Delhi High Court
Madho Parshad vs Shri Ram Kishan And Ors. on 23 July, 2001
Equivalent citations: 94(2001)DLT254, 2002 A I H C 118, (2001) 94 DLT 254
ORDER V.S. Aggarwal, J.
1. Madho Prasad, the plaintiff has filed the suit for permanent injunction against the defendants. The facts alleged are that there is a piece of land measuring 2866.6 sq yrds forming part of khasra no. 52 in village Masoodpur village. Initially the land was owned and possessed by one Roshan Lal and his relatives. There was duly executed sale deeds in their favor and mutations had been filed in their names. During the consolidation proceedings in village Masoodpur the entire land was given which formed part/share of khasra no. 52 which is 40 bighas. The plaintiff had purchased the same before 20th October, 1956 for residential purpose and therefore the matter was not covered by sub-section 3 to Section 3 of Delhi Land Reforms Act. The plaintiff is in physical possession of the said land. The said land is stated to have been urbanised on 1st November, 1954.
2. The plaintiff and other co-owners had instituted proceedings under the Delhi Land Reforms Act claiming the relief that the vesting of the land in favor of the government was illegal and without jurisdiction. A prayer was made seeking relief of declaration that plaintiffs therein were bhumidars u/s 11 of Delhi Land Reforms Act. The said proceedings were contested and were decided by Shri B.K. Sehgal, Revenue Assistant, Delhi vide order dated 4th June, 1986. The Revenue Assistant held that the plaintiffs were in possession of the suit land and were entitled to retain land in suit. The said order had never been assailed in any proceedings. Out of the 40 bighas of land the plaintiff who is the co-owner had sold 30 bighas in favor of defendant no. 7. Necessary sale deeds were duly executed and registered. The remaining 10 bighas had been in possession of some other persons. The plaintiff claims that he is co-owner of the land in question. The grievance of the plaintiff is that the defendants in collusion with others are trying to disposes plaintiff from the property in dispute. By virtue of the present suit therefore they seek a permanent injunction restraining the defendants from interfering in the peaceful possession, use and occupation of the land measuring 2866.6 sq. yds forming pat of khasra no. 52 referred to above.
3. During the pendency of the suit the petitioner/plaintiff claims an ad interim injunction in this regard vide IA 5221/98.
4. In the written statement defendants 1, 3 and 5 contested the suit as well as the application seeking ad interim injunction. It is denied that the plaintiff is the owner of the suit property or has any right, title or interest therein. The total area of the land of which the suit land was stated to be forming a part comprised of 41 bighas 14 biswas. The said land belonged to the total of 8 persons being three sons and five grand sons of Pt. Bishan Singh. The eldest son Roshan Lal had no issue. Raghubir Singh had three sons, namely Suraj Prashad, Om Prakash and Chander Mohan Singh and Sultan Singh had two sons, namely Ramesh Chand and Mahesh Chand. In 1948 there were eight co-owners being three sons and five grandsons of Bishan Singh. It is pleaded that initially revenue record numbers of the original land was Khewat No. 1, Khatuni nos. 12 and 14.
5. By virtue of Patta/Perpetual Lease dated 3rd September, 1949 the land comprising of 41 Bighas and 14 Biswas were taken on lease from eight co-owners referred to above. One of the lessees and co-proprietors of M/s Desh Hit Company was Pt. Raghubir Singh himself son of Pt. Bishen Singh. The perpetual lease had been duly registered. Perpetual lease was granted for the construction of a mandi with shops, quarters, houses and roads on the original land totalling 41 bighas and 14 biswas. This was known as Roshan mandi. The name was derived from one of the eight original co-owners i.e. Roshan Lal who was the eldest and the head of the family. The five perpetual lessees of M/s Desh Hit Company through advertisements invited persons for purchase of plots of land in Roshan mandi. In all 78 plots sq yds. Names have been given pertaining to certain purchases purported to have been made.
6. It is further pleaded by the above said defendants that the plaintiff claims to be transferee of the rights from the original eight co-owners being successor in interest of Bishan Singh. Plaintiff claims that he purchased the rights of eight co-owners in land along with five others, namely Babu Harsh and others. It is alleged that there is no sale deed in favor of the plaintiff and the other persons. No such sale deed even has been filed with the plaint. Thus as referred to above it is denied that plaintiff has no right, title or interest in the property. The real intention of the plaintiff has been pleaded to be to grab the possession of whatever plots they can. As regards the order passed by Shri B K Sehgal, Revenue Assistant dated 4.6.1986 is concerned, the said defendants pleaded that after urbanisation of village Masoodpur, the suit land ceased to be a rural area falling under the Delhi Land Reforms Act. Once Delhi Land Reforms Act was not applicable, the revenue assistant had no power to pass the said order. The same was stated to be totally without jurisdiction. The plaintiff was therefore accused of suppressing material facts.
7. Written statements also filed separately by defendants 8 and 9 denying the claim of the plaintiff.
8. Defendants 1, 3 and 5 further preferred an application under Order 39 Rule 4 (IA 10731/98) seeking withdrawal of the ex parte ad interim injunction order.
9. During the course of submission learned counsel for defendants 1, 3 and 5 highlighted the fact that plaintiffs have filed the suit on basis of incorrect facts because there in no registered sale deed or any sale deed in his favor. As mentioned above, indeed the plaintiff had asserted that there is a registered sale deed. At this stage, it would be appropriate therefore to refer to IA 6620/99 by virtue of which the plaintiff was seeking permission to amend his plaint. By virtue of the application filed under Order 6 Rule 17 the plaintiff pleaded in the plaint he had mentioned that he had purchased with others vide the sale deeds. The plaintiff explains that by expression sale deed he meant the revenue records and he has always been treating the revenue records as his document of title. To this effect it was prayed that amendment may be allowed in the plaint. The said application too was contested primarily asserting that if the amendment is allowed it would tantamount to withdrawal of certain admissions. The application otherwise was stated to be mala fide.
