Rules, 1954, as amended (to be referred to in short as 'the Rules). They require that a notice be issued to every person in possession, to show cause why the order of ejectment be not made. In accordance with the rules, notice was issued to Mr. Dharam Singh. He appeared and filed objections. Evidence was also recorded. On hearing the parties the Revenue Assistant came to the conclusion that Mr. Dharam Singh was liable to be ejected. He also came to the conclusion that the platform i.e. 'pacea chabutra' was built on land which belonged to the Gaon Sabha and there was, thereforee, an encroachment. He ordered Mr. Dharam Singh to vacate the chabutra immediately. The order was passed on 21st May, 1968.
(6) Thereafter, on 27th September, 1968, Mr. Dharam Singh filed a suit. He filed the suit in terms of rule 170 (6). The said rule reads :
'WHEREan order of ejectment has been passed, the aggrieved person may institute a suit to establish the rights claimed by him but subject to the result of such suit, if any, the order passed shall be conclusive.'
(7) The said suit was contested by the appellant Gaon Sabha and it was, inter alia, urged that the civil court had no jurisdiction to try the suit. A number of issues were framed. The two relevant ones are as follows:
'ISSUENo. 2 : Has the civil court no jurisdiction to try the suit 'Issue No. 7: Whether the order of Shri P.N. Gupta, Revenue Assistant, Delhi dated 21st May, 1968 is wrong, illegal and without jursidiction ?'
(8) The trial court decided all the issues in favor of the plaintiff-respondent, Mr. Dharam Singh. A declaratory decree was passed to the effect, that the order of the Revenue Assistant dated 21st May, 1968 was wrong and without jurisdiction and the plaintiff was entitled to retain possession of the platform in dispute. According to the Sub-Judge 1st Class, Delhi, who made the order on 2nd April, 1970, the 'chabutra' was a portion of the building of the plaintiff and was in existence prior to 20th July, 1954 i.e. the commencement of the Act. He was, thereforee, entitled to retain possession of the 'chabutra' under section 8 of the Act.
(9) The Gaon Sabha filed an appeal. As already noticed, on 15th November, 1971, the said appeal was dismissed.
(10) The substantial question of law that is before me is whether the civil court has jurisdiction in such cases to try the suit
(11) Mr. O.P.Tyagi, learned counsel appearing for the appellant Gaon Sabha has submitted that the Act is a complete Code and the respondent could not approach the civil C3urt directly to decide the question of title.
(12) Mr. J.K. Jain, learned counsel appearing for the respondent however, contends that the 'chabutra' was a part of the residential house held by him and was situated within the 'lal dora' i.e. the village abadi ; as such the provisions of sections 84, 85, 86 and 86A were not applicable. According to him, these provisions are applicable only to persons who are either claiming as 'bhumidars or asamis' ; and since there can be no declaration or certificate issued under section 85 of the Act with regard to land which is within the 'lal dora', these provisions of the Act are not attracted.
(13) In any case, he contends that even if the provisions of section 86A are applicable, then rule 170 (6) provides for filing of a civil suit and, thereforee, the court had jurisdiction.
(14) In order to appreciate the rival contentions, it is necessary to examine the relevant provisions of the Act and the Rules.
(15) The Act applies to the entire Union Territory of Delhi except as specified in terms of section 1(2). Land as defined in section 3(13) means land held or occupied for purposes connected with agriculture, horticulture, animal husbandry, pisciculture and poultry farming and includes, inter alia, village abadis. Under section 7(1), which is in Chapter Ii, all rights of proprietors in waste lands, pasture lands or lands of common utility, inter alia, abadi sites shall be terminated with effect from the commencement of the Act in accordance with the provisions of section 7(2) of the Act. Under section 7(2), the Deputy Commissioner can pass an order either singly or collectively divesting the proprietors of the rights mentioned in section 7(1) and vesting the Gaon Sabha etc. Section 8, however, clearly specifies that all private wells, trees in abadi and buildings are to be settled with the existing owners and occupiers. The relevant proivision as contained in section 8(1) reads :
'8(1) All private wells in or outside holdings, all tanks, groves and abadis, all trees in abadi and all buildings situate within the limits of an estate belonging to or held by a proprietor tenant or other person, whether residing in the village or not, shall continue to belong to or be held by such proprietor, tenant or person, as the case may be, on such terms and conditions as may be prescribed by the Chief Commissioner.'
Section 9 provides for the Chief Commissioner to make rules for carrying into effect the provisions of Chapter II.
