Delhi District Court
M/S Chintels Exports Pvt Ltd vs Sh. Dharambir Singh on 5 September, 2022
IN THE COURT OF MANOJ JAIN,
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH-WEST, DWARKA COURTS NEW DELHI
RCA No. 54618/2016
CNR No. DLSW01-000027-2015
M/s Chintels Exports Pvt Ltd. .....Appellant
Having its registered office at
A-11, Kailash Colony,
New Delhi
Through Mr. Ashok Solomon
Its Managing Director and Principal Officer
Versus
1. Sh. Dharambir Singh .....Respondents
2. Shri Ved Prakash
3. Shri Dharampal
4. Sh. Hansraj
All Sons of Late Sh. Ranjit Singh
R/o Village Nanak Heri, Delhi
RCA No. 54619/2016
CNR No. DLSW01-000028-2015
M/s Chintels Exports Pvt Ltd. .....Appellant
Having its registered office at
A-11, Kailash Colony,
New Delhi
Through Mr. Ashok Solomon
Its Managing Director and Principal Officer
Versus
RCA Nos. 54618/2016 & 54619/2016 Page 1 of 48
Ramphal .....Respondent
S/o Late Sh. Rattan Singh
R/o Village Nanak Heri,
Delhi
Date of Registration : 23.12.2015
Date of conclusion of arguments : 20.08.2022
Date of pronouncement of Decision : 05.09.2022
Memo of appearance:
Sh. Parvinder Chauhan and Sh. Abhilash Vashisht Ld. Counsel for appellant.
Sh. Mrityunjay Kumar Singh and Ms. Aditi Shastri, Ld. Counsel for the
respondents.
JUDGMENT:
1. These are two connected appeals. Appellants i.e. M/s Chintels Exports Pvt. Ltd were defendants before the Ld. Trial court in both the suits. Though the plaintiffs are different but fact remains that the broad factual matrix in both the suits is same and these also contain same/common legal issues. Therefore, I deem it fit and appropriate to dispose of both the appeals by this common judgment.
2. For the sake of convenience, the RCA No. 54618/2016 would be referred to as 'first appeal' and RCA No. 54619/2016 would be referred to as 'second appeal'. I would also be referring to the parties as per their nomenclature before the Ld. Trial court and would be taking up the facts of first appeal treating the same to be as main case, for present purpose.
3. Trial court records of both the cases have been RCA Nos. 54618/2016 & 54619/2016 Page 2 of 48 received and I have perused the same very carefully.
4. Let me give a brief factual matrix of the facts of the first appeal.
5. The plaintiffs i.e. Sh. Dharamveer Singh, Shri Ved Prakash, Shri Dharampal and Sh. Hansraj are real brothers and they filed a suit for declaration and permanent injunction. As per the averments made in the plaint, they claimed themselves to be recorded co-bhumidars of land comprising of Khasra no. 32/51 (0-
19), 9/12/2 (1-15), 19/1 (3-5), 13/3 (0-2) and 18 min. (0-4); total admeasuring 7 bighas 4 biswas situated in the Revenue Estate of Village Nanak Heri, Delhi (hereinafter referred to as suit property of the first appeal). The property was earlier owned by Sh. Ranjit Singh (father of plaintiffs) who was a recorded co-Bhumidar to the extent of his share and after his death on 08.07.2000, the plaintiffs became co-bhumidars and the mutation was also carried out in their favour. After consolidation proceedings, new khasra numbers were assigned to such land of the plaintiffs. During the aforesaid consolidation proceedings, the defendant M/s Chintel Exports Pvt. Ltd. i.e. appellant herein filed an application under Section 26 of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act 1948 (herein referred as Holdings Act), seeking that they be declared encumbrancer in respect of such land on the premise that the father of plaintiffs, during his lifetime, had executed Agreement to Sell, Receipt, Affidavit and Possession Letter, all dated 25.11.1994 and GPA dated 29.11.1994 in favour of defendant company with respect to said land.
RCA Nos. 54618/2016 & 54619/2016 Page 3 of 486. It is also averred in the plaint that the father of the plaintiffs was an illiterate person and it appeared that the defendant had fraudulently got his thumb impression on certain documents. It is also averred that since the defendant failed to comply with the terms and conditions mentioned in the aforesaid documents within the stipulated period, the agreement to sell had become inoperative and time-barred. It is also claimed that even GPA dated 29.11.1994 was cancelled by the father of the plaintiffs, vide cancellation deed dated 07.08.1997. Therefore, the defendant did not acquire any right in the aforesaid land and, therefore, there was no question of any encumbrance arising in its favour with respect to the said land. It is also averred that on the basis of GPA in favour of Director of Defendant company, such Director, fraudulently and malafidely, executed 'Will' dated 29.11.1994 in favour of Ms. Poonam Roseline in respect of the suit property of first appeal and when such execution of 'Will' came to the knowledge of plaintiffs, they filed a civil suit and as per the judgment and decree given by the concerned Civil Court, such 'Will' dated 29.11.1994 was declared as illegal, forged, fabricated, null and void. However, according to the plaintiffs, the Consolidation Officer disposed of application of defendants vide order dated 19.08.2003 and defendant was declared 'encumbrancer'. Plaintiffs, eventually, filed a revision petition before the court of Financial Commissioner, Delhi which was dismissed vide order dated 14.09.2010.
7. Feeling aggrieved, the plaintiffs, in both the matters, preferred Writ Petition before the Hon'ble High Court of Delhi, RCA Nos. 54618/2016 & 54619/2016 Page 4 of 48 challenging the aforesaid orders of Financial Commissioner. Hon'ble High Court, vide order dated 16.12.2010 gave liberty to plaintiffs to approach the concerned fora/Civil Court for going into the question of title. It was in the aforesaid premise that both these suits were filed. The plaintiffs have thus sought declaration that they be declared co-bhumidars and it be also declared that the defendant had no legal right, title or interest in the suit property. They also sought a decree of permanent injunction restraining the defendant from forcibly dispossessing them from the suit property and from creating any third party interest therein.
8. Written statement was filed by the defendant company and several legal objections were also taken. It was claimed that the suit was barred. A challenge was also made with respect to the pecuniary jurisdiction and it was claimed that the suit had not been properly valued. It was also claimed that the suit was barred by limitation and was also hit by Section 44 of Holdings Act, the principles of res-judicata, Order 2 Rule 2 of CPC and by sec 185 of Delhi Land Reforms Act, 1954 (hereinafter referred as DLR Act).
9. Replication was filed reiterating the stand taken in the plaint and controverting the averments made in the written statement.
10. The Ld. Trial court, vide order dated 12.12.2012, framed the following issues:
1. Whether the suit of the plaintiff is barred by limitation? OPD RCA Nos. 54618/2016 & 54619/2016 Page 5 of 48
2. Whether the suit of the plaintiff has not been properly valued? OPD
3. Whether the present suit is not maintainable being barred by Section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948? OPD
4. Whether the suit is not maintainable being hit by Section 185 of the Delhi Land Reforms Act? OPD
5. Whether the suit is barred by res judicata? OPD
6. Whether the suit is not maintainable being hit by Order 2 Rule 2 of CPC ? OPD
7. Whether the plaintiff is entitled to a relief of declaration, as prayed for ? OPP
8. Whether the plaintiff is entitled to a relief of permanent injunction, as prayed for? OPP
1. Whether the suit of the plaintiff is barred by limitation? OPD
2. Whether the suit of the plaintiff has not been properly valued? OPD
3. Whether the present suit is not maintainable being barred by Section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948? OPD
4. Whether the suit is not maintainable being hit by Section 185 of the Delhi Land Reforms Act? OPD
5. Whether the suit is barred by res judicata? OPD
6. Whether the suit is not maintainable being hit by Order 2 Rule 2 of CPC ? OPD
7. Whether the plaintiff is entitled to a relief of declaration, as prayed for ? OPP
8. Whether the plaintiff is entitled to a relief of permanent RCA Nos. 54618/2016 & 54619/2016 Page 6 of 48 injunction, as prayed for? OPP
