Delhi District Court
Aditya Pratap vs . Rai Singh on 15 April, 2019
Aditya Pratap vs. Rai Singh
IN THE COURT OF SH. VIVEK KUMAR AGARWAL, CIVIL
JUDGE01 (SOUTH) SAKET COURT, NEW DELHI
Civil Suit No: 596320/16
CNR No. : DLCT030002352005
Date of Institution: 28.01.2005
Date of Decision: 15.04.2019
Shri Aditya Pratap,
S/o Late Shri Hari Ram
R/o Village Kanjhawala,
Delhi ...........Plaintiff
Versus
1. Shri Rai Singh,
S/o Shri Amir Singh @ Meer Singh,
r/o 70, Nangli Poona,
Delhi.
2. Shri Sandeep Dabas
S/o Shri Bhagwan Singh Dabas,
R/o V & P.O Chandpur
Delhi.
3. Ajay Kumar
S/o Ram Chander,
R/o V & PO Kanjhawala
Delhi
4. Bhagirath
S/o Shri Man Singh
R/O V & PO Kanjhawala,
Delhi .........Defendants
Page no. 1 of 26
Aditya Pratap vs. Rai Singh
SUIT FOR DECLARATION PERMANENT INJUNCTION
Present: None for plaintiff.
Defendant no. 1 exparte vod 18.02.2005.
None for defendant no. 2 & 3.
None for defendant no. 4.
JUDGMENT:
1. The present suit has been filed seeking declaration of Will dated 03.09.1994 and mutation dated 26.10.1999 bearing file no. M63/60/99 2000 as null and void and seeking permanent injunction restraining the defendants permanently from illegally and forcibly dispossessing the plaintiff from the property comprised in Khasra no. 143/442 (06), 142/396 East (114), 395 West (04) and 5/21 (416), situated in the revenue estate of village Kanjhawala, Delhi (hereinafter called as Suit Property). Plaintiff's version :
2. Succinctly, the case of plaintiff is that he inherited the agriculture land in Village Kanjhawala from his forefathers as being male lenient descendant as per Section 50 of Delhi Land Reform Act (hereinafter called as Act). That agricultural land was initially owned by common ancestors of plaintiff's great grand father namely Sh. Himmat from whom it was succeeded by Ram Nath and Kripa Ram in equal shares and both were declared bhumidars at the commencement of the Act and bhumidari certificate in the form of L.R4 was issued in their names. That Kripa Ram died after commencement of Delhi Land Reform Act and his estate was succeeded by his daughter Smt. Bhagwani and his widow namely Page no. 2 of 26 Aditya Pratap vs. Rai Singh Manbhari in equal shares in the absence of male legal descendant, as he had no son. That, the estate of Shri Kirpa Ram was inherited by Smt. Bhagwani and her mother as a life estate as per Section 51 of the said Act. After the death of widow of Shri Kirpa Ram, estate inherited by her from her husband was reverted back and was mutated in the name of Shri Man Singh, the brother's son of Shri Kirpa Ram. It is further stated that Smt. Bhagwani, daughter of Shri Kirpa Ram died on 07.11.1994, and at the time of her death she was owner / bhumidar of an agricultural estate as inherited by her from her father and now the said Khasra Nos have been changed in place of old khasra numbers. New khasra nos are given during consolidation proceedings bearing Khasra No. 143/442(06), 142/396 East (114), 395 West (04) and 5/21 (416) situated in the revenue estate of village Kanjhawala, Delhi. That the estate so inherited by her as being the daughter of late Shri Kirpa Ram was to be revert back to the male legal heirs of Shri Kirpa Ram i.e. Mansingh and his legal descendants in the male line and plaintiff is one of the legal heir to inherit the estate as being reversioner of estate of Kripa Ram as per provision of Section 50 & 51 of the Act.
3. It is further stated that defendant manipulated and manufactured a fake and frivolous Will dated 03.09.1994, after the death of Smt. Bhagwani in his name and got a mutation sanctioned in his name in the revenue records on the basis of the said bogus Will, however, Smt. Bhawani had never executed any Will during her lifetime. It is further stated that even otherwise Smt. Bhagwani had no right or authority to bequeath the said agricultural estate /property to anyone as per the Act and provisions framed thereunder which is specifically barred under Section 48 Page no. 3 of 26 Aditya Pratap vs. Rai Singh of Act. It is further stated that the Tehsildar made entries in record of right without looking into the provisions of law applicable to the said succession of Smt. Bhagwani Devi who had no right to bequeath the property. That the said property is to revert back after her death to the legal heirs of Shri Kirpa Ram as per Section 50 of the Act and the entries made by Tehsildar in the name of defendant no. 1 are void abinitio and has no value in the eyes of law and the same are liable to be corrected at once.
