Delhi District Court
Sh. Sache Ram vs Sh. Vijender Singh on 6 October, 2018
Sache Ram and Anr. V. Vijender Singh and Ors.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO.: 260/2017
UNIQUE CASE ID NO.: 610181/16
IN THE MATTER OF :
1. Sh. Sache Ram
2. Sh. Lila Ram
Both sons of Sh. Mohar Singh
Both residents of
Village Ghitorani, Delhi. ....Plaintiffs
VERSUS
1. Sh. Vijender Singh
2. Sh. Kartar Singh
3. Sh. Gugan
All sons of Sh. Pritam Singh
4. Sh. Rajender Singh
5. Sh. Sanjay Singh
Both sons of Sh. Mohar Chand
6. Sh. Raj Kumar
Suit No. 260/2017 Page 1 of 41
Sache Ram and Anr. V. Vijender Singh and Ors.
7. Sh. Vijay Kumar
Both sons of Sh. Jai Pal
8. Sh. Rajpal
9. Sh. Tejpal
10. Sh. Sukhbir Singh
All sons of Sh. Ruman
11. Sh. Satish
12. Sh. Surender
Both sons of Sh. Rameshwar
13. Sh. Chander
S/o Sh. Kirpa
All residents of
Village Ghitorani, Delhi. ....Defendants
SUIT FOR PARTITION AND PERMANENET INJUNCTION
Date of institution of the Suit : 02/05/2006
Date on which Judgment was reserved : 30/08/2018
Date of Judgment : 06/10/2018
JUDGMENT
By way of present judgment, this court shall adjudicate Suit No. 260/2017 Page 2 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
suit for partition and permanent injunction filed by the plaintiffs against the defendants.
CASE OF THE PLAINTIFFS AS PER PLAINT Succinctly the necessary facts for just adjudication of the present suit, as stated in the plaint, are as under:
(a) The plaintiffs and defendants are the coowners and in pos session of the property/land comprising in Kh.No.298/144 (1
0), 298/138 (014), 298/139 (21) and 298/137 (017) total measuring 4 Bighas 12 Biswas in Khata No. 157/132, situ ated in the Extended Laldora Abadi of Village Ghitorani, Delhi. The abovesaid residential plots were allotted to the predeces sorofinterest of the plaintiffs and the defendants and the plaintiffs and defendants have inherited the abovesaid plots from their ancestors and the plaintiffs and defendants have the ½ share each.
(b) After the allotment of the abovesaid residential plots to the plaintiffs and defendants, the plaintiffs and defendants have been in the user and enjoyment of the abovesaid residential plots but no legal partition has takenplace by metes and bounds amongst the plaintiffs and the defendants.
(c) The defendants had also occupied more than their share and due to dishonesty, the defendants now even deny the right of the partition of the plaintiffs in the abovesaid residential plots. The defendants had also given a threat to the plaintiffs to raise construction over the suit land and particularly on Suit No. 260/2017 Page 3 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
Kh.No.298/138 (014) without any legal partition by mets and bounds as the said plot no. 298/138 is lying vacant and as per the shares of the plaintiffs and the defendants, the area of said plot 298/138 is likely to be allotted to the plaintiffs in the partition.
(d) The plaintiffs want to raise pucca construction on their re spective share and for that purposes, the plaintiffs had re quested the defendants to partition the abovesaid residential plots according to their shares but the defendants did not pay any heed to the request of the plaintiffs and even further the defendants started raising construction on the plot bearing Kh. No. 298/138 (014).
(e) On 28/04/2006, the defendants had collected bricks on the abovesaid plot in suit and when the plaintiffs have asked from the defendants the purpose for collecting the bricks, the de fendants told to the plaintiffs about raising construction on Kh. No. 298/138. The plaintiffs told the defendants that the plaintiffs had no objection if the construction is carried out by the defendants after a partition by metes and bounds between the plaintiffs and the defendants and the plaintiffs specifically told the defendants not to raise any construction on the plot in suit without a partition by metes and bounds. Thereafter, the plaintiffs have collected their respective elderly family members and told them about raising of construction by the defendants without a legal partition by metes and bounds and Suit No. 260/2017 Page 4 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
the defendants were also called in the said meeting and the defendants were told by the elderly family members not to raise any construction without a legal partition by metes and bounds and even further, the defendants were requested to carry out the partition with the plaintiffs of the suit property peacefully so that peace may be maintained in the family and no untoward incident may take place but the defendants only told in the said meeting that they would carry out the con struction on the suit property.
(f) In the morning of 30/04/2006, the defendants had brought labourers and mason and had started to dig foundation and the plaintiffs again reached on the suit property and stopped the construction and also made a report in the police station but the police did not take any action against the defendants. The police told the plaintiffs that as the dispute is of a civil nature and is among the family members and the proper rem edy was to approach the Civil Court for partition of the joint land in suit.
(g) The defendants are adamant to raise construction on the joint land without a legal partition by metes and bounds and if the defendants succeed to raise construction on the suit land, the plaintiffs would be deprived from the user and enjoyment of their respective share in the joint property and thus, the plaintiffs have no other alternative efficacious remedy avail able to them for the relief except by filing the present suit.
Suit No. 260/2017 Page 5 of 41Sache Ram and Anr. V. Vijender Singh and Ors.
CASE OF THE DEFENDANTS AS PER WRITTEN STATEMENT Summons was issued to the defendants and defendants no. 1, 2 and 4 to 13 have filed their written statement in the present case. Succinctly, the case of Defendants No. 1, 2 and 4 to 13 is as under:
(i) The plaintiffs have played fraud upon this Court by making absolutely false averments in the suit by concealing all mate rial facts of the case and thus have misused the process of law. The plaintiffs moved the present suit maliciously by con cealing material facts that just three days before the present suit was moved by the plaintiffs, the suit seeking partition of the suit lands besides other as moved by the father of the plaintiffs and as contested by the plaintiffs after his death has been dismissed by the Ld. Court of Revenue Assistant, Vasant Vihar, New Delhi vide order dated 28.04.2006 and order dated 28.04.2006 was passed in the presence of the plaintiff no.2 and he had put his signatures on the order sheet.
(ii) The issue in suit before the Ld. Court of the Revenue Assis tant, Vasant Vihar was adjudication of the right of the plain tiffs to seek partition of the land comprising Khata No. 157, Revenue Village Ghitorni, New Delhi consisting Khatauni No. 298/137 298/138; 298/139 and Khatauni No. 620 and 627 and Khata No. 156 comprising Khatauni No. 298/144 and the said suit has been dismissed by the competent court under the Delhi Land Reforms Act 1954 vide order dated 28.4.06.
Suit No. 260/2017 Page 6 of 41Sache Ram and Anr. V. Vijender Singh and Ors.
