Delhi District Court
Cs No.814/2012: "Smt.Phoolwati vs Harphool Singh & Ors." Dod: 11.11.2014 on 11 November, 2014
CS No.814/2012: "Smt.Phoolwati V/s Harphool Singh & Ors." DOD: 11.11.2014
IN THE COURT OF VINOD YADAV: ADDL. DISTRICT JUDGEI:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
Civil Suit No.814/2012
In the matter of:
Amended Memo of Parties (Filed on 04.05.2012)
Smt.Phoolwati,
W/o Shri Kali Ram,
R/o Village Roshanpura, Najafgarh,
New Delhi110 043.
.....Plaintiff
(Through Shri R.D Kaushik, Advocate)
Versus
1. Shri Harphool Singh,
2. Shri Chander Singh @ Chand Singh,
3. Shri Dharam Singh,
4. Shri Chatru,
All Sons of Late Shri Mam Chand,
R/o Village Roshanpura, Najafgarh, New Delhi.
.....Defendants
(D1 to D4 Through Shri Joginder Singh Sehrawat, Advocate)
Date of Institution of Suit : 19.07.2011
Date of transfer to this court : 27.08.2012
Date of reserving judgment : 11.11.2014
Date of pronouncement : 11.11.2014
Suit for Declaration, Partition & Perm. Injn. : "Dismissed" Page 1 of 21
CS No.814/2012: "Smt.Phoolwati V/s Harphool Singh & Ors." DOD: 11.11.2014
SUIT FOR DECLARATION, PARTITION AND PERMANENT INJUNCTION
ALONGWITH ADINTERIM RELIEF OF TEMPORARY INJUNCTION
11.11.2014
J U D G M E N T:
This is a suit for declaration, partition and permanent injunction filed by the plaintiff against defendants No.1 to 4 in respect of land comprised in Khasra No.645 min (24), in the revenue estate of village Roshanpura, Najafgarh, New Delhi (hereinafter referred to as the "suit property"). The suit property is conveniently described in red colour in copy of akshijra placed on record by the plaintiff. Initially, the plaintiff had filed the present suit against eight defendants, claiming the other defendants, i.e defendants No.5 and 6 to be owners of land comprised in Khasra No.662/2 (48) and defendants No.7 and 8 to be owners of remaining land of 2 Bighas 8 Biswas in Khasra No.645 min, but on 10.04.2012, on the statement of learned counsel for the plaintiff, the suit was dismissed as withdrawn against defendants No.5 to 8 and as such, the dispute in the matter is confined only to the suit property. Admittedly, defendants No.1 to 4 are the bhumidhars of suit property. As per the case set up by the plaintiff, she purchased the suit property from defendant No.1 on 04.10.1991 for a total sale consideration of Rs.1,50,000/ (Rupees One Lakh Fifty Thousand Only) and defendant No.1 had executed documents like General Power of Attorney (GPA), Affidavit, Receipt and WILL in respect of the suit property in her favour (hereinafter referred to as the "said documents"). On the said documents, defendants No.2 to 4 are claimed to be the attesting witnesses. After purchase of the suit property, plaintiff got recorded Suit for Declaration, Partition & Perm. Injn. : "Dismissed" Page 2 of 21 CS No.814/2012: "Smt.Phoolwati V/s Harphool Singh & Ors." DOD: 11.11.2014 her name in the Khasra Girdawari in respect of suit property for the year 20052006, however, when on 20.01.2011 she again applied for recording of her cultivatory possession in respect of the suit property in Khasra Girdawari, defendants No.1 to 4 objected to the same and Halka Patwari expressed his reluctance in recording the cultivatory possession of the plaintiff on the strength of fact that defendants No.1 to 4 were the bhumidhars of the suit property. Thereafter, in February' 2011 plaintiff received summons from the court of Ld.Civil Judge, Dwarka Court in a suit for permanent injunction filed by defendants No.1 to 4, being CS No.299/2011. She put her appearance therein, but the said suit was dismissed as withdrawn by defendants No.1 to 4 (hereinafter referred to as the "defendants"). Thereafter, it appears that defendant No.1 filed a suit for declaration, cancellation and permanent injunction against the plaintiff, however, the details of the said suit have not been mentioned. Apprehending dispossession from the suit property through the hands of defendants, plaintiff has filed the present suit with the relief of declaration to the effect that she should be declared owner in possession of the suit property; that a decree of partition of entire Khasra No.645 min (4 Bighas 8 Biswas), declaring the share of plaintiff to be half therein, i.e the suit property and decree of permanent injunction, restraining the defendants, their associates, assignees, family members etc., from dispossessing her from the suit property.
