Delhi High Court
Bhupinder Singh Rekhi (Cdr.) vs C.S Rekhi And Ors. on 28 October, 1998
Author: M.S.A. Siddiqui
Bench: M.S.A. Siddiqui
ORDER M.S.A. Siddiqui, J.
1. By this order, I propose to decide the following preliminary issue framed on 25-1-1990:
"Whether the suit as framed is maintainable?"
2. To appreciate the merits of the controversy, it will be necessary to give brief narrative of the material facts. Plaintiff and the defendant No. 1 are real brothers. Defendant No. 2 is the brother-in-law of defendant No. 1 and defendant No. 3 is the wife of the defendant No. 2. The agricultural lands measuring 11 bighas and 7 biswas, bearing Kh. Nos. 555(4-16), 556/2 (2-14), 556/1(0-9-1-14), 557 (1-14) situated in village Aya Nagar, Tehsil Mehrauli, New Delhi (hereinafter referred to as the suit land) were owned and possessed by the plaintiff. On 8.6.1981, the defendant No. 1 agreed to sell the suit land to the plaintiff, for a consideration of Rs. 1,02,000/- vide deed of agreement dated 8.6.1991. On that date defendant No. 1, after receiving sale consideration from the plaintiff, placed him in possession of the suit land. On the same day, the defendant No. 1 also executed a General Power of Attorney in favour of the plaintiff, in respect of the suit land. Although the plaintiff cultivated the suit land for the period from 1983 to 1986, but despite repeated request the revenue authorities did not mutate his name in the revenue records in respect of the said land. According to the plaintiff, on 31.1.1986, the defendant No. 1 wrongfully sold the suit land to the defendant No. 3 vide registered sale deed dated 31.1.1986. Thereafter, the defendant No. 3 sold the suit land to Smt. Kaushalya Devi (defendant No. 4), who in turn sold the same to be defendant No. 5 vide registered sale deed dated 14th January, 1987. The plaintiff, therefore, filed the present suit for declaration of his title in respect of the suit land and for permanent injection restraining the defendants from interfering with his possession therein.
3. The defendant No. 1 did not contest the suit. The defendants No. 4 and 5 resisted the suit on various grounds. According to the defendants, on 31.1.1986, the defendant No. 1 sold the land to the defendant No. 3 under the registered sale deed followed by delivery of possession. On 10.3.1986, the suit land was mutated in the revenue record in the name of the defendant No. 3 on 10.10.1986 the defendant No. 3 sold the suit land to the defendant No. 4, who in turn sold the same to the defendant No. 5 vide Registered Sale Deed dated 14.1.1987 and placed the defendant No. 5 vide in possession thereof. It was stated that the plaintiff never remained in possession of the suit land and so the plaintiff's suit for mere declaration without consequential relief is barred. It was further stated that the suit is also barred under Section 185 of the Delhi Land Reforms Act (for Short 'The Act').
4. The question for determination in this case is whether Section 185(1) of the Act bars the jurisdiction of a Civil Court to entertain a suit under Section 34 of the Specific Relief Act for declaration of title in respect of an agricultural land. Learned counsel for the plaintiff contended that Section 185(1) does not stand in the way of the institution of a Civil Suit founded on title and what is excluded from the cognizance of a Civil Court under Section 185(1) is a suit for declaration of bhumidhari rights in respect of an agricultural land. Learned counsel for the defendants, on the other hand, contended that the present suit in substance is for declaration of bhumidhari rights in respect of the suit land and so it is barred under Section 185(1) of the Act. Strong reliance was placed on the decision of the Supreme Court in Hathi Vs. Sunder Singh , in which it was held by the Supreme Court that a person claiming bhumidhari rights in respect of an agricultural land is not entitled to approach the Civil Court, but should make an application to the Revenue Assistant and the Civil Court's jurisdiction to entertain such a suit is barred under Section 185(1) of the Act.
5. Section 9 CPC provides that Civil Court has jurisdiction to try all suits of a civil nature except those of which its cognizance is barred under any local law. In the case of Abdul Waheed Khan Vs. Bhawani their lordships of the Supreme Court, while considering the bar of certain provisions of Bhopal State Land Revenue Act to the jurisdiction of the Civil Court, observed as under:
"Under Section 9 of the Code of Civil Procedure, a Civil Court can entertain a suit of a civil nature except a suit of which its cognizance is either expressly or impliedly barred. It is settled principle that it is for the party who seeks to oust the jurisdiction of a Civil Court to establish its contention. It is also equally well settled that a statute ousting the jurisdiction of the Civil Court must be strictly construed."