The Court of the Revenue Assistant is the only competent court to adjudicate the suit seeking partition of the land cov ered under the provision of the Delhi Land Reforms Act. The competent Court has held that the plaintiffs who are the legal heirs of Late Mohar Singh have no right or interest in the suit land and dismissed the suit as devoid of merits. After dis missal of their suit for partition by the Ld. Revenue Assistant, the plaintiffs approached the Halqua Patwari of the area and obtained certain documents ante date as the Revenue Record has not been ratified in terms of the order of the Revenue As sistant and moved the present suit malafidely and with inten tion to mislead this Court and further to harass the defen dants unnecessarily.
(iii) The suit land comprising in Khata No. 157 comprising Khasra No. 298/137 (0.17 Biswas) 298/138 (0.14 Biswas); 298/139 (2.1 Bighas) and Khata are exclusively the property of the defendants and the plaintiffs have no right or interest in the suit property and all the lands which are subject matter of the present suit have been the subject matter of the suit al ready decided by the Ld. Revenue Assistant. Therefore, the present suit is barred under Section 11 CPC.
(iv) Without prejudice to the other submissions, it is sub mitted that as per the law settled by Hon'ble Supreme Court in Hatti Vs. Sunder Singh AIR 1971 SC 2320 and Gaon Sabha Vs. Nathi 2004 V AD SC 76, the jurisdiction of Civil Courts is Suit No. 260/2017 Page 7 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
barred in the matters covered under the provisions of Delhi Land reforms Act, 1954. Therefore, this Court has no jurisdic tion to entertain the present suit. Section 185 read with Sec tion 8 of the Delhi Land Reforms Act, 1954 completely bar the jurisdiction of any court except the abovesaid competent court.
(v) The defendants or their predecessor in interest have been owners in possession of land comprising in Khasra No. 298/137; 298/138 and 298/139 and since the year 195455 and the plaintiffs have nothing to do with the said land as the same does not belong to them nor they have any right or in terest in the suit land.
(vi) The plaintiffs or their predecessor in interest and the de fendants or their predecessors in interest did not have Joint Bhumidhari since year 195455 and even before that, there fore, there is no question of the plaintiffs having any right or interest in the suit land.
(vii) Without prejudice to the other submissions, it is sub mitted that vide application dated 26.4.2006 as moved by the plaintiffs under Section 23 Rule 1 read with Section 151 CPC, the plaintiffs did abandon their interest or withdrew their claims in the suit land seeking partition of Khasra No. 298/137; 298/138, 298/139 and 298/144 Village Ghitorni, New Delhi. Therefore,without prejudice, it is further submit ted that after withdrawal of their claim, the plaintiffs cannot Suit No. 260/2017 Page 8 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
reiterate their claim by way of the present suit. Besides appli cation under Section 23 Rule 1 of the plaintiffs, the Ld. Rev enue Court on merit held that the plaintiffs have no right or interest in the suit land and dismissed their suit on merit.
(viii) In the year 1988, the father of the plaintiffs instituted frivolous suit before the Ld. Revenue Assistant and obtained exparte status quo order by misleading the Ld. court and the same continued for 18 years, which was vacated only upon dismissal of the suit of the plaintiffs. The plaintiffs, immedi ately after dismissal of their suit seeking partition before Ld.Revenue Court, exercised the same bid by making abso lutely false claim and averments and by concealing all mate rial facts moved the present suit. The plaintiffs have misled this Court and have filed documents prepared antedate in connivance with the Patwari of the Halqua.
(ix) In the parawise reply, it is submitted that defendants are ex clusive owners of land comprising in Khasra No. 298/137; 298/138; 298/139 and half of Khasra 298/144 Village Ghi torni, New Delhi. Therefore, there is no question of the plain tiffs being coowners of the suit land. There is no concept of allottee under the provisions of Delhi Land Reforms Act, therefore, there is no question of the predecessor in interest of the plaintiffs and that of defendants being allotted the land in question jointly. The defendants and their predecessors in in terest are the exclusive Bhumidhar of the suit land and plain Suit No. 260/2017 Page 9 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
tiffs or their predecessor in interest have no interest or right whatsoever in the suit land.
(x) The plaintiffs are giving special importance to Khasra No. 298/138 maliciously as the land therein is the only thorough fare to the houses of the defendants. On 28.04.06, the suit of the plaintiffs was dismissed and consequently, status quo or der dated 27.4.1988 was vacated and the land in Khasra No. 298/138 besides other are held to be exclusive land of the de fendants and the plaintiffs have no right to object the same.(
(xi) When the defendants started doing construction of path way and the sewage after order dated 28.4.06,the plaintiffs bribed the local police which without any authority and right stopped the construction upon the land of the defendants and interfered with the construction work of the defendants in de fiance of the order of Ld. Court of Revenue Assistant, which copy was shown to them on the spot. However, the construc tion could only be restarted after the defendants complained to Revenue Assistant/ SDM about the illegal interference of the police. It has been prayed by the defendants no. 1, 2 and 4 to 13 to dismiss the suit with exemplary cost. REPLICATION AND ISSUES Plaintiffs have filed the replication controverting the alle gations/ contentions in the written statement of the defendants no. 1, 2 and 4 to 13 and contents of the plaint have been reiterated and reaffirmed.
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From the pleadings of the parties, following issues were framed vide order dated 16/11/2006:
1) Whether the plaintiffs are entitled to the decree of parti tion, if so, to what extent of their shares? OPP
2) Whether the plaintiffs are entitled to the decree of perma nent injunction as prayed by them? OPP
3) Whether the suit is barred u/s. 11 CPC? OPD
4) Whether the defendants are exclusive owner of the land comprising in Khasra no. 298/137, 298/138, 298/139 and half of Khasra no. 298/144 village Gatoni, Delhi?
OPD
5) Relief?
EVIDENCE OF THE PLAINTIFFS AND DOCUMENTS RELIED UPON BY THE PLAINTIFFS Plaintiffs have led their evidence and examined Sh. Lila Ram as PW1. PW1 has filed his evidence by way of affidavit wherein he reiterated and reaffirmed the contents of the plaint and relied upon documents i.e. Khatouni Consolidation as Ex. PW1/1, Khatouni Consolidation as Ex.PW1/2 and Exsajra as Ex.PW1/3. EVIDENCE OF THE DEFENDANTS AND DOCUMENTS RELIED UPON BY THE DEFENDANTS Defendants have led their evidence and examined Sh.Raj Kumar as DW1. DW1 has filed his evidence by way of affidavit wherein he reiterated and reaffirmed the contents of the written Suit No. 260/2017 Page 11 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
statement and relied upon documents i.e. photocopy of revenue records as MarkA (Colly.).