2. In the written statement filed by the defendants, the defendants have taken preliminary objection to the maintainability of present suit before this court, being barred U/s 185 of the Delhi Land Reforms Act, 1954 (hereinafter referred to Suit for Declaration, Partition & Perm. Injn. : "Dismissed" Page 3 of 21 CS No.814/2012: "Smt.Phoolwati V/s Harphool Singh & Ors." DOD: 11.11.2014 as the "Act"); that the present suit is not maintainable U/s 41 (h) of the Specific Relief Act, as the plaintiff has an alternative efficacious remedy of filing suit for declaration U/s 85 of the Act as well as for partition U/s 55 of the Act; and that if it is held that this court has the jurisdiction to try the present suit and the suit being not barred under the provisions of the "Act", then this court does not have pecuniary jurisdiction to try the present suit as the market value of the suit property is more than Rs.1,00,00,000/ (Rupees One Crore). On merits, the documents dated 04.10.1991, purportedly executed by defendant No.1 in favour of plaintiff have been termed to be the documents of collateral security for repayment of loan of Rs. 1,50,000/ which was taken by defendant No.1 from the plaintiff and the same was duly repaid, but on account of family relationship with the plaintiff, no receipt from her in this regard was obtained. It has been further stated that the plaintiff surreptitiously got her cultivatory possession recorded in the Khasra Girdawari for the year 200506.
3. Although, the suit was withdrawn against defendants No.5 to 8 by the plaintiff, but their written statements, i.e one behalf of defendants No.5 and 6 and another on behalf of defendants No.7 and 8 had been filed by then and their written statements are relevant to the controversy in hand. The stand of defendants No.5 and 6 in the matter is that they are the owners in possession of area admeasuring 1 Bigha 2 Biswas, out of Khasra No.662/2, which is not the subject matter of dispute in this case and have further stated that they have been using their aforesaid land for agriculture purpose.
Suit for Declaration, Partition & Perm. Injn. : "Dismissed" Page 4 of 21 CS No.814/2012: "Smt.Phoolwati V/s Harphool Singh & Ors." DOD: 11.11.2014
4. The stand of defendants No.7 & 8 in the matter is to the effect that they have been in possession of the remaining portion of Khasra No.645 min, admeasuring 2 Bighas and 4 Biswas and they have been using it as their agriculture holding.
5. In the replication to the written statement of defendants, the plaintiff has reiterated the facts stated by her in the plaint, but has further stated that the suit property is not being used by her as agriculture land and further that she is not claiming bhumidhari rights in respect of the suit property.
6. With these pleadings of the parties, this court vide order dated 09.07.2012 framed the following issues:
(i) Whether the plaintiff is entitled to a decree of declaration, as prayed? OPP.
(ii) Whether the plaintiff is entitled to a decree of partition, as prayed?
OPP.
(iii) Whether the plaintiff is entitled to a decree of injunction, as prayed?
OPP.
(iv) Whether this court has the jurisdiction to try this suit? OPD.
(v) Whether the suit is properly valued for the purpose of court fees and jurisdiction? OPD.
(vi) Relief.