The bar of the jurisdiction of Civil Court with regard to certain class of cases relating to agricultural land is provided under Section 185(1) of the Act, which reads as under:
"
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"
6. A bare perusal of Section 185(1) makes it clear that this saves only those cases which are mentioned in Col. 7 of Schedule-I of the Act. Thus, the scope of Section 185(1) is confined to the specific matters enumerated in the said Schedule. It is well settled that jurisdiction of a Court primarily depends upon the allegations made in the plaint and not upon allegations in the written statement, and it is the cause of the action which determines the jurisdiction of a Court. The expression "cause of action" means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment. (Mohd.
Khalil Khan Vs. Mehbood Ali Khan . Section 34 of the Specific Relief Act provides that any person entitled to a legal character, or to any right as to any property may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may in its discretion make such declaration. The plaintiff has not filed the present suit for declaration of bhumidhari rights in respect of the land. The tenor of the plaint shows that the plaintiff has filed this suit for declaration of his title to the suit on the ground that he had purchased it from its owner. It is well established that a revenue court is not competent to decide title in respect to an agricultural land. Thus, the present suit of the plaintiff for declaration of title and permanent injection is not covered under specific matters enumerated in Schedule-I of the Act and, therefore, the Civil Court has jurisdiction to entertain the present suit.
7. Next, it was contended by the learned counsel for the defendants that the present suit for mere declaration without consequential relief is not maintainable. It is worth mentioning that the plaintiff has filed this suit for declaration of his title and for a permanent injection restraining the defendants from interfering with his possession over the suit land. It is beyond the pale of controversy that the defendant No. 1 was the owner of the suit land. It was stated in the plaint that on 8.6.81, the defendant No. 1 agreed to sell the suit land to the plaintiff for a consideration of Rs.1,02,000/- vide agreement dated 8.6.81 and on that day, the defendant No. 1 after receiving the sale consideration from the plaintiff, placed him in possession thereof. On 28.9.1998, the plaintiff's application under Order 39 Rules 1 and 2 CPC was dismissed by this Court on the ground that the plaintiff was not in possession of the suit land on the date of institution of the suit. On 27.11.1996, the plaintiff filed an application ( IA No. 12138/96) under Order 6 Rule 17 CPC seeking leave to add the relief for recovery of possession of the suit land. This application has been opposed by the defendants.
8. It is also beyond the pale of controversy that on 31.1.1986 the defendant No. 1 sold the suit land to the defendant No. 3 vide registered sale deed dated 31.1.86 and on 10.10.86, the defendant No. 3 sold the suit land to the defendant No. 4, who in turn, sold it to the defendant No. 5 vide registered sale deed dated 14.1.1987. Present suit has been filed on 20.9.1986. When equities are to be balanced between the two rival claimants, namely, the prospective purchaser of the suit land under an agreement to sell on the one hand and the person who had purchased the said land by a registered sale deed on the other, it has to be seen whether the plaintiff could claim any legal interest and even a preferential interest in the land which would entitle him to recover possession thereof. As noticed earlier, the agreement to sell dated 8.6.1981 is the foundation of the present suit. As per Section 54 of the Transfer of Property Act. an immovable property gets conveyed only by Registered Sale Deed. Therefore, unless there was a registered document of sale in favour of the proposed transferee agreement holder, the title of the land would not get divested from the vendor and would remain in his ownership. Thus, despite the alleged agreement to sell in favour of the plaintiff, that had taken place on 8.6.1981, the suit land which continued to remain in the ownership of the defendant No. 1 could be legally conveyed to any other person by a registered document. Admittedly, the plaintiff has not filed any suit against the defendant No. 1 for specific performance of the agreement dated 8.6.1981. It is axiomatic that mere agreement to sell created no legal interest or right in the property which is the subject mater of the agreement. (Ram Baran Prosad Vs. Ram Mohit Hazra and others . Stayabrata Ghose Vs. Mugneeram Bangur and Co. and another ). Therefore, it must be held that by mere agreement to sell, the plaintiff got no interest in the suit land. Consequently, he could not be said to be having any legal interest to entitle him to file the present suit.
9. In this view of the matter, the proposed amendment in the plaint is not necessary to decide the real controversy between the parties. Consqeuently, the application (IA No. 12138/96) is disallowed.
10. For the foregoing reasons, I find and holds that the present suit is not maintainable. Accordingly, the suit is dismissed with costs. Plaintiff shall pay the costs of the defendants and bear his own. A decree be drawn up accordingly.