Defendants have also examined Sh. Rajender Singh as DW2, Sh. Satish as DW3 and Sh. Rajpal as DW4 by filing their respective evidence by way of affidavit and they were also cross ex amined by the Plaintiffs.
Defendants have also examined summoned witness Sh.Sanjay Kumar Solanki, Halka Patwari, Tehsil Vasant Vihar at SDM Office, Kapashera, Delhi as DW5, who filed on record the en tire case file of RA No. 200/RA/88 as Ex.DW5/1.
Defendants have also examined summoned witness Sh.Azhar Ahmad, Patwari from the office of Deputy Commissioner New Delhi, Jam Nagar House, New Delhi.
ISSUE WISE FINDINGS:
ISSUE NO.3
3) Whether the suit is barred u/s. 11 CPC? OPD ARGUMENTS ON BEHALF OF THE DEFENDANTS Jurisdiction of the Civil Court is barred:
The dispute under present suit is exclusively within ju risdiction of revenue court and the jurisdiction of the civil court is specifically barred under section 185 of the Delhi Land Reforms Act, 1954. Since the Civil Court had no jurisdiction, the plaintiffs have been pursuing suit before Revenue Court since 1988. After the plaintiffs lost the suit before the revenue court the plaintiffs filed the present suit claiming jurisdiction of the Civil Court. The plain Suit No. 260/2017 Page 12 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
tiffs cannot blow hot and cold at the same time. Besides, in terms of law settled by Hon'ble Supreme Court in Hatti vs. Sunder Singh AIR 1971 SC 2320 which is affirmed in later decision of the Supreme Court, which affirm the principle that suit where the Rev enue Court has jurisdiction the Civil Court will have no jurisdiction except on reference by the revenue Court.
Therefore, Civil Court has no jurisdiction to decide the present suit much so when the plaintiffs once initiated the proceed ing before the revenue court and pursued the till its dismissal. RES JUDICATA On the same subject matter for the same dispute (on the same issue) between the same parties, a suit had been filed in the year 1988 which was decided on 28.04.2006 when it was dis missed. Therefore, the present suit is barred under the resjudicata under Section 11 of the Code of Civil Procedure.
Here, it is pertinent to mention that suit bearing no. 200/RA/1988 was filed by the father of the plaintiffs and pursued by him and after his death by the plaintiffs against the defendants and their predecessor. The said suit was finally decided on 28.04.2006 and the suit was dismissed. The plaintiffs concealing material fact on 01.05.2006 filed the present suit in respect of the same property against the same defendant.
On appeal, the said suit was again remanded back to court of Revenue Assistant, which again dismissed the suit on Suit No. 260/2017 Page 13 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
21.03.2011 and 27.07.2010, the Plaintiffs unconditionally withdrew their suit against the defendants in regard of the suit property.
The plaint of the suit 200/RA/1988 is Ext. DW1/2 which was decided on 28.4.2006.
Therefore, the present suit is barred by the resjudicata and also under Order XXIII Rule 4 CPC.
ARGUMENTS ON BEHALF OF THE PLAINTIFFS The onus to prove issue no.3 is on the defendants. The defendants have completely failed to prove that how and in what the suit is barred U/s 11 CPC. For the application of Section 11 CPC which relates to resjudicata, the defendants have not proved any Judgment either of this Court or any other Court which has de cided the dispute which has arisen in the present case. The present suit is for partition of residential plot comprising in Khasra No. 298/137, 138, 139 and Khasra No. 298/144 and all the above said four Khasra Numbers are residential plots and are situated within the extended Lal Dora abadi of the Village Ghitorni and the same were allotted to the predecessor in interest of the defendants in the consolidation of holdings which held in the Village.
The plaintiffs have filed a suit U/s 55 DLR Act for parti tion of the agricultural land and also the residential plots which is the subject matter of the present suit. Due to the judgment of the Hon'ble Delhi High Court in which it has been held that as the resi dential plot situated in the extended Lal Dora abadi or old Lal Dora Abadi does not come in the definition of "holding" and only agricul Suit No. 260/2017 Page 14 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
tural land comes under the definition of holding and due to the said Judgment of Hon'ble Delhi High Court, the plaintiffs have filed an application before the Revenue Assistant under Order 23 Rule 1 CPC for withdrawal of the suit in regard to residential plots before the Revenue Assistant and the said application was allowed vide Order dated 27.7.2010 in regard to residential plots which is the subject matter of the present suit. The Order dated 27.7.2010 is as under and the same is on page 8 of the file of the SDM/RA and the application is on page 212 of the file of the SDM/RA.
"27.7.2010 Present: both the parties along with their counsels.
Synopsis not prepared by the counsel for R 1/13 but the case was explained in detail.
Arguments by plaintiff's counsel were heard on the application u/o 23(1) filed by the plaintiff. Counsels of the respondents have no objection to it,the plaintiff being mas ter of his suit.
Application u/o 23 (1) allowed.
Now to come up for further proceedings. Adj, NDOH 05.8.2010 Sd/ 27.7.2010"
In the abovesaid facts and circumstances and the legal position, the suit u/s 55 DLR Act in regard to residential plot, which is the matter in dispute in the present case, the said suit was withdrawn and no order on Merits was passed by the Ld. RA/SDM because in the application under Order 23 Rule 1 CPC, the plain tiffs have stated that due to the Judgment of the Hon'ble Delhi High Suit No. 260/2017 Page 15 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
Court, it was not legal and lawful to try the suit before the SDM/RA as far as residential plots were concerned and only Civil Court has jurisdiction. That it is thus submitted that as no final Judgment/Order was passed by the Ld. SDM/RA u/s 55 DLR Act, as the suit for residential plot was withdrawn by the plaintiffs and thus, the provisions of Section 11 CPC is not attracted to the facts of the present case and thus, the defendant has totally failed to prove the issue No.3.
FINDINGS OF THE COURT The RA has decided the issue regarding the suit prop erty in question vide small order dated 28.4.2006 and detailed or der dated 07.06.2006 but the said orders were setaside vide order dated 28.01.2008 by the Appellate Authority i.e. Dy. Commissioner and remanded back the matter for fresh consideration. The Plain tiffs have filed an application under Order 23 Rule 1 CPC dated 26.4.2006 for withdrawal of the suit for partition in respect of the suit property and submitted in the said application that the suit property is the residential plot. The factum of the residential plots was also admitted by the defendants in reply to the said applica tion. The said application was allowed vide Order dated 27.7.2010 in regard to residential plots which is the subject matter of the present suit and order of the same was incorporated hereinabove under the column of Arguments of the Plaintiffs. Accordingly, there is no question of ResJudicata as there was no decision on the mer its of the case regarding Suit property before the Revenue Authority.
