Delhi District Court
Cs No.1739/2013: "Smt.Angoori Devi vs Gaon Sabha, Daulatpur" Date Of Order: ... on 12 March, 2014
CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014
IN THE COURT OF VINOD YADAV: ADDL. DISTRICT JUDGEI:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
Civil Suit No.1739/2013
UID No.: 02405C0031532013
In the matter of:
Smt.Angoori Devi,
W/o Shri Dharambir,
R/o 105, Harizan Basti,
Village Kanganheri, Delhi.
.....Plaintiff
(Through Shri R.D Vats, Advocate)
Versus
Gaon Sabha, Daulatpur,
Through BDO, Najafgarh,
District SouthWest,
Kapashera, Delhi.
.....Defendant
(Thru Shri S.S Dalal, Advocate)
Date of Institution of Suit : 13.02.2013
Date of transfer to this Court : 13.05.2013
Date of reserving judgment : 12.03.2014
Date of pronouncement : 12.03.2014
Order on Preliminary Issue: "Suit Dismissed" Page 1 of 26
CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014
SUIT FOR PERMANENT INJUNCTION
12.03.2014
J U D G M E N T:
Today the matter is listed for consideration on review application as well as preliminary issue No.(iv) framed by this court. Before adverting to consider the review application as well as preliminary issue, it would be appropriate to have a brief scrutiny of the facts of this case. This is a suit for permanent injunction simplicitor. The plaintiff claims himself to be in exclusive cultivatory possession of land comprised in Khasra Numbers 1/23/ (416), 18/20/2 (212), 19/16 (217), 27/23 (412), 27/24/2 (016), 28/4 min. (west) (203), 28/7 min (east) (216) 28/8 (416), 28/9 (416) 28/10 (416), 28/11/1 (312), 28/12/1 (312), 28/13 (414), 28/17 (107), 28/18/1 (202), 29/6 (416), 29/11/2 (302), 29/15 (416), 29/16/1 (20), 29/16/2 (212), 29/17 (510), 29/20 (312), 29/21/1 (303), 29/24/1 (108), 29/25/1 (108), 30/25/2 (109) and 34/5/1 (30), situated in the revenue estate of village Daulatpur, Delhi (hereinafter referred to as the "suit land").
2. Admittedly, the suit land was allotted to several landless persons from weaker sections of society from Daulatpur, by Pradhan of the village. The allottees after allotment of the suit land made the same cultivable and as per the plaintiff they mortgaged the same with him for some amount. The allottees had handed over the possession of suit land to the plaintiff at or around December' 1995, pending discharge of their financial liability towards him. Order on Preliminary Issue: "Suit Dismissed" Page 2 of 26 CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014
3. Thereafter, the plaintiff filed various suits before the court of Ld.Revenue Assistant/SDM, Kapashera, U/s 85 of Delhi Land Reforms Act, 1954 (hereinafter referred to as the "DLR Act") seeking declaration, declaring him to be bhoomidar in respect of the suit land, whereas, the Ld.SDM/Revenue Assistant initiated proceedings U/s 86 (A) of DLR Act against him for his ejectment from the suit land and an ejectment order was passed against him. Against the said ejectment order dated 28.05.2007, plaintiff preferred an appeal before the Deputy Commissioner (SouthWest), being Appeal No.102/2007. The said appeal was dismissed by Ld.Deputy Commissioner on 30.10.2012. Against the said order, plaintiff has already filed a Revision Petition before the Ld.Financial Commissioner, which is pending consideration and no stay has been granted to him by the said Court.
4. During the pendency of aforesaid revision, the plaintiff has an apprehension that the possession of suit land would be taken away by the Gaon Sabha and as such, he has filed the present suit seeking decree of permanent injunction, restraining the defendant, i.e Gaon Sabha, Village Daulatpur from interfering in his possession and enjoyment of the suit land and committing any nuisance there.
