Delhi District Court
Shri Amar Singh vs Shri Attar Singh on 19 November, 2016
IN THE COURT OF MS. NEHA, CIVIL JUDGE09,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Suit No : 328/16 (Old suit No. 243/2000)
1. Shri Amar Singh
S/o Late Bhagwana
2. Smt. Dhanpati
W/o Late Karan Singh
3. Shri Ravi Shankar
4. Sh. Dalbir
Both S/o Late Karan Singh
All Resident of :
Village & Post Office Jatkhorh,
Delhi - 110039. .... Plaintiffs.
Versus
1. Shri Attar Singh
2. Shri. Narayan Singh,
Both S/o Late Bhagwana,
Both R/o Village & Post Office,
Jatkhorh, Delhi - 110039. .... Defendants.
AND
Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 1 of 29
Suit No : 327/16 (Old suit No. 100/2003)
1. Sh. Amar Singh
S/o Sh. Bhagwana
2. Smt. Dhanpati
W/o Late Sh. Karan Singh
3. Sh. Ravi Shankar
S/o Late Sh. Karan Singh
4. Sh. Dalbir
S/o Late Sh. Karan Singh
All R/o Village & P.O. Jatkhorh,
Delhi - 110039. .... Plaintiffs.
Versus
1. Sh. Attar Singh.
2. Sh. Narayan Singh,
Both S/o Late Sh. Bhagwana,
R/o Village & P.O. Jatkhorh,
Delhi - 110039.
3. Sh. Jai Karan,
S/o Sh. Bhanne,
R/o Village Tateswar,
Delhi - 110039.
4. Smt. Santa Devi,
W/o Sh. Ishwar,
R/o Village Jatkhorh,
Delhi - 110039. .... Defendants.
Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 2 of 29
SUIT FOR INJUNCTION
&
SUIT FOR DECLARATION AND INJUNCTION
Date of reserving Judgment : 15.10.2016
Date of pronouncement : 19.11.2016
COMMON JUDGMENT
1. Vide this common Judgment, I shall dispose of suit of the plaintiffs seeking decree for permanent injunction as well as suit seeking a decree of declaration and permanent injunction.
2. Pleadings of CS No. 328/16 (suit for injunction) in brief are as follows : 2.1. Brief facts as stated in the plaint are that the plaintiffs are the owners and are in actual, physical and exclusive cultivatory possession of agricultural lands falling under khasra nos. 718 (416), 719 (416), 720 (16), 721 (23), 1672 (416), 1673 (416) and 1676 (014) measuring 23 bighas and 7 biswas, situated in revenue estate of village Punjab Khorh, Delhi and khasra no. 18/22 (36), 18/23 (25) and 18/24 (44) measuring 9 bighas and 15 biswas situated in revenue estate of Village Jatkhorh, Delhi, total measuring 33 bighas and 2 biswas (hereinafter referred to as 'suit land').
2.2. The plaintiff no. 1 and defendants are real brothers. Plaintiff no. 2 is the wife and plaintiffs no. 3 and 4 are sons of real brother, Late Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 3 of 29 Karan Singh. The plaintiff no. 2 is also the sister in law (sali) of plaintiff no. 1. The agricultural land falling under khasra nos. 18/22 (3
6), 18/23 (25) and 18/24 (44) measuring 9 bighas and 15 biswas forming part of suit land and khasra nos. 39/11 (416), 12 (416), 19 (4
16), 20/1 (28), 22 (416) and 46/11 measuring 26 bighas and 8 biswas, situated in revenue estate of Village Jatkhorh was purchased by plaintiff no. 1, late brother Karan Singh and defendants in the year 19641968 from Ganesh Das and part of the suit land situated in the revenue estate of Punjabkhorh was purchased by plaintiff no. 1, late Karan Singh and defendants from Sh. Dharam Singh on 06.06.1967. 2.3. The agricultural land falling under khasra nos. 7/19 (416), 7/20/2 (28), 42/21 (412), 42/22 (412), 42/23 (311) measuring 19 bighas and 19 biswas and 7/18 (416), 7/23 (416), 42/18 (69), 42/19/1 (011), 42/19/2 (25), 42/19/3 (20) and 42/20 (416), measuring 22 bighas and 2 biswas totaling to 42 bighas and 1 biswas situated in revenue estate of Village Jatkhorh was inherited by the parties. 2.4. After the death of Sh. Bhagwana / father of plaintiff no.1, defendants and Late Karan Singh, the defendants started demanding partition. The plaintiff no. 1 agreed to the same. In the month of March 1980, plaintiff no. 1 and his brothers in presence of friends, relatives and respectable people of the village had entered into an oral family settlement (Bahami Faisla) whereby the suit land and 19 bighas and 19 biswas out of ancestral land totaling to 53 bighas and 1 biswas came to the share of plaintiff no. 1 and his late brother Karan Singh and 48 bighas and 10 biswas had gone to the share of defendants.
Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 4 of 292.5. The suit land, which came in the share of plaintiff no. 1 and Late Karan Singh, was used by the villagers for easing out and was also prone to animal grazing. The suit land was also totally dependent on rainy season for irrigation and was more prone to damages and destruction by the villagers. The plaintiff no. 1 had persuaded his brother Late Karan Singh to agree to Bahami Faisla (family settlement) in order to maintain peace and prosperity of the family. It was agreed that plaintiffs and defendants are exclusive owners in possession of their respective shares and are free to harvest / cut the standing crop of their respective share without any interference from each other. 2.6. The plaintiff no. 1 and Late Sh. Karan Singh had installed tube wells in khasra no. 18/22 (36) in Jatkhorh, khasra no. 718 (416) in Punjabkhorh and rooms for living was also built in the same year. The tube wells were being used for agricultural purposes. 2.7. The defendants kept on postponing the mutation as per Bahami Faisla on one pretext or the other. The defendants also developed a grudge that Karan Singh would take the whole share of the plaintiff no.
1. The defendants, with the help of others, attacked and gave merciless beating to the plaintiff and Late Karan Singh on 28.08.1984 due to which Karan Singh died on the spot. The defendants were acquitted and the appeal is pending before the Hon'ble High Court of Delhi. 2.8. In the month of December, 1999 and again in January 2000, the defendants asked the plaintiffs to vacate the land falling under khasra no. 18/22 (36), 23 (25) and 24 (44), Village Jatkhorh. The plaintiffs refused to vacate the same as the land came to their share as per Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 5 of 29 Bahami Faisla. The plaintiffs had invested a lot of money, material and labour to make the land fertile and productive. The defendants had also visited the suit property with intending buyers. 2.9. On 28.8.2000, the defendants along with 34 persons came at plaintiff's tube well in Jatkhorh at around 45 pm when the plaintiff no.1 was filling the land and constructing a kothra and boundary wall in and around his field bearing khasra nos. 18/22 (36), 18/23 (25) and 18/24 (44), Village Jatkhorh. The defendants threatened the plaintiff that the land has already been sold by them to one of their companions and they have to execute the sale deed and hand over the possession to the purchaser. The defendants asked the plaintiff to sign some papers but the plaintiff refused to do the same. The defendants threatened the plaintiff that they would finish the plaintiffs and his family as they had finished Karan Singh and would grab all the land. A complaint in this regard was lodged with the police but no action was taken by the police.
2.10. The defendants are near relations of the plaintiffs as the plaintiff no. 1 brought up the defendants and married them and helped them in their education and avocations. The defendants, with malafide intentions, want to deprive the plaintiffs from their rightful and lawful possession by dispossessing the plaintiffs or disposing of whole of the agricultural land in which they have no right, title or interest. The plaintiffs have no other efficacious remedy but to file the present suit. 2.11. Therefore, the suit has been filed for a decree of permanent injunction in favour of the plaintiffs and against the defendants thereby Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 6 of 29 permanently restraining the defendants, their agents, assignees etc. from interfering in the peaceful possession and enjoyment of the plaintiffs of their land falling under khasra nos. 718 (416), 719 (416), 720 (16), 721 (23), 1672 (416), 1673 (416) and 1676 (014) measuring 23 bighas and 7 biswas situated in the revenue estate of village Punjabkhorh, Delhi and khasra nos. 18/22 (36), 18/23 (25) and 18/24 (44) measuring 9 bighas and 15 biswas situated in the revenue estate of Village Jatkhorh, Delhi and further restrain them from dispossessing the plaintiffs and creating any third party interest in the land of the plaintiffs and further restrain them from interfering in the land filling (Bharat) and construction of a kothra with boundary wall in and around the land falling under khasra nos. 18/22 (36), 18/23 (25) and 18/24 (44) measuring 9 bighas and 15 biswas situated in the revenue estate of Village Jatkhorh, Delhi.
3. The defendants, Attar Singh and Narayan Singh have filed joint written statement taking preliminary objections that the present suit is not maintainable as the suit is governed by Delhi Land Reforms Act and the jurisdiction of Civil Court is barred. The plaintiffs have not approached the Court with clean hands. It is stated that the land in question was purchased by late father Sh. Bhagwana in the name of his four sons namely Sh. Amar Singh, Late Karan Singh, Attar Singh and Narayan Singh from one Sh. Ganesh Dass and other land situated in revenue estate of Village Punjabkhorh was also purchased by late father in the name of four sons from one Sh. Dharam Singh. The land in question has not been divided between the parties and nobody is the Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 7 of 29 exclusive owner of any portion or khasra number.
4. It is further stated that no oral agreement (Bahami Faisla) was ever executed between the shareholders. The tube wells were installed from the joint funds of the parties and there is no room on the tube well for living purposes. No Bahami Faisla was ever executed between the parties. Plaintiffs are not in exclusive possession of any portion of land in question and the defendants have sold 3 bighas and 4 biswas land out of their share to one Sh. Jai Karan long time back. Rest of the allegations made in the plaint are denied in the written statement.
5. The plaintiffs have filed replication to the written statement of the defendants wherein they have reiterated the averments made in the plaint and denied the allegations made in the written statement.