Suit No. 260/2017 Page 16 of 41Sache Ram and Anr. V. Vijender Singh and Ors.
Now the question arises whether the bar under Order 23 Rule 1(4) CPC will apply in the present case. It is admitted case of the parties that the suit property is residential plots and not the Agricultural field lands. The Ld. Counsel for the Plaintiffs have relied upon the following Judgments:
1) Paras No.8, 9 and 14 of Raj Kishore Tyagi Versus Radhey Shyam and Ors. 149(2008) DLT 754. The relevant portion of paras no.8, 9 and 14 are reproduced as under: "8. As pleaded in the plaint the land is in the ex tended abadi. The land in the extended abadi may be land as defined under Section 3(13) of the Delhi Land Reforms Actm1954 but this land would not be holding as defined under Section 3(11a) of Delhi Land Reforms Act.....
"9. To put it plithly, land comprised in a holding would be such land which has to be used for an agricultural purpose as defined under Delhi Land Reforms Act,1954 and in relation whereto the proprietary interest would be that as bhoomidar, sir, khudkasht, or an asami.
"14. Needles to state all the issues which arise between the parties in relation to the plaint would be decided by the Civil Court in accordance with law."
2) Paras No.4 and 6 to 8 of GYANENDER SINGH VERSUS NARAIN SINGH & ORS. 190(2012) DLT 469. The relevant portion of paras No. 4 and 6 to 8 are reproduced as under: Suit No. 260/2017 Page 17 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
"4. The Trial Court, in my opinion, has clearly misdirected itself inasmuch as though all lands defined under Section 3(13) are the subject mat ter of the Delhi Land Reforms Act, 1954, however, a suit for partition, only of the nature comprised in Section 55 of the said Act, has to be filed be fore the Revenue Assistant. As per Schedule 1 read with Section 185, of the Delhi Land Reforms Act, 1954, it is clear that the suit for partition which is subject matter of the Schedule 1 at serial No. 11 is a suit for partition of a "holding" of a Bhumidar. The expression "holding" is defined in Section 3(11a) of the Act to mean "Sir" or "Khud kasht" lands only. "Khudkasht" land is defined under Section 3(12A) to mean selfcultivated land by a proprietor either by himself or by his ser vants or by hired labour, i.e. agricultural lands which have not been let out to a tenant. "Sir"
lands are also basically self owned and selfculti vated lands. The expression "Sir" is not defined in the Delhi Land Reforms Act, 1954, however, since the Delhi Land Reforms Act actually is an amalgam of different provisions/ aspects of Land Reforms Act which were prevalent in Delhi in 1954 when the Delhi Land Reforms Act, 1954 was passed, therefore, the definition of "Sir" lands will have to be seen from the Uttar Pradesh Land Revenue Act, 1901. As per Sections 3(12) & (13) of the Uttar Pradesh Land Revenue Act, 1901, "Sir" land is defined as basically self owned and selfcultivated land. Therefore, "Sir" or "Khudkasht" lands are actually cultivable lands and therefore basically agricultural lands where cultivation takes place. Therefore, lands in village Abadi, though would be the subject matter of Section 3(13) of the Act, however, the same Suit No. 260/2017 Page 18 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
would not fall within the definition of "holding" as contained in Section 3(11a) of the Delhi Land Re forms Act, 1954. Once, the land is not part of a "holding" of a Bhumidar, the same cannot be the subject matter of a partition suit under Section 55, and therefore, would not fall under serial No. 11 of Schedule 1 of the Act, and consequently, there would be no bar of a Civil "Court to try and decide such suits for partition allegedly because of the bar in Section 185 of the Act."
"6. A reference to para 5 of the plaint shows that except the land which is stated in para 5(B)(II), all other lands are nonagricultural/noncultivable lands, i.e. they are abadi lands falling in Lal Dora. Therefore, so far as the suit for partition is concerned, the same can continue except for the land which is the subject matter of para 5(B)(II) of the plaint, and only which latter land is agricul tural/cultivable land which will fall in the defini tion of a "holding" under Section 3(11a) of the Act."
"7. In view of the above, the Trial Court has erred in dismissing the suit as a whole. The suit for partition and injunction will therefore continue with respect to the properties, except the agricul tural land which is mentioned in Para 5(B)(II) of the plaint."
"8. Appeal is therefore partially allowed by set ting aside the impugned order and restoring the suit to its original number so that the same can continue for partition of the properties mentioned in para 5 of the plaint except the property men tioned in para 5(B)(II) of the plaint."Suit No. 260/2017 Page 19 of 41
Sache Ram and Anr. V. Vijender Singh and Ors.
There are catena of Judgments that if the property are residential plots then the same are required to be adjudicated by the Civil Courts and not by the Revenue Courts and jurisdiction of the Civil Courts are not barred in the said case. There is a categori cal admission of both the parties that suit property in question per tains to residential properties. When the application under Order 23 Rule (1) CPC was allowed this suit was already pending. The withdrawal of the claim was on account of lack of jurisdiction of Revenue Court to adjudicate upon the suit property and not on any technical defect. The Revenue Authority is the Court of Limited Ju risdiction and when the partial claim regarding Suit property was withdrawn then bar under Order 23(1)(4) would not operate bar for purpose of filing the Regular suit for Partition before the Court of Civil Jurisdiction.
Accordingly, in view of the discussions, as adumbrated above, this issue No.3 is decided in favour of the Plaintiffs and against the defendants.
ISSUES NO.1, 2 AND 41) Whether the plaintiffs are entitled to the decree of parti tion, if so, to what extent of their shares? OPP
2) Whether the plaintiffs are entitled to the decree of perma nent injunction as prayed by them? OPP
4) Whether the defendants are exclusive owner of the land comprising in Khasra no. 298/137, 298/138, 298/139 and half of Khasra no. 298/144 village Gatoni, Delhi? OPD Suit No. 260/2017 Page 20 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
ARGUMENTS ON BEHALF OF THE PLAINTIFFS The onus to prove issue no.1 is on the plaintiffs and the plaintiffs have proved by oral and documentary evidence that the plaintiffs are the coowners having ½ share in the land in dispute. The plaintiffs have proved the Khatoni which are Ex.PW1/1 and Ex.PW1/2, the only proof of Revenue record which proved the title and ownership of the land is the Khatoni. The plaintiffs have proved the Khatoni of Khasra No.298/144 (10) and the Khatoni of Khasra No.298/138, 139 and 137. It is proved from the Khatoni that the plaintiffs are the coowners having ½ share and it is also clear from the abovesaid Khatoni that the defendants are also coowners/ co sharers having ½ shares. The defendants have objected that the plaintiffs are not the owners of plot no. 298/137, 138 and 139. As per Section 41 of the Delhi Land Revenue Act 1954, all entries in the record of rights prepared in accordance with the provisions of this Chapter shall be presumed to be true until the contrary is proved and thus, there is presumption of correctness of the entries in the Khatoni which are Ex.PW1/1 and Ex.PW1/2 and as per the said entry in Khatoni, the plaintiffs are recorded as coowners of ½ share and the defendants are also recorded as coowners of ½ share. The defendants have completely failed to point that the en try in the Khatoni are wrongly entered and no evidence to a small extent has been proved by the defendants to make the said entry as false and thus, the plaintiffs have succeeded to prove that the plain Suit No. 260/2017 Page 21 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
tiffs are the coowners of ½ shares and thus the plaintiffs are enti tled for a decree of partition of their ½ share.