4. It is further stated that Village Kanjhawala is under consolidation and plaintiff had no knowledge about the entries made in the name of defendant as revenue work of the agricultural property was being looked after by uncle of plaintiff namely Bhagirath Sharma and he had not received any notice or information in respect of said entries and he came to know about the same only on 29.12.2004, when one of his friend got a copy of registered karwahi chakbandi and he informed the plaintiff in this regard. Thereafter, plaintiff enquired the same and approached the respondent, who threatened him to sell the property to prospective buyers. Thereafter, on 23.01.2005, the defendant came to the land in question with some musclemen and tried to dispossess the plaintiff but could not succeed and hence the present suit.
5. It is pertinent to mention that previously the suit was filed against only one defendant namely Rai Singh, who did not appear despite effective service and accordingly was proceeded exparte vide order dated 18.02.2005 and was also restrained from creating any third party interest in the title of the suit property during pendency of the suit vide order of even date. Thereafter, an application under Order I Rule 10 CPC was moved by two persons namely Sandeep Dabas and Ajay Kumar, which was Page no. 4 of 26 Aditya Pratap vs. Rai Singh dismissed vide order dated 06.10.2005 passed by Ld. Predecessor of the court, however, the said applicants were allowed to be impleaded as defendants in the suit vide order dated 09.12.2006 passed by Ld. Appellate court of Sh. M K Gupta, Ld. ADJ, THC, Delhi and the applicants were impleaded as defendant no. 2 and 3 in the present suit. The WS was filed on their behalf. Thereafter, another application under Order I Rule 10 CPC was moved by one person namely Bhagirath, which was allowed by Ld. Predecessor of the court vide order dated 10.03.2010 in view of no objection by counsel for plaintiff. WS was also filed on behalf of defendant no. 4.
Version of defendants no. 2 &3 :
6. In their joint WS, defendant no. 2 & 3 took preliminary objections inter alia that the present suit is not maintainable as the same is barred by law of mis joinder & nonjoinder of parties. It is submitted that the plaintiff clearly knew that the answering defendants are owners in possession of the suit property but he deliberately did not implead them as parties and misguided the Hon'ble Court. It is further averred that the present suit is not maintainable as the same is barred by law of delay and latches and is barred under law of limitation for declaration and permanent injunction. Again that, plaintiff has no cause of action to file the present suit and again that suit is not properly valued as in the garb of present suit, plaintiff is seeking the relief of possession. That suit is barred under DLR Act, as suit property is covered under the said Act.
7. In reply on merits, the pedigree table as mentioned by plaintiff and the succession of property from Himmat Ram to Kripa Ram is not denied. However, it is denied that the estate of Kripa Ram was inherited by Page no. 5 of 26 Aditya Pratap vs. Rai Singh Bhagwani and her mother as a life estate and it is submitted that it was inherited by absolute owner. It is further denied that after death of Bhagwani, property had to revert back to the plaintiff or anyone else. It is further denied that the Will of Bhagwani is manipulated or fake and it is stated that she had executed the same during her lifetime out of love and affection being in complete control of her mental faculties and it was relied upon by revenue authorities. It is further denied that she had no right to execute the Will. All the other averments of plaint are denied and it is further submitted that the defendant no. 1 was already in actual and physical possession of property since prior to 23.01.2005 and therefore on 23.01.2005, there was no question of dispossession of plaintiffs. That on 25.02.2005, sale documents were executed by defendant no. 1 in favour of answering defendants and actual and physical possession on the spot of the suit property was handed over to answering defendants and since then they are in physical possession of the suit property. Accordingly, it is prayed that suit may be dismissed.
Version of defendant no. 4
8. In the WS filed on behalf of defendant no. 4, the facts stated in para no. 1 to 3 of plaint are stated to be matter of record, however, it is denied that the estate of Kripa Ram was succeeded by his daughter Bhagwani and his widow in equal share and rather it is stated that his estate was succeeded by his widow only as per law of succession under Section 50 of DLR Act. It is stated that Smt. Bhagwani being a married daughter does not come in the class of legal heirs under Section 50 of DLR Act and if any mutation was sanctioned in her favour, it was null and void. It is further submitted that whole of the share of Kripa Ram was inherited Page no. 6 of 26 Aditya Pratap vs. Rai Singh by his widow namely Smt. Manbhari, who had executed a gift deed of her share in favour of Late Maan Singh vide gift deed dated 23.09.1958 and accordingly whole share of Late Kripa Ram inherited by his widow was transferred to Late Maan Singh and Bhagwani never remained the Bhumidar of share of Late Kripa Ram and also never remained in possession of the suit property. It is further stated that as she had no right in the suit land, the Will dated 03.09.1994 is null and void and the mutation dated 26.10.1999 on the basis of said Will is also null and void and the transfer made by defendant no. 1 in favour of defendant no. 2 and 3 is also null and void. All the other averments of the plaint are not denied and it is prayed that answering defendant is the legal heir along with the plaintiff to the property of Late Kripa Ram and accordingly it is prayed that decree may be passed in favour of plaintiff and defendant no. 4.