6. Pleadings of CS No. 327/16 (suit for declaration and injunction) in brief are as follows :
7. Brief facts as stated in the plaint are that the plaintiffs are the owners and in actual, physical and cultivatory possession of agricultural lands falling under Khasra Nos. 718 (446), 719 (446), 721 (23), 1672 (446), 1673 (416), 1676 (014) measuring 23 bighas and 17 biswas situated in the Revenue Estate of Village Punjabkhorh, Delhi and Khasra Nos. 18/22 (36), 18/23 (25) and 1824 (44) measuring 9 bighas 15 biswas in the Revenue Estate of Jatkhorh, Delhi and other agricultural lands situated in Village Jatkhorh, Delhi. 7.1. On 28.8.2000, when the plaintiffs were constructing a boundary wall in and around the suit land, the defendant Nos. 1 and 2 with their associates tried to disrupt them and asked them to vacate and hand over Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 8 of 29 the possession of the suit property. A complaint in this regard was lodged against the defendant Nos. 1 and 2 and their associates with the police but no action was taken. Therefore, the plaintiffs filed a suit for injunction against defendant Nos. 1 and 2 on 29.8.2000 which was pending in the court of Sh. Manish Yaduwanshi.
7.2. On 14.9.2000, while submitting the written statement in the said case, the defendant Nos. 1 and 2 disclosed to have sold 3 bigha 4 biswa out of their share, which is actually the share of the plaintiffs to, one Sh. Jai Karan, the defendant No. 3. Further, Smt. Santra Devi, defendant No. 4 moved an application under Order 1 Rule 10 CPC thereby seeking to be impleaded as a party in that suit claiming herself to be the owner of the suit property by purchasing the same from defendants on 14.7.2000 by way of sale deed.
7.3. The defendant Nos. 3 and 4, in connivance with officials of Tehsil Kanjhawala, obtained an illegal mutation order on 11.9.2000 in their names. However on 7.9.2000 i.e. just four days back, when the plaintiff applied and got Khatauni consolidated, no such mutation was shown. The mutation dated 11.9.2000 was drawn by writing in red ink after filing the suit for injunction.
7.4. The alleged sale deed executed by the defendant Nos. 1 and 2 in favour of defendant Nos. 3 and 4 and mutation dated 11.9.2000 are illegal, void, abinitio. Hence, the plaintiffs have filed the suit seeking a decree thereby declaring the sale deed dated 14.7.2000 executed in favour of defendant Nos. 3 and 4 in respect of property measuring 3 bigha 4 biswa out of Khasra No. 18/23 & 24 total measuring 6 bighas 9 Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 9 of 29 biswas situated in the Revenue Estate of Jatkhorh, Delhi as illegal, void abinitio and quash the same. The plaintiffs have also sought decree of permanent injunction thereby restraining the defendants from dispossessing the plaintiffs from the suit property and also from creating disruption / interfering in the peaceful usage and enjoyment / occupation in the suit property and from creating third party interest therein by any means.
8. All the defendants have filed their joint written statement taking preliminary objections that the suit of the plaintiffs is badly time barred. It is stated that the suit property was sold to defendant Nos. 3 and 4 by the defendant Nos. 1 and 2 on 14.7.2000 and this fact has been admitted by the plaintiffs in other suit bearing No. 345/01 pending in the court of Sh. Manish Yaduwanshi, Ld. Civil Judge. The plaintiffs have not come to court with clean hands and have suppressed material facts from this court. It is also stated that the present suit is not maintainable as the other suit is pending adjudication on the same cause of action. The jurisdiction of Civil Court is barred by law in the revenue matters and only the Revenue Courts have got the jurisdiction to try the same.
9. In reply on merits, it is stated that the defendant Nos. 1 and 2 are also coowners of the land except the land which the defendant Nos. 1 and 2 have sold to defendant Nos. 3 and 4. The possession of the suit land was given at the spot by the defendant Nos. 1 and 2 to defendant Nos. 3 and 4 at the time of sale deed. The tube well in question was installed by the composite funds of defendant Nos. 1 and 2 and plaintiff Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 10 of 29 Nos. 1 to 4. Rest of the averments as made in the plaint are denied in the written statement.
10. Plaintiffs have filed the replication to the written statement of the defendants wherein allegations made in the written statement are denied and averments made in the plaint are reiterated.
11. Order of consolidation of both suits and issues.
12. Vide order dated 24.11.2005 passed in suit No. 243/2000 (New No. 328/16), the suit no. 100/2003 (new no. 327/16) was consolidated with the suit No. 243/2000 (new no. 328/16). It was observed that the parties to the suits are similar and the subject matter involved is also same and therefore, both these suits are accordingly consolidated. Suit No. 243/00 (New No. 328/16) was treated as main suit and evidence was to be recorded in that suit henceforth.
13. Vide order dated 24.11.2005, on the application of the plaintiffs under Order 14 rule 5 read with section 151 CPC, recasting of issues was also done. Upon the pleadings of both the suits, the issues framed in suit No. 243/2000 (New No. 328/16) and suit No. 100/2003 (new no. 327/16) as framed were recasted as under:
1. Whether this Court does not have jurisdiction to try the present suits ? OPD.
2. Whether a Bahami Faisla was entered between the parties to the suit in March 1980 as alleged ? OPP.
3. Whether the relief of declaration and injunction Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 11 of 29 sought in suit no. RBT 82/05 is barred by time ? OPD.