The onus to prove issue no.2 is on the plaintiffs and the plaintiffs have proved that the plaintiffs are coowners/ cosharers having ½ share and the defendants have also cosharer of ½ share and further it has also been proved by the plaintiffs that no legal partition has taken place by metes and bounds among the plaintiffs and defendants and it is settled law that unless and until a legal partition by metes and bounds take place, no cosharer has a right to raise any construction on the joint land of the parties because, if any cosharer without a legal partition raises any construction on the joint land, the other cosharer would be deprived from the user and enjoyment of the joint land. So, the plaintiffs have succeeded to prove that as the plaintiffs are cosharers of ½ share and no legal partition had taken place and therefore, the defendants may be re strained from constructing any building upon the suit land or to part with the possession of the suit land.
The onus to prove issue no.4 is on the defendants and the defendants have completely failed to prove that they are the ex clusive owners of Khasra No. 298/137, 298/138 and 298/139 and half of Khasra No.298/144. The defendants had not proved by ten dering any documentary evidence of the above said three Khasra Numbers that the defendants are the exclusive owners of the above said three Khasra Numbers. It is settled law that if there is rev enue record of the land, then only the revenue record is the only ev Suit No. 260/2017 Page 22 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
idence which can be relied upon to prove the ownership or posses sion of the said land. That as the present land is governed by the provisions of Delhi Land Revenue Act and to prove the ownership/ title of the land, the Khatoni is the best documentary evidence to prove the ownership. The defendants have not given any documen tary evidence to prove that the defendants are the exclusive owners of Khasra No. 298/138, 138, 139. That on the other hand, the plaintiffs have proved the certified copy of the Khatoni which are Ex.PW1/1 and Ex.PW1/2 by which it is proved that the plaintiffs are the coowners of ½ share and the defendants are also the co owners of ½ share of the above said three Khasra Numbers. That as far as the Khasra No. 298/144 is concerned, the plaintiffs are co owners of ½ share and the defendants are also coowners of ½ share and there is no dispute as far as Khasra No.298/144 is con cerned.
In this way, the defendants have totally failed to prove that they are coowners of ½ share of the above said Khasra num bers. DW4 Shri Raj Pal had stated in crossexamination "I do not know what share my father has in the plots in dispute. I do not know the contents of the Ex.DW4/X. I do not know whether the plaintiffs are cosharer of ½ share of the plot in dispute as per doc uments Ex.PW1/1 and 2". DW3 Shri Satish had admitted in crossexamination "the documents Ex.PW1/1 and 2 are forged and fabricated documents". If the said documents which are Khatoni and the defendants had not challenged the same in any court of law Suit No. 260/2017 Page 23 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
till today. If the said Khatoni Ex.PW1/1 and 2 are forged and fab ricated then, the defendants ought to have taken legal step for cor rection of the said public documents but the defendants have not produced any document that the defendants have challenged the entry in the revenue record showing the shares of the plaintiffs ½ share and of the defendants also ½ share. In the same way, DW2 Shri Rajinder Singh who is also the defendant had admitted in cross examination "I do not know if the names of the plaintiffs are mentioned in the Khatoni Ex.PW1/1 and PW1/2 because, I am il literate person and I cannot read the same". In the same way, DW1 Shri Raj Kumar one of the defendants had stated in cross ex amination "I can not tell the share of my father, the Advocate will tell the same. I am not aware how much share of my father was in the suit property. I am also not aware what is the share of sons of Shri Sheesh Ram in the suit property". From the above said cross examination of the defendants it has been proved that the defen dants have completely failed even to prove that what is the share of the defendants in the revenue record. The defendants have also do not have the knowledge about the share of the defendants in the revenue record and on the other hand the defendants are alleging that the said documents of Khatoni are forged and fabricated. The defendants have thus completely failed to explain that how the Ex.PW1/1 and Ex.PW1/2 which are the public documents and how these documents have been forged and fabricated by the plain tiffs. No police complaint has been made by the defendants. As the Suit No. 260/2017 Page 24 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
Ex.PW1/1 and Ex.PW1/2 are the public documents and therefore, the same cannot be forged and fabricated either by the plaintiffs or any other person. In this way, the defendants have completely failed to prove issue no.4 in their favour.
ARGUMENTS ON BEHALF OF THE PLAINTIFFS Since much before 1954 when the Delhi Land Reform Act came into force the predecessors of the plaintiffs and the prede cessors of the defendants who are not common before 4 th genera tions in regard of some of the defendants and 5 th generations in re gards of other were maintaining separate Khatas and holding and were living separately. The predecessor in interest of the plaintiffs and that of defendants have been separate and divided for three generations therefore there is no question of there being any co parcenery or joint family between them therefore of seeking parti tion of the suit property which are the exclusive properties of the defendants. In the year 1988 the father of the plaintiffs in with connivance of revenue officers of lower level fraudulently introduced his name in the revenue record in respect of the properties that be longed exclusively to the defendants or their predecessor in interest. After doing the same he sold the properties which exclusively be longed him to pretend that he is coowner with the defendants. Af ter fraudulent entry in the revenue record the father of the plaintiffs filed a suit under section 55 of the Delhi Land Reform Act seeking partition of the suit property inter alia other properties which all be longed to the Defendants exclusively. The said suit was continued Suit No. 260/2017 Page 25 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
and prosecuted by the father of the plaintiffs and the plaintiffs after his death for a period of 18 years when the Ld. Revenue Assistant after a long and protracted litigation on 28.04.2006 decided the same by dismissing the suit. The suit was decided in compliance of order of the Hon'ble High Court to decide the case within specified period passed on petition of the defendants. The plaintiffs after dis missal of their suit filed the present suit within 3 days without dis closing anything about the previous litigation. During pendency of the present suit the plaintiffs filed appeal against order of the ld. Revenue Assistant and finally the suit is again dismissed vide order dated 21.03.2011. On 27.10.2010 the plaintiffs unconditionally withdrew his suit against the defendants in regards of suit proper ties.
