Delhi District Court
Shri Ashok Kumar vs Smt. Dayawanti (Since Deceased) on 4 January, 2011
IN THE COURT OF SHRI ARUN BHARDWAJ, ADJ:
SOUTH WEST: NEW DELHI
RCA No. 21/10
In the matter of :
1. Shri Ashok Kumar
2. Shri Ramesh Kumar
3. Shri Mahesh Kumar
All sons of Late Shri Hari Kishan,
All R/o Village & P.O. Bamnoli,
New Delhi. ... Appellants
Versus
1. Smt. Dayawanti (since deceased)
Through her LR Shri Sumit Sandhu
Presently residing at
WZ56, Dayalsar Road,
Behind Bank of Baroda,
Uttam Nagar, New Delhi - 59.
2. Shri Ram Kishan S/o Late Shri Subh Ram
3. Shri Ajit Singh (since deceased)
Through LRs his sons namely:
(a) Shri Jaswant
(b) Shri Jasbir Singh
All R/o Village Bamnoli, New Delhi.
... Respondents.
Filed on : 19.11.2010
Reserved on : 24.12.2010
Decided on : 04.01.2011
RCA No. 21/10 Page 1/14
JUDGMENT :
1. This is an appeal against ex parte judgment and decree dated 11.10.2010 passed by Ld. Sr. Civil Judge / Rent Controller (West) in Suit No. 204/06/98 titled as Ashok Kumar and Others v. Dayawanti & Ors. whereby the suit for declaration and injunction filed by the plaintiffs was dismissed.
2. Facts of the case are that one Late Shri Subh Ram was recorded owner of agricultural land comprising in Kh. No. 59(416), 60(61), 62(49), 63(49), 474(74), 497(416), 498(416), 499(416), 503(416), 504(416), 505(416), 506(04), 507(39), 508(47), 509(515), 61(49) total measuring 76 bighas and 19 biswas situated in the Revenue Estate of village Bamnoli, Delhi.
3. Said Shri Subh Ram died on 29.11.63. He was survived by three sons namely, Shri Ram Kishan, Shri Ajit Singh and Shri Hari Kishan and six daughters namely, Smt. Amar Kaur, Smt. Dayawanti, Smt. Inderwati, Smt. Chanderwati, Smt. Kishanwati, Smt. Anandwati and widow Smt. Sarti Devi.
4. On 21.03.1968, Naib Tehsildar mutated the land of Shri Subh Ram in favour of all the sons and daughters and widow of Shri Subh Ram.
5. Case of the plaintiff is that in spite of sanction of mutation in favour of all the sons, daughters and widow of Shri Subh RCA No. 21/10 Page 2/14 Ram, only defendant no. 2 and 3 and father of plaintiffs remained in possession of the land in question.
6. Four out of six daughters of Shri Subh Ram released their bhumidari rights entered in their names in the revenue records in favour of plaintiffs who are grandsons of Shri Subh Ram being sons of Late Shri Hari Kishan and in favour of defendant no. 2 and 3.
7. Smt. Sarti Devi widow of Shri Subh Ram has also died and after her death the plaintiffs and defendant no. 2 and 3 have inherited the bhumidari rights of Smt. Sarti Devi.
8. In the same way, the fifth daughter of Shri Subh Ram namely, Shri Amar Kaur died on 18.04.73 and after her death, the plaintiffs and defendant no. 2 and 3 are the legal heirs of Late Smt. Amar Kaur because except the plaintiffs and defendant no. 2 and 3, there is no other legal heir of Late Smt. Amar Kaur.
9. In this manner Smt. Dayawanti, the sixth daughter of Shri Subh Ram continued to be one of the recorded owners of the land which was originally in the name of her father Late Shri Subh Ram.
10. It is contended by the plaintiffs that under Section 50 of Delhi Land Reforms Act, 1954 only male heirs are entitled to inherit the Bhumidari rights and married daughters are not entitled to inherit bhumidari rights.
11. On the basis of mutation in her name defendant no. 1 approached property dealers to sell the agricultural land coming in her RCA No. 21/10 Page 3/14 share.
12. Proceedings for consolidation have begin in village Bamnoli and on the basis of mutation, defendant no. 1 has also given an application to Consolidation Officer for partition of the holding.
13. Plaintiffs averred in the plaint that mutation does not create title and apprehending creation of third party interest, the plaintiffs had filed the suit seeking a declaration that mutation in the name of defendant no. 1 was void and further declaration that plaintiffs and defendant no. 2 and 3 have inherited bhumidari rights of Late Shri Subh Ram as per Section 50 of Delhi Land Reforms Act, 1954.