4. Whether the sale deed dated 14.07.2000 is liable to be declared as illegal and void abinitio ? OPP.
5. Whether the plaintiff is entitled to injunctions as claimed ? OPD.
6. Relief.
14. The parties were then called upon to lead their respective evidence.
15. The plaintiff no.1 examined himself as PW1 and tendered his evidence by way of affidavit Ex. PW1/A. PW1 relied upon the following documents : i. Report of Jamabandi of khewat no. 99, Khatoni no. 157 in the year 196869 of Village Punjabkhorh as Ex. PW1/1. ii. Khasra Girdawari report of khasra nos. 718, 719, 720, 721, 1672, 1673, 1676 dated 19.11.1997 to 27.10.2003 of village Punjabkhorh as Ex. PW1/2 (colly).
iii. Khasra Girdawari report of khasra no. 18/22, 18/23, 18/24, 19, 20/1, 22 and 46/11 from 30.10.2000 to 11.6.2004 of Village Jatkhorh as Ex. PW1/3 (OSR).
iv. Security amount receipts of electricity connections and electricity bills issued by D.E.S.U as Ex. PW1/4 (OSR). v. Bricks purchase receipt as Ex. PW1/5.
vi. Police complaint as Ex. PW1/6.
Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 12 of 29vii. Report of Khatoni consolidation of khewat no. 238/2 khatoni no. 3 of village Jatkhorh dated 07.09.2000 as Ex. PW1/7.
viii. Report of khatoni consolidation of khewat no. 238/2, khatoni no. 3 of Village Jatkhorh dated 11.09.2000 as Ex. PW1/8.
16. The plaintiff examined Sh. Raj Singh, neighbour, as PW2 who tendered his evidence by way of affidavit Ex. PW2/A.
17. Vide order dated 23.1.2012, plaintiff's evidence was closed as the plaintiff failed to complete entire plaintiff's evidence despite given last opportunity and the matter was fixed for defence evidence. Application was filed on behalf of the plaintiff on 25.9.2012 for recalling of order dated 23.1.2012 which was allowed.
18. The plaintiff further examined HC Rajender Singh from PS Kanjhawla, Delhi as PW3. He produced copy of DD entry no. 21B dated 28.04.2014 in respect of complaint lodged by Sh. Amar Singh as Ex. PW3/1, copy of order dated 29.11.2004 of Deputy Commissioner of Police vide which old record were destroyed, as Ex PW3/2, copy of order dated 15.03.2011 of DCP, Outer District Delhi as Ex. PW3/3 and copy of order dated 09.05.2012 of the Additional DCP, Outer District, Delhi as Mark Ex. PW3/4.
19. The plaintiff examined HC Ranbir Singh as PW4. The witness was summoned with the record of complaint dated 27.12.2002 of Sh. Amar Singh lodged with the office of DCP, North West. PW4 has stated that the summoned record has been destroyed vide certificate Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 13 of 29 dated 10.04.2006 of the ACP / PG, North West District which is Ex. PW4/1 in pursuance of order no. 1745060/GENL (II) NWD dated 27.03.2006 of the ACP / PG, North West District, the order is Ex. PW4/2.
20. Thereafter, again vide detailed order dated 10.12.2013, plaintiff's evidence was closed as the plaintiff failed to take steps to lead remaining evidence. Application was again filed on 14.7.2014 for recalling of order dated 10.12.2013 which was allowed.
21. Thereafter, plaintiff examined Sh. Raj Singh Gulia, Halka Patwari, Village Punjabkhorh and Jatkhorh from the office of Deputy Commissioner, Kanjhwala, Delhi as PW5. He produced the record of Khasra Girdawari dated 07.09.2000, 11.09.2000 and 11.06.2004 issued from the office of Deputy Commissioner, District North West, Kanjhawala, Delhi which is already Ex. PW1/2, khasra Jamabandi for 196869 under the Punjab Land Revenue Act for the land in Village Punjabkhorh, Ex. PW1/5, Khasra Girdawari for the year 199697, 97 98 and 200405 under Punjab Land Reforms Act already Ex. PW1/1 (colly), khatoni consolidation dated 07.09.2000 and 11.09.2000 already Ex. PW1/7 and Ex. PW1/8.
22. The plaintiff examined Sh. Sukhbir Singh, Kanungo, Tehsil Kanjhawala, Delhi as PW6. He produced the file /record of Intqal proceedings of intaqal no. 929 by order CO/ Tehsildar dated 05.09.2000 in respect of khasra no. 18/23, 18/24 of Village Jatkhorh. The record is Ex. PW6/A (OSR).
23. Plaintiff's evidence was closed vide order dated 17.8.2015. The Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 14 of 29 plaintiff filed an application under Order 47 Rule 1 CPC for review of order dated 17.8.2015. The said application was allowed vide order dated 26.11.2015 and the plaintiffs were given one last opportunity to lead entire evidence. The plaintiffs did not examine any other witness and the plaintiff's evidence was closed vide order dated 18.1.2016.
24. The plaintiffs again filed an application under Order 47 Rule 1 read with Order 18 Rule 17 CPC which was disposed of vide order dated 13.5.2016 and the plaintiffs were granted opportunity to adduce additional plaintiff's evidence.