MISCHIEF/FRAUD PLAYED On 28.04.2006, the suit of the plaintiffs seeking parti tion of the suit properties inter alia others was dismissed by the ld. Revenue Assistant Vasant Vihar and order dismissing the said suit was signed by one of the plaintiffs, namely Leela Ram but the plain tiffs deliberately with intention to play fraud upon the court in Para 12 of the Plaint stated that the cause of action arose in the last week of April 2016. If a suit was filed in the year 1988 for partition which has been continuously contested how can the plaintiffs say that the cause of action first arose in the last week of April 2006.
The plaintiffs deliberately and intentionally did not men tion any fact about previous suit being filed and decided by the Suit No. 260/2017 Page 26 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
court of ld. Revenue Assistant/SDM recently to mislead the court in entertain the present suit.
SUIT FOR PARTITION NOT MAINTAINABLE:
A suit for Partition can be maintainable by a Coparcener against the others. The plaintiffs are neither coparceners nor joint holder of property with the defendants. Therefore the present suit is liable to be dismissed. There is neither any pleading nor any doc ument brought on record by the plaintiffs to show that there exist any joint family of the plaintiffs and defendants or there is any joint ownership of property.
The predecessors of the Plaintiffs on the one hand and those of the Defendant on the other have been separated and hav ing separate holding much prior to year 1954, when the Delhi Land Reform Act came into force. Therefore it cannot be said that there is any joint share holding between the plaintiffs and the defendants. As per the pedigree table filed plaintiffs themselves the common an cestors of between the plaintiffs has been as follows: 4th Generation ancestor of the plaintiff is common to 5 th generation ancestor of defendant no. 112 and 4 th Generation an cestor of defendant no. 13.
Since the coparcenery constitute of 3 generations, the plaintiffs and defendant cannot constitute a coparcency therefore, the plaintiffs cannot seek partition on that the basis that they are Coparcener. Besides, the plaintiffs on the one hand and defendants on the other are maintaining separate Khatta of their since 195455 Suit No. 260/2017 Page 27 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
or prior to that therefore they cannot be said to be joint holder of common joint family property which is liable for partition.
It is settled position of law that mutation or change in mutation does not change ownership. Therefore fraudulent/illegal change of mutation done in the year 1988 by lower level of revenue officer without authority disturbing the mutation which continued since prior to coming into force of the Delhi Land Reform Act, 1954, does not change the character of the holding of the defendants making the plaintiffs holding therein without any basis. If the plaintiffs had any basis for the same plaintiffs must have filed suit seeking declaration of his shares.
FINDINGS OF THE COURT:
The Plaintiffs have not approached with the clean hands before this Court. The Plaintiffs have failed to disclose before this Court in the Plaint that the Suit for partition including the Suit property was filed before the Revenue Assistant/SDM in the year 198788 by the father of the Plaintiffs and the same was continued by the Plaintiffs. The said suit filed before the Revenue Assistant/SDM was dismissed vide order dated 28.4.2006. The Plaintiffs have filed the present suit within a period of 3 days after dismissal of the said suit and interestingly one of the date of cause of action is mentioned as 28.4.2006 on which date the suit of the Plaintiffs for Partition before the RA/SDM was dismissed. The Plain tiff No.2 was present before the Court of RA/SDM on the date of 28.4.2006. The Hon'ble Supreme Court of India in S.P Chengal Suit No. 260/2017 Page 28 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
varaya Naidu vs Jagannath reported as AIR 1994 SC 853= 1994 SCC (1) 1 as held as under: "1.Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the set tled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the high est court has to be treated as a nullity by every court, whether superior or inferior. It can be chal lenged in any court even in collateral proceed ings....".
6. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. 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 an other's loss. It is a cheating intended to get an ad vantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the regis tered release deed (Ex. B15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total dec retal amount to his master Chunilal Sowcar.
Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Nonpro duction and even nonmentioning of the release deed at the trial is tantamount to playing fraud Suit No. 260/2017 Page 29 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
on the court. We do not agree with the observa tions of the High Court that the appellants defen dants could have easily produced the certified registered copy of Ex. B15 and nonsuited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he with holds a vital document in order to gain advantage on the other side then he would be guilty of play ing fraud on the court as well as on the opposite party.
Although, on the basis of the aforesaid Judgment of the Hon'ble Supreme Court, the suit of the plaintiffs is liable to be dis missed. However, there were subsequent developments in the suit for Partition before RA/SDM and the same was also discussed while issue No.1 this Court will adjudicate upon the merits of the case. The onus to prove issues No.1 and 2 are upon the Plaintiffs and in order to prove the aforesaid issues, the Plaintiffs have relied upon three documents i.e. Khatouni Consolidation as Ex. PW1/1, Kha touni Consolidation as Ex.PW1/2 and Akshsajra as Ex.PW1/3. The defendants in order to dislodge the claim of the Plaintiffs relied upon Exhibit PW1/D1 which includes order dated 28.4.2006, Judgments dated 7/6/2006 and 21/03/2011 passed by Revenue Assistant (RA)/SDM, and past records of Revenue Records of Khasra/ Khatauni which was placed before the RA/SDM for the purpose of passing the Order dated 28.4.2006, Judgments dated 7/6/2006 and 21/03/2011. The said documents were part and parcel of the records of Exhibit PW5/1. The relevant portions order Suit No. 260/2017 Page 30 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
dated 28.4.2006, 7/6/2006 and 21/03/2011 are reproduced here under for apt understanding: ".....28/04/06 Case called out. Sh.Raj Kumar for defendants present. Sh. Lila Ram for Plaintiffs present. Adv. Rakesh Kumar for defendants present. Entire case file was carefully perused specially the doc umentary evidences produced by the advocate for defendants ____(illegible) khatauni since 196465 till date. The P7 entry through which name of the plaintiff was entered in khata no. 157 dated 11th April 1986. The P7 entry as per the DC Rev enue rules pertains to correction of clerical entries in the revenue records and same has to be car ried out as per the provisions in Rule 103, Delhi Land Revenue Rules, 1962, read with Rule 104 which enlists the authority empowered to pass the orders. As per the provisions in the present matter the issue was of dispute in succession in land and hence the matter should have been de cided in the court of then R.A. as P7 entry in this case creates an additional title in the suit land. After giving repeated opportunity to the plaintiff to produce the original file of Misl. No.1114 or any order of RA pertain to the suit property they failed to produce the same.
Also as argued by the Adv. for defendants and accepted by the Adv. for plaintiff, there existed separate khata for the plaintiffs in the same vil lage which they sold out.
In view of the above facts I am of the considered opinion that this suit, for partition as filed by the plaintiff is devoid of merits and hence is dis Suit No. 260/2017 Page 31 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
missed. The interim order dated 27/04/1988 is vacated.