9. Relief.
11. Plaintiffs, in the first matter, examined 6 witnesses in their support The details of such witnesses are as under:-
(i) PW1 Sh. Dharambir (plaintiff No. 1)
(ii) PW2 Sh. Dharampal ( plaintiff No. 2)
(iii) PW3 Sh. Sube Singh (Advocate)
(iv) PW4 Sh. Prem Chandra (Public Relation Inspector)
(v) PW5 Sh. Manoj Kumar (patwari)
(vi) PW6 Sh. Hans Raj ( plaintiff No. 4)
12. After plaintiff's evidence, the defendant / appellant led it's evidence and examined following three witnesses:
(i) DW1 Sh. Manoj Kumar (Patwari)
(ii) DW2 Ms. Vandana Makkar (Asst. Ahlmad for proving record)
(iii) DW3 Sh. J N Yadav (Vice President of the defendant company)
13. I may also point out right here that in case related to second appeal, plaintiff Dharmabir entered into witness box and examined himself as PW-1. He also examined PW-2 Sube Singh, PW-3 Prem Chandra and PW-4 Manoj Kumar, the abovesaid witnesses who were examined in the first case as well. Witnesses from the side of the defendant in both the cases, however, remained the same.
14. PW1 Sh. Dharamvir, PW2 Sh. Dharampal and PW6 RCA Nos. 54618/2016 & 54619/2016 Page 7 of 48 Sh. Hansraj are plaintiffs in the first case and they have, broadly speaking, reiterated the averments made in the plaint in their respective affidavits. I have seen the contents of such affidavits Ex. PW1/A, PW2/A and Ex. PW6/A. Their deposition is, virtually, on the same lines. They have deposed that they were recorded co- bhumidars of the suit land, which originally belonged to their father Sh. Ranjit Singh. They also claimed that their father was illiterate person and it appeared that defendant company had fraudulently got his thumb impression on certain documents. It was also claimed that defendant failed to comply with the terms and conditions incorporated in such documents and, therefore, these documents had become inoperative and time-barred and did not confer any right upon the defendant company. It was also deposed that GPA had already been cancelled by their father Sh. Ranjeet Singh and legal notice dated 06.11.1997 was sent to the defendant company. Thus, according to them, the defendant company failed to acquire any right in the suit land. They also made reference about the application moved by defendant company under Section 26 of Holdings Act and consequent orders passed by Financial Commissioner and eventually by the Hon'ble High Court of Delhi. It has also been deposed that defendant company does not possess any right or interest in the suit property and has no authority to issue threats against them for vacation of the suit land on any ground, whatsoever. It is, further deposed in such affidavits that the defendant company was liable to be restrained from forcibly dispossessing the plaintiffs from the suit property or from causing any obstruction or creating any nuisance in the peaceful enjoyment of the suit property. PW3 Sh. Sube Singh has been examined in RCA Nos. 54618/2016 & 54619/2016 Page 8 of 48 order to prove the legal notice Ex. PW1/3 whereby Sh. Ranjit Singh, father of plaintiffs had informed the defendant company about the cancellation of GPA. Sh. Sube Singh had prepared the aforesaid legal notice and in order to prove the service of such notice, PW4 Sh. Prem Chand has been examined from the concerned Post Office, who, however, deposed that the relevant record had already been weeded out in due course, as per the department rules. PW5 Sh. Manoj Kumar was posted as Patwari, SDM Kapashera at the relevant time and he was examined to prove the record regarding consolidation proceedings of Village Nanak Heri.
15. I have also seen the testimony led in respect of second matter. Such suit had been filed by Ramphal and PW1 Ramphal filed affidavit Ex. PW1/A and reiterated the same facts in his affidavit. However, he himself had executed the same set of documents and in relation to execution of such documents, he deposed that he was an illiterate person and did not put his suit property under any encumbrance. He also deposed that defendant had fraudulently got his signatures on such documents. He also deposed that GPA had been cancelled by him vide cancellation deed dated 07.08.1997 and a legal notice dated 06.11.1997 was also sent to the defendant company in this regard. Such legal notice has been proved as PW1/3 and AD card has been proved as PW1/4. Same Advocate i.e. Sh. Sube Singh has been examined as PW2 who deposed that legal notice Ex. PW1/3 was prepared by him. The testimony of PW3 Prem Chandra and PW4 Manoj Kumar is also on the same lines. I would also like to mention here that in his affidavit, plaintiff Ramphal had deposed that defendant did not possess any RCA Nos. 54618/2016 & 54619/2016 Page 9 of 48 right or interest in the suit property and had no authority to issue threats against him for vacation of the suit property.
16. Both the suits were disposed of vide separate judgments dated 31.10.2015. It will be important to mention here that the suit of the plaintiff qua the relief for declaration was dismissed. However, the defendant was restrained from forcibly dispossessing the plaintiffs without following due process of law. Defendant was further restrained from creating any third party interest in the suit property without first perfecting its title by getting the Sale Deed registered in his favour.
17. It needs to be emphasized right here that the plaintiffs have not filed any appeal regarding denial of relief of declaration. To that extent, therefore, such order of dismissal of suit qua relief of declaration has attained finality.
18. According to Sh. Parvinder Chauhan, Ld. Counsel for the appellants, since the learned trial court held that the suit was barred by limitation vis-à-vis relief of declaration and since the validity of transfer documents were never challenged, there was no occasion for the Ld. Trial court to have given any observations and findings as regards various factual and legal aspects related to its such documents. It is argued that such findings are bound to, directly and adversely, impact its suit for specific performance. He has also claimed that since the plaintiffs failed to show any case in their favour regarding relief of declaration, there was no occasion for the Ld. Trial court to have granted any sort of injunction in their RCA Nos. 54618/2016 & 54619/2016 Page 10 of 48 favour either. It is argued that the order had already been passed by Consolidation Officer which had been confirmed by the Financial Commissioner and in such a situation the Civil court was not competent to entertain the suit at all. It is also claimed that the plaintiffs could not have, even otherwise, sought any such relief for declaration from a civil court. It is contended that the Schedule appended to DLR Act contained specific provisions for seeking relief of injunction and declaration from Revenue Authorities and, therefore, the plaintiffs had chosen a wrong forum. It is also reiterated that the suit was hit by the principles of res-judicata, Order 2 Rule 2 CPC and was barred in view of the Specific Provisions contained in DLR Act and Holdings Act. Reliance has been placed on Amar Singh, Jagram (dead) by LRs Vs. Chandgi (1989) 1 SCC 308, Asha M. Jain Vs. Canara Bank 94 (2001) DLT 841, Maya Devi Vs. Lalta Prasad (2015) 5 SCC 588, Suraj Lamp & Industries Vs. State of Haryana & Ors. (2012) 1 SCC 656, Hatti Vs. Sunder Singh 1971 AIR 2320 and Kure Singh & Ors. Vs. State of Punjab & Ors. AIR 1956 P&H 88.
19. All such contentions have been refuted by the respondents. It has been argued by Sh. Singh that the Ld. trial Court has, after carefully scrutiny of the pleadings and the settled legal precedents, given a specific decree of injunction and there is no reason whatsoever to interfere with the same. The respondents have relied upon i) Anand Prakash and Anr. Vs. Ramkala & Ors. 167 (2010) DLT 225 and ii) Anathula Sudhakar Vs. P. Buchi Reddy (dead) by LRs & Ors. AIR 2008 SC 2033.