25. The plaintiffs adduced additional evidence by examining plaintiff No. 1 as PW1. In his additional evidence by way of affidavit, Ex. PW1/A, PW1 has tendered Jamabandi for the year 200607 bearing mutation in terms of order dated 22.7.2011 as Ex. PW1/1 and the order dated 22.7.2011 in CS (OS) No. 1731/11 titled as Mahabir Singh & Ors. Vs. Narayan Singh & Anr. as Mark A.
26. No other witness had been examined by the plaintiffs and the plaintiff's evidence was closed vide order dated 13.5.2016. The matter was then listed for defence evidence.
27. The defendant no.1 had expired during trial. Vide order dated 29.9.2007, the suit No. 243/2000 (New No. 328/16) stood abated against defendant No. 1. The application under Order 22 Rule 2 CPC was allowed in suit No. 100/03 (New No. 327/16) vide order dated 29.9.2007. Further, the defendant Nos. 1 and 2 were proceeded exparte in suit No. 100/03 (New No. 327/16) vide order dated 14.7.2014.
28. The legal heirs of Attar Singh and defendant Narayan Singh did Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 15 of 29 not examine any witness in defence. The defendant Jai Karan also did not examine any witness in his defence.
29. The defendant no. 4 Smt. Santra Devi examined herself as DW1 who tendered her evidence by way of affidavit as Ex. DW1/A. She has relied upon following documents:
1. Copy of order passed by the DC, North West District, Kanjhawala, Delhi as Mark A.
2. Certified copy of Appeal pending before Deputy Commissioner, NorthWest District, Kanjhawala, Delhi filed by the plaintiff as Ex. DW1/B.
3. Copy of the sale deed dated 14.7.2000 as Ex.
DW1/C (OSR).
30. Sh. Jagbir Singh, a resident of the same village was examined as DW2 who tendered his evidence by way of affidavit as Ex. DW2/A. Cross examination of the witness was deferred. However, defendant Santra Devi did not recall witness Sh. Jagbir Singh for cross examination and defence evidence was closed vide order dated 8.6.2016. In these circumstances, the affidavit tendered in examination in chief of DW2, Jagbir Singh cannot be read for deciding the issues involved in the suits.
31. The defendant, Santra Devi did not examine any other witness and defendant's evidence was closed vide order dated 08.06.2016.
32. All the witnesses were cross examined by the respective counsels for the opponent. Parties were then called upon to advance their final Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 16 of 29 arguments in the matter.
33. I have heard the arguments on behalf of the Ld. Counsel for the parties and have perused the case file. My issuewise findings are as follows :
34. ISSUE NO. 1 : Whether this Court does not have jurisdiction to try the present suits? OPD.
35. The onus to prove this issue had been placed upon the defendants. The issue has been framed in respect of both suits. First, I shall decide whether this Court has no jurisdiction to try suit no. 243/2000 i.e. suit for permanent injunction. The defendants have taken objection in the written statement that the suits of the plaintiffs is barred under DLR Act. Ld. Counsel for the defendants has argued that the suits of the plaintiffs is barred under Section 185 of Delhi Land Reforms Act and this court has no jurisdiction to try the present suit.
36. I have considered the submissions and have perused the record.
37. The plaintiffs have filed the suit No. 243/2000 (New No. 328/16), for relief of permanent injunction to restrain the defendants from creating any third party interest and also from dispossessing or interfering in the peaceful possession and enjoyment of the plaintiffs over the suit property. The suit has been filed with the allegations that the defendant Nos. 1 and 2 i.e. Sh. Attar Singh and Sh. Narayan Singh had tried to create third party interest in the property which came to the share of the plaintiffs after family settlement / Bahami Faisla in the year 1980 and they also tried to interfere in the peaceful possession of the plaintiffs over the land in their possession.
Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 17 of 2938. Section 185 (1) of the Delhi Land Reforms Act reads as under : "185. Cognizance of suits, etc, under this Act (1) Except as provided by or under this Act, no Court other than a Court mentioned in column 7 of Schedule I shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, take cognizance of any suit, application, or proceedings mentioned in column 3 thereof".
39. Section 185 of the DLR Act does not bar the jurisdiction of Civil Court to grant relief of injunction in respect of agricultural land. On bare perusal of Section 185 DLR Act, it is clear that the suits in respect of which cognizance is barred are only those suits which are mentioned in schedule I of the DLR Act. On perusal of Schedule I of DLR Act, it is clear that it does not provide remedy for injunction before a revenue authority. Therefore, this Court holds that the suit of the plaintiffs bearing no. 243/2000 for relief of permanent injunction is maintainable before this Court.
40. Now, this court shall decide whether suit no. 100/03 (327/16) for relief of declaration is barred under Delhi Land Reforms Act.
41. DW1 Santra Devi has stated, in her affidavit, that the land in dispute was purchased by Jai Karan and Santra Devi from defendant Attar Singh and Narayan Singh on 14.07.2000. The plaintiff filed an application before the Collector, North West District, Kanjhawala, Delhi for cancellation of the sale deed as well as mutation but the same was dismissed by the Collector as the same was not maintainable. It is also stated in the affidavit that the plaintiff also filed an application for Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 18 of 29 filing of appeal as per order passed by Hon'ble Finance Commissioner. The application for refiling the appeal for necessary correction is pending before the Deputy Commissioner. It is also stated that the plaintiffs are not entitled to file two separate petitions for claiming the same relief.