Announced in open court. Order be given dasti. Detailed judgment and order to be passed sepa rately."
"ORDER DATED 7/6/2006 "........On 07/4/2006 advocate for respondent filed the Khata Khatauni pertaining to the land of both the plaintiff and defendants since 196465 till 198384, which has been subsequently modi fied. The Advocate for defendant further stated that the P7 entry through which the plaintiff has assumed right in the suit property is an entry with no legality. He further elucidated on the le gal provisions of DLR Act and rules pertaining to P7 entry made in the revenue records and read rule 103(3), (4) and rule (104) of Delhi Land Rev enue Rules 1962. As rightly mentioned by the advocate for the defendant, P7 entry is used for correcting clerical errors in the revenue records and the same has to be done as per the provision of Rule 103 Delhi Land Revenue Rules 1962. This provision read with Rule 104 enlists the authority empowered to pass the order in the type of Rev enue matters.
".........The plaintiff in the meanwhile filed the pedigree table of the family and stated that the P 7 entry was the base through which the Plaintiff had become the cosharer in the suit property. As per the roznama dated 22.04.2006 the plaintiff were given final opportunity to file the certified copy of misil no.1114 in which the said P7 entry Suit No. 260/2017 Page 32 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
was ordered. The said entry was made, when Ghitorni used to come under Tehsil Mehrauli. Fur ther on the next date of hearing advocate of the Plaintiffs filed two applications first for partial withdrawal of the claim and the second for im pleading parties. The Plaintiff once again re quested for time to file the certified copies of misil no. 1114 by way of which the said P7 entry was made, and their request was granted........
"..........As the P7 entry through which the correc tions were made in the revenue records, led to creation of an additional interest in the suit prop erty. The said order was passed in 17.04.1986 in the misil no. 1114 which the Plaintiff after given repeated opportunities could not produce. Also creation of additional interest in the suit property is a disputed case of Mutation entry and hence should have been made by the then RA through an order. The Plaintiffs after repeated opportunities could not file the order of RA or any other authority with respect to the suit property. Also as accepted by the Advocate of Plaintiff and as stated by the advocate of defendant there ex isted a separate Khata in the revenue record for the Plaintiffs which they had already sold.
"..............In view of the above facts and docu ments brought on record, I am of the considered opinion that this suit filed by the Plaintiff is de nied of merits. Hence in view of it I pass the fol lowing order.
ORDER The suit for partition as filed by the plaintiff is de void of merits and hence is dismissed. The in terim order dated 27.01.1988 is vacated.Suit No. 260/2017 Page 33 of 41
Sache Ram and Anr. V. Vijender Singh and Ors.
Tehsildar Vasant Vihar to make necessary changes in the revenue record as per the proce dure prescribed in the law.
Given under my hand and seal on 07.06.2006. Parties to be informed.
File be consigned to record room."
ORDER DATED 21/03/2011 "........Present case has been reopened on the di rections issued by the Court of Hon'ble Dy. Com missioner(SW) issued in appeal under section 185 of DLR Act vide case no. 36/06 order dated 28/01/2008 remanding the case back to the SDM/RA(VV) for examining the relevant docu ments and decide the same on merit in r/o land comprising khata khatoni no. 156 bearing khasra number 298/144(10) and khata no. 157 bearing Kh. No.298/138(014), 298/139(21), 298/137(0
17), 620 min(312) and 627(416) total measuring 13 Bighas situated in the revenue estate of vil lage Ghitorni, New Delhi. Both parties were also directed to appear before SDM/RA (VV) on 06/02/2008.
"..........Earlier, suit for partition filed by the plain tiff under section 55 of the LDR Act, was dis missed by the then Revenue Assistant vide order dated 07/06/2006 as plaintiff is devoid of merits as he had failed to produce certified copies of misil no.1114 by way of which the P7 entry was made. The interim order dated 27/04/1988(wrongly mentioned in the order as 27/01/1988 but correctly written in order sheet dated 28/04/2006), by which it was ordered to Suit No. 260/2017 Page 34 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
maintain status quo by the parties, was also va cated by the then R.A. "..........After remanding back the case by the court of Dy. Commissioner(SW) vide order dated 28/01/2008, the main issues before this court were:
1. To decide application under order 23 rule 1 for withdrawal of the part of the claim in the suit by the appellant.
2. To examine misil no.1114 by way of which the P7 entry was made and decide the suit of partition on its merits.
".......In his application dated 26/04/2006 under order 23 rule 1 read with section 151 CPC plain tiffs has stated that suit for partition of the agri culture land filed u/s 55 of DLR Act was filed but inadvertently the khasra no. 298/144(10), 298/138(014), 298/139(21), 298/137(017), are the residential plot allotted to the cobhumidars in the consolidation of holdings and the above said plots have not been used for agriculture purposes and only khasra no. 620 min(312) and 627(416) total measuring 8 bigha 8 biswas is the agricul tural land and suit u/s 55 of DLR Act are filed only for the partition of the agriculture holding and not for residential plot and applicant does not want to include the residential plot in the present suit and hence it may please be allowed to withdraw the suit in regard of these residential plots comprising in khasra no. 298/144(10), 298/138(014), 298/139(21), 298/137(017) sit uated in revenue estate of village Ghitorni, New Delhi.Suit No. 260/2017 Page 35 of 41
Sache Ram and Anr. V. Vijender Singh and Ors.
".......After perusal of records, hearing of all the parties, the then R.A(VV) has allowed application under order 23 rule 1 read with section 151 CPC vide order dated 27/07/2010.
"............In view of the same, now case u/s 55 of DLR Act is for agricultural land comprising only in khasra no. 620 min (312) and 627(416) total measuring 8 bigha 8 biswas situated in revenue estate of village Ghitorni, New Delhi.
"...........Defendant no. 1 to 13 have filed their re ply dated 18/01/2011 stating therein that since 25/10/1968 when it was transferred by the pan chayat under order of the Assistant Development Commissioner transferred the same in favour of the defendants or their predecessor and since the same have been undisputedly under ownership of the defendants or their predecessor in interest and without any objection of the plaintiffs or their father till filing of the suit, the suit is not main tainable and plaintiffs cannot seek partition of the suit property after 27 years of the defendants being in peaceful possession of the same. They further mentioned that since the P7 in question is made under authority that is not competent to is sue the same. The plaintiffs to harass the defen dant, they continued this suit seeking partition till it was dismissed on 28/04/2006 with an status quo order and without disclosing the fact about pendency of decision of the suit as the same is still pending before the Ld. ADJ, Delhi where Hon'ble High Court has directed stay of the pro ceeding vide its reply dated 30/05/2007 in civil revision no.107 of 2007. They further requested to dismiss the suit.Suit No. 260/2017 Page 36 of 41
Sache Ram and Anr. V. Vijender Singh and Ors.