9. In pursuance of WS of defendant no. 2 & 3 and of WS of defendant no. 4, replication were filed on behalf of plaintiff, in which the averments of plaint have been reiterated and allegations of WS have been denied.
10. Subsequently, from the pleadings of the parties following issues were framed vide order dt. 27.01.2012 :
1. Whether the present suit is not maintainable and barred by limitation?(OPD 2 & 3).
2. Whether there is no cause of action to file the present suit? (OPD 2 & 3).
3. Whether the present suit is barred under Section 185 of Delhi Land Reforms Act ? (OPD 2 & 3).
Page no. 7 of 26 Aditya Pratap vs. Rai Singh
4. Whether the plaintiff is entitled for a decree of declaration, as prayed ?(OPP)
5. Whether the plaintiff is entitled for a decree of permanent injunction, as prayed? (OPP)
6. Relief.
11. To prove their case, the plaintiff Aditya Pratap examined himself as PW1 by tendering his affidavit Ex. PW1/A. He was duly cross examined by counsel for defendant no. 4 as well as by counsel for defendant no. 2 & 3. Plaintiff also examined summoned witness Sh. Karan Singh, Office Kanoongo, Kanjhawala, Delhi as PW2, who produced the record of mutation as Ex. PW2/A. Again, one Kanoongo namely Harender Mohan was also summoned who produced certified copy of the summoned record as Ex. PW3/A. Plaintiff examined another summoned witness Sh. A.A.Naiyar, translator who proved the copy of translation of the document Ex. PW3/A as Ex. PW4/1. Lastly, plaintiff also examined Sh. Ram Avtar, Patwari from SDM office Kanjhwala, Delhi as PW5, who produced certified copy of register karwahi chakbandi as Ex. PW5/1. Thereafter, evidence on behalf of plaintiff was closed by counsel for plaintiff vide statement dt. 06.09.2016 and matter was adjourned for DE.
12. On the other hand, defendant no. 3 himself stepped into the witness box and tendered his evidence affidavit and examined as DW1. He relied upon the documents Ex. DW1/1 to DW1/5, Mark A, B & C including the original copy of mutation order, copy of mutation proceedings, fard girdawari, certified copy of GPA, certified copy of registered sale deed, original sale deed, copy of charge sheet and copy of Page no. 8 of 26 Aditya Pratap vs. Rai Singh application for allotment. He was duly crossexamined by counsel for plaintiff. At this stage, an application under Order XVI Rule 1 CPC was moved on behalf of defendant no. 2 & 3 for examining one witness namely Rohit Khurana, which was allowed vide order dated 16.08.2018 and was examined as DW2, who also tendered one document as Ex. DW2/1 and during his crossexamination, he also tendered certain documents, which were taken on record as Ex. DW2/P2 to Ex. DW2/P6 including the copy of invoices and copy of partnership deed. He was also confronted with certain photographs, placed on record as Ex. DW2/P7 (colly). Thereafter, evidence was closed by counsel for defendant no. 2 & 3 vide separate statement dated 30.11.2018. Evidence on behalf of defendant no. 4 was already closed vide court order dated 20.05.2017.
13. No evidence in rebuttal was given on behalf of plaintiff. Arguments advanced by counsel for plaintiff as well as counsel for defendant no. 2 & 3 have been heard. The counsel for defendant no. 4 did not advance any separate arguments and sought to rely upon the arguments advanced by counsel for plaintiff only. File has been carefully and minutely perused and my issuewise findings with reasons thereof are as under : ISSUE No. 1 :
14. The onus to prove this was upon defendants no. 2 & 3. It is argued by ld. counsel for defendants no. 2 & 3 that present suit is barred by limitation on several grounds. Firstly, by way of present suit, the plaintiff has challenged the Will dated 03.09.1994 and mutation dated 26.10.1999 and the limitation for filing suit for declaration was three years and accordingly suit filed in January 2005 is barred by limitation. Secondly, it Page no. 9 of 26 Aditya Pratap vs. Rai Singh is argued that plaintiff/ PW1 has admitted in his crossexamination dated 18.09.2012 that he was aware that after death of Kripa Ram, only his widow namely Manbhari was his legal heir, however as per the case of plaintiff himself, the mutation after death of Kripa Ram was effected in favour of his widow Manbhari as well as in favour of daughter of Kripa Ram namely Bhagwani in the year 1957 and accordingly, by way of present suit the mutation of the year 1957 cannot be challenged and is apparently barred by limitation. In the same line, it is further contended that the plaintiff had not impleaded the present defendant no. 2 and 3 in the suit and they were impleaded only on their own application vide order dated 09.12.2006 passed by the Appellate Court and accordingly, as per Section 21 of Limitation Act, the suit against them is barred by limitation. It is argued that the sale deed executed by defendant no. 1 in favour of contesting defendant no. 3 & 4 dated 25.02.2005 has also not been challenged on behalf of plaintiff despite being aware of the same, when the application for impleadment was moved by defendant no. 3 & 4 and as on date, said sale deed can also not be challenged as being barred by limitation. Lastly, it is argued that the suit of plaintiff is on the basis of a claim of a reversioner and the limitation for filing said suit is 12 years as per Article 65(a) of the schedule to The Limitation Act.