14. Plaintiffs also prayed for injunction against defendant no. 1 restraining the said defendant from transferring the land entered in her name.
15. The defendant no. 1 in her written statement raised objection of limitation; suit being without any cause of action and alleged that the plaintiffs have concealed material facts from the Court inasmuch as it was in the knowledge of the plaintiffs that the land was mutated in her name because she had received 1/4th share of payment of compensation of the land acquired by Delhi Administration vide Award No. 15/8990 in respect of Kh. No. 59, 60, 68, 63 and 61 and defendant no. 1 had received a payment of Rs. 38,838.77 by way of a cheque delivered by Land Acquisition Collector. RCA No. 21/10 Page 4/14
16. On merits, it was denied that mutation of land in the name of defendant no. 1 was illegal as she claimed that she herself was also a legal heir of late Shri Subh Ram.
17. It was also denied that defendant no. 1 was not in possession of land in question as plaintiffs and defendant no. 2 and 3 had been in joint cultivatory possession on behalf of defendant no.1.
18. Defendant no. 1 averred that the fact that other daughters of Shri Subh Ram released their shares in favour of plaintiffs and defendant no. 2 and 3 shows that the plaintiffs and defendant no.2 and 3 had accepted mutation order of Naib Tehsildar.
19. Defendant no. 1 also stated that she has already sold the land and for this reason also, no relief can be given to the plaintiffs.
20. In replication, plaintiffs stated that suit is not barred by limitation as there is no limitation period for seeking setting aside of void order. But the plaintiffs remained absolutely silent on the submissions of defendant no. 1 regarding receipt of payment of compensation for 1/4th share regarding Kh. No. 59, 60, 61, 68 and 53 acquired by Delhi Administration vide Award No. 15/8990. It was denied that the plaintiffs and defendant no. 2 and 3 were in possession on behalf of defendant no. 1 and also successors are in joint cultivatory possession.
21. Plaintiffs did not press their application under Order RCA No. 21/10 Page 5/14 XXXIX Rule 1 and 2 of CPC which was dismissed as not pressed.
22. From pleadings of parties, following issues were framed: i. Whether the suit is barred by limitation? OPD ii. Whether the plaintiff has a cause of action to file the suit against the defendant no. 1? OPD iii. Whether the suit as framed and in the present form is maintainable? OPP iv. Whether the plaintiff is entitled to any of the relief claim? OPP v. Relief.
23. Additional issue was also framed which is as under: i. Whether this Court has the jurisdiction to entertain and try the present suit in view of the categorical ascertains in the plaint that the provisions of the Land Reforms Act are applicable? OPP
24. Defendant no. 1 died during the pendency of this suit. Her only legal heir Shri Rajinder Singh also died in an accident and grandson of defendant no. 1 was proceeded ex parte on 22.04.04.
25. The plaintiffs examined three witnesses in support of their case.
26. Shri Ramesh Kumar son of Shri Hari Kishan appeared RCA No. 21/10 Page 6/14 as PW1, Shri Surinder Kumar, Patwari from record room Tehsil Mehrauli appeared as PW2 and proved mutation no. 398 dated 21.03.1969 as PW2/1 and proceedings of the case as PW2/2. Last witness examined by the plaintiffs was PW3 Shri Rakesh Kumar from the office of SubRegistrar who produced sale deed executed by defendant no. 1 in favour of Shri Mohinder and Shri Ajay Pal, sons of Shri Sarup Singh and Shri Surinder Singh, Shri Vijay Singh sons of Late Shri Sultan Singh.
27. Plaintiffs filed written arguments confining them to issues framed on 15.01.99. No argument was submitted visavis additional issue framed on 23.03.99.
28. Ld. Trial Court dismissed the suit being barred by limitation and as also hit by Section 61 of Delhi Land Revenue Act, 1954.
29. Findings of Trial Court are assailed by appellant in this appeal.
30. Limitation: Contention of appellant is that cause of action arises whenever a right is threatened to be infringed. Mutation entries are only to enable the state to collect revenue from the person who has possession and enjoyment of the property. Mutation does not create title or interest in the property. Cause of action had arisen in the year, 1998 when the defendant no. 1 tried to get partitioned the holdings of Late Shri Subh Ram on the strength of mutation entries in RCA No. 21/10 Page 7/14 her own name during consolidation proceedings in village Bamnoli in the year 1997.