RCA Nos. 54618/2016 & 54619/2016 Page 11 of 4820. Before adverting to the arguments on merit, I would like to highlight the slight differences between the two matters.
21. As far as suit property of the first appeal is concerned, it relates to pre-consolidation Khasra No. 314/1(1-16) and 315 (4-
15), Village Nanakheri, Delhi. This property was, post consolidation, given Khasra No. as 32/51 (0-19), 9/12/2 (1-15), 19/1 (3-5), 13/3 (0-2) and 18 Min. (0-4) admeasuring 7 bighas 4 biswas. As far as second appeal is concerned, it relates to pre-consolidation Khasra No. 314/1 (1-16) and 315 (14-15) admeasuring 6 bighas and 11 biswas and post-consolidation, the Khasra numbers were given as 32/52 (2-2), 12/5/1 (3-12) & 13/1/1 (2-18) total admeasuring 8 bighas 12 biswas. The plaintiffs, in relation to the first appeal, were Dharambir Singh and his three brothers whereas in the context of the second appeal, the plaintiff is Ram Phal s/o Ratan Singh. The nature of documents, alleged to be executed in favour of defendant company, remains the same in both the cases. The substantial chunk of evidence and the deposition of the parties also remain same and similar. The issues are same and the arguments advanced in both the cases are also identical. I may also point out right here that, as informed, plaintiffs in both the cases are also closely related to one another.
22. A careful perusal of the trial court records would reveal that the declaration has been denied on the ground that the suits were barred by limitation. Naturally, the defendant company is not aggrieved by such finding at all. However, according to them, RCA Nos. 54618/2016 & 54619/2016 Page 12 of 48 since the suit was held barred by limitation vis-à-vis declaration, the court should have also, automatically, dismissed the suit in relation to relief of injunction. I shall consider said aspect little later while dealing with the aspect of injunction. Suffice it to say, merely because, suit for declaration was held time-barred, it cannot be ipso facto held that even the relief of injunction becomes time-barred.
23. Order XIV Rule 2(1) CPC is a general rule which provides that the Court shall pronounce judgment on all issues, notwithstanding the fact that the case may be disposed of on a preliminary issue. Order XIV Rule 2 (2) of CPC also stipulates that when issues of both law and facts arise in the same suit, the Court may dispose the suit by trying the issue of law first. For said purpose, the provision specifies two questions of law, which are (i) jurisdiction of the Court; and (ii) a bar to the suit created by any law for the time being in force. Fact remains that in the present case, the learned trial court, very appropriately, chose to pronounce judgment on all issues and no issue was treated as preliminary issue.
24. Before me, inter alia, it has been vehemently contended that the suit was hit by section 185 of the DLR Act as well and, therefore, civil court was not competent to decide the declaration in question. It is fervently argued that Issue no. 4 should have also been decided in favour of the defendant company.
25. Accordingly, let me take up said Issue no.4 straightaway.
RCA Nos. 54618/2016 & 54619/2016 Page 13 of 4826. I have carefully perused the relief sought by the plaintiffs. In their such suits, they specifically sought a decree of declaration in their favour and they wanted the Court to declare them recorded co-Bhoomidar of the suit property in question. As per stand taken in written statement, a specific issue had been framed whether such suit was not maintainable, being hit by section 185 of the Delhi Rent Reforms Act. The onus was naturally put on the defendant company to prove the same. Ld. trial Court held such issue against the defendant and returned the finding that the suit was not barred by section 185 of the said Act. The defendants (appellants herein) had relied upon Hatti Vs. Sunder Singh 1971 AIR 2320 in order to buttress their argument that the suit was hit by section 185 of the DLR Act. However, the Ld. trial Court, while placing reliance on Anand Prakash (supra) held that the plaintiffs were not seeking any declaration whether they had acquired any Bhoomidari rights at the commencement of the Act. Ld. Trial Court observed that the only question raised in the present suit was whether the defendant had acquired any right in respect of the suit property consequent upon the alleged transfer of the said right or not.
27. I am, however, of the view that such observation does not seem to be in consonance with the pleadings set up by the plaintiff. A very close scrutiny of the plaint would divulge that plaintiffs always claimed themselves to be the co-Bhoomidars but, in the same breath and with lot of hesitation and mysterious uncertainty, raised question about certain transaction carried out by their father (in the first appeal) and by the plaintiff himself in the second matter. According to them, these documents did not have RCA Nos. 54618/2016 & 54619/2016 Page 14 of 48 any force in law and that these had been got executed in a fraudulent manner. They also alleged that the rights in favour of the defendant company did not, even otherwise, stand crystallized because of the fact that no further action was taken subsequent to execution of such documents and, therefore, mere agreement to sell, GPA or Will could not have conferred any right. I must say that the relief has been couched by them in a very smart and nifty manner. They sought positive as well as negative declaration. According to them, though they had the Bhoomidar rights but the defendant company was relying on the aforesaid documents, which did not confer any right upon the defendant company, and, therefore, they sought declaration that they be declared recorded co-Bhoomidars of the suit property and it be also declared that the defendants had no legal right, title or interest in the suit property, based on such documents. They sought declaration of the fact of which, even as per their case, they were never unsure of.
28. Of course, the plaintiffs have filed the suits on the strength of liberty granted to them by the Hon'ble High Court.
29. Let me give a brief background of the facts leading to filing of said writ petitions as well.
30. The defendant company, on the strength of the aforesaid documents executed by Sh. Ranjit Singh as well as by Ramphal (in the second matter), filed applications before the Consolidation Officer, Najafgarh. It was mentioned therein that the applicant company had come to know that the village Nanak Heri RCA Nos. 54618/2016 & 54619/2016 Page 15 of 48 was under consolidation process. It was stated therein that Sh. Ranjit Singh was recorded bhoomidar in respect of his portion of the land up to the extent of 1/6th share and he had sold his entire portion in favour of the applicant's company for a total consideration of Rs.71,630/-. It also made reference to the documents executed in this regard and claimed that the applicant company was in peaceful and uninterrupted cultivatory possession of such land. It also claimed that after the death of Ranjit Singh, name of his sons were replaced in his place in the revenue record as Bhoomidar despite the fact that Ranjit Singh was left with no right qua the aforesaid land and in these circumstances, he prayed that the equivalent land in lieu of his share within the pre-consolidation khasra numbers may be allotted in his favour and the name of the applicant company be entered into revenue record. Similar application was moved in the other case also.
31. The application was opposed and as per the reply of the plaintiffs, there was no sale of the land by their father. There was only a contract and moreover the GPA had already been cancelled. It was also claimed that the possession was never given to the applicant company. It was also claimed that had there been an agreement, the applicant company would have applied for specific performance, instead of filing any such application. It was accordingly prayed that the application may be dismissed. The Consolidation Officer, however, taking into consideration the documents submitted by applicant company, held that the applicant company met all the criteria required for its eligibility as encumbrancer and accordingly declaration to that effect was given RCA Nos. 54618/2016 & 54619/2016 Page 16 of 48 and in lieu, the applicant company was given post-consolidation khasra No. 9/19/1 Min West (1-2) within the scope and meaning of section 26 of East Punjab holdings (Consolidation and Prevention of Fragmentation) Act, 1948. Similar relief/order was given in the other matter, albeit, the khasra numbers were different.
