Delhi District Court
Sh. Rajinder Kumar vs Smt. Kasturi (Deceased) on 30 July, 2012
1
IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL) 1
TIS HAZARI COURTS, DELHI.
C.S. No.56/2007
Unique I.D. no. 02401C0256942007
Sh. Rajinder Kumar
S/o Sh Jagjit Singh
R/o Village Hassanpur P.O. Ujawa
New Delhi. ..........Plaintiff
Versus
1 Smt. Kasturi (deceased)
W/o Sh Jawahar through LRs
(Substituted vide order dated 09.04.2010)
(i) Smt. Rattan Devi
W/o Sh Jagat Singh
R/o Village & Post Office Palawas,
District Rewari, Haryana.
2 Sh. Hari Kishan
S/o Sh Dharam Singh
R/o Village Hasanpur
P.O. Ujawa New Delhi.
3 Sh Dalip Singh S/o Sh Bakhtawar Singh
4 Sh Ramphal (now deceased)
S/o Sh Bakhtawar Singh
Through LRs.
Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 1 of 28
2
(i) Smt. Santra W/o Late Sh Ramphal
(ii) Sh. Dinesh Kumar S/o Late Sh Ramphal
(iii) Sh Subhash S/o Late Sh Ramphal
(iv) Sh Sukhvinder S/o Late Sh Ramphal
(v) Ms Poonam D/o Late Sh Ramphal
(vi) Ms. Neelam D/o Late Sh Ramphal
(vii) Ms Saroj D/o Late Sh Ramphal
All R/o V& P.O. Hasanpur, New Delhi.
5 Sh Desraj S/o Sh Bakhtawar Singh
6 Sh Om Dutt S/o Sh Mahavir Singh
7 Sh Chandan S/o Sh Bani Singh
8 Sh Gajraj Singh S/o Sh Bani Singh
9 Sh Fatte Singh S/o Sh Hansa Ram
10 Sh Khem Chand S/o Sh Lakhi Ram
11 Sh Rameshwar S/o Sh Lakhi Ram
12 Sh Prabhu S/o Sh Devka
13 Sh Jai Narain S/o Sh Bhagwan Sahai
14 Sh Tara Chand S/o Sh Bhagwan Sahai
15 Sh Ram Avtar S/o Sh Jagmal Singh
16 Sh Dilbagh Singh S/o Sh Ajit Singh
(Defendant no. 3 to 16 impleaded vide order dated 16.09.2010)
All R/o V& P.O. Hassan Pur, New Delhi.
Date of institution of the suit :13.03.2007
Reserved for judgment on :04.07.2012
Date of pronouncement of judgment :30.07.2012
Suit for specific performance, possession, permanent
injunction and declaration
Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 2 of 28
3
JUDGMENT: This is a suit for specific performance, possession, permanent injunction and declaration filed by plaintiff pleading that the defendants are recorded coowners having equal share and in possession of residential plot bearing Khata Khatoni no. 18/18 and Khasra no. 73/11 admeasuring one Bigha 1 biswa situated within the extended Lal Dora abadi area of village Hasanpur, New Delhi as shown in the rough site plan showing the suit property in red colour. On 30.11.2006, the defendants expressed their intention to sell their properties to plaintiff and some money was paid the defendants applied for issue of NOC to the SubRegistrar(Notification), Vasant Vihar, New Delhi which was issued on 10.09.2007. However, the defendant kept postponing the execution of sale deed. The plaintiff came to know that the defendants are planning to sell the suit property to some third person.
2. In the written statement, the defendant opposed the claim of the plaintiff on various facts set up therein, though the transaction in question has not been denied. However the cause of action of plaintiff has been denied and various legal objections have been pressed into service.
Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 3 of 28 4
3. With the available pleadings, the following issues were framed on 13.12.2011:
1) Whether the suit has been property valued for the purposes of jurisdiction and Court fee by the plaintiff on the reliefs claimed in the suit? OPP
2) Whether a relief for a decree of specific performance and execution of sale deed would be in contravention of section 33 of the Delhi Land Reforms Act? Onus on parties as per their pleadings.