31. However, few facts noted below show that the suit was time barred:
(i) Perusal of PW2/2, which is record of mutation proceedings, shows that on 21.03.68, statement of Shri Ram Kishan, defendant no. 2 son of Late Shri Subh Ram was recorded in mutation case no. 398 where he himself stated that all the sons, daughters and widow of late Shri Subh Ram are legal heirs of deceased. Therefore, mutation was carried out in the names of all the three sons, six daughters and widow of deceased on the statement of said Shri Ram Kishan son of Late Shri Subh Ram who is defendant no. 2 in this case.
(ii) Plaintiffs claim that four daughters of deceased Shri Subh Ram had released their share in favour of plaintiffs and defendant no. 2 and 3. The fact that plaintiffs took release deed from from daughters of deceased shows that the plaintiffs never treated the mutation as void and accepted said mutation as valid. That is why necessity to execute release deed had arisen.
(iii) Appellants have brought on record no evidence to show that they were in possession of land in question in spite of its mutation in the name of defendant no. 1.
(iv) Even in objections filed by the appellants before the Collector (not part of Trial Court record but shown to this Court during arguments) opposing release of compensation in Award No. 1/0708 in favour of vendees to whom defendant no. 1 had sold her share it is not stated that RCA No. 21/10 Page 8/14 objectors were in possession of land in question.
(v) Most importantly, defendant no. 1 had stated in her written statement that she had received 1/4th share of payment of the land acquired by the Delhi Administration vide Award No. 15/8990 in respect of Kh. No. 59, 60, 68, 63 and 61 against which the defendant no. 1 was made payment through cheque drawn on State Bank of India for Rs. 38,828.77. Plaintiffs are totally silent on this aspect in their replication. Meaning thereby, they have admitted that when land comprised in Kh. No. 60, 59, 68, 63 and 61 was acquired vide Award no. 15/8990, Collector had given Rs. 38,828.77 to defendant no. 1 towards compensation for her ¼th share. When a party on the basis of mutation receives compensation for acquisition of land and other party whose case is that mutation was de hors the rules and possession of land was taken from him by the Collector remains mute spectator, it is inconceivable to say that no cause of action had arisen to challenge said mutation. As the said compensation was received by the defendant no. 1 in the year 198990, present suit for declaration filed on 07.01.98 is time barred because under Article 58 of the Limitation Act, 1963, the period of limitation to obtain declaration is three years when the right to sue first accrues. Even if no cause of action accrued on 21.03.1969 when land was mutated in the name of defendant no. 1 because plaintiffs and defendant no. 2 and 3 remained in possession (though possession is not proved) at least cause of action had arisen in the year 198990 when defendant no. 1 received compensation from Collector for her 1/4th share on the basis of mutation in her name.
32. Learned counsel for appellants, Shri K.C. Tyagi has RCA No. 21/10 Page 9/14 relied upon a large number of citations to argue that suit was not time barred. However, none of the citations show that cause of action will still not accrue even if a person receives compensation on the basis of mutation de hors the rules and rightful owner from whom possession was taken by Collector remains silent.
33. In the case of (Lala) Shiam Lal v. Mohammed Ali Asghar Husain: AIR 1935 Allahabad 174 relied by appellants, it was held that a person who himself might have allowed limitation to run against him cannot confer a right to sue unfettered by the plea of limitation by transferring the property to another.
34. In the case of Partap Bahadur Singh v. Jagatjit Singh : AIR 1936 Oudh 387 it was held that mere making of an adverse entry in the village records cannot be said to have actually disturbed the plaintiffs title if he still continued to be in possession.
35. In the case of Ibrahim v. Smt. Sharifan : 1979 P.L. J. 479 it was held that mere entry of a mutation in the name of a party will not confer any cause of action in favour of other party so long as first party never asserted her right to her share in the land in dispute. This judgment was relied upon in the case of Om Parkash v. Palu Ram : Vol CII (1992) 415 and Jagir Kaur v. Pal Singh : Vol CXI (19953) 634.
36. In the case of Balwant Singh and Anr. v. Daulat RCA No. 21/10 Page 10/14 Singh (dead) by LRs & others: (1997) 7 SCL 137 it was held that mutation entries do not convey or extinguish any title and those entries are relevant only for the purpose of Collection of land revenue.
37. In the case of Smt. Bhagwanti Devi v. Mat Ram (dead) through LRs: Vol. CXXXV (20023) PLR 585 it was held that cause of action arises in favour of a party in possession only when his title is under threat.