5. Gaon Sabha has filed written statement, interalia taking the preliminary objections that the suit is not maintainable for want of Notice U/s 99 of Delhi Panchayat Raj Act, 1954; that the suit is bad for want of impleadment of Union of India U/s 161A (a) of DLR Act; that the suit is without any cause of action as the possession of suit land has already been taken over by the defendant Order on Preliminary Issue: "Suit Dismissed" Page 3 of 26 CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014 on 01.11.2012 through proper documentation; that the suit is bad for nonjoinder of necessary parties, i.e allottees of the suit land; that the plaintiff is neither the bhoomidar nor the Assami in respect of suit land and as such, has no right, title or interest therein; and that this court has no jurisdiction to try the present suit being barred U/s 185 of DLR Act as the nature of suit land is agricultural and in the garb of injunction, the plaintiff is seeking declaration of his bhoomidari rights, which litigation he has already lost in competent revenue court.
6. On merits, it has been specifically denied that the plaintiff is in physical possession of any part of suit land and it has been specifically stated that he was duly ejected from the suit land on 01.11.2012. It is further stated that the allotment of suit land to even the allottees was not in accordance with the procedure established under the law and as such, no right, title or interest even to the allottees stood transferred in respect of the same. It has been further stated that even if it is presumed for the sake of arguments that the allotment was proper, even then the allottees did not have any right to transfer the same by way of mortgage to the plaintiff. It is the specific stand of defendant that the plaintiff was found in illegal possession of suit land and as such, proceedings U/s 86A of DLR Act were legally initiated against him and possession of the suit land was duly received by Gaon Sabha. It is further clarified that in the revision pending in the court of Ld.Financial Commissioner, there is no stay order passed in favour of plaintiff. The present suit has been termed to be an abuse of the process of court by the plaintiff.
Order on Preliminary Issue: "Suit Dismissed" Page 4 of 26 CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014
7. In replication, the plaintiff has denied the averments made in the written statement and has reiterated the ones made by her in the plaint.
8. On the basis of aforesaid pleadings of the parties, this court vide order dated 03.07.2013 had framed the following issues, out of which issue No.(iv) was treated as "preliminary issue".
(i) Whether the present suit is barred for want of Notice U/s 99 of Delhi Panchayat Raj Act, 1954? OPD.
(ii) Whether the present suit is bad for nonjoinder of necessary parties? If so, its effect? OPD.
(iii) Whether the present suit is without any cause of action, as the land in question has already been taken over by the Government? OPD.
Preliminary Issue:
(iv) Whether the suit is not maintainable in the present form in view of the law laid down by the Hon'ble Supreme Court in cases reported as, "AIR 2008 SC 2033", titled as, "Anathulla Sudhakar V/s P. Bucha Reddy"; "JT 1995 SC (3) Page 563", titled as, "Muralidhar Dayandeo Keshar V/s Vishwanath Pandu Barde & Anr." and; "107 (2003) DLT Page 726", titled as, "Pawan Kumar & Ganga Bishan Gupta V/s Financial Commissioner, Delhi"? OPD.
Prior thereto, the application U/o 39 Rule 1 & 2 CPC filed in the matter by the plaintiff was dismissed by this court vide order dated 16.03.2013, primarily on the ground that there was a cloud upon the right and title of plaintiff in respect of the suit land and as such, suit simplicitor for injunction was not maintainable. This court also considered the fact that the allottees were not entitled Order on Preliminary Issue: "Suit Dismissed" Page 5 of 26 CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014 under the law to transfer the possession of suit land to the plaintiff. Lastly, this court also appreciated the fact that possession of suit land also stood taken by the defendant on 01.11.2012 and as such, the plaintiff was not entitled to adinterim injunction.
9. The present suit was filed by the plaintiff through her attorney Shri Dharambir Singh on 12.02.2013. The challenge to order dated 16.03.2013 by plaintiff, whereby the application U/o 39 Rule 1 & 2 CPC was dismissed, failed before the Hon'ble High Court vide order dated 06.01.2014, passed in FAO No. 410/2013, titled as, "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur & Anr.".