42. No suggestion has been given to DW1 that the proceedings as mentioned in the affidavit of Santra Devi are incorrect. DW1 has placed on record certified copy of the proceedings / order passed by the Deputy Commissioner, North West dated 11.1.2013 vide which the Appeal filed by Amar Singh under Section 13 of the PLR Act, 1887 against the order of the Tehsildar was dismissed.
43. Copy of Appeal filed before the Deputy Commissioner, North West as per the directions of the Hon'ble Finance Commissioner is also placed. The same is Ex. DW1/B. In the said Appeal, it is prayed by plaintiffs that the order dated 5.9.2000 sanctioning mutation with respect to agricultural land in Khasra No. 18/2324 situated in Revenue Estate of Village Jatkhorh, Delhi in favour of Jai Karan and Santra Devi be set aside and quashed.
44. There is no dispute that the defendant Nos. 1 and 2 had executed the sale deed in favour of defendant Nos. 3 and 4. There is also no dispute that the mutation has been sanctioned in the name of defendant Nos. 3 and 4. The plaintiffs have also admitted that application for the cancellation of mutation in the name of Jai Karan and Santra Devi has also been filed and the appeal against the order of mutation is still pending.
Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 19 of 2945. In the matter of Hatti Vs. Sunder Singh, AIR 1971 2 SCR, the Hon'ble Supreme Court of India has held that if a question of title is raised in the application for declaration of bhoomidhari rights, that question will then be referred by the Revenue Assistant to the Civil Courts but a party wanting to raise such a question of title in order to claim bhumidhari rights cannot directly approach the Civil Courts. The Bar of Section 185 read with Section 186 of the Delhi Land Reforms Act will come into picture when the question of title is raised in an application before the Revenue Assistant for declaration of bhumidhari rights.
46. Hon'ble High Court of Delhi in Subhadara Vs. Surender Singh (2016) 229 DLT 188 had the occasion to decide a matter in which similar questions of law were involved. In the said case, the appellant had sought declaration of sale deed as null and void, declaring the mutation record as null & void and also for relief of permanent injunction. Hon'ble High Court has dismissed the Appeal filed by the appellant as the same was not only time barred but was also hit by Section 185 of the Delhi Land Reforms Act. Hon'ble High Court has also held that the provisions of Section 186 of Delhi Land Reforms Act does not come to the rescue of the appellant. After discussing the law, Hon'ble High Court has held that a civil suit seeking declaration to declare a sale deed null and void on the basis of assertion that seller did not have right to execute sale deed is barred under the Delhi Land Reforms Act. Hon'ble High Court has held as under:
"19. The Delhi Land Reforms Act is a complete code in Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 20 of 29 itself. Anyone who is desirous of a declaration of his right must approach the Revenue Assistant under Item No. 4 of the First Schedule. What the appellant/plaintiff is seeking in the instant case is declaration of her title as an owner and in possession of the suit property, albeit the property which falls in Lal Dora. The respondent/defendants have disputed her possession categorically stated that she has not been in possession of the suit property and that the suit preferred by her is time barred. The reliefs, therefore, claimed by the appellant/plaintiff would not be within the jurisdiction of the Civil Courts.
xxxxx
22.The appellant/plaintiff is seeking a declaration of ownership over a portion of the suit property. The Supreme Court has made it clear in Hatti(Supra) that the jurisdiction of Civil Court is limited only to deciding issues of title which are referred to it by the Revenue Court. This necessarily implies that if a question of title arises, the same will be referred by the Revenue Assistant to the Civil Court. The appellant could not have directly approached the Civil Court for declaration of title".
47. Therefore, in view of the discussion hereinabove and also in view of aforesaid judgment of Hon'ble High Court of Delhi, this Court holds that the suit of the plaintiffs for declaration of sale deed as null and void is barred under the provisions of Delhi Land Reforms Act and this Court has no jurisdiction to try the suit for declaration. This issue is accordingly decided in favour of the defendants and against the plaintiffs.
48. ISSUE NO. 2. : Whether a Bahami Faisla was entered between the parties to the suit in March 1980 as alleged ? OPP.
49. The onus to prove this issue had been placed upon the plaintiffs.
Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 21 of 29Ld. Counsel for the plaintiffs has argued that defendant Santra Devi has admitted that Bahami Faisla was executed between all brothers. Thus, the plaintiffs have proved that Bahami Faisla was executed between the plaintiff No. 1, Late Karan Singh and defendant Nos. 1 and 2.
50. I have considered the submissions and have perused the material on record.
51. The plaintiffs have contended that Bahami Faisla was entered into between all the parties /brothers in the year 1980.
52. The plaintiffs have examined Sh. Amar Singh as PW1. PW1, in the affidavit, has deposed that in the month of March, 1980, 78 days after Holi Festival, plaintiff Amar Singh and his brothers in the presence of friends, relatives and respectable members of the society entered into oral family settlement and effected a Bahami Faisla.
53. In the affidavit, PW2 Raj Singh has also stated that after death of Bhagwana, Attar Singh started demanding partition. The plaintiff no.1 agreed for partition and in March 1980, plaintiff no. 1 and his brothers in presence of friends, relatives and respectable people of the village had entered into an oral family settlement and effected a Bahami Faisla.