(16) The rule pertaining to section 8 is rule 5 of the Delhi Land Reforms Rules, 1954. It specifically provides for a building, Along with the area appurtenant thereto, to be deemed to be settled with the owner of the building on the terms and conditions set out in the said rules. These provide that the owner shall have a heritable and transferable interest in the site. He shall not be liable to ejectment on any ground whatsoever. He shall have the right to use the site for any purpose whatsoever subject to the existing rights of easement. The succession will be governed by personal law. Only if the building is abandoned and/or the owner dies without any heir the site will revert to the Gaon Sabha. He will not be liable to pay any rent or land revenue to the Gaon Sabha if such revenue was not payable on the date of the commencement of the Act. However, if rent or land revenue had been payable immediately before the commencement of the Act, this will continue to bepaid. The site of the building will be deemed to be settled with the tenure holder on the same tenure as the holding or the grove in which it is situated.
(17) Section 11, in Chapter Iii deals with the declaration of Bhumidhari rights in favor of proprietors and superior class of tenants, compensation and land revenue. It authorises the Deputy Commissioner to take into consideration the entries in the revenue records for this purpose. Section 13 provides for the declaration of certain classes of tenants as Bhumidbars.
(18) Section 84 provides for ejectment of persons occupying land without title. Section 85 deals with the consequences of a failure to file a suit under section 84 or the non-execution of a decree obtained there under within the period of limitation. Section 86DELHI LAND REFORMS ACT, 1954^ deals with the ejectment of a person who becomes a Bhumidhar under the provisions of section 85. Section 86A. which deals with the ejectment by the Revenue Assistant of persons occupying land without title is as follows :
'86A.Notwithstanding anything contained in sections 84, 85 and 86, the Revenue Assistant also may, on receiving information or on his own motion, eject any person who is liable to be ejected from any land on a suit of the Gaon Sabha under any of those sections, after following such procedure as may be prescribed.'
This section was inserted by section 21 of Central Act 38 of 1965. The reason for introduction of section 86A as stated in the statement of 'Objects and Reasons', Gazette of India, Extraordinary Part Ii, Section 2, No. 27, dated 10th May, 1965 is :
'THEGaon Sabhas are responsible for managing and controlling such lands (i.e. common lands) and, in particular, to take steps for removal of encroachments over those lands. Under sections 42, 46 and 81 of the Act, they are also charged with the responsibility of securing the ejectment of persons who acquire lands by transfers in contravention of Chapter Iii of the Act or who divert agricultural lands for non-agricultural purposes. A number of Gaon Sabha have, however, failed to effectively discharge these functions. A large number of encroachments on Gaon Sabba lands and transfers in contravention of the law have come to notice. It has, thereforee, become necessary to invest the revenue authorities also with necessary powers to supplement the efforts of the Gaon Sabhas in removing encroachments on Gaon Sabha lands and ejecting persons who violate the law.'
(19) After the introduction of section 86A in 1965, some of the rules were amended. By virtue of amendment of rule 170, which deals with summary proceedings for ejectment of persons occupying land without title under section 86A, it is clearly provided that if the Revenue Assistant is satisfied that a person is liable to ejectment and is in possession of land otherwise then in accordance with the provisions of the Act, an order for ejectment of such person and every other person in possession through him shall be passed. However, rule 170 (6), clearly provides, 'where an order of ejectment has been passed, the aggrieved person may institute a suit to establish the rights claimed by him but subject to the result of such suit, if any, the order passed shall be conclusive'.
(20) Chapter V deals with Gaon Sabhas and Gaon Panchayats. Section 154 provides for vesting of certain lands specified therein and situate in the Gaon Sabha Area, in the Gaon Sabha. This includes public wells, abadi sites etc. Sections 185 and 186 which are under consideration in this case provide :
(1)Except as provided by or under this Act no court other that a court mentioned in column 7 of Schedule' I shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, take cognizance of any suit, application, or proceedings mentioned in colomn 3 thereof.
(2)Except as hereinafter provided no appeal shall lie from an order passed under any of the proceedings mentioned in column 3 of the Schedule aforesaid.
(3)An appeal shall lie from the final order passed by a court mentioned in column 7 in the proceedings mentioned in column 3 to the court or authority mentioned in column 8 thereof.
(4) A second appeal shall lie from the final order passed in an appeal under sub-section (3) to the authority, if any, mentioned against it in column 9 of the Schedule aforesaid.'
Section 186 is in the following terms :
(1)Notwithstanding anything contained in section 185, if in any suit or proceedings mentioned in column 3 of Schedule I, a question is raised regarding the title of any party to the land which is the subject matter of the suit or proceeding and such question is directly and substantially in issue the Court shall, unless the question has already been decided by a competent Court, frame an issue on the question of the title and submit the record to the competent civil court for the decision of that issue only.