32. Such order dated 19.08.2003 was challenged before the Financial Commissioner and vide order dated 04.09.2010, the revision petition was dismissed thereby upholding the order passed by the Consolidation Officer. Feeling aggrieved, the plaintiffs filed writ petitions before the Hon'ble High Court of Delhi. Such writ petitions came up for hearing before the Hon'ble High Court of Delhi on 09.12.2010 in which the challenge was made to both the orders passed by the Financial Commissioner. After some hearing, Counsel for the petitioners made statement before the Hon'ble High Court of Delhi that he was confining the relief in those petitions only to the clarification that such orders of the Consolidation Officer and Financial Commissioner would not come in his way seeking remedies before the Court of law/foras with respect to the title of the property. The matter was taken up by the Hon'ble High Court of Delhi again on 16.12.2010. Counsel for respondent company appeared and submitted that there was no objection from their side in this regard. However, it was prayed that such permission may be given with the condition that any such court/ foras would consider position/stand of defendant company to the relief/remedy sought by the petitioners, including on the aspects of jurisdiction and limitation.
RCA Nos. 54618/2016 & 54619/2016 Page 17 of 4833. Accordingly, the said two writ petitions i.e. W.P. (C) 8234/2010 and W.P (C) 8237/2010 were disposed of. It was also observed that the question of title would be decided by Court/fora, to be approached by the petitioners with the clarification that disposal of the writ petitions would not mean that the High Court had affirmed the findings on title, leaving the same to be decided by the fora/court, to be approached by the petitioners.
34. Fact remains that the findings given by the Consolidation Officer and Financial Commissioner were not disturbed as such, though at the same time, the petitioners/plaintiffs herein were given right to agitate about their title and the defendant company was also given opportunity to oppose such relief/remedy, including on the aspects of jurisdiction and limitation.
35. The proceedings, which took place before the Consolidation Officer and which went up to Hon'ble High Court of Delhi, would go on to show that the encumbrance of defendant company was recognized primarily on the basis of the aforesaid documents i.e. agreement to sell, will, GPA, receipt, affidavit and possession letter. Despite having liberty from the Hon'ble High Court, the plaintiffs did not file any suit seeking any title as such. They, in the present suits too, claim themselves to continue to be the co-Bhoomidars and, for the reasons best known to them, also seek a declaration to that effect. They also have sought a negative declaration that it be declared that the defendant company was having no right or title or interest in the suit land. However, they have not sought the cancellation of any such document on any RCA Nos. 54618/2016 & 54619/2016 Page 18 of 48 ground whatsoever. It is really intriguing to comprehend as to on what basis, it can seek such negative declaration, without, at least, seeking cancellation of such documents. Moreover, with respect to the agreement to sell, the defendant company has already filed a suit for specific performance which is still pending adjudication. As noted by learned Trial Court, I am also of the considered opinion that the suit, as presented by the plaintiffs, was merely in the nature of seeking injunction and that relief of declaration was a mere surplusage relief. It also seems that injunction has been prayed to somehow negate the palpable consequences bound to flow from the acknowledgment of right of defendant company under sec 26 of Holdings Act.
36. Be that as it may, though the liberty was granted but at the same time, the plaintiffs are required to prove their case in accordance with law and it needs to be also seen whether such suit is competent before a civil court or not and whether it is barred by any law. Let me now assess and evaluate whether the civil court was competent to entertain such suit or whether it was barred by Sec 185 of DLR Act.
37. Delhi Land Reforms Act, 1954 is a complete code in itself. It provides for various kinds of reliefs. An application for declaration of Bhoomidari rights can be filed before Revenue Assistant as per item no. 4 of schedule 1 of DLR Act. Ld. trial Court, while making reference to Anand Prakash (supra) referred to the observations made by the Hon'ble Delhi High Court in said case in relation to facts of Shri Ram Vs. Jai Prakash & Ors. 1991 RCA Nos. 54618/2016 & 54619/2016 Page 19 of 48 (21) DRJ 48 and also quoted the relevant paragraph. However, in that case of Shri Ram (supra), the position was different and in that case, the petitioner had filed a suit for declaration and permanent injunction against the respondents founded on the claim that he was the sole heir and successor of Shri Om Prakash, who was his real brother. The respondent No.1 contested the suit and claimed succession to the land in dispute by virtue of an Adoption Deed allegedly executed by Shri Om Prakash, which was disputed by the petitioner. It was, in the aforesaid factual matrix, that the respondent No. 1 contended that the jurisdiction of the civil court was clearly barred in view of the law laid down by the Supreme Court. Thus, there was apparently a question of succession and said petitioner was not seeking any declaration of bhoomidar rights and the sole question raised therein was as to who was the rightful successor of the land and it was in that peculiar context that the Hon'ble High Court had observed that the question involved in that case did not fall under any entry of schedule and, therefore, section 185 of the Delhi Land Reforms Act did not affect the jurisdiction of the civil Court. In the present case, the situation is different. In Anand Prakash (Supra) also, the suit of the petitioner-plaintiff was for declaration and permanent injunction seeking that he was the sole heir and successor of Shri Om Parkash and it was observed that such relief was not covered under specific matters enumerated in Schedule I of the Act and, therefore, the civil court had every jurisdiction to try the suit. Here, as per plaintiffs they are already co-Bhumidars and their names were already there in revenue record. They seek declaration on the basis of the fact that the defendant company is seeking to establish its claim on the basis of documents RCA Nos. 54618/2016 & 54619/2016 Page 20 of 48 executed by their father. In the second case, such documents have been executed by plaintiff Ramphal himself. Interestingly, on the same set of documents, the defendant company's right as encumbrancer was acknowledged and such finding has not been, strictly speaking, disturbed. In such a situation, the revenue court was the only available forum to the plaintiffs and no suit was maintainable before civil court, particularly when there was no prayer seeking cancellation of such documents.
38. I may also add that in Anand Parkash (supra), it has been observed that it is section 185 only which expressly ousts the jurisdiction of the civil courts in certain matters and not in all matters. The matter in respect of which the jurisdiction of the civil courts is ousted are only those matters which are mentioned in Schedule I to the Act, and various types of suits, applications and other proceedings are mentioned in column 3 of the said Schedule read with entries mentioned in column 2 and the courts in which the proceedings have to be filed are mentioned in column 7 thereof. It was further observed that it was thus clear that in the suit of the present type, in which permanent injunction was claimed on the basis of succession to Bhoomidari rights by virtue of a will, shall not be covered by any entry in column 3 of First Schedule and thus the Delhi Land Reforms Act did not either expressly or impliedly barred such suit. I rather feel that in view of said observations, had the defendant company come to a civil court seeking relief of declaration, its such suit would have been clearly barred. The defendant company rather knocked the doors of revenue court. Thus, in the peculiar factual matrix of the cases in hand, the RCA Nos. 54618/2016 & 54619/2016 Page 21 of 48 plaintiffs too should have approached the Revenue Courts for seeking relief of declaration, if any. Curiously, the suit land is sold by their predecessor-in-interest, and by plaintiff himself in the second case. They were already recorded co-bhumidars. The consideration amount is also pocketed by them and, all of a sudden, they have now woken up from their slumber and want to assert that they continue to be co-Bhumidars and seek declaration to that effect, without even challenging the documents executed by them.
39. Reference be also made to Hatti v. Sunder Singh AIR 1971 SC2320. Said case was substantially on the relief for declaration that the grant of Bhoomidari rights to Hatti was wrong and illegal and such a declaration should have been granted in favour of Sunder Singh and that Sunder Singh was entitled to claim possession from Hatti whom he called a trespasser. The Supreme Court held that all these reliefs could be granted by revenue courts alone. Here also, the right of defendant company has been acknowledged as encumbrancer and the only recourse available to plaintiffs were either to challenge such order successfully or to seek declaration from Revenue courts that it continued to remain Bhumidar despite said documents. It is also observed in Hatti (supra) that Section 186 envisages that questions of title can arise before the Revenue Courts and if such a question arises in a competent proceeding pending in a Revenue Court, an issue will be framed and referred to the civil court. Such a provision does not give jurisdiction to the civil court to entertain the suit itself or directly on a question of title. The jurisdiction of the civil court is limited to deciding the issue of title referred to it by the Revenue RCA Nos. 54618/2016 & 54619/2016 Page 22 of 48 Court. This clearly implies that, if a question of title is raised in an application for declaration of Bhoomidari rights under Item 4 of Schedule I of the Act, that question will then be referred by the Revenue Assistant to the civil court; but a party wanting to raise such a question of title in order to claim Bhoomidari right cannot directly approach the civil court.