54. During crossexamination of PW1 Amar Singh and PW2 Raj Singh, no suggestion has been given by Ld. Counsel for the defendant that no such Bahami Faisla ever took place or that the Bahami Faisla was never effected upon.
55. The defendants Attar Singh and Narayan Singh in the written statement have denied that any Bahami Faisla was executed between Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 22 of 29 the parties.
56. Defendant Santra Devi has examined herself as DW1 to prove that the defendant no.1 and 2 had right to sell the land, sold to her and Jai Karan, vide sale deed dated 14.7.2000.
57. In the crossexamination, DW1 Santra Devi has stated, "It is correct that around 30 years back, the plaintiffs and defendant no.1 & 2 have partitioned their property in a bahami feshala and thereafter they are cultivating their respective portion as detailed in the plaint". Thereafter, she has stated that the plaintiffs have no share in the suit land and they have their land somewhere else. Defendant Santra Devi has categorically admitted that Bahami Faisla was executed between all brothers around 30 years back.
58. In view of discussion hereinabove, this Court holds that the plaintiffs have proved, on the balance of probability, that Bahami Faisla (oral settlement) was entered between the plaintiff no.1, Karan singh and defendant Attar Singh and Narayan Singh. Accordingly, this issue is decided in favour of the plaintiffs and against the defendants.
59. ISSUE NO. 3. : Whether the relief of declaration and injunction sought in suit no. RBT 82/05 is barred by time ? OPD.
60. The onus to prove this issue had been placed upon the defendants. Ld. Counsel for the defendant no.4 has argued that the plaintiffs were in knowledge of the sale deed executed by defendant no.1 and 2 in favour of Jai Karan and Santra since August 2000 and this fact is also admitted by plaintiffs in the plaint of suit bearing no. 243/2000 (new no. 328/16) titled as "Amar Singh & Ors. Vs. Attar Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 23 of 29 Singh & Anr." and therefore, the suit for declaration and injunction is barred by law of limitation.
61. On the other hand, Ld. Counsel for the plaintiffs has argued that the plaintiffs got knowledge of the sale deed only after the defendant no.1 and 2 filed their written statement in the suit no. 243/2000 and the suit has been filed within three years of getting knowledge of the sale deed. Thus, the suit for declaration and injunction is not barred by limitation.
62. I have considered the submissions and have perused the material on record.
63. In the affidavit, DW1, Smt. Santra Devi has stated that the plaintiffs were very much in the knowledge of the sale deed executed by defendant Nos. 1 and 2 in favour of defendant Nos. 3 and 4. It is also stated that the plaintiffs, in the plaint of suit bearing No. 243/2000 (new no. 328/16) titled as "Amar Singh & Ors. Vs. Attar Singh & Anr.", had admitted that they had knowledge about the sale of land on 28.8.2000 and thus, the relief of declaration is barred by time.
64. I have perused the plaint of suit bearing No. 243/2000 (new no. 328/16) titled as "Amar Singh & Ors. Vs. Attar Singh & Anr." and also gone through the testimony of the plaintiff's witnesses.
65. It is alleged in the plaint of the suit no. 243/2000 (328/16) that on 28.8.2000, defendants Attar Singh and Narayan Singh with 34 other persons came at the plaintiffs' tubewell at Jatkhorh around 4.00 - 5.00 pm when he was filling the land and constructing a Kothra and boundary wall in field bearing Khasra no. 18/22 (36), 18/23 (25) and Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 24 of 29 18/24 (44). The defendants asked him not to do so as land had already been sold by them to one of their companions and they have to execute the sale deed and complete other formalities and hand over possession to the purchaser within a week.
66. The contention of the plaintiffs is that they had got the knowledge of the sale deed only on 14.9.2000 when the defendant Nos. 1 and 2 have filed written statement in the another case. Perusal of the plaint of suit bearing no. 243/2000 (new no. 328/16) shows that there is no clear admission that plaintiffs had got the knowledge of the sale deed in the month of August, 2000. It is only stated that the defendants told the plaintiff that they had to execute sale deed and hand over possession. There is nothing in the testimony of the PW1 or the pleadings to show that the plaintiffs had got knowledge of the sale deed in the month of August, 2000.
67. The defendants have failed to bring any material to show that the plaintiffs got the knowledge of sale deed dated 14.7.2000 in the month of August 2000. Therefore, this Court holds that the defendants have failed to prove that the relief of declaration and injunction sought in suit no. RBT 82/05 (New No. 327/16) is barred by limitation. Accordingly, this issue is decided in favour of the plaintiffs and against the defendants.
68. ISSUE NO. 4. : Whether the sale deed dated 14.07.2000 is liable to be declared as illegal and void abinitio ? OPP.
69. The onus to prove this issue has been placed upon the plaintiffs. Ld. Counsel for the plaintiffs has argued that the defendant no.1 and 2 Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 25 of 29 had not right to sell the land falling in khasra no. 18/23 and 18/24 situated in Village Jatkhorh, Delhi to the defendant Nos. 3 and 4 and therefore, the sale deed deed dated 14.7.2000 executed by defendant Nos. 1 and 2 in favour of defendant Nos. 3 and 4 be declared as null and void.