10. I have heard arguments advanced at bar by Shri R.D Vats, learned counsel for the plaintiff and Shri S.S Dalal, learned counsel for the defendant. In the review application, plaintiff wants the review of order dated 16.03.2013, on the ground that the Kabza Karvai dated 01.11.2012 is false and as such, the said order is liable to be reviewed. The review application is hopelessly barred by limitation and is not accompanied by an application seeking condonation of delay. Even notice of this application has also not been issued so far to the defendant. The learned counsel for the defendant has very graciously accepted the notice thereupon today and has argued the said application without filing any formal reply thereto. He has advanced short argument to the effect that this court does not have jurisdiction to review an order which stood confirmed by the Hon'ble High Court in appeal. I find substance in the argument of learned counsel for the defendant. In this view of the matter, the review application is dismissed on the ground of limitation as well as on merits.
Order on Preliminary Issue: "Suit Dismissed" Page 6 of 26 CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014
11. Now, I have proceeded to hear arguments on the preliminary issue and my findings on the issue are as under.
12. Issue No.(iv): Preliminary Issue:
Whether the suit is not maintainable in the present form in view of the law laid down by the Hon'ble Supreme Court in cases reported as, "AIR 2008 SC 2033", titled as, "Anathulla Sudhakar V/s P. Bucha Reddy"; "JT 1995 SC (3) Page 563", titled as, "Muralidhar Dayandeo Keshar V/s Vishwanath Pandu Barde & Anr." and; "107 (2003) DLT Page 726", titled as, "Pawan Kumar & Ganga Bishan Gupta V/s Financial Commissioner, Delhi"? OPD.
The learned counsel for the plaintiff has argued that the plaintiff has been in settled possession of the suit land since the year 1995 and he cannot be dispossessed therefrom without following the due process of law; and as to whether the plaintiff has been in settled possession of the suit land or not, this court cannot go into the stand of defendant and the averments made in the plaint only have to be considered taking the same to be true on its face value. The plaintiff has herself stated to be in possession of the suit land and this court has to believe the same. Per contra, the learned counsel for the defendant has argued that even prior to filing of the present suit, the plaintiff stood duly ejected from the suit land and the Kabza Karvai to this effect was done in his presence on 01.11.2012, which fact has been duly mentioned by defendant in para 3 of preliminary objections and the same has not been denied by the plaintiff, therefore, the suit filed by the plaintiff is without any cause of action. It is further argued that the suit land was not transferable as there is a prohibition in law in this regard and as such, the possession Order on Preliminary Issue: "Suit Dismissed" Page 7 of 26 CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014 of plaintiff prior to being dispossessed from the suit land was illegal. It is next contended that the plaintiff has astutely not impleaded the allottees as parties in this case, whereas the said allottees have already approached the court of Ld.SDM and have filed their petitions in respect of the land(s) allotted to them under 20 point programme against the plaintiff. Lastly, it has been argued that the present suit is not maintainable because there is a cloud upon the rights of plaintiff in respect of the suit land and in terms of the law laid down by the Hon'ble Supreme Court in case reported as, "AIR 2008 SC 2033", titled as, "Anathulla Sudhakar V/s P. Bucha Reddy", the plaintiff should have sought declaration, declaring her rights, title and entitlement in respect of the suit land, for which this court is not competent as there is a clear bar in this regard U/s 185 of DLR Act as the said declaration can be granted only by the Revenue Court. Lastly, it has been argued that the plaintiff has made material concealment with regard to she having been dispossessed from the suit land even prior to institution of the present suit. She has further committed fraud by misrepresenting the judgments in some other litigations before the Hon'ble High Court with a view to secure undue advantage from this court.
13. I have duly considered the submissions made by both the sides. I would firstly deal with the aspect of material concealment, misrepresentation and fraud. The Hon'ble Supreme Court in case reported as, "I (2004) BC 187 BC", titled as, "Ram Chandra Singh V/s Savitri Devi & Ors." has been pleased to hold as under:
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15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is wellknown vitiates every solemn act. Fraud and justice never dwells together.Order on Preliminary Issue: "Suit Dismissed" Page 8 of 26
CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014
16. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.
19. In Derry v. Peek, (1889) 14 AC 337, it was held:
In an 'action of deceit the plaintiff must prove actual fraud. Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false.
A false statement, made through carelessness and without reasonable ground for believing it to be true, may be evidence of fraud but does not necessarily amount to fraud. Such a statement, if made in the honest belief that it is true, is not fraudulent and does not render the person make it liable to an action of deceit.