7. I have heard the arguments advanced at bar by Shri R.D Kaushik, advocate, learned counsel for the plaintiff and Shri Joginder Singh Sehrawat, advocate, learned counsel for the defendants and perused the entire material on record. In order to discharge the onus of proving the issues, plaintiff examined herself as PW1 and proved on record the following documents:Suit for Declaration, Partition & Perm. Injn. : "Dismissed" Page 5 of 21
CS No.814/2012: "Smt.Phoolwati V/s Harphool Singh & Ors." DOD: 11.11.2014
(i) Ex.PW1/A1 as the copy of akshijra showing location of suit property (which is not even disputed);
(ii) Ex.PW1/A (Colly) are the documents dated 04.10.1991;
(iii) Ex.PW1/B (Colly) are the Khasra Girdawaris showing cultivatory possession of plaintiff for the years 200506, 201011 and 201112 and the plaintiff having sown vegetables in the suit property, but in the column of "bhumidhar/Tenure Holder", names of defendants have been duly recorded;
(iv) Mark C is the copy of application dated 20.01.2011, filed by the plaintiff in the court of Tehsildar, Najafgarh, interalia requesting him to record her cultivatory possession and issue Girdawari to her in respect of the suit property for the year 20112012 (this application has not been disputed);
8. The plaintiff has examined her husband namely Shri Kali Ram as PW2, who has deposed on the lines of plaintiff. The plaintiff has also examined Shri Rajesh Sharma, Patwari, Najafgarh Tehsil as PW3, who proved the Khasra Girdawaris in respect of the suit property for the year 2000506 till the year 201213 as Ex.PW3/B to Ex.PW3/I. This witness categorically admitted the nature of suit property to be agriculture land and the same being governed by the provisions of the "Act". It was further deposed by him that village Roshanpura has so far not been urbanized and is in the category of "rural village". Suit for Declaration, Partition & Perm. Injn. : "Dismissed" Page 6 of 21 CS No.814/2012: "Smt.Phoolwati V/s Harphool Singh & Ors." DOD: 11.11.2014
9. Whereas, the defendants examined Shri Vimal Rai, Naib Office Kanungo, Najafgarh Tehsil as DW1, who has proved the Khasra Girdawaris in respect of the suit property from the year 199192 to 201011 as Ex.DW1/1 (Colly), interalia consistently showing the defendants to be bhumidhars of the suit land. The defendants examined Shri Subhash Chand, Patwari from Najafgarh Tehsil as DW2, who has proved the Khatoni in respect of suit property pertaining to the year 201213 as Ex.DW2/2 and has further deposed about the nature of suit property to be agriculture and the provisions of the "Act" being applicable to the suit property. He has further deposed about the market rate of the suit property. The defendants have examined Shri Balwant Singh, a covillager of both the parties as DW3, who has deposed in his evidence that the plaintiff has been in possession of the suit property only for the last about 34 years. Defendant No.1 has been examined as DW4, who has proved legal notice dated 06.08.2011 served upon the plaintiff by him as Ex.DW4/1. Defendant No.3 has been examined in the matter as DW5.
10. Therefore, in this case the nature of suit property is very material. It is the admitted case of both the parties that village Roshanpura where the suit property is situated is still a rural village and has so far not been urbanized. In case reported as, "AIR 1983 Delhi 216", titled as, "Nathu V/s Hukam Singh", it was explained that bhumidhari rights are special rights created on the abolition of ownership of agricultural land and are controlled and regulated by the provisions of the "Act". In this case, the Hon'ble High Court also made reference to the decision of Hon'ble Supreme Court in case reported as, "(1970) 2 SCC 841", titled as, "Hati V/s Sunder Singh", which analyzed various provisions of the "Act" and concluded Suit for Declaration, Partition & Perm. Injn. : "Dismissed" Page 7 of 21 CS No.814/2012: "Smt.Phoolwati V/s Harphool Singh & Ors." DOD: 11.11.2014 that "there is no warrant to travel outside the Act and the Rules for further restrictions in the right or manner of transfer of the bhumidhari rights". It was further held that, "The right of transfer of interest by a bhumidhar of his bhumidhari rights in agricultural land is controlled only by the provisions of the Act". The provision of customary law do not apply to transfer of bhumidhari rights. It was categorically held by the Hon'ble Supreme Court that in view of Section 185 (1) of the "Act", the Civil Court would have no jurisdiction to entertain a suit where the plaintiff claims a declaration that he is entitled to bhumidhari rights in respect of land or for possession of the land because the reliefs sought by the plaintiff falls within the competence of the Revenue Assistant.