40. I may also make reference to Delhi Development Authority Vs. R.S. Kathuria 2008 SCC Online Delhi 1282. Undoubtedly, the position in the aforesaid case was little different as the land in question had also been acquired and the Hon'ble Court was of the view that since the land had been purchased after section 4 notification, it did not confer any title or interest, but fact remains that the Hon'ble High Court also specifically held that such suit seeking declaration of bhoomidar was not maintainable. In that case, the plaintiff had sought a declaration that he was Bhumidar of certain lands and also sought declaration that the defendants were having no right, title or interest in such land. The plaintiff, in that case, had purchased bhoomidar rights from the original bhoomidar vide registered sale deed. Admittedly, in that case the situation was little different as land, so purchased, had also been acquired. An issue with respect to the maintainability of the suit was framed and such preliminary issue was decided against DDA holding that the civil suit was maintainable. Ld. Single Judge held that in respect of the declaration sought by the plaintiff (respondent No. 1) for bhoomidar rights, the suit was not barred by provisions of Delhi Rent Reforms Act and the said Act did not provide for exclusive jurisdiction on the revenue courts in a case of a suit seeking RCA Nos. 54618/2016 & 54619/2016 Page 23 of 48 declaration of right as Bhumidar. Such order was challenged and the contention of DDA was to the effect that suit seeking relief of declaration of bhoomidar right could not be granted by the civil Court which clearly fall within the ambit of entry 4 of first schedule and, therefore, the jurisdiction vested with the revenue Court. Hon'ble High Court of Delhi held that the jurisdiction of civil Court was clearly barred.
41. In Gaon Sabha and Anr. Vs. Nathi and Ors. 110 (2004) DLT 549 SC, it was held that the legal position was absolutely clear and there cannot be even a slightest doubt that the civil court had no jurisdiction to entertain the suit which was filed Seeking a declaration that the order of vesting of land in Gaon Sabha was illegal. In Smt. Kasturi (Dead) by LRs Vs. Gaon Sabha (1989) 4SCC 55 also, relying on Hatti (supra) it was observed that it was settled position that a claim under Section 11 of the Act for declaration of Bhoomidari right was not maintainable in the Civil Court in view of Section 185 of the Act read with Schedule I and exclusive jurisdiction for adjudication of such claims vested in the appropriate Revenue Court.
42. In Sukh Ram Vs. Ramesh Chandra Aggarwal 2016 SCC OnLine Del 893, Sh. Duli Chand, the plaintiffs' father was the Bhumidar and after his death, the plaintiffs, being his legal heirs, became Bhumidar of the land and continued to hold its possession. However, they did not get the land mutated in their name. Later, defendant No. 1 approached them and offered to purchase the part of the land for a consideration of Rs. 9,00,000 to be paid to each of RCA Nos. 54618/2016 & 54619/2016 Page 24 of 48 the plaintiffs. The plaintiffs, being told that they were signing the release deeds, were hurriedly made to sign certain documents. The plaintiffs later realized that defendant no. 1 had applied for mutation of the entire land on the basis of an alleged will executed by Shri Duli Chand. The plaintiffs filed their objections in the pending mutation proceedings before the Revenue Assistant and sought to have the mutation proceedings stayed. They also initiated criminal proceedings against defendant no. 1. It was further the plaintiffs' case that Late Shri Duli Chand had neither executed any will nor registered a proper sale deed during his lifetime and that defendant no. 1 had forged certain documents in order to cheat the plaintiffs out of their right in the suit property. Being aggrieved, the plaintiffs filed a civil suit in Delhi High Court. In such suit, an issue was framed whether such suit was barred under DLR Act. It was held by Hon'ble Delhi High Court that the mutation proceeding relate to recording of Bhoomidari rights and relying on Hatti v. Sunder Singh (supra), it was held that the issue of declaration of Bhoomidari rights, as per S. 186 of the Delhi Land Reforms Act, could only be taken up by the Revenue Court. If a question of title arises in an application for Bhoomidari rights, the said issue will be framed and will be referred to a competent Civil Court. Thus, it was held that the suit was not maintainable because it seeks to enforce Bhoomidari rights for which the appropriate court for determining the issue would be the Revenue Court.
43. In the case of Rev Singh v. Rishi Pal & Ors. 2011 SCC OnLine Del 2098, the Hon'ble Delhi High Court has observed as under:-
RCA Nos. 54618/2016 & 54619/2016 Page 25 of 48"......The court was of the view that the plaintiff was actually seeking a declaration to the effect that he be declared bhumidar; only if he gets the status of a bhumidar recognized would he be entitled to the relief of injunction; such a relief was not maintainable before the civil court; revenue court alone had the jurisdiction to deal with this issue. Reliance upon the judgment of Ram Karan was in the right context. In that case, a Bench of this Court had held that where the title of the plaintiff is under a cloud, for all practical purposes the plaintiff, is seeking a declaration of his right as a bhumidar which issue could be decided only by the revenue court; in that case also, the plaintiff had claimed himself to be a bhumidar which had been disputed by the defendant. In the present case as well, the title of the plaintiff is not clear; he claims himself to be a bhumidar and recorded owner of the suit land. This has been disputed by the defendant in his written statement wherein his categorical version is that the suit land has been sold to him by the son of the plaintiff and he is in possession of the same. Such a dispute could only be decided by the revenue court. The impugned judgment rightly recorded this. No perversity has been pointed out."
44. Thus, in view of my foregoing discussion though the suit for declaration had been dismissed on the ground of limitation, I am of the considered opinion that the suit should have also been RCA Nos. 54618/2016 & 54619/2016 Page 26 of 48 dismissed on the ground that it was hit by section 185 of Delhi Land Reforms Act. Issue No.4 is accordingly decided in favour of defendant company/appellants herein.
45. I may also re-emphasize here that as already noticed above, the plaintiffs had not sought cancellation of any documents which were there in favour of the defendant. I may also briefly make reference to such documents and in relation to the first appeal, the defendant company has relied upon following documents:-
Sr. No. Description of Document Exhibit Number 1. Agreement to Sell dated 25.11.1994. Ex. DW3/B
2. Receipt regarding payment of consideration Ex. DW3/C
3. Affidavit executed by Ranjit Ex. DW3/D
4. Possession letter issued by Ranjit Ex. DW3/E
5. GPA executed by Ranjit Ex. DW3/F
46. All the documents, except for GPA, are executed by Sh. Ranjeet in favour of M/s Chintel Exports Private Ltd. However, as far as General Power of Attorney is concerned, it is rather in favour of Sh. Ashok Soloman, its Managing Director. Though the Ld. Trial court had come to the conclusion that the suit for declaration was time-barred and though the plaintiffs had not sought any relief of cancellation of said documents, it is noticed that the Ld. Trial court has made intricate reference about these documents as well as about their validity, enforceability and legality. The Ld. Trial court made reference to Suraj Lamps and Industries Private Ltd Vs. State of Haryana, 2012 1 (SCC) 656. In the aforesaid celebrated case, the Hon'ble Supreme court had held that RCA Nos. 54618/2016 & 54619/2016 Page 27 of 48 immovable property can be legally and lawfully transferred only by registered deed of conveyance and the transactions in the nature of GPA sales or Will do not convey title and do not amount to transfer and nor can these be recognized as a valid mode of transfer. It also observed that the courts will not treat such transactions as complete or complete transfer as these neither convey title nor create any interest in the immovable property and, therefore, these cannot be recognized as Deeds of Title except to the limited extent of Section 53 A of Transfer of Property Act. The conclusion in this regard has been given in paras 23-29, which read as under:-
"Conclusion
23. Therefore, an SA/GPA/will transaction does not convey any title nor creates any interest in an immovable property. The observations by the Delhi High Court in Asha M. Jain v. Canara Bank [(2001) 94 DLT 841], that the "concept of power-of-attorney sales has been recognised as a mode of transaction" when dealing with transactions by way of SA/GPA/will are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/will transactions are some kind of a recognised or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognise or accept SA/GPA/will transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
24. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of "GPA sales" or "SA/GPA/will transfers" do not convey title and do not amount to transfer, nor can they be recognised or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as RCA Nos. 54618/2016 & 54619/2016 Page 28 of 48 they neither convey title nor create any interest in an immovable property. They cannot be recognised as deeds of title, except to the limited extent of Section 53-A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/will transactions known as GPA sales.