20. In Kerr on Fraud and Mistake at page 23, it is stated:
"The true and only sound principle to be derived from the cases represented by Slim v. Croucher is this that a representation is fraudulent not only when the person Order on Preliminary Issue: "Suit Dismissed" Page 9 of 26 CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014 making it knows it to be false, but also when, as Jessel, M.R., pointed out, he ought to have known, or must be taken to have known, that it was false. This is a sound and intelligible principle, and is, moreover, not inconsistent with Derry v. Peek, A false statement which a person ought to have known was false, and which he must therefore be taken to have known was false, cannot be said to be honestly believed in. "A consideration of the grounds of belief", said Lord Herschell, "is no doubt an important aid in ascertaining whether the belief was really entertained. A man's mere assertion that he believed the statement he made to be true is not accepted as conclusive proof that he did so."
21. In Bigelow on Fraudulent Conveyances at page 1, it is stated :
"If on the facts the average man would have intended wrong, that is enough."
22. It was further opined:
"This conception of fraud (and since it is not the writer's, he may speak of it without diffidence), steadily kept in view, will render the administration of the law less difficult, or rather will make its administration more effective. Further, not to enlarge upon the last matter, it will do away with much of he prevalent confusion in regard to 'moral' fraud, a confusion which, in addition to other things, often causes lawyers to take refuge behind such convenient and indeed useful but often obscure language as 'fraud upon the law'. What is fraud upon the law? Fraud can be committed only against a being capable of rights, and 'fraud, upon the law' darkens counsel. What is really aimed at in most cases by this obscure contrast between moral fraud and fraud upon the law, is a contrast between fraud in the individual's intention to Order on Preliminary Issue: "Suit Dismissed" Page 10 of 26 CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014 commit the wrong and fraud as seen in the obvious tendency of the act in question."
23. Recently this Court by an order dated 3^rd September, 2003 in Ram Preeti Yadav v. U.P. Board of High School & Intermediate Education and Ors.
reported in JT 2003 (Supp. 1) SC 25 held:
"Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by words or letter. Although negligence is not fraud but it can be evidence on fraud. (See Derry v. Peek (1889) 14 AC 337) In Lazarus Estate v. Berly [(1956) 1 All ER 341] the Court of Appeal stated the law thus:
"I cannot accede to this argument for a moment "no Court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything". The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever."
In S.P. Chengalyaraya Naidu V/s Jagannath [(1994) 1 SCC 1] this Court stated that fraud avoids all judicial acts, ecclesiastical or temporal."
24. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would, render the transaction void ab initio. Fraud and deception are synonymous.
Order on Preliminary Issue: "Suit Dismissed" Page 11 of 26 CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014
25. In Arlidge & Parry on Fraud, it is stated at page 21:
"Indeed, the word sometimes appears to be virtually synonymous with "deception", as in the offence (now repealed.) of obtaining credit by fraud. It is true that in this context "fraud" included certain kinds of conduct which did not amount to false pretences, since the definition referred to an obtaining of credit "under false pretences, or by means of any other fraud". In Jones, for example, a man who ordered a meal without pointing out that he had no money was held to be guilty of obtaining credit by fraud but not of obtaining the meal by false pretences: his conduct, though fraudulent, did not amount to a false pretence. Similarly it has been suggested that a charge of conspiracy to defraud may be used where a "false front" has been presented to the public (e.g. a business appears to be reputable and creditworthy when in fact it is neither) but there has been nothing so concrete as a false pretence. However, the concept of deception (as defined in the Theft Act 1968) is broader than that of a false pretence in that (inter alia) it includes a misrepresentation as to the defendant's intentions; both Jones and the "false front" could now be treated as cases of obtaining property by deception."
26. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including resjudicata.