The Hon'ble High Court in Nathu's case (supra) further referred to the provisions of Section 186 of the Act under which any question raised regarding the title of any party to the land, which is the subject matter of a suit or proceeding under First Schedule, has to be referred to by the Revenue Court to the competent Civil Court for decision after framing an issue on that question. Therefore, Section 186 of the Act envisages that question of title will arise before the Revenue Courts in suits or proceedings under the First Schedule and, only if such a question arises in a competent proceeding pending in a Revenue Court, an issue will be framed and referred to the Civil Court. Such a provision does not give jurisdiction to the Civil Court to entertain the suit itself even on a question of title. The jurisdiction of Civil Court is limited to deciding the issue of title referred to it by the Revenue Court; but a party wanting to raise such a question of title in order to claim bhumidhari right cannot directly approach the Civil Court. The Act is a complete code under which it is clear that anyone wanting a declaration of his right as bhumidhar can approach the Revenue Assistant under Item 4 of the First Schedule Suit for Declaration, Partition & Perm. Injn. : "Dismissed" Page 8 of 21 CS No.814/2012: "Smt.Phoolwati V/s Harphool Singh & Ors." DOD: 11.11.2014 and thus, he is allowed to do without any period of limitation, because he may not be aware of the fact that a declaration has been issued in respect of his holding in favour of another.
The Hon'ble High Court of Delhi has consistently been pleased to hold that the cases of partition and declaration in respect of the holdings of a bhumidhar, as defined in Section 3 (11a) of the "Act" would be filed only before the Revenue Courts, whereas the suit for partition and declaration in respect of the land, as defined under Section 3 (13) of the "Act" in a given case may be filed before the Civil Court (reference case reported as, "149 (2008) DLT 754", titled as, "Raj Kishore Tyagi V/s Radhey Shyam & Ors.").
11. Bearing the aforesaid legal position in mind, I proceed to render my findings on all the issues framed in the matter.
12. Issues No.(i), (ii) & (iv):
(i) Whether the plaintiff is entitled to a decree of declaration, as prayed? OPP.
(ii) Whether the plaintiff is entitled to a decree of partition, as prayed?
OPP.
And
(iv) Whether this court has the jurisdiction to try this suit? OPD.
The onus to prove issues No.(i) and (ii) is upon the plaintiff, whereas the onus to prove issue No.(iv) is upon the defendants. All these issues are being taken up together as the same are interconnected and the findings thereupon would be common. For deciding the aforesaid three issues, the nature of suit property has to be considered. From the pleadings, it is apparent that the suit property is Suit for Declaration, Partition & Perm. Injn. : "Dismissed" Page 9 of 21 CS No.814/2012: "Smt.Phoolwati V/s Harphool Singh & Ors." DOD: 11.11.2014 admeasuring 2 Bighas and 4 Biswas, out of Khasra No.645 min and the remaining 2 Bighas and 4 Biswas out of it is in the cultivatory possession of defendants No.7 and 8. Defendants No.7 and 8 have admittedly been using the said land for agricultural purpose. Even the positive case set up by the plaintiff is that she has been using the suit property for agriculture. In this regard, reference can be had to Mark C, dated 20.01.2011, whereby the plaintiff had approached the Tehsildar of the area for recording her cultivatory possession in respect of the suit property, which according to the plaintiff was resisted by the defendants on the ground that they are the bhumidhar of the suit property. Ex.PW1/B (Colly) clinches the issue with regard to user of the suit property. These are Khasra Girdawaris in respect of the suit property placed on record by the plaintiff herself, showing the user of land as "agriculture". Perusal of Ex.DW1/1 (Colly) further reveals that the suit land till date is being used for agricultural purpose. Same is the position under Ex.DW2/3. Now, let us see what the witnesses have to say in this regard. Plaintiff herself has stated in her crossexamination that she has been using the suit property as "agriculture land", although in the vicinity of the suit property some houses have come up. In her further crossexamination, she has candidly stated that she has been herself performing the agriculture operations over the suit property. It has also been admitted by her that the defendants have already filed a suit for possession, purportedly U/s 84 of the "Act" against her, which is pending disposal in the court of SDM/Revenue Assistant, Najafgarh. She has also admitted that her application seeking mutation of the suit property in her name is also pending in the court