25. It has been submitted that making declaration that GPA sales and SA/GPA/will transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularise the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship.
26. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/will transactions are not "transfers" or "sales" and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreements of sale. Nothing prevents the affected parties from getting registered deeds of conveyance to complete their title. The said "SA/GPA/will transactions" may also be used to obtain specific performance or to defend possession under Section 53-A of the TP Act. If they are entered before this day, they may be relied upon to apply for regularisation of allotments/leases by development authorities. We make it clear that if the documents relating to "SA/GPA/will transactions" have been accepted/acted upon by DDA or other developmental authorities or by the municipal or Revenue Authorities to effect mutation, they need not be disturbed, merely on account of this decision.
27. We make it clear that our observations are not intended to in any way affect the validity of sale RCA Nos. 54618/2016 & 54619/2016 Page 29 of 48 agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a power of attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding "SA/GPA/will transactions" are not intended to apply to such bona fide/genuine transactions.
28. We place on record our appreciation for the assistance rendered by Mr Gopal Subramanium, Senior Counsel, initially as Solicitor General and later as amicus curiae.
29. As the issue relating to validity of SA/GPA/will has been dealt with by this order, what remains is the consideration of the special leave petition on its merits. List the special leave petition for final disposal."
47. Based on the aforesaid specific observations, the Ld. Trial court held that none of the documents relied upon by the defendant company in support of its title over the suit property actually conferred any ownership rights. It also went on to hold that since the plaintiffs were admittedly recorded bhumidars of the suit property, the relief of declaration was merely a surplusage and the present suit was essentially a suit for permanent injunction.
RCA Nos. 54618/2016 & 54619/2016 Page 30 of 48However, while dealing with issue related to relief of declaration, the Ld. Trial court made reference to the effect that the defendant was claiming its rights on the basis of documents Ex. DW3/B to DW3/F. As regards GPA dated 29.11.1994, the trial court went on to observe that said GPA had already been revoked by a Cancellation Deed and the defendant was estopped from disputing the cancellation of such Attorney. It also held that there was nothing on record which could show that GPA was irrevocable one. It also held that it had not been executed against any consideration as no consideration amount was mentioned in GPA and in the aforesaid premise, it specifically held that the GPA was properly cancelled and, therefore, defendant could not claim any right on the basis of aforesaid GPA. As regards documents Ex. DW3/B to DW3/F, it observed that the plaintiff had not sought cancellation/declaration of these documents as null and void and also that the plaintiffs had not denied the execution of such documents. It also noticed that defendant had also examined the attesting witnesses of such documents and observed that the suspicious circumstances shrouding the execution of the aforesaid documents were sufficiently explained by the witnesses. It eventually observed that there was nothing on record to show that the thumb impression on such documents were obtained fraudulently by the defendant company and, therefore, it held that the defendant had been able to prove documents Ex. DW3/B, DW3/C and Ex. DW3/E. However, in the next breath, the Ld. Trial court observed that even if these documents had been executed, it was still required to be seen whether these conferred any right, title or interest in respect of the such property upon the defendant and relying on Suraj Lamps Pvt RCA Nos. 54618/2016 & 54619/2016 Page 31 of 48 Ltd (supra), it observed that none of such documents was capable of conferring any ownership rights . It also admittedly observed that it was the right of specific performance which had been recognized. However, till the execution of registered Sale Deed, mere agreement to sell would not create any interest or charge, particularly when there was no transfer of possession.
48. I have already noticed the observations given by the Hon'ble Supreme Court in the aforesaid case of Suraj Lamps P Ltd (supra). There cannot be any scope of debate with respect to the settled position of law but there was no real occasion for the Ld. Trial court to have given any observation to the aforesaid effect as these observations would seriously prejudice the revenue court and also the civil court dealing with the suit filed by the appellant company seeking specific performance of the contract. There cannot be any dispute that based on any such agreement to sell, any such party can always knock the door of Civil court for enforcement of the agreement and since the Civil Court is already seized of the matter, there was no reason for the Ld. Trial court to have extensively dealt with the aforesaid documents, particularly, when no relief was sought seeking these documents to be treated as null and void.
49. Right here, I may point out that the documents are to be considered by taking a holistic view and one single document cannot be read in isolation. Ld. Trial court held that GPA did not carry any value as there was no consideration attached to it. However, if all the documents are read together, it becomes apparent RCA Nos. 54618/2016 & 54619/2016 Page 32 of 48 that the suit land was sold against a total consideration of Rs. 71,630/- out of which a sum of Rs. 63,630/- was paid by way of cheque. Even in affidavit Ex. DW3/D, Sh. Ranjeet has categorically deposed that he had executed an irrevocable GPA in favour of Ashok Soloman and he undertook not to revoke the same under any circumstances and such affidavit, receipt and agreement to sell cannot be ignored while reading GPA. Moreover, the plaintiffs in cross examination also admitted receiving the consideration, albeit, according to them it was part. Such deposition also could not have been ignored.
50. I may also make mention of Ramesh Chand Vs. Suresh Chand & Ors. 2012 SCC Online Delhi 1985. The Hon'ble Delhi High Court dealt with the aforesaid observations given by Hon'ble Supreme Court in Suraj Lamps case (supra) and clarified that a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882 and Section 202 of the Contract Act, 1872. It also observed that there is devolution of interest after the death of testator in terms of Will and observed that even if there was no benefit available under Section 53A of Transfer of Property Act, the plaintiff would still be entitled to benefit of Section 202 of Contract Act and also the fact that the ownership which devolved upon him in terms of Will. It was thus observed that though any such plaintiff would not be called a classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would still have better rights/entitlements of RCA Nos. 54618/2016 & 54619/2016 Page 33 of 48 possession of suit property. It held that right of possession arises not only from the complete ownership right but by having a better title or a better entitlement/right of possession than qua the person who is in actual physical possession. Reference be also made to Subhash Chand Aggarwal (deceased) through his LRs Vs. Yashveer Singh & Anr. 2018 SCC Online Del 6935. It was a suit seeking specific performance based on agreement to sell and even in that case, the question had cropped up with respect to GPA and it was held that it was well settled that GPA executed for a consideration was irrevocable under Section 202 of Contract Act and such Power of Attorney could not be revoked even upon the death of executant. It also observed that the Hon'ble Supreme Court in Suraj Lamps (supra) had also taken note of Power of Attorney transaction and held that the Power of Attorney transactions, before the date of said judgment, could be relied upon for regularization of allotment/leases.