27. In Smt. Shrisht Dhawan v. Shaw Brothers , it has been held that:
"Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct."Order on Preliminary Issue: "Suit Dismissed" Page 12 of 26
CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014
28. In S.P. Chengalvaraya Naidu v. Jagannath [(1994) 1 SCC 1] this Court in no uncertain terms observed:
"...The principle of "finality of litigation" cannot be passed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not process of the Court is being abused. Propertygrabbers, tax evaders, bankloan dodgers and other unscrupulous persons from all walks of life find the courtprocess a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation... A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage... A litigant, who approaches the Court, is bound to produce all the documents executed by him, which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party."
29. In Indian Bank v. Satyam Fibres (India) Pvt. Ltd., this Court after referring to Lazarus Estates(supra) and other cases observed that 'since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court it also amounts to an abuse of the process of the Court, that the Courts have inherent power to set aside an order obtained, by practising fraud upon the Court, and that where the Court is misled by a party or the Court itself commits Order on Preliminary Issue: "Suit Dismissed" Page 13 of 26 CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014 a mistake which prejudices a party, the Court has the inherent power to recall its order".
30. It was further held:
"The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud" on Court, In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers, which are resident in all Courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behavior. This power is necessary for the orderly administration of the Court's business."
31. In Chittaranjan Das v. Durgapore Project Limited and Ors. , It has been held:
"Suppression of a material document which affects the condition of service of the petitioner, would amount to fraud in such matters. Even the principles of natural justice are not required to be complied within such a situation.
It is now well known that a fraud vitiates all solemn acts. Thus, even if the date of birth of the petitioner had been recorded in the service returns on the basis of the certificate produced by the petitioner, the same is not sacrosanct nor the respondent company would be bound thereby."Order on Preliminary Issue: "Suit Dismissed" Page 14 of 26
CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014
32. Keeping in view the aforementioned principles, the questions raised in these appeals are required to be considered. The High Court observed that the application of intervention filed by the appellant purported to be under Order XXVI, Rules 13 and 14(2) and Order XX, Rule 18 was not maintainable as they do not confer any power to court for setting aside a preliminary decree on the ground that it was obtained by practising fraud. But once the principles aforementioned are to be given effect to, indisputably the court must be held to have inherent jurisdiction in relation thereto.
33. In Manohar Lal Chopra v. Raj Bahadur Rao Raja Seth Hiralal , the law is stated in the following terms:
"The Code of Civil Procedure is undoubtedly not exhaustive: it does not lay down rules for guidance in respect of all situations nor does it seek to provide rules for decision of all conceivable cases which may arise. The civil courts are authorized" to pass such orders as may be necessary for the ends of justice, or to prevent abuse of the process of court, but where an express provision is made to meet a particular situation the Code must be observed, and departure therefrom is not permissible."
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14. In the light of law laid down in the aforesaid judgments, now let us see the facts of present case as to whether the plaintiff has tried to make an endeavour to commit fraud upon this court. The answer has to be a "big yes". In paras 7 to 10 of the plaint, the plaintiff has tried to project as if the Hon'ble High Court of Delhi in a few writ petitions filed by her had directed recording of her possession in the revenue records in respect of suit land, whereas the plaintiff was duly aware that the Order on Preliminary Issue: "Suit Dismissed" Page 15 of 26 CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014 directions for recording of her possession in those litigations was in respect to other land(s), wherein the plaintiff had Agreement to Sell in respect of those lands and where the plaintiff had already filed a suit for specific performance against the sellers and during those proceedings she had been cultivating the land comprised in those cases, but her possession was not being recorded in the revenue record. The Hon'ble High Court nowhere in any of the aforesaid cases ever gave directions to the revenue authorities to consider the right, title and entitlement of the plaintiff in respect of the suit land.
15. By not denying the Kabza Karvai dated 01.11.2012 qua the suit land and projecting before this court that the plaintiff still has the possession of suit land, she has tried to commit fraud upon this court. The plaintiff has approached this court and has invoked the equity jurisdiction and it is settled law that one who seeks equity must do equity and he/she should approach the court fairly, which the plaintiff has miserably failed in this case. I would have dismissed the suit of plaintiff on this score itself, but I do not want the plaintiff to again burden the higher courts with regard to the same subject matter and as such, I proceed to consider the other points raised in this case.