of SDM/Revenue Assistant, Najafgarh. Same is the stand of husband of plaintiff as PW2, who has admitted that he has been cultivating the suit property Suit for Declaration, Partition & Perm. Injn. : "Dismissed" Page 10 of 21 CS No.814/2012: "Smt.Phoolwati V/s Harphool Singh & Ors." DOD: 11.11.2014 and getting cultivation of crop recorded in the revenue records after every six months. PW3 Shri Rajesh Sharma, Patwari from Tehsil Najafgarh has clarified the factual position in this regard substantially. He has categorically stated that village Roshanpura where the suit property is situated has so far not been urbanized and is a rural village. He has further stated that the suit property is being used for agricultural purpose and is governed by the provisions of the "Act". To the same effect is the evidence of Shri Subhash Chand, Patwari (DW2), who has categorically stated that the suit property is being used for agricultural purpose and the provisions of the "Act" are applicable to the same. DW2 was not cross examined by the plaintiff on this part of his deposition. It is settled law that where no crossexamination is directed against a part of the statement of a party and goes unchallanged, such part of the statement acquires evidentiary value to a great extent (reference case reported as, "(1978) 14 DLT 216", titled as, "Om Prakash Mangal V/s Bimal Mangal" and case reported as, "AIR 1953 Punjab 440", titled as, "M/s Chunni Lal Dwarka Nath V/s Hartfort Fair Insurance Company Ltd. & Anr.") . The aforesaid evidence coupled with the documents on record, which though have not been proved in evidence, but are in the form of list of urbanized and non urbanized villages in Delhi, as appearing on the official website of Delhi Government clearly show village Roshanpura to be a "rural village" at S.No.243 of the said list. Thus, the nature of suit property is clearly "agricultural". Therefore, if the plaintiff is interested to have a decree of partition in respect of the suit property, then she is required to approach the Revenue Court under appropriate provisions of the "Act". Similarly, if declaration is to be sought based upon documents Ex.PW1/A (Colly), even then U/s 85 of the "Act", the jurisdiction lies Suit for Declaration, Partition & Perm. Injn. : "Dismissed" Page 11 of 21 CS No.814/2012: "Smt.Phoolwati V/s Harphool Singh & Ors." DOD: 11.11.2014 with the competent Revenue Court. The plaintiff is also entitled U/s 22 of the Delhi Land Revenue Act to seek relief of similar nature against the defendants in respect of the "suit property". The learned counsel for the plaintiff has relied upon the following judgments:
(i) Case reported as, "156 (2009) DLT 129", titled as, "Nilima Gupta V/s Yogesh Saroha & Ors.";
(ii) Case reported as, "2009 (159) DLT 729", titled as, "NB (HUF) V/s Perfexa.Sol.Pvt.Ltd".;
(iii) Case reported as, "188 (2012) DLT 589", titled as, "Ashok Kumar & Ors. V/s Munni Devi Y Ors." and;
(iv) Case reported as, "148 (2008) DLT 596 (SC)" titled as, "Rajender Singh V/s Vijay Pal @ Jai Pal & Ors."
13. On the strength of the law laid down in the aforesaid judgments, it is argued that the nature of suit property has changed because at or around the suit property certain houses have come up. There is no issue with regard to the law laid down in the aforesaid judgments, but the said law is not applicable in the facts and circumstances of the present case for the reasons mentioned herein above that the suit property till date is being used for agricultural purpose by the plaintiff and the plaintiff is estopped by her pleadings to argue contrary to what has been stated in the plaint as well as in her evidence. On the contrary, the learned counsel for the defendants has very vehemently argued that the pith and substance of the relief claimed in the matter by the plaintiff is that she wants declaration of her bhumidhari rights in respect of the suit property, which is not permissible under the law before Suit for Declaration, Partition & Perm. Injn. : "Dismissed" Page 12 of 21 CS No.814/2012: "Smt.Phoolwati V/s Harphool Singh & Ors." DOD: 11.11.2014 a Civil Court. The learned counsel for the defendants has placed reliance upon the following judgments to bring home his point.
(i) RSA No.301/2007, titled as, "Rev Singh V/s Rishi Pal & Ors.", decided on 05.05.2011;
I have gone through the said judgment. The said case was though a case of permanent injunction, but the Hon'ble High Court after considering the true nature of litigation came to the conclusion that the plaintiff in that case was actually seeking declaration regarding his bhumidhari rights as he would have become entitled to seek the relief of injunction only if his status as bhumidhar was recognized.
(ii) CS (OS) No.2191/2007, titled as, "Smt.Usha Gupta V/s Shri Subhash Chand Tyagi".