"..........Defendant no. 14 has moved an applica tion under order 1 rule 10 of CPC mentioning therein that he has a share in the suit land to the extent ½ share instead of 1/4 th share and hence proceeding may please be stayed in the present case till the final order is not passed by Tehsil dar, Vasant Vihar on the application for correc tion.
"...........There were two main issues before this court as discussed above, out of which one has already been decided by the predecessor of this court by allowing application under order 23 rule 1 for withdrawal of the part of the claim in the suit by the appellant. As regard other issue i.e. to examine misil no.1114 by way of which the P7 entry was made and decide the suit of partition on its merits, petitioners failed to produce certi fied copies of misil no.1114.........."
The orders dated 28.4.2006 and 7.6.2006 was passed in respect of agricultural and residential plots but the order dated 21/03/2011 passed by RA/SDM in respect of the Agricultural lands. The bare perusal of the orders dated 28.4.2006, 7.6.2006 and 21/03/2011 passed by the RA/SDM, the same reflects that the Plaintiffs have relied upon the very same documents in the said proceedings which were relied upon by the Plaintiffs in the present suit i.e. Exhibit PW1/1 and Exhibit PW1/2. The said orders fur ther demonstrate that the Plaintiffs have failed to produce any co gent and convincing evidence either by way of Mutation Order No.1114 or reasoned/detailed order of correction as passed under Suit No. 260/2017 Page 37 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
Rule 103 and Rule 104 of Delhi Land Revenue Rules, 1962 by the Revenue Assistant/ SDM for correction of entry i.e. P7. It is apt to reproduce here the crossexamination of PW1 in this respect: "... It is wrong to suggest that the property com prising in Khata No.157 having Khasra No. 298/137 (017 Biswa), 298/138 (014 Biswa), 298/139 (21 Bigha) was in the name of defen dants or their predecessors since 1954. It is cor rect that the name of my father was entered into revenue record with regard to these properties on 17.04.1986."
Therefore, the name of the father of the Plaintiffs in the suit property was entered by way P7 on 17.04.1986. The basis of correcting the revenue record was based upon the order and as per the Plaintiffs, the same was on account of Mutation/Missil No.1114.
In the present case also, the Plaintiffs have failed to prove on record correction entry i.e. P7 in the Exhibits PW1/1 and Ex. PW1/2 by producing cogent and convincing evidence. It is fur ther observed in the said order the advocate for the defendants filed the Khata Khatauni pertaining to the land of both the plaintiffs and defendants since 196465 till 198384. The name(s) of the predeces sor of interest of the plaintiffs was reflected in different Khata/ Khasra Number and the name(s) of the predecessor of interest of defendants was reflected in different Khata/ Khasra Number, there fore, till the correction entry i.e. P7 which was done on 17.4.1986, the name of father of the Plaintiffs was not reflected in the Suit No. 260/2017 Page 38 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
Khata/Khasra numbers of the suit property. Therefore, it was in cumbent upon the Plaintiffs to prove Mutation/Missil No.1114 or the order which was passed under Rules 103 and 104 of Delhi Land Revenue Rules, 1962 by the Revenue Assistant/SDM in these pro ceedings but they have failed to prove the same before this court. It is also borne from the records that immediately after correction en try P7, the father of the plaintiffs have filed the suit for Partition against the defendants and/or their predecessors before the RA/SDM which includes the suit property. It is also borne from the records that the name of the father was recorded in the other khasra numbers which was sold by the plaintiffs. It is apt to men tion here the cross examination of PW1 : "........Khasra No. 217 & 218/1 of Revenue Vil lage Ghitorni Rakba 8 bigha were sold by us (plaintiffs) as it belong to our father. I had not given any share in the sale proceed of the above land to the defendants as they were not entitled for the share of the above land to the defendants as they were not entitled for the share in the said property...."
There is force in the arguments of the defendants that in the revenue records the name of the predecessor of interest of the plaintiffs was not recorded as they were not having any rights in the suit property and they were enjoying their own respective property which the plaintiffs have sold. The plaintiffs have utterly failed to prove the correction entry dated 17.4.1986 by leading cogent and convincing evidence and the RA/SDM has not accepted the said en Suit No. 260/2017 Page 39 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
tries as correct in view of the aforesaid repeated orders. The initial order dated 28.4.2006 followed by detailed Judgment 7.6.2006 passed by RA/SDM was setaside only on the ground that the Plaintiffs were not given complete opportunity to prove the correc tion entry P7 dated 17.4.1986. However, in spite of the opportunity given to the Plaintiffs they have failed to prove said entry again and observation of the same also finds in the order dated 21/3/2011 passed by RA/SDM. The plaintiffs have failed to prove entry P7 dated 17.4.1986 in this Court also by leading cogent and convinc ing evidence. The defendants have also relied upon the following Judgment in order to demonstrate that revenue record does not confer any right, title and interest in the property: (1) Para No.7 of the Judgment passed by the Hon'ble Supreme Court in Sankalchan Jayachanbhai Patel Versus Vithlbhai Jay achanbhai Patel 1997(1) LCR page 198. The relevant portion of para No.7 is reproduced as under: "7. It is settled law that mutation entries are only to enable the State to collect revenues from the persons in possession and enjoyment of the prop erty and that the right, title and interest as to the property should be established de hors the en tries. Entries are only one of the modes of proof of the enjoyment of the property. Mutation entries do not create any title or interest therein."
(2) Para No.6 of the Judgment passed by the Hon'ble Supreme Court in Sawarni Versus Inder Kaur & Ors. 1996(2) LCR page
647. The relevant portion of para No.6 is reproduced as under: Suit No. 260/2017 Page 40 of 41 Sache Ram and Anr. V. Vijender Singh and Ors.
"6.........He has been swayed away by the so called mutation in the revenue record in favour of Inder Kaur. Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question....."
The Plaintiffs have utterly failed to prove that the Plain tiffs or their predecessor in interest have any right, title or interest in the suit property. Cumulatively, from the discussions as adum brated above, perusal of record of RA/SDM and submissions made by the defendants, the issues No.1, 2 and 4 are decided against the Plaintiffs and in favour of the defendants.
RELIEF From the discussions, as adumbrated hereinabove, I hereby pass the following FINAL ORDER
(i) The suit of the plaintiffs is dismissed.
(ii) The parties shall bear their own respective costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court (ARUN SUKHIJA)
on 06/10/2018 ADJ07 (Central)
Tis Hazari Courts, Delhi
Suit No. 260/2017 Page 41 of 41