Explanation.-A plea regarding the title to the land which is clearly untenable and intended solely to oust the jurisdiction of the revenue court shall not be deemed to raise a question regarding the title to the land within the meaning of this section.
(2)The civil court, after reframing the issue, if necessary, shall decide such issue only and return the record together with its finding thereon to the revenue court which submitted it.
(3)The revenue court shall then proceed to decide the suit, accepting the finding of the civil court on the issue referred to it.
(4)An appeal from a decree of a revenue court in a suit or proceeding in which an issue regarding title has been decided by a civil court under sub-section (2) shall lie to the civil court which having regard to the valuation of the suit has jurisdiction to hear appeal from the Court to which the issue of title has been referred.
(21) Schedule I, entry 20A in column 2 refers to section 86A and in column 3 refers to proceedings for ejectment of persons occupying land without title. In column 7 it refers to the Court of original jurisdiction as the Revenue Assistant. By virtue of column 8, the first appellate court is the Deputy Commissioner. No second appeal is provided in column 9.
(22) The query that is before me, is, whether in view of sections 185 and 186 of the Act, the civil court bad jurisdiction to decide the question of title, as it has done. Two subsidiary points raised are: (i) whether the respondent could have gone to the civil court for a decision, without first appealing to the Deputy Commissioner against the order under section 86A of the Act and (ii) whether the respondent could file a civil suit to have the question of title decided if the Revenue Assistant failed to frame an issue under section 186 on the question of title.
(23) Before dealing with these matters, it is necessary to refer to two decisions-one of the Supreme Court and the other of this Court-concerning connected provisions.
(24) In Hatti v. Sunder Singh, : 2SCR163 , the Supreme Court was dealing with a matter regarding the declaration of a bhumidhari certificate. In that case, the appellant had been declared a bhumidhar under section 13 of the Act. The respondent filed a suit in the civil court claiming that the bhumidhari certificate issued to the appellant was illegal and he should have been declared the bhumidhar under section 11 of the Act. He also prayed for possession of the land. The issue before the Supreme Court was whether the civil court had jurisdiction to entertain the suit in view of the bar contained in section 185 of the Act.
(25) The Supreme Court held that the reliefs claimed by the respondent were within the competent jurisdiction of the Revenue Assistant as such the civil court had no jurisdiction to entertain the suit. The Act envisaged only three classes of persons with regard to agricultural land-a bhumidhar, an assamior the gaon sabha; proprietors had ceased to exist. thereforee, they could not institute a suit for possession. The Supreme Court laid emphasis on the provisions contained in section 154 of the Act which provides that all lands of proprietors, other than these comprised in their holdings, vest in the Gaon Sabha: thus extinguishing their proprietory rights.
(26) The Supreme Court opined that section 186 envisages that questions of title would first arise before the Revenue Court in suits or proceedings under the first Schedule; and only if such a question arises in competent proceedings pending in a Revenue Court, could an issue be framed and referred to a civil court. This provision did not give jurisdiction to the civil court to entertain the suit itself on the question of title. The jurisdiction of the civil court is limited to deciding the issue of title referred to it by the revenue court. This clearly implies that if a question of title is raised in an application for declaration of bhumidhari rights under item 4 of Schedule I of the Act, that question will then be referred by the Revenue Assistant to the civil court; but a party wanting to raise such a question of title in order to claim bhumidbari rights cannot directly approach the civil court. The Act is a complete code under which it is clear that anyone wanting a declaration of his rights as a bhumidhar, or aggrieved by a declaration issued without notice to him in favor of another, can approach the Revenue Assistant under item 4 of the first Schedule and this he is allowed to do without any period of limitation, because he may not be aware of the fact that the declaration has been issued in favor of another. In case of a dispute as to possession of agricultural land, the remedy has to be sought under section 84 read with item 19 of the first Schedule and, as such, all the reliefs claimed by the respondent were within the competent jurisdiction of the Revenue Assistant and the civil court had no jurisdiction to entertain the suit.
(27) In Gaon Sabha of Lado Sarai v. Jage Ram, (1973) 1 Delhi 984, this Court observed that it is settled law that jurisdiction with reference to the subject matter of the claim, depends upon the allegations in the plaint and not on the allegations in the written statement, But the plaintiff, cannot by merely so drafting his prayers to exclude or include relief which can or cannot be granted by the court, confer jurisdiction on the court to try the suit. It was, thereforee, necessary to consider what the cause of action in the plaint was and what was the substantive relief which the plaintiff would be entitled to if he succeeded in the suit, in order to determine whether the court had jurisdiction, irrespective of what prayers the draftsman had thought fit to put in the plaint. The substance of the relief and not the mere from in the plaint had to be looked at.