38. The father of plaintiffs never challenged mutation in favour of defendant no. 1 during his life time. Other two sons of Late Shri Subh Ram who are defendant no. 2 and 3 also did not challenge mutation in favour of defendant no. 1. Said mutation is challenged by grandsons of late Shri Subh Ram. However, for the reasons noted in para 31 above, cause of action to challenge mutation had arisen in the year 198990 when defendant no. 1 had received compensation for acquisition of land mutated in her name in the year 1969, therefore present suit filed in the year 1998 is time barred.
39. Bar of Section 61 of Delhi Land Revenue Act, 1954: Section 61 of Delhi Land Revenue Act, 1954 reads as under : "61. Bar to appeal and suit in Civil Court - Such decision shall be at once carried out, and shall not be open to appeal unless the decision is in excess of, or not in accordance with the award, or unless the decision is impugned on the ground that there is no valid award in law or in fact; and no person shall institute any suit in the civil court the purpose of setting it aside RCA No. 21/10 Page 11/14 or against the arbitrators on account of their award."
40. Bar of instituting any suit in the Civil Court is only for the purpose of setting aside order of arbitrator appointed under Section 57 of the Act or against the arbitrators on account of their award.
41. Section 41 of the Delhi Land Revenue Act, 1954 reads as under: "41. Presumption as to entries - All entries in the recordin rights prepared in accordance with the provisions of this Chapter shall be presumed to be true until the contrary is proved: and all decisions under this Chapter in cases of dispute shall, subject to the provisions of subsection (3) of Section 27, be binding on all revenue courts in respect of the subjectmatter of such disputes; but no such entry or decision shall affect the right of any person to claim and establish in the civil court any interest in land which is required to be recorded in the register prescribed by Section 20."
42. Therefore, all entries in the record in rights are presumed to be true untill the contrary is proved but no such entry or decision shall affect the right of any person to claim and establish in the Civil Court any interest in land.
43. Resultantly, it is held that suit was not barred under Section 61 of the Delhi Land Revenue Act, 1954.
44. As suit is held to be barred by law of limitation, appellant was rightly denied any relief by the Ld. Trial Court. RCA No. 21/10 Page 12/14
45. Before concluding, it is to be noticed that the Ld. Trial Court did not discuss or return any finding on additional issue framed on 23.03.99.
46. One reason for the said omission was that the plaintiff had not addressed any argument in his written submissions with regard to additional issue.
47. However, it is not a sufficient ground to remand the matter to the Trial Court because provisions of Order XIV Rule 2 of CPC have to be read harmoniously with Order XX Rule 5 of CPC which while reiterating the provisions of Order XIV Rule 2 further provides that where findings upon any one or more of the issues is sufficient for the decision of the suit, Court may not state its findings or decision upon each findings on separate issue. Therefore, though non adjudication / non consideration of any issue would be a ground for review but not, if finding upon anyone or more of the issues is sufficient for the decision of the suit: LIC Housing Finance Ltd. vs. Pearl Developers (P) Ltd. : 2009 (107) DRJ 473.
48. Additional issue regarding maintainability of suit has not prejudiced in any manner the appellants.
49. Even otherwise, this is a suit for declaration that mutation no. 398 dated 21.03.69 passed by Naib Tehsildar Mehrauli is illegal and unlawful and void and plaintiffs and defendant no. 2 and 3 have inherited bhumidari rights of late Shri Subh Ram as per Section RCA No. 21/10 Page 13/14 50 of Delhi Land Reforms Act, 1954.
50. In Schedule I appended to Delhi Land Reforms Act, 1954 as mentioned in Section 185 there is no entry covering a suit of aforesaid nature. Same is the position of relief of permanent injunction for restraining a person to sell the land on the basis of mutation in his favour. Therefore, the fact that Delhi Land Reforms Act, 1954 applied to land in question will not effect maintainability of this suit before a Civil Suit.
51. Conclusion: Findings of Ld. Trial Court that the suit is barred under Section 61 of the Delhi Land Revenue Act, 1954 is set aside. Findings on all other issues are upheld including findings that the suit is barred by law of limitation. Appeal is hereby dismissed. Let Trial Court record be sent back and file be consigned to record room. Announced in the open Court on the 4th day of January, 2011 (ARUN BHARDWAJ) ADDL. DISTRICT JUDGE DWARKA COURTS: NEW DELHI RCA No. 21/10 Page 14/14