15. On the other hand, it is argued by ld. Counsel for plaintiff that there is no period of limitation for challenging mutation and at best the penalty can be imposed in view of Section 25 of Delhi Land Revenue Act. In this regard, he has relied upon the authority of Shakuntala Devi v. FCI Page no. 10 of 26 Aditya Pratap vs. Rai Singh & Ors.1 passed by Hon'ble High Court of Delhi.
16. Heard. Let me advert to the aspect of limitation on each ground as raised on behalf of contesting defendant no. 2 & 3 one by one. Coming to the first contention, it is to be observed that as per case of plaintiff, as stated in para no. 16 of the plaint, he came to know about the mutation entry in question only on 29.12.2004, when one of his friend got a copy of register karwahi chakbandi and then he informed the plaintiff about the said mutation, which was effected on the basis of a Will. Now, except making a bald averment, the plaintiff has not led any evidence to prove said version. Neither such friend was examined before the court to support the case of plaintiff nor any other oral or documentary evidence was led to establish that plaintiff came to know about said mutation entry and the Will in question only on 29.12.2004 and was not aware about the same before the said date. As per the version of plaintiff, his uncle namely Bhagirath was taking care of his agricultural property and therefore, he was not aware about the entries in revenue record, however, the plaintiff even failed to examine said uncle namely Bhagirath before the court to support his version. Undoubtedly, the burden was upon the plaintiff only to prove that his case is within the period of limitation, however, plaintiff has completely failed to discharge said burden. Regarding the authority of Shakuntala (Supra) relied upon by counsel for plaintiff, it is to observe that Hon'ble High Court of Delhi was not apprised of the authority of Hon'ble Apex Court titled as Shyam Lal @ Kuldeep vs Sanjeev Kumar & Ors dated 15 April, 2009, wherein the declaration was sought for a mutation 1 161 (2009) DLT 300.
Page no. 11 of 26 Aditya Pratap vs. Rai Singh entry to be null and void and suit was held to be barred by limitation upto Hon'ble Apex Court, with the observations that the period of limitation for seeking declaration of a mutation entry as null and void was only three years as provided under Article 58 of the Schedule to the Limitation Act. Accordingly, said authority is not of any help to the plaintiff.
17. Now coming to second contention raised on behalf of ld. Counsel for contesting defendants, it is to observe that by way of present suit, the plaintiff has challenged the Will executed by Bhagwani dated 03.09.1994 and mutation dated 26.10.1999 and has not sought any relied qua the mutation in favour of Bhagwani in the year 1957 and has also not sought any relief qua sale deed executed by defendant no. 1 in favour of defendant no. 2 & 3 dated 25.02.2005. It is the claim of plaintiff only that mutation was wrongly effected in favour of Bhagwani in the year 1957, as she was not entitled for inheritance as being a married daughter of Kripa Ram but only Manbhari, who was widow of Kripa Ram was entitled to inherit the estate of Kripa Ram as per Section 50 of the Act. Accordingly, the right of Bhagwani to execute the Will, if any, was only on the basis of said mutation entry but surprisingly the plaintiff has not challenged the same. Undoubtedly, even if suit of plaintiff is decreed for the relief of declaration qua Will in question and the mutation entry of the year 1999 and no order is passed qua said mutation entry of the year 1957, there will be an ambiguous position to the effect that on the one hand, right of Bhagwani in the suit property will be there in revenue record as being successor of Kripa Ram and at the same time, her right to transfer the said property by way of Will and subsequent mutation would be declared as null and void.
Page no. 12 of 26 Aditya Pratap vs. Rai Singh
18. It appears that plaintiff has cleverly omitted the relief regarding mutation in the year 1957 as being well aware that said relief would be apparently barred by limitation. This finding is corroborated by the very fact that the plaintiff has even failed to save his suit within the limitation qua relief of Will in question and mutation entry of the year 1999, as discussed above.