(28) After examining the matter, this Court held that as the plaintiff's claim, in substance, was that he had certain bhumidhari rights in the suit land and the vesting order was contrary to law, such a suit could not be brought in a civil court by reason of section 185 of the Act.
(29) Referring to the decision in Hatti v. Sunder Singh, (supra), the Court opined that the aggrieved party must seek his remedy within the four corners of the Act.
(30) The matter before me, is clearly different. The platform or 'chabutra' which is in dispute is alleged to be part of the building, that is, the residential house. Building has not been defined in the Act. The Shorter Oxford English Dictionary defines it. 'That which is built; a structure; edifice'. A 'bhatta' a brick-kiln has been held to be a building by the Allahabad High Court in Devi Prasad v. Ghanshiam Dass and another, 1961 All L J 193. It is not essential for a structure to have a roof to be a building; an auditorium or stadium without a roof would still be considered a building and so would an open 'verandah' or a properly positioned permanent platfrom which is part of a residential house.
(31) In the present case, the respondent has a residential house in the village abadi within the 'lal dora' and a permanent platfrom adjacent thereto. Section 8 of the Act provides that all buildings situate within the limits of an estate belonging to or held by a proprietor tenant or other person, whether residing in the village or not, shall continue to belong to or be held by such proprietor, tenant or person, as the case may be, on such terms and conditions as may be prescribed by the Chief Commissioner. Rule 5 specifically provides that the rights of transfer and inheritance, with regard to a building, is distinct from, the rights of transfer and inheritance for agricultural land; and a building with its appurtenant area will be deemed to be settled with the owner, who will not be liable to ejectment.
(32) Thus, in view of section 8 of the Act and rule .5 of the Rules, it would appear to be apparent, that the building and the area appurtenant thereto is to be settled with the owner of the building; and the permanent platfrom must be deemed to be so settled.
(33) Rules 5 and 170 make it abundantly clear that the proprietor of a building or of land appurtenant thereto has a title in the site and can move the civil court for a decision to establish his rights. Section 86A read with rule 170(6) makes it apparent that the order of the Revenue Assistant is conclusive subject to the result of a civil suit. thereforee, the finality of the decision of the Revenue Assistant is curtailed by the decision of the civil court. This clearly indicates that the aggrieved party has a right to institute a suit to establish the rights claimed by him. A civil court's decision is contemplated. In fact, this is what the respondent Dharam Singh has done.
(34) There is also no provision under section 8 for filing a suit for declaration of title in a building whereas sections 11 and 13 clearly provide for declaration of bhumidhari rights.
(35) It would, thereforee, appear to me, that this matter is quite distinct from the decision of the supreme Court in Hatti v. Sunder Singh (supra) and of the Delhi High Court in Gaon Sabha of Lado Sarai v. Jage Ram (supra), wherein the Supreme Court has held that the Delhi Land Reforms Act is a complete code and the civil court cannot be approached directly; and when a question of title has to be decided, then a reference to the civil court has to be made by the Revenue Court in terms of the sections and rules applicable in that case.
(36) However, in this case, in view of rule 170(6) it is clear, that after the decision of the Revenue Assistant the remedy open to the respondent was to institute a suit. The respondent has followed the procedure of the Act and the rules. Section 185(1) is not a complete bar to a civil suit but provides that no court other than a court mentioned in column 7 of Schedule I shall take cognizance of any suit except as provided for under this Act. The Rules, which are made under the authority of the Act, are deemed to be a part of it and have the same force as if they were included in the statute. Reading the provisions harmoniously, it would appear to me, that the statute contemplates, in a case like this one, that the aggrieved person approach the civil court.
(37) In the present case, the Gaon Sabha filed the suit under section 86A of the Act. The Revenue Officer is the specified court in Schedule 1. After the decision of the Revenue Officer, the respondent could have gone in appeal to the Deputy Commissioner and if the decision was confirmed, he could go to the civil court in view of rule 170 (6). What the respondent has done here is that he has gone straight to the civil court from the decision of the Revenue Officer. Reading the provisions of section 86A and rule 170(6) harmoniously and the scheme of the Act, this short circuiting would not appear to be in violation of the rules or the provisions of the Act.
(38) It would, thereforee, appear to me that the civil court had jurisdiction to decide the question of title in the present case; also the respondent was not debarred from going to the civil court, without appealing to the Deputy Commissioner. Further, in the facts and circumstances of the present case and in view of the scheme of the Act and in particular section 8 and rules 5 and 170(6) of the Rules, the respondent was within his rights to go directly to the civil court without getting the Revenue Assistant to frame an issue under section 186 on the question of title. For the reasons outlined above, I find that there is no merit in the appeal and the same is dismissed with costs.