70. I have considered the contention of Ld. Counsel for the plaintiffs.
71. In view of findings of this court on issue no. 1 that Civil Court has no jurisdiction to try the suit for declaration under Delhi Land Reforms Act, this court holds that the sale deed dated 14.7.2000 can not be declared as null and void. This issue is accordingly decided in favour of the defendants and against the plaintiffs.
72. ISSUE NO. 5. : Whether the plaintiffs are entitled to injunctions as claimed ? OPD.
73. The onus to prove this issue has been placed upon the plaintiffs. Ld. Counsel for the plaintiffs has argued that the defendants have threatened to dispossess the plaintiffs from the suit property and they have intention to create third party interest in the suit property and therefore, the plaintiffs are entitled to relief of permanent injunction.
74. Per Contra, Ld. Counsel for defendant no.4 has argued that no threat was extended by the defendant no.4 and therefore, the plaintiffs not entitled to relief of permanent injunction.
75. I have considered the submissions and have perused the material on record.
76. The plaintiff has sought relief of permanent injunction that the defendants be restrained from dispossessing the plaintiffs from the suit Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 26 of 29 property and from creating any disruption / interference in the peaceful use and enjoyment in the suit property and also from creating any third party interest.
77. In the entire plaint of suit no. 100/03 (New No. 327/16) for decree of declaration and injunction, the plaintiffs have nowhere stated that defendant No. 3, Sh. Jai Karan or defendant No. 4, Smt. Santra Devi had ever extended any threat to plaintiffs. Therefore, this court holds that the plaintiff is seeking relief of injunction against defendant Jai Karan and Santra Devi without there being any cause of action against the defendants.
78. In the affidavit, PW1 has stated that in the month of December 1999, January 2000 and August 2000, defendant no. 1 and 2 along with other associates came to the plaintiffs and asked them to vacate and hand over the possession of land falling under the khasra nos. 18/22 (3
6), 23 (25) and 24 (44), Village Jatkhorh.
79. As per the plaint and affidavit, defendants no.1 and 2 have been allegedly visiting the plaintiffs and asking them to vacate the property since December 1999. Admittedly, the plaintiffs have not lodged any complaint either in the month of December 1999 or January 2000.
80. It is an admitted case of the parties that the defendant no. 1 and 2 have sold one part of land falling in khasra no. 18/23 and 18/24, village Jatkhorh to Jai Karan and Santra Devi. Plaintiff is seeking relief that the defendant no. 1 and 2 be restrained from creating any third party in the property. Registered sale deed has already been executed in the name of Jai Karan and Santra Devi. Therefore, this Court is of the view Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 27 of 29 that the relief of plaintiffs to restrain the defendants from creating third party interest has become infructuous.
81. The plaintiffs have claimed themselves to be in exclusive possession of the agricultural land falling under khasra no. 718 (416), 719 (416), 720 (16), 721 (23), 1672 (416), 1673 (416) and 1676 (0
14) measuring 23 bighas and 7 biswas situated in the revenue estate of village Punjabkhorh, Delhi and khasra no. 18/22 (36), 18/23 (25) and 18/24 (44) measuring 9 bighas and 15 biswas situated in revenue estates of Village Jatkhorh, Delhi, total measuring 33 bighas and 2 biswas.
82. The plaintiffs have relied upon various documents in support of the contention that they are in exclusive possession of the aforesaid land. Perusal of document Ex. PW1/1 i.e. Jamabandi would show that Amar Singh, Attar Singh, Narayan Singh, Dhanwati etc. are shown as cultivators of land in Khasra No. 18/22, 39/11, 39/12 and 39/19 of Village Jatkhore. Similarly in Ex. PW1/2 .i.e Khasra Girdawri of the year 200304, plaintiffs as well as defendant Nos. 1 and 2 have been shown as the cultivators / tenure holder. Further, in the Jamabandi of the year 196869 and Khasra Girdawri of the year 199697, 199798 also, the plaintiffs as well as defendant Nos. 1 and 2 have been shown as cultivators in possession of the land.
83. The documents filed and relied upon by the plaintiffs show that all the plaintiffs as well as defendant Nos. 1 and 2 were in cultivatory possession of the land falling in various Khasra numbers of Village Punjabkhorh and Jatkhorh. It is settled that in case of open plot of land, Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 28 of 29 possession follows title. In this case, all the documents of the plaintiffs show that the plaintiffs as well as the defendant no. 1 and 2 are joint owner and in joint possession of the all agricultural land.
84. In view of discussion hereinabove, this Court holds that the plaintiffs are not entitled to equitable and discretionary relief of permanent injunction. Accordingly, this issue is decided against the plaintiffs and in favour of the defendants.
85. RELIEF.
86. In view of findings of this court on aforesaid issues, this court holds that the plaintiffs are not entitled to any relief. Accordingly, both suits of the plaintiffs are dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
This judgment is signed in two copies, one to be placed in suit no. 243/2000 (new no. 328/16) .i.e suit for injunction and another to be placed in suit no. 100/2003 (new no. 327/16) .i.e. suit for declaration and injunction.
Pronounced in the open court
on 19th November, 2016 (Neha)
Civil Judge, Central (09)
Tis Hazari Courts, Delhi
Suit No. 328/16 & Suit No. 327/16 Amar Singh & Ors. Vs. Attar Singh & Ors. Page 29 of 29