19. Similarly, the plaintiff has also failed to explain why he has not challenged the sale deed dated 25.02.2005 executed by defendant no. 1 in favour of contesting defendant no. 2 & 3. As reflected from the file, the defendant no. 2 & 3 had moved an application under Order I Rule 10 CPC at the very initial stage of suit on 19.03.2005 and in the said application, they had clearly mentioned about purchase of the suit property from defendant no. 1 vide sale deed and power of attorney dated 25.02.2005. Undoubtedly, after sale of suit property in favour of defendant no. 2 & 3, they were necessary parties to the suit and rather plaintiff should have taken steps to implead them after being aware of said sale deed. But on the other hand, said application was hotly contested by the plaintiff and it was only in pursuance of order dated 09.12.2006 passed by Ld. Appellate Court that present contesting defendants were impleaded as a party to the suit. After impleadment of defendant no. 2 & 3, plaintiff was required to amend his plaint in view of provision of Order I Rule 10(4) CPC, however, plaintiff did not make any effort for amendment of plaint and also did not seek any relief qua sale deed in question dated 25.02.2005. It is important to observe that declaration or cancellation of sale deed is certainly a consequential relief to the relief of declaration sought by plaintiff and therefore, omission of seeking said relief on part of plaintiff is fatal to his Page no. 13 of 26 Aditya Pratap vs. Rai Singh case. In this regard, I also rely upon the authority of Hon'ble Apex Court titled as Md. Nurul Hodda Vs. Bibi Raifunnisa & Anr.2 wherein this aspect has been illumined as follows: "...When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled, or set aside or rescinded. Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or avoidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled..."
20. Again, reliance can be placed upon the observations of Hon'ble Delhi High Court in case of Smt Razia Begum vs Delhi Development Authority & Anr. on 9 September, 2014, as follows:
"95. Despite knowledge of the registered conveyance deed in favour of defendant no.4, the plaintiff has deliberately sought no prayer in respect thereof. The proviso to Section 34 of the Specific Relief Act mandates that no court shall make any such declaration where the plaintiff, being able to
2. (1996 (7)SCC 767).
Page no. 14 of 26 Aditya Pratap vs. Rai Singh seek further relief than a mere declaration of title, omits to do so."
21. In this regard, one submission was also made by counsel for plaintiff that said sale deed was void abinitio as being hit by the doctrine of lispendence as provided under Section 52 of TPA, however, said contention is misconcieved. In this regard, reference is made to the observations of Hon'ble Apex Court in case of Vinod Seth vs Devinder Bajaj & Anr on 5 July, 2010, wherein it was observed as follows:
"It is wellsettled that the doctrine of lis pendens does not annul the conveyance by a party to the suit, but only renders it subservient to the rights of the other parties to the litigation. Section 52 will not therefore render a transaction relating to the suit property during the pendency of the suit void but render the transfer inoperative insofar as the other parties to the suit. Transfer of any right, title or interest in the suit property or the consequential acquisition of any right, title or interest, during the pendency of the suit will be subject to the decision in the suit."
22. Accordingly, only on the basis of lispendence transfer, the sale deed dated 25.02.2005 cannot be a void document. Another plea raised on behalf of plaintiff is that there was an order of stay dated 18.02.2005 upon defendant no. 1 from creating any third party interest in the title of the suit property, however, said plea also does not help the plaintiff as it is no where pleaded that the contesting defendant no. 2 & 3 were aware of said order and accordingly, they are to be presumed as bonafide purchasers Page no. 15 of 26 Aditya Pratap vs. Rai Singh only and it was only at the behest of plaintiff that sale deed in question should have been challenged. Besides this categorical admission, I would like to refer to Section 3 of the Transfer of Property Act, 1882, which provides that when "a person is said to have notice". As per this definitional clause in Section 3 of the Transfer of Property Act, 1882, a person is said to have a notice of a fact when he actually knows that fact, or when, but for willful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation 1 to this definitional clause provides that where there is a transaction related to immovable property by a registered instrument, then acquiring of interest in such property shall be known to the world at large by means of a deemed notice on the registration of such instrument before the SubRegistrar.
23. Now as the plaintiff became well aware of the sale deed in question in the month of March 2005 or latest in the month of April 2005, the limitation to be challenged the sale deed in question of three years as provided under Article 58 of Limitation Act has already expired long way back and accordingly said relief has become time barred.
24. The effect of said omission for seeking relief of declaration or cancellation qua sale deed in question is very vital. In this regard, reference is made to the authority of Delhi High Court titled as Sh. Mukhinder Singh (Deceased) ... vs Sh. Gurbux Singh & Ors. on 2 February, 2012, wherein it was observed as follows:
"Therefore, the allegedly voidable sale deed dated 3.12.1960 (having been executed by the society, and not Page no. 16 of 26 Aditya Pratap vs. Rai Singh being challenged by the society) has the conclusive effect of transfer of title in favour of defendant No.1/respondent No.1 since the same was not challenged within a period of 3 years under Article 59. The effect therefore is of barring the plaintiffs from challenging the sale deed 3 years after the knowledge was derived by the appellants/plaintiffs of the sale deed.