51. Thus, though the observations given by Hon'ble Supreme Court in Suraj Lamps (supra) are well-settled but fact remains that in the case in hand, there was no occasion for the Ld. Trial court to have given any specific observations with respect to the validity, authenticity or enforceability of aforesaid documents as no relief in this regard was ever sought by the plaintiff. Moreover, Ld. Trial court must have been conscious of the fact that the suit for specific performance was already pending adjudication and in such a situation, the extensive discussion with respect to the validity of the documents was not called for. Therefore, I hold that the observations made in this regard by the Ld. Trial court would RCA Nos. 54618/2016 & 54619/2016 Page 34 of 48 not prejudice the learned civil court seized with the issue of specific performance or for that matter the Revenue Court.
52. In view of my foregoing discussion and after careful perusal of the pleadings, evidence adduced by the parties and arguments made and precedents cited at the Bar from both the sides, the issue-wise determination is as under: -
Issue No. 1 :- Whether the suit of the plaintiff is barred by limitation? OPD
53. Ld. trial Court has already held this issue partly in favour of plaintiff and partly in favour of defendant. As regards declaration, Ld. trial Court has held that the suit was barred by limitation. Such finding has not been assailed by anyone. However, as regards suit for injunction, the suit was ostensibly held in time as no evidence was led, showing that the suit for injunction was also barred by time. I have already observed that the relief of declaration was kind of surplus in the present factual matrix and for all purposes it was a suit for injunction. Such suit for injunction was maintainable provided the requisite cause of action is shown and substantiated. The defendant company failed to show as to how such suit was barred by limitation qua relief of injunction. Therefore, the finding given by Ld. trial Court with respect to issue No. 1 is maintained.
Issue No. 2 :- Whether the suit of the plaintiff has not been RCA Nos. 54618/2016 & 54619/2016 Page 35 of 48 properly valued? OPD
54. I have seen the findings given by Ld. trial Court and I do not find any reason to take any contrary view. Since the plaintiffs had not sought for cancellation of documents and since the relief of injunction was not a relief which was consequential to the relief of declaration only, Ld. trial Court was fully justified in holding that the suit was essentially a suit for injunction and also that there was no requirement for paying ad valorem Court fee as per the market value of the suit property. However, since the plaintiff had sought multiple reliefs of declarations and of injunction, the Ld. trial Court instead of non-suiting the plaintiffs, on account of under-valuation, gave them an opportunity to pay the deficient Court fee. Since such deficiency has already been, reportedly, made up, there is no requirement of passing of any further order and, therefore, the finding given by the Ld. trial Court with respect to issue No. 2 is also upheld.
Issue No. 3 : Whether the present suit is not maintainable being barred by Section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948? OPD
55. Ld. trial Court came to the conclusion that section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act did not come in the way of the Civil Courts in passing appropriate orders. Section 26 of the said act is regarding the transfer of any encumbrance whereas the relief of declaration RCA Nos. 54618/2016 & 54619/2016 Page 36 of 48 and for that matter claim or title coupled with injunction is altogether different in nature and, therefore, I do not find any reason to give any contrary finding with respect to issue No. 3.
Issue No. 4: Whether the suit is not maintainable being hit by Section 185 of the Delhi Land Reforms Act? OPD
56. This issue has already been discussed in detail in the earlier part of the judgment. DLR Act is a complete code and provides for relief of declaration as well. The defendant company had already approached the revenue court and got its right acknowledged. This was based on same set of documents. As already noted, the validity of such documents has not been impeached here as such and without the same, the plaintiffs cannot get back their title. They are attempting to seek a relief indirectly in the garb of declaration, which, for totally inexplicable reasons, they have not sought directly, despite liberty granted by Hon'ble High Court. In view of the forgoing detailed discussion, the issue stands decided in favour of the defendant company, Issue No. 5 : Whether the suit is barred by res judicata? OPD
57. I have carefully considered the rival submissions with respect to issue No. 5 and I also cannot be oblivious of the fact that the present suits were filed by the plaintiffs after taking requisite liberty from the Hon'ble High Court of Delhi. Undoubtedly, the opposite side was also given opportunity to raise objection with respect to jurisdiction and limitation. Be that as it may, the RCA Nos. 54618/2016 & 54619/2016 Page 37 of 48 principles of res judicata are, to me also, not found attracted in the peculiar factual matrix of the present cases and, therefore, the findings in this regard as recorded by Ld. trial Court are upheld.
Issue No. 6 : Whether the suit is not maintainable being hit by Order 2 Rule 2 of CPC ? OPD
58. Ld. trial Court was fully justified in holding that since the earlier suit was never filed against the defendant company, there was no question of holding that the suit was barred under Order II Rule 2 CPC. The previous suit had been filed by the plaintiffs against Ms. Roselin Poonam, who was an employee of defendant company and on whose favour, there was a 'Will' executed by her father. In the peculiar above-noted factual matrix, there was no scope of applicability of provision of Order II Rule 2 CPC. Thus, the finding on said issue is also affirmed.
Issue No. 7 : Whether the plaintiff is entitled to a relief of declaration, as prayed for ? OPP
59. I have already made elaborate discussion about the various aspects involved with the aforesaid important issue. Ld. trial Court eventually came to the conclusion that since the relief of declaration, was found to be barred by limitation, the plaintiffs were not entitled to any of the declarations- be it positive or negative. Such finding, evidently do not even hurt the appellants herein. The ultimate finding on said issue is, even otherwise, not under RCA Nos. 54618/2016 & 54619/2016 Page 38 of 48 challenge as the grievance, if any, could have come from the side of the plaintiffs only.
60. However, as already noted above, the observations and the discussion made by Ld. trial Court regarding various documents would not cause any prejudice to the Civil Court seized with the suit for specific performance and such court would be at full liberty to decide the matter without getting prejudiced to the observations made by the Ld. trial Court regarding the validity or enforceability of all such documents. I am compelled to hold so because in the present suits these documents were not even challenged and there was no prayer that these documents may be cancelled or declared null and void. Moreover, the plaintiffs are not clear as to on what basis they wanted these documents to be ignored or obtained fraudulently- whether it's a fraud or benefit of illiteracy or because these were never enforced or non-payment of full consideration. Be that as it may, since the documents have not been impeached specifically and no prayer has been made in this regard, there is no point in coming to any definite conclusion, either way, being beyond the scope and ambit of the present suit. Thus, subject to the above rider, the final conclusion given by the learned Trial Court qua issue no.7 stands affirmed.
Issue No. 8 : Whether the plaintiff is entitled to a relief of permanent injunction, as prayed for? OPP
61. For all purposes, this issue is the most significant in context of the appeals in question. Truly speaking, the appellants.
RCA Nos. 54618/2016 & 54619/2016 Page 39 of 48feeling aggrieved by such restraint order, have filed the appeals.
62. I have seen the prayer made in this regard in both the suits. Fact, however, remains that the averments made in the suit are required to be substantiated during the trial. In the affidavits filed by the plaintiffs in the first case, it has been merely deposed that the defendant did not possess any right or interest in the suit property and that it had no authority to issue threats to them for vacating the suit property on any ground, whatsoever. They also deposed therein that the defendant was liable to be restrained from forcibly dispossessing them from the suit property or from causing any obstruction or creating any nuisance in their peaceful enjoyment of the suit property. Nothing has been said in such affidavits that the defendant company may also be restrained from creating any third party interest in the suit property.
63. Ld. Counsel for the appellants/defendant company has contended that the suit for injunction is not maintainable as after the execution of such documents and also on the basis of the fact that the defendant company has already been declared as encumbrancer, the injunction cannot be sought to frustrate its such rights which have already attained finality. It has also been argued that even for the purposes of seeking any injunction, the plaintiffs should have rather gone to the Revenue Court. Sh. Chauhan has contended that the plaintiffs were unsuccessful before the Revenue Courts and since the order passed by the Revenue Court has already attained finality and plaintiffs have not filed any suit seeking title or ownership, the relief of injunction could not have been given to RCA Nos. 54618/2016 & 54619/2016 Page 40 of 48 them.