In this case, the plaintiff had filed a suit for possession against the defendants in respect of agriculture land situated at village Shankarpura, Kaushik Enclave, Burari. It was contended in that case that a colony had come up around the suit property in that case and the houses even had municipal numbers thereupon; but the Hon'ble High Court did not give much weightage to the said fact and rather considered the fact that the particular Khasra Number where the suit property was situated was not declared urbanized. The Hon'ble High Court further went on to analyze the provisions of Section 84 and 185 of the "Act" and in view of the law laid down in Hati V/s Sunder Singh's case (supra) came to the conclusion that the remedy of the plaintiff in that case was before the Revenue Court and not before the Civil Court. Paras No.6, 7 and 8 of the aforesaid judgment which are relevant in this regard are reproduced as under:
Suit for Declaration, Partition & Perm. Injn. : "Dismissed" Page 13 of 21
CS No.814/2012: "Smt.Phoolwati V/s Harphool Singh & Ors." DOD: 11.11.2014 xxxxx
6. Section 84(1)(a) of the DLR Act provides that a person taking or retaining possession of land otherwise than in accordance with the provisions of the law, forming part of holding of a Bhumidhar or Asami without the consent of such Bhumidhar or Asami, shall be liable to ejectment on the suit of the Bhumidhar, Asami or Gaon Sabha, as the case may be and shall also be liable to pay damages. Remedy is provided under this Section for ejectment of a trespasser or unauthorized occupant.
7. Section 185 of the DLR Act provides that no court other than 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 column 3 thereof. Article 19 of Schedule I under Section 84 of the DLR Act provides that a suit for ejectment of a person occupying land without title and damages, by a Bhumidhar declared under Chapter III of the DLR Act or by an Asami falling under Section 6 of the Act, where such unlawful occupant was in possession of the land before the issue of the prescribed declaration form, shall be filed within three years from the date of issue of the prescribed declaration form to the tenure holder or the sub tenure holder concerned before the „Revenue Assistant‟.
Appeal against the order of Revenue Assistant lies before the Deputy Commissioner. Thus, it is clear that no suit for ejectment and/or possession in respect of land to which DLR Act is applicable, is maintainable before the Civil Court, as the remedy lies before the „Revenue Assistant‟ in this regard. The jurisdiction of the Civil Court is ousted under Section 185 of the DLR Act.
Suit for Declaration, Partition & Perm. Injn. : "Dismissed" Page 14 of 21 CS No.814/2012: "Smt.Phoolwati V/s Harphool Singh & Ors." DOD: 11.11.2014
8. In Hatti vs. Sunder Singh, AIR 1971 SC 2320, Supreme Court has held that with regard to the suits for possession, under Section 84 read with item 19 of the First Schedule gives jurisdiction to the Revenue Assistant to grant decree for possession and a suit for possession in respect of agricultural land, after the commencement of the Act, can only be instituted either by a Bhumidar or by an Asami or the Gram Sabha and not by any person claiming to be a proprietor because the Act does not envisage a proprietor as such continuing to have rights after the commencement of the Act. The First Schedule and Section 84 of DLR Act provide full remedy for suit for possession to a person who holds right in the agricultural land under the Act.
It has been further observed that the Act is a complete Code under which it is clear that anyone wanting a declaration of his right as a Bhumidhar or aggrieved by a declaration issued without notice to him in favour 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 a declaration has been issued in respect of his holding in favour of another. A declaration by a Gaon Sabha of the right of any person can, thus, be sought without any period of limitation. If there is dispute as to possession of agricultural land, the remedy has to be sought under Section 84 read with item 19 of the First Schedule. All the reliefs claimed by the respondent in the present suit were, thus, within the competent jurisdiction of the Revenue Assistant, and the Civil Court had no jurisdiction to entertain the suit.
xxxxx (underlining which is mine is emphasized) Suit for Declaration, Partition & Perm. Injn. : "Dismissed" Page 15 of 21 CS No.814/2012: "Smt.Phoolwati V/s Harphool Singh & Ors." DOD: 11.11.2014
(iii) RFA No.497/2005, titled as, "Gyanender Singh V/s Narain Singh & Ors.":
This was an appeal before the Hon'ble High Court against the dismissal of a suit for partition and permanent injunction, passed by the Ld.Trial Court, interalia holding therein that the suit was barred U/s 185 of the "Act". The Hon'ble High Court after considering the definition of "land", as defined in Section 3 (13) of the "Act" as well as "holding", as defined U/s 3 (11a) of the "Act", came to the conclusion that the suit property in that case was in the nature of "holding"
and as such suit for partition in respect thereof was maintainable only before the Revenue Court.