If no challenge is laid, and no relief is claimed, surely, the Court cannot grant such relief which legally is barred, and once no such relief can be claimed or granted, and thus the sale deed dated 3.12.1960 stands, surely title/ownership of the suit property would be of the defendant no.1/respondent no.1. This is because it cannot be that a sale deed of a property can exist by which title is of the defendant no.1/respondent no.1 in law (and hence he is the owner), yet, someone else can claim an ownership and claim possession of the property."
25. Accordingly, in view of this legal position, the present suit of plaintiff itself is not maintainable. There cannot be such position that a sale deed of property can exist by which title of defendant no. 2 & 3 is there, however, at the same time, the plaintiff is declared the owner of said property. The plaintiff for the reasons best known to him did not make any effort for amendment of plaint and to seek the relief of cancellation of the sale deed dated 25.02.2005 and now said relief has also become barred by limitation.
Page no. 17 of 26 Aditya Pratap vs. Rai Singh
26. Again as discussed above, suit of plaintiff is also barred by limitation on several other grounds. Consequently, issue no. 1 is decided against the plaintiff and in favour of defendants to the effect that suit of plaintiff is not maintainable and again is barred by limitation. Issue no. 2
27. The onus to prove this issue was upon the defendant no. 2 & 3 and it is argued by ld. counsel for defendant no. 2 & 3 that as per para no. 21 of the plaint, the cause of action arose only on 23.01.2005, when allegedly the possession of plaintiff was interfered and accordingly, the plaintiff is not aggrieved with the mutation entry of the year 1957 or of execution of the Will in the year 1994 and is also not aggrieved with the mutation entry of the year 1995 and also not with the sale deed dated 25.02.2005. It is argued that for omission of challenging the mutation of the year 1957 and also for challenging the sale deed in question, the plaintiff has no cause of action in the present suit. It is further contended that as per Section 50 of DLR Act itself, the property could revert back only to the grand son of Kripa Ram or his brother namely Ram Nath but the plaintiff is a great grandson of Ram Nath and therefore has no right to inherit the suit property even as per Section 50 of DLR Act. Lastly, it is submitted that even if for sake of arguments, it is taken that the mutation was wrongly effected in the name of Bhagwani in the year 1957, she became bhumidar of the suit land as per Section 85 of the Act for no suit under Section 84 of the Act was ever filed by Gaon Sabha for her eviction and then her status was not of a successor but of a bhumidar and then Section 53 of DLR Act comes into picture which entitles the defendant no. 1 to inherit the suit property. In this regard, reliance is also placed upon the Page no. 18 of 26 Aditya Pratap vs. Rai Singh authority of Mr. Romesh Bhardwaj v. Lt. Governor of Delhi & Ors. dated 12.12.2003 by Hon'ble High Court of Delhi and also on authorities pertaining to UP Zamidari Abolition and Land Reform Act, including (i) Ram Kumar v. Board of Avenue3, (ii) Ramji Dixit (D) by his LRs v. Bhirgunath & Ors.4, (iii) Bishvanath Pandey v. Badami Kaur & Ors. 5. In this regard, it is contended that as UP Zamidari Act is the parent Act of DLR Act, and pari materia, these authorities are also applicable to the facts of the present case. Ld. Counsel for defendant no. 2 & 3 has further argued that even otherwise by application of Section 14(2) of Hindu Succession Act, the property in the hands of Bhagwani became her absolute property and not subject to any condition of life estate and in this regard reference is also made to authority of (i) Monomoyee Barmani v. Upeswari Barmani6, (ii) Jai Ram Devi v. Tota Ram7.
28. On the other hand, it is argued by counsel for plaintiff that as per Section 50 of DLR Act, the property could not devolve upon Bhagwani but only on widow of Kripa Ram namely Manbhari as a life estate and accordingly, the mutation in favour of Manbhari in the year 1957 was wrong and against the provision of law. It is argued that before amendment of 2005, Hindu Succession Act was not applicable to the succession governed by Section 50 of DLR Act, as per the exception provided under Section 4 of HSA. In this regard, reliance is also placed upon the land
3. 1982 ALL L.J. 1405.