10. The law is well settled that all amendments necessary to determine the question in controversy have to be allowed. This is based on the principle that the duty of the court is to determine the rights of the parties and not to punish them for their mistakes if any. However, late may be the proposed amendment if it is necessary to determine the question in controversy should be allowed. But there are just exceptions to this general rule. One such exception is that if the application is not bona fide then the amendment will not be allowed.
11. In the present case in hand the plaintiff had filed the civil suit specifically asserting his title on basis of the sale deed. Now an explanation is forthcoming that plaintiff was treating the revenue record as the sale deeds. Indeed it cannot be accepted. It was the plaintiff who himself had signed the plaint. At no time it had been explained as to why such mistake has occurred. Seemingly it is being so done only to overcome the objection of the contesting defendants. The amendment claimed does not appear to be bona fide and therefore IA 6620/99 must fail and is dismissed.
12. Otherwise also the date as to when the sale deed was effected is anybody's case. It is not known as to when the sale consideration was paid and plaintiff became the owner of the property. When so vague is the assertion it cannot be termed that the plea used by the plaintiff that he is the owner of the property cannot be accepted. Prima facie on that count indeed the contention of the plaintiff cannot be accepted for purposes of the present order.
13. Reliance strongly was being placed on the order passed by Shri B K Sehgal, Revenue Assistant dated 4.6.1986. On the strength of this order it was asserted that plaintiff must be taken to be the owner of the property in question. Shri B K Sehgal, Revenue Assistant indeed had recorded the finding that petitioners in that application including the plaintiff were proprietors and in possession of the suit land.
14. Objection in this regard has rightly been taken on behalf of the contesting defendants that they were not parties to any such litigation and therefore are not bound by this order. The objection is well taken. The objection is well taken. Such an order would only be binding inter parties. It cannot be taken to be an order in rem. Otherwise also the said order passed by Shri B K Sehgal, Revenue Assistant must be taken a nullity. It is not disputed that the area had been urbanised. Once Section 507 of the Delhi Municipal Corporation Act notification had been issued urbanising the property necessarily Delhi Land Reforms Act will have no application. It is unnecessary to ponder further in this regard because an identical question arose before this court in Trikha Ram vs. Sahib Ram & Anr. 1997 (43) Delhi Reported Judgment 669. In similar situation it was held that the provisions of Delhi Land Reforms Act will not be applicable once the area was urbanised and notification issued under Delhi Municipal Corporation Act. The necessary consequence would be that the revenue assistant had no jurisdiction to pass any order. There is no hesitation in holding it to be a nullity.
15. However, plaintiff's learned counsel eloquently argued that the decision rendered in the case of Trikha Ram (supra) must be taken to be impliedly overruled because of the Supreme Court decision in the case of Om Prakash Agarwal & Ors. vs. Batara Behera & Ors. 1999 SAR 323. In the said case the disputed land was situated in the periphery of Cuttak town. Co-sharer of the land had filed a petition involving the jurisdiction of the revenue officer under Section 23 of the Orissa Land Reforms Act alleging that transfer was in contravention of sub-section (1) to Section 22 of Orissa Land Reforms Act and is void. The revenue officer held that the sale deed to be invalid. One of the question that came up for consideration before the Supreme Court was what is the effect of the said order. The Supreme Court held in para 3 as under-
In view of rival submissions at the Bar the first question that arises for consideration is whether the land as defined in Section 2(14) of the Act and which is either being used or capable of being used for agricultural purposes within the municipal area do come under the purview of Orissa Land Reform Act. The Act, no doubt is a measure relating to agragrian reforms and land tenures and abolition of intermediary interest but there is no provision in the Act which excludes such agricultural lands merely because they are situated in an Urban Agglomerations. The Act applies to all land which is either used for capable of being used for agricultural purposes irrespective of whether it is situated within a municipal area or in villages. The very object of the legislation being an ograrian reform, the object will be frustrated if agricultural lands within the municipal area are excluded from the purview of the Act. In this view of the matter we have no hesitation to come to the conclusion that the Act applies to all lands which is used or capable of being used for agricultural purposes irrespective of the fact wherever the said land is situated and the conclusion of the High Court on this score is unassiable.
It is abundantly clear from what is reproduced above that the Supreme Court came to the conclusion to the contrary because it was found that under the Act applicable in Orissa, the Act applies to all land which is used or capable of being used for agricultural purposes irrespective of the fact whether it is situated within the municipal area or in the village. It is not so in the present case. Therefore, the decision of the Supreme Court in the case of O P Aggarwal (supra) is distinguishable.
16. In what event it was pointed that the plaintiff was in possession of the property. Reference was made to certain entries in the revenue record. But even if for sake of argument what is being asserted is taken to be correct it follows that if plaintiff is a trespasser having no right, title or interest in the property he will not be entitled to the ad interim injunction.
17. The principle of law in this regard can well be taken to be settled that a trespasser will not be entitled to an injunction more so against the true owner. The Supreme Court in Premji Ratansey Shah & Ors. vs. Union of India & Ors. concluded that injunction can be refused more so when the person claiming the same is a trespasser. Same view prevailed with the Apex Court in the case of Mahadeo Savlaram Shelke & Ors. vs. Pune Municipal Corporation & Anr. . When prima facie plaintiff had no right, title or interest even if it be assumed for the sake for argument that plaintiff was in possession he would not be entitled to the ad interim injunction.
18. As a consequence the application seeking ad interim injunction fails and is dismissed. The stay order so granted is vacated.