16. Whether the possession of plaintiff prior to she being dispossessed could be said to be settled possession in the eyes of law or not? As per the case set up by the plaintiff herself, she had lent some money to the allottees who had transferred possession of their lands to her and she had been continuing in possession of the suit land for want of the said allottees Order on Preliminary Issue: "Suit Dismissed" Page 16 of 26 CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014 having repaid the said amount. Let us see, as to whether the allotment in favour of said allottees was proper and whether they had the right to transfer the possession of their lands to the plaintiff under the DLR Act?
17. Admittedly, the suit land was allotted to the landless people from lower strata of society and the said allotment was made to them U/s 74 of DLR Act. The said allotment was probably made to them by the Pradhan of village itself and there is no documentary evidence that the said allotment was in accordance with rules. In any case, the Government of NCT of Delhi did not ratify said allotments. There is no document on record in this regard and as such, this court is handicapped to consider the said aspect at the initial stage of this case, but the law with regard to allottees of such land bars them from selling, mortgaging or transferring is now fairly settled. In this regard, the reference could be had to the celebrated judgment of Hon'ble Supreme Court in case reported as, "JT 1995 (3) SC 563", "Murlidhar Dayandeo Kesekar V/s Vishwanath Pandu Barde & Anr." The operating part of the said judgment is in para 24, which is reproduced as under:
xxxxx "24. Economic empowerment to the poor, Dalits and Tribes, is an integral constitutional scheme of socio economic de mocracy and a way of life of political democracy. Economic empowerment is, therefore, a basic human right and a fundamental right as part of right to live, equality and of status and dignity to the poor, weaker sections, Dalits and Tribes. The State has evolved, by its legislative and executive action, the policy to allot lands to the Dalits and tribes and other weaker sections for their economic em powerment.
The government evolved two pronged economic policies to render economic justice to the poor. The Order on Preliminary Issue: "Suit Dismissed" Page 17 of 26 CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014 Planning Commission evolved policies like DRDL for economic empowerment of the weaker sections of the society; the Dalits and tribes in particular. There should be short term policy for immediate sustenance and long term policy for stable and permanent economic empowerment. All the State governments also evolved assignment of its lands or the lands acquired under the ceiling laws to them. Appropriate legislative enactments are brought on statute books to prevent alienation of the assigned lands or the property had under the planned schemes, and imposed prohibition there under of alienation, declaring any conveyance in contravention thereof as void or illegal and inoperative not to bind the State or the assignee. In case the assignee was disqualified or not available, on resumption of such land, the authorities arc enjoined to resume the property and as sign to heir or other eligible among the Dalits and tribes or weaker sections in terms of the policy. The prohibition is to effectuate the constitutional policy of economic empowerment under Articles 14, 2 1, 38, 39 and 46 read with the Preamble of the Constitution. Even in respect of private sales of the lands belonging to tribes, statutes prohibit alienation without prior sanction of the competent authority.
25. It is seen that prior permission for alienation of the land was a condition precedent. Before permission is given, the competent authority is enjoined, by operation of Article 46 of the Constitution, to enquire whether such alienation is void under law or violates provisions of the Constitution and whether permission could be legitimately given. In that behalf, the competent authority is enjoined to look to the nature of the property, subjectmatter of the proposed conveyance and preexisting rights flowing thereunder and whether such alienations or encumbrances violate Order on Preliminary Issue: "Suit Dismissed" Page 18 of 26 CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014 provisions of the Constitution or the law. If the answer is in the positive, then without any further enquiry the permission straightaway would be rejected. Even in case the permission is granted, it would be decided on the anvil of the relevant provisions of the Constitution and the law. In this case, the authorities, though had not adverted to the aspect of the matter, broadly refused permission on the ground that the assigned land cannot be permitted to be sold or converted to nonagricultural use. The action refusing permission, therefore, is in consonance with the Constitutional scheme in Part IV of the Directive Principles. The agreement is, therefore, void under s.23 of the Contract Act as opposed to public policy vide judgment in DTC v. DTC Mazdoor Congress, 1990 (suppl.) 1 SCR, 192, by one of us Ramaswamy, J.
with whom Sawant and Ray, JJ. agreed by separate but concurring judgment and the permission was rightly refused to be given for alienation. The possession is unlawful. Section 53A of Transfer of Property Act is not attracted. The appellant's possession continues to be unlawful and he is not entitled to any improvement made on the lands. The Collector is directed to resume the lands immediately and assign the same to the legal representatives of first respondent, if found eligible or to any other eligible tribal.