4 AIR 1968 SC 1058.
5 AIR 1980 SC 1329.
6 AIR 1994 Gau. 18.
7 AIR 1961 Punj. 395.
Page no. 19 of 26 Aditya Pratap vs. Rai Singh mark authority of Ram Mehar v. Mst. Dakhan8 and also upon authority of Nirmala & Ors. v. GNCT & Ors. decided on 04.06.2010 by Hon'ble High Court of Delhi, wherein the position was again made clear on this aspect. It is further argued that the Will in question is a fake document and has not been proved by the defendants in any manner and one witness was procured on behalf of contesting defendants in this regard, who was examined as DW2, however, from the crossexamination of said witness, it is very clear that he was not aware about the execution of Will in question and was an interested witness. It is further contended that the mutation of the year 1999 is also not valid as no notice of the same was issued to plaintiff or his father, which is against the provision of law and in this regard reliance is also placed upon the authority of Suraj Bhan & Ors. v. Financial Commissioner & Ors.9. Accordingly, it is argued that as the possession of defendant was interfered only on 23.01.2005, present suit has been filed for injunction.
29. Heard. Let me advert to the contentions raised on behalf of Ld. Counsel for contesting defendants one by one. Regarding the reliance on the authorities pertaining to UP Zamidari Abolition Act, it is to be observed that said contention of counsel for contesting defendants is mis conceived. Though, the said Act is parimateria to the DLR Act, however, the applicability of said Act with respect to succession provided under Hindu Succession Act is entirely different than the application of DLR Act. Said distinction was clearly observed by Hon'ble High Court of Delhi 8 1973 (9) DLT 44.
9 (2007) 6 SCC 186.
Page no. 20 of 26 Aditya Pratap vs. Rai Singh in case of Ram Mehar (Supra) as follows:
"There is no material difference between the Bhumidari rights under the Uttar Pradesh Act and the Bhumidari rights under the Delhi Land Reforms Act. However, in the case of U.P. Act it was also held that the Central Legislature had no power to make an enactment because the law in relation to this subject had to be passed by the State Legislature. This position did not hold true in the case of Delhi, as the Central Legislature did have power to make laws with respect to part 'C' States. Delhi was a part 'C' State in 1956 and thus there was no bar to the Hindu Succession Act applying to agricultural land, as was the case in relation to Part 'A' or Part 'B' States. At the relevant time in 1956, the Central Legislature and the Delhi State Legislature had concurrent legislative powers over many of the subjects contained in the State List, in the Seventh Schedule of the Constitution. Therefore, the question whether Bhumidari rights are tenancy has to be determined with reference to the various provisions of the Delhi Land Reforms Act itself."
30. Accordingly, the law on this aspect is to be governed by the authority of Ram Mehar (Supra) as further reiterated in the authority of Nirmala (Supra) only. In the said authority, it has been made clear that before amendment of 2005 in Hindu Succession Act, the agricultural property being property of Bhumidar will devolve as per Section 50 of DLR Act only. In this regard, the relevant part of observation of Hon'ble Page no. 21 of 26 Aditya Pratap vs. Rai Singh High Court of Delhi is reproduced herein as follows:
"In view of the conclusion that the Delhi Land Reforms Act provides for the prevention of the fragmentation of agricultural holdings and also, at the material time fixed ceilings on agricultural holdings and also dealt with the devolution of tenancy rights on such holdings, it must be held that this law is saved by Section 4(2) of the Hindu Succession Act and is not repealed by the provisions of the Hindu Succession Act. This would mean that the rule of succession governing Bhumidars is to be found in section 50 of the Delhi Land Reforms Act and not in the Hindu Succession Act, 1956."
31. Said position was reiterated by Hon'ble High Court in case of Nirmala (Supra). Accordingly, it is very clear that the succession of the suit property was to devolve as per Section 50 of DLR Act only. Now as succession for the first time had opened in the year 1957 and as per Section 50 of DLR Act, the property was to devolve only upon widow of Kripa Ram after his death and not upon his married daughter namely Bhagwani but whatever the scenario may be, it is a matter of record that the mutation was sanctioned in favour of Bhagwani in the year 1957 by the revenue authorities and thereafter, it remained unchallenged. Said fact has made a complete distinction for applicability of Section 50 of DLR Act, as I am duly satisfied with the contention of counsel for defendants that the status of Bhagwani had converted into a bhumidar, as no suit for eviction was filed by Gaon Sabha as provided under Section 84 of the Act. For better understanding, the provision of Section 84 & 85 of DLR Act are Page no. 22 of 26 Aditya Pratap vs. Rai Singh reproduced for ready reference as follows:
"Section 84 Ejectment of persons occupying land without title (1) A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, anda) where the land forms part of the holding of a Bhumidhar or Asami, or b) where the land does not form part of the holding of a Bhumidhar or Asami without the consent of the Gaon Sabha, 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.