64. I may also make reference to Nanak Chand Vs. Rakesh & Ors. 2012 SCC Online Delhi 2374. In that case, the question which arose before the Hon'ble Delhi High Court was whether the suit for injunction simplicitor would be maintainable in view of the fact that plaintiffs had withdrawn their prayer for grant of decree of declaration. In the aforesaid matter also, the plaintiffs therein had sought declaration that they be declared bhoomidar of the land in dispute. Besides such declaration, they also sought a decree of permanent injunction restraining the defendants from interfering their rights and possession. During the course of trial of that case, an issue was framed whether the suit of plaintiffs was barred under section 185 of Delhi Rent Reforms Act or not. However, Counsel for the plaintiffs made a statement before the Court that he wanted to withdraw the relief of declaration and was wanting to confine his relief to the prayer regarding permanent injunction only. It was in that context that the question was posed whether the suit for injunction simplicitor would be maintainable without the relief of declaration of the title and the Hon'ble High Court of Delhi came to the conclusion that such simplicitor suit for injunction was maintainable and it did not matter if the plaintiff had given up prayer for grant of declaration. Reliance was also placed on Anathula Sudhakar (supra). The principles laid down in the aforesaid case of Anathula (Supra) were also referred to. These read as under:-
"(a) Where a cloud is raised over plaintiff's title and he does RCA Nos. 54618/2016 & 54619/2016 Page 41 of 48 not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy.
Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a RCA Nos. 54618/2016 & 54619/2016 Page 42 of 48 more comprehensive declaratory suit, depending upon the facts of the case."
65. Thus the Hon'ble High Court came to the conclusion that on reading of the plaint in a holistic manner, it was evident that the substance of the prayer was for injunctory relief.
66. The simplicitor suit of injunction in such a situation is maintainable and, therefore the Ld. trial Court was fully justified in finding out whether the plaintiff was entitled to the relief of permanent injunction or not. I also do feel that there is no embargo of any kind whatsoever, and in the given set of facts, the simplicitor suit for injunction is very much maintainable. According to Ld. Trial court, the possession was admittedly with the plaintiffs and since they were in possession, they had, even otherwise, become entitled to injunction. As per defendant company, whereas, the possession was with them and in this regard they have strongly relied on the documents executed in their favour. The possession cannot be, robotically, inferred from the documents. Moreover, even as per defendant company, they merely have de jure possession and not actual and physical possession. I must say that both the sides are to be blamed as neither of the two came to court seeking any relief of any kind immediately after the execution of such documents way back in the year 1994.
67. Though the picture about possession, being with defendant company, is not absolutely clear and discernible, the facts on record clearly indicate that pre-consolidation, the land had been RCA Nos. 54618/2016 & 54619/2016 Page 43 of 48 allegedly sold to the defendant company. Interestingly, defendant company's own witness in his cross-examination, has pleaded ignorance about said crucial aspect of it being in possession. Be that as it may, there is nothing on record to show that post-consolidation, the possession of any land had ever been handed over to defendant company by anyone. In relation to the writ petitions filed by the plaintiffs, challenging the order of the Financial Commissioner, the Hon'ble High Court of Delhi had also questioned the defendant as to how the suit property could be given to the defendant in its own name, since the defendant was only an encumbrancer. It was conceded before the Hon'ble High Court that the order of Consolidation Officer was yet to be implemented. This also goes on to demonstrate that the defendant is yet to receive the possession, post consolidation with respect to suit land, having new khasra numbers. On the other side, the possession of the plaintiffs is reflective from the Khasra Girdawari. Such possession alone, even if short of absolute title, is sufficient to protect their interest qua dispossession.
68. The other prayer of the plaintiffs is to restrain the defendant from creating third party interest in the suit property
69. It is not in dispute that till the year 1994, the father of the plaintiffs was the owner of the suit property. All parties are deriving their title from him only. The plaintiffs, in the first case, claim that they have inherited the suit property from their father whereas the case of the defendant is that it has acquired title by RCA Nos. 54618/2016 & 54619/2016 Page 44 of 48 purchasing the property from him. In the second case, whereas, the transferee is plaintiff Ramphal himself.
70. Although the plaintiffs have attempted to raise the plea of fraud in execution of documents, they have chosen not to seek setting aside any of these documents. There is no prayer that these documents be declared null and void. Moreover, the defendant company has already filed a suit for specific performance based on the same agreement to sell. The concerned party can always pray for necessary relief of injunction qua creation of third-party interest in the said suit.
71. It also cannot be forgotten that the defendant has already been declared an "encumbrancer" by order dated 19.08.2003 passed by the Consolidation Officer. The said order has attained finality and thus, it shall be fallacious to say that the defendant has no right in the property. He cannot be, therefore, restrained from transferring his such right, recognized by a competent court. Moreover, in the affidavits filed by the plaintifs during the trial, they have not made any whisper to the aforesaid fact which go on to indicate that they are not desirous of seeking any relief of injunction with respect to restraining the defendant company from creating any third party transfer.
72. Thus, only it is required to be ensured that defendant company does not forcibly or illegally remove the plaintiffs from the suit land. The creation of any third party interest by defendant company, in the given factual matrix, would be rather on its own risk and peril and, therefore, the court is, even otherwise, not RCA Nos. 54618/2016 & 54619/2016 Page 45 of 48 required to issue any injunction in this regard. No evidence has either been led by the plaintiffs on said aspect. Moreover, if defendant is made bound by the court, then, the status quo regarding creation of third party interest needs to be maintained even by the plaintiffs in order to ensure that rights of defendant company, as recognized by the revenue court, are not defeated.
73. I may also point out that as per the prayer contained in the suit, the decree of permanent injunction was sought restraining the defendant from forcibly dispossessing the plaintiffs from the suit property and also from creating any third party interest in any manner whatsoever. The Ld. Trial court has, somehow, gone beyond the prayer clause and while restraining the defendant from dispossessing the plaintiffs without following due process of law, it also restrained the defendants from creating any third party interest without first perfecting its title by getting Sale Deed registered in its favour.
74. To me. the words 'due process of law' are comprehensive enough and all compassing. What is meant by due process of law has been explained by Hon'ble Apex court in Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370 as under: -
"79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including RCA Nos. 54618/2016 & 54619/2016 Page 46 of 48 written statement and documents before the court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent court."
75. Thus, the second part of the order on injunction, regarding not creating any third party interest without first perfecting its title by getting Sale Deed registered in its favour was rather a kind of surplusage and unwarranted and there was no requirement of making any direction to that effect.
76. The relief of injunction is an equitable and discretionary remedy. In the preset cases, the relief granted in this regard should have been limited to the first part of the prayer clause. Thus, the plaintiffs are entitled to first part of injunction and accordingly the issue is decided partly in favour of plaintiffs by ordering that defendant company or its representatives are restrained from dispossessing the plaintiffs from the suit land without following the due process of law and they shall also not illegally obstruct their possession or enjoyment thereof. Issue No.8 stands decided in aforesaid limited terms.
77. With the above observations, both the appeals stand disposed of, as partly allowed. Decree sheets, in both the cases, be prepared accordingly.
78. The signed copy of the judgment be placed in the case record of first appeal and attested copy thereof may be placed in the RCA Nos. 54618/2016 & 54619/2016 Page 47 of 48 case related to second appeal.
79. Trial Court Record be sent back along with copy of this judgment.
80. Appeal files be consigned to record room.
Digitally
signed by
MANOJ
Announced in open court MANOJ JAIN
Date:
On 05.09.2022 JAIN 2022.09.05
17:37:22
+0530
(Manoj Jain)
Principal District & Sessions Judge
South West District, Dwarka Courts, Delhi
RCA Nos. 54618/2016 & 54619/2016 Page 48 of 48