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18. The said judgment of the Hon'ble Supreme Court was in respect of State of Maharashtra. Thereafter, the question ultimately came up before the Hon'ble High Court of Delhi in case reported as, "107 (2003) DLT 726", titled as, "Pawan Kumar & Ganga Bishan Gupta V/s Financial Commissioner, Delhi & Ors.", where the provisions of Section 74 and 75 of DLR Act were in question. Order on Preliminary Issue: "Suit Dismissed" Page 19 of 26 CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014 The Hon'ble High Court of Delhi duly considered the aforesaid judgment of the Hon'ble Supreme Court applied the ratio to the land allotted U/s 74 and 75 to the weaker sections in Delhi and held as under:
xxxxx
19. .....
"Once it is held that the land in question was allotted to the applicants by way of grant under 20 Point Programme, the consequence would follow automatically. These consequences are provided by the Supreme Court in the case of 1995 Supp. wherein the Court held as under:
"It is seen that prior permission for alienation of the land was a condition precedent. Before permission is given, the Competent Authority is enjoined, by operation of Article 46 of the Constitution, to enquire whether such alienation is void under law or violates provisions of the Constitution and whether permission could be legitimately given. In that behalf, the Competent Authority is enjoined to look to the nature of the property, subject matter of the proposed conveyance and preexisting rights flowing there under and whether such alienations or encumbrances violate provisions of the Constitution or the law. If the answer is in the positive, then without any further enquiry the permission straightaway would be rejected. Even in case the permission is granted, it would be decided on the anvil of the relevant provisions of the Constitution and the law. In this case, the authorities, though had not adverted to the aspect of the matter, broadly refused permission on the ground that the assigned land cannot be permitted to be sold or converted to nonagricultural use. The action refusing permission, therefore, is in consonance with the constitutional scheme in Part IV of the Order on Preliminary Issue: "Suit Dismissed" Page 20 of 26 CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014 Directive Principles. The agreement is, therefore, void under Section 23 of the Contract Act is opposed to public policy, vide judgment in Delhi Transport Corporation v. D.T.C. Mazdoor Congress by one of us Ramaswamy, J., with whom Sawant and RA, JJ, agreed by separate but concurring judgment and the permission was rightly refused to be given for alienation. The possession is unlawful. Section 53A of Transfer of Property Act is not attracted. The appellant's possession continues to be unlawful and he is not entitled to any improvement made on the lands. The Collector is directed to resume the lands immediately and assign the same to the legal representatives of first respondent, if found eligible or to any other eligible tribal."
20. Thus clear mandate of the Supreme Court in the aforesaid judgment was that such a grant to the landless labourers was for their economic upliftment and thus sale by such applicants would not be permissible as it would defeat the very purpose of grant of land to such landless labourers.
xxxxx (underlining which is mine is emphasized)
19. If the law laid down in the aforesaid judgments of the Hon'ble Supreme Court and Hon'ble High Court of Delhi is applied to the facts of the present case, then it would be clearly apparent that the allottees did not have any right to transfer the allotted land to plaintiff and as such, the plaintiff did not get any legally enforceable right against the Government in respect of the suit land. According to me, the limited right which the plaintiff has against the allottees and that too seeking return of the loan amount, if any. The said claim cannot be legally Order on Preliminary Issue: "Suit Dismissed" Page 21 of 26 CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014 enforced by her by getting herself declared bhoomidar of the suit land. The plaintiff very conveniently did not implead the said allottees in this litigation as that would have exposed her substantially and now in any case the said allottees have already approached the court of Revenue Assistant where all the parties have been litigating and this court would not enter into that sphere in this litigation.