Section 85 Failure to file suit under Section 84 or to execute obtained thereunder If a suit is not brought under Section 84 or a decree obtained in any such suit is not executed within the period of limitation provided for filing of the suit or execution of the decree, the person taking or retaining possession shall
i) where the land forms part of the holding of a Bhumidhar, become a Bhumidhar thereof;
ii) where the land forms part of the holding of an Asami on behalf of the Gaon Sabha, become an Asami thereof;
iii) in any case to which the provisions of clause (b) of (sub section (1) of Section 84) apply, become a Bhumidhar or Asami as if he had been admitted to the possession of the land by the Gaon Sabha."
Page no. 23 of 26 Aditya Pratap vs. Rai Singh
32. Now, as per schedule 1 prepared under Section 185 of DLR Act, period of limitation to file a suit for ejectment is 3 years. Now, the next question for application of said provision is whether the possession of suit property was with Bhagwani or with the plaintiff. As per the case of plaintiff, he is in possession of suit property, as pleaded in para no. 18 of the plaint and accordingly, permanent injunction has been also sought restraining the defendants from interfering in possession of plaintiff in the suit property. However, the plaintiff has failed to lead any substantial evidence to prove his possession in suit property. The revenue record summoned on behalf of the plaintiff i.e. Ex. PW3/A and as reflected from its translation i.e. Ex. PW4/A, it only provides about succession of suit property after death of Kripa Ram s/o Himmat. There is no other document to establish the possession of plaintiff in the suit property. Again, the plaintiff also failed to lead any oral evidence by examining any neighbourers or the villagers to prove if he was in possession of suit property. Even the plaintiff failed to examine Sh. Bhagirath, who was allegedly looking after the said property. On the other hand, regarding the possession of Bhagwani, it is to be observed that there is presumption of law in her favour to the effect that possession follows the title. In this regard, reliance can be also placed upon the very old authority of Privy Council dated 24.03.1931, titled as Bhupender Narayan Sinha v. Rajeswar Prosad10. Once, it is established that the title of the suit property had passed in favour of Bhagwani, presumption of law is there that possession of suit property was with her only. Same is further corroborated 10 AIR 1931 PC 162.
Page no. 24 of 26 Aditya Pratap vs. Rai Singh from the contents of sale deed dated 25.02.2005 i.e. Ex. DW1/5, wherein in clause no. (2) of the sale deed at page no. 3, it has been mentioned that vendor had handed over the actual, physical and vacant possession of suit property to the vendees and vendees had occupied the same. Consequently, the application of the provision of Section 84 of the Act in the given facts cannot be in question and the conclusion is that as there was no suit against Bhagwani filed by Gaon Sabha from 1957, when mutation was effected in her favour, she became bhumidar of suit land as per provision of Section 85 of DLR Act.
33. Accordingly, I am of the view that as Bhagwani herself became bhumidar of suit land, the succession of her property has to devolve as per Section 53 of DLR Act and consequently upon defendant no. 1 or his brothers, as provided under Section 53(1) of the Act. Now, even if the Will in question is not a genuine document, the plaintiff has no right to challenge the same but only the brothers of defendant no. 1, who had right to inherit the said property as per Section 53 of DLR Act.
34. In view of aforesaid discussion, I am of the considered and confirmed view that plaintiff has no cause of action to file the present suit and consequently, issue no. 2 is decided against the plaintiff and in favour of defendants.
Issue no. 3
35. The burden to proof this issue was upon the defendant no. 2 & 3. However, said issue was not pressed by counsel for defendant no. 2 & 3 during arguments at Bar. Moreover, suit for declaration is covered under Entry 28 of Schedule I of the Act which provides for a suit under Section 104 of the Act. Now, Section 104 deals with a suit filed by Gaon Sabha, Page no. 25 of 26 Aditya Pratap vs. Rai Singh which is not in the present case. Accordingly, the issue no. 3 is decided against the defendants.
Issue no. 4 & 5
36. Both the issues are interconnected are taken up together for consideration. As discussed in the findings of issues no. 1 & 2, the suit of plaintiff is not maintainable and is also barred by limitation. Again plaintiff has no cause of action to file the present suit. Accordingly, plaintiff is not entitled to any relief of injunction. Both these issues are decided against the plaintiff and in favour of defendants.
Issue no. 6 Relief
37. In view of findings of all the above issues, suit of plaintiff is hereby dismissed with costs.
38. Decree sheet be prepared accordingly and file be consigned to Record Room after due compliance.
Pronounced in open court: (Vivek Kumar Agarwal) Dated: 15.04.2019 CJ01, Saket Courts, South Delhi Note : This Judgment contains twenty six pages and all the pages have been checked and signed by me.
Digitally signed by VIVEK (Vivek Kumar Agarwal)
VIVEK KUMAR
CJ01, Saket Courts, South Delhi
KUMAR AGARWAL
Date:
AGARWAL 2019.04.15
16:10:51 +0530
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