In this case as well, the suit property being used exclusively for agricultural purpose by the plaintiff is her holding and the suit for partition in respect thereof is maintainable only before the Revenue Court in terms of this judgment.
(iv) CS (OS) No.427/2006, titled as, "Smt.Pushpa Saroha V/s Shri Mohinder Kumar & Ors.", decided on 16.01.2009:
In this case, the plaintiff had filed a suit for partition, declaration and injunction in respect of agricultural land. The Hon'ble High Court had framed a preliminary issue with regard to maintainability before the Civil Court. The plaintiff after the framing of preliminary issue even deleted the claim of partition by way of amendment, even then the Hon'ble High Court came to the conclusion that the suit was not maintainable before the Civil Court. Para No.18 of the judgment, which is relevant is reproduced as under:Suit for Declaration, Partition & Perm. Injn. : "Dismissed" Page 16 of 21
CS No.814/2012: "Smt.Phoolwati V/s Harphool Singh & Ors." DOD: 11.11.2014 xxxxx
18. The reliefs in the plaint claimed by the plaintiff, are even otherwise directly in the teeth of the bar contained in the Section 185 (Supra). Merely by clever drafting, the provisions of law cannot be defeated.
Schedule 1 to the Act in entry 4 thereof provides for an application for declaration of Bhumidari rights under Sections 10,11,12,13,73,74,79 & 85 to lie before the court of the Revenue Assistant. The relief which the plaintiff is seeking in the present suit is nothing but a declaration of her rights and which in the context of the property subject matter of the suit are Bhumidari rights.
xxxxx (emphasis supplied)
14. In view of the law laid down in the aforesaid judgments, this court is held to have no jurisdiction to grant reliefs of declaration and partition, as claimed for by the plaintiff in this suit and these reliefs are held to be barred U/s 185 (1) of the "Act".
All the aforesaid three issues are decided accordingly.
15. Issue No.(v): Whether the suit is properly valued for the purpose of court fees and jurisdiction? OPD.
The onus to prove this issue is upon the defendants. The learned counsel for the defendants has referred to the provisions of Chapter 3, PartC, Clause8 of the Delhi High Court Rules, which is reproduced as under:
8. Suits for partition of property:
Court fee(a) As determined by the Court Fees Act, 1870.
Suit for Declaration, Partition & Perm. Injn. : "Dismissed" Page 17 of 21 CS No.814/2012: "Smt.Phoolwati V/s Harphool Singh & Ors." DOD: 11.11.2014 Value(b) For the purposes of the Suits Valuation Act, 1887 and the Punjab Courts Act, 1918, the value of the whole of the property as determined by Sections 3, 8 and 9 of the Suits Valuation Act, 1887.
and has contended that for the relief of partition value for the purpose of jurisdiction of this court has to be the market value of the entire estate sought to be partitioned in the present case. He has also relied upon the judgment in case reported as, "AIR 1991 Delhi 280", titled as, "Ramesh Chand Bhardwaj V/s Ram Prakash Sharma", wherein the Hon'ble High Court has been pleased to hold as under:
xxxxx
8. Next argument advanced by counsel for the appellant is that the plaintiff has only 1/6th share in the properties and having regard to the value of his share, admittedly the value of the properties, falling to his share, shall be within the jurisdiction of the trial court as according to him the suit has to be valued on the basis of his share only and cannot be determined with respect to the value of the whole property.