20. Whether this court does not have jurisdiction to try the present suit?
The land in this case is admittedly agricultural land and the present suit is suit simplicitor seeking permanent injunction and there is clearly cloud to the right and title of the plaintiff in respect thereof. Then as to whether the suit simplicitor for injunction is maintainable or not is clearly answered by the Hon'ble Supreme Court in case reported as, "AIR 2008 SC 2033", titled as, "Anathulla Sudhakar V/s P. Bucha Reddy", wherein the Hon'ble Supreme Court has been pleased to hold as under:
xxxxx
11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
11.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction.
But a person in wrongful possession is not entitled to an injunction against the rightful owner.
Order on Preliminary Issue: "Suit Dismissed" Page 22 of 26 CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014 11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiffs title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the Order on Preliminary Issue: "Suit Dismissed" Page 23 of 26 CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014 defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
xxxxx (underlining emphasized)
21. Even prior to the decision in Anathulla Sudhakar's case (supra), the law laid down by the Hon'ble High Court of Delhi was also clear in case reported as, "36 (1988) DLT 428", titled as, "Hoshiar Singh Etc. V/s Gaon Sabha, Daryapur Kalan & Ors.", wherein the Hon'ble High Court of Delhi in a suit Order on Preliminary Issue: "Suit Dismissed" Page 24 of 26 CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014 simplicitor for injunction in respect of the agricultural land came to the conclusion that without seeking declaration of his bhoomidari rights from the Revenue Courts, suit simplicitor for injunction cannot be filed by a person claiming himself to be in possession thereof.
22. In somewhat similar circumstances, the Hon'ble High Court of Delhi in case reported as, "79 (1999) DLT 305", titled as, "Ram Karan & Ors. V/s Jagdeep Rai and Sons", has been pleased to hold as under:
xxxxx "8. Admittedly, a proceeding under Section 81 of the Delhi Land Reforms Act is pending before the Competent Authority. The said Revenue Authority also has the power and jurisdiction to grant injunction as sought for in the present suit. Documentary evidence has been placed on record to indicate that the suit land has since been sold by the plaintiff in favour of 04 persons who in turn have sold the suit land to 40 odd persons. The said 40 odd persons are also before the Revenue Authority. It is also stated that the plaintiffs handed over possession of the suit land to the purchasers, who in turn have handed over possession to the applicants. Although, the plaintiffs have taken a stand now that the said documents are forged and fabricated, it is apparently clear that the title of the plaintiff to the suit land is under cloud and therefore, the present suit is basically and necessarily a suit seeking for declaration that the plaintiffs should be declared as Bhoomidar and also for declaration of the possession of the plaintiffs in respect of the suit land.
There is specific bar for maintaining such a suit as laid down under Section 185 of the Delhi Land Reforms Act."
xxxxx Order on Preliminary Issue: "Suit Dismissed" Page 25 of 26 CS No.1739/2013: "Smt.Angoori Devi V/s Gaon Sabha, Daulatpur" Date of Order: 12.03.2014
23. Even otherwise, in this regard Section 190 of DLR Act is relevant, which is reproduced as under:
190. Application of certain acts to the proceedings of this Act - (1) Unless otherwise expressly provided by or under columns 4 and 6 of Schedule I of this Act, the provisions of Court Fees Act, 1870 (7 of 1870), the Code of Civil Procedure, 1908 (5 of 1908), and the Indian Limitation Act, 1908 (9 of 1908), shall apply to the proceedings under this Act.
(2) The provisions of the General Clauses Act, 1897 (10 of 1897) shall mutatis mutandis apply, as far as may be, to this Act in the same manner as they apply to a Central Act. A bare perusal of said provision clearly stipulates that the Revenue Court has the power to grant adinterim injunction during the course of proceedings pending before it. Therefore, the present suit is barred under the law.
24. Seeing from another angle, the present suit is not maintainable before this court. The issue is accordingly decided in favour of defendant and against the plaintiff and the suit is accordingly dismissed with cost of Rs.10,000/, to be paid by the plaintiff to the defendant.
25. Decree Sheet be prepared accordingly.
26. File be consigned to Record Room.
Dictated & Announced in the (Vinod Yadav)
open Court on 12.03.2014 Addl. District JudgeI/SouthWest
Dwarka District Courts: New Delhi
Order on Preliminary Issue: "Suit Dismissed" Page 26 of 26