It is settled principle of law that in a suit for partition of the property, as in the present case, the jurisdictional value has to be determined on the value of the whole of the property in accordance with the provisions of R.8 of Chapter 3C of Punjab High Court Rules and Orders, Volume I, framed by the High Court under the powers conferred by the S.9 of the Suits Valuation Act, 1887. In this matter, I am supported by the decision of Prithvi Raj, J in "Jagdish Pershad V/s Joti Pershad", 1975 RajLR 203, wherein it has been held that S.9 of the Suits Valuation Act, 1887 (VII of 1887) envisages that when the subject matter of suit of any class, other than suits mentioned in the Court Fees Act, 1870, Section 7, paragraphs V and VI, and paragraph X, clause (d), is such that in the opinion of the High Court it does not admit of being Suit for Declaration, Partition & Perm. Injn. : "Dismissed" Page 18 of 21 CS No.814/2012: "Smt.Phoolwati V/s Harphool Singh & Ors." DOD: 11.11.2014 satisfactorily valued, the High Court may with the previous sanction of the State Government direct that the suits of that class, shall, for the purposes of CourtFees Act, 1870, and of the Suits Valuation Act and any other enactment for the time being in force; be treated as if their subject matter were of such value as the High Court thinks fit to specify in that behalf. Pursuant to its aforesaid power the Punjab High Court has framed Rule 8 in Chapter 3C of the Punjab High Court Rules and Orders, Volume I, which are applicable to Delhi, providing for the value regarding court fee and jurisdiction which a plaintiff is required to state in the plaint in suits for partition of property. It would, therefore, be seen that so far as value for the purpose of jurisdiction is concerned, for the purposes of Suits Valuation Act, 1887, value of the whole of property, sought to be partitioned, as determined by Sections 3, 8 and 9 of the Suits Valuation Act has to be stated. Accordingly, for the purposes of court fee and jurisdiction, the value of the whole of the property should be taken into consideration."
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16. On the strength of the aforesaid provision and the law laid down by the Hon'ble High Court in this regard, he has referred to the prayer of partition made in this suit by the plaintiff, whereby the plaintiff has claimed partition in respect of the entire land comprised in Khasra No.645 (min), i.e 4 Bighas and 8 Biswas. The learned counsel has placed on record Notification No.F. 1(177)/Regn.Br./Div.Com./07/254279, dated 14.03.2008, issued by the Govt. of NCT of Delhi to emphasize the point that the market value of the total land comprised in Khasra No.645 (min), which is sought to be partitioned in this case was not less than Rs.53,00,000/ (Rupees Fifty Three Lakhs) in any case as on the date of filing of suit. Therefore, this court does not have pecuniary jurisdiction to Suit for Declaration, Partition & Perm. Injn. : "Dismissed" Page 19 of 21 CS No.814/2012: "Smt.Phoolwati V/s Harphool Singh & Ors." DOD: 11.11.2014 try the present suit. Per contra, the argument of learned counsel for the plaintiff is that the relief of partition is only consequential to the relief of declaration and the same would have been pressed by the plaintiff only if this court had come to the conclusion that the plaintiff is entitled to the declaration sought for in this matter. Since, this court has already held that the plaintiff is not entitled to seek the relief of declaration before this court, therefore, even the consequential relief of partition goes alongwith the relief of declaration. Legally speaking, the market value of the property sought to be partitioned is much more than the pecuniary jurisdiction of this court. This court, would even otherwise not have jurisdiction to try the present suit. The issue is accordingly decided against the plaintiff.
17. Issue No.(iii): Whether the plaintiff is entitled to a decree of injunction, as prayed? OPP.
The onus to prove this issue is upon the plaintiff. Since it has already been decided while rendering findings on Issue No.(v) that this court has no pecuniary jurisdiction to try the present suit, this court would refrain from granting decree of permanent injunction in the matter in favour of plaintiff. The issue is accordingly decided against the plaintiff.
18. Issue No.(vi): Relief.
In view of my specific findings on all the issues aforesaid, this court is held to have neither pecuniary jurisdiction nor legal jurisdiction to try the present suit. The suit is accordingly dismissed, reserving the liberty for the plaintiff to approach appropriate Revenue Court for the reliefs in accordance with law. Parties are left to bear their own costs.
Suit for Declaration, Partition & Perm. Injn. : "Dismissed" Page 20 of 21 CS No.814/2012: "Smt.Phoolwati V/s Harphool Singh & Ors." DOD: 11.11.2014
19. It is hereby clarified that this court has refrained from expressing any opinion/finding on the genuineness or otherwise of documents dated 04.10.1991 (Ex.PW1/A Colly).
20. Decree Sheet be drawn accordingly.
21. File be consigned to Record Room.
Dictated & Announced in the (Vinod Yadav)
open Court on 11.11.2014 Addl. District JudgeI/SouthWest
Dwarka District Courts: New Delhi
Suit for Declaration, Partition & Perm. Injn. : "Dismissed" Page 21 of 21