3) Whether the receipt dated 03.12.06 is a valid, legal and a binding contract as an Agreement to Sell under law? OPP
4) Whether the receipt dated 03.12.06 is a manipulated and fabricated document? OPD1 & 2
5) Whether the receipt dated 03.12.06 is not duly stamped or registered, hence unenforceable? OPD 1 & 2
6) Whether the relief of specific performance Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 4 of 28 5 can be granted to the plaintiff in view of sections 10 & 17 of the Specific Relief Act? OPD 1 & 2
7) Whether the suit of the plaintiff is barred U/s 16(a) of the Specific Relief Act? OPD
8) Whether the plaintiff is entitled to seek a declaration in respect of the sale deed dated 21.03.07? OPP
9) Whether the plaintiff is entitled to the reliefs of Specific performance and injunction as claimed? OPP
10) Relief(s)?
4. Issue no. 1 and 2 have been treated as preliminary issue. Arguments have been addressed on these two issues.
5. I have heard Shri Rajesh Yadav, Ld Counsel for the defendant no. 1 and no. 2 and Shri M.S.Pawar, Ld Counsel for the plaintiff. Arguments have been opened by Ld. Counsel for the defendant nos. 1 and 2 as it is on their objection the issues under consideration have been framed.
Arguments of Defendant nos. 1 & 2
6. It is submitted by Ld Counsel for defendant no. 1 and 2 that para 2 Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 5 of 28 6 of the plaint clearly shows that the land in question is a Lal Dora land therefore section 33 of the Delhi Land Reforms Act, 1954 (hereinafter 'the Act') is attracted. As such, no bhoomidar can transfer his land so as to have been left with less than 8 standards acres of land. U/s 33 (2) of the Act transfer of entire land, even less than 8 standard acres, however is permitted. Section 42 provides for consequences of contravention of section 33 of the Act while section 45 makes such transfer void. The case law in Sardar Singh vs. Addl. Distt. Magistrate. & Ors. 1995 (32) DRJ (DB) has been relied upon regarding scope of section 33.
7. Shri Yadav has further submitted that section 23 of the Contract Act, 1872 deals with the agreements which are forbidden by law. As such the plaintiff is not entitled to the specific relief of enforcement of the agreement to sell but only to compensation. Judgment pronounced in SBI Vs M/s Aditya Finance & Leasing Co. P. Ltd. & Anr. 75(1998) DLT42 has been relied upon to submit that illegal agreements are void u/s 23 of the Contract Act. The judgment of Mannalal Vs Kedar Nath AIR 1997 SC 536 has been relied upon to cite that if an act is prohibited by law, the contract is void. On this aspect the judgment of Rozan Mian vs. Tahera Begum & Others (2007) 12 SCC 175 has been relied upon Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 6 of 28 7 and para 9 and 11 of the judgment have been cited.
8. It is further submitted by the ld. counsel for defendant no. 1 and 2 that page 5 para 9 of the amended written statement clearly shows that the land in question is an agriculture land. In the replication dated 23.06.2011 filed by the plaintiff the corresponding para of the written statement has not been specifically and thus it amounts to an admission. The case of Mukesh Vs Bharat Singh 2008 (149) DLT 114 has been relied upon that bald denials in Replication constitute admission.
9. Next it is submitted that the land in question is recorded in Khata Khatoni. It is the settled law that extended Lal Dora comes up within the definition of land under the Act. Reliance is placed upon the law pronounced in Balbir Singh vs. A.D.M. (Revenue) & Ors. 57(1995) DLT 547 (DB). This judgment was upheld by the Hon'ble Supreme Court of India in Addl. District Magistrate Vs Sri Ram (ADM ) vs. Balbir Singh (2000) 5 SCC 451.
10. Ld. Counsel for the defendant no. 1 and 2 has relied upon Regal Traders P. Ltd. & Anr. Vs Lt. Governor of Delhi & Ors. 42(1990) DLT 44 to submit that Khasra Girdawari are public documents and can be proved by production of certified copies. Khasra numbers show that Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 7 of 28 8 land in question falls within the definition of 'land' under the Act.
11. On the valuation aspect, section 7 (v) of the Court Fees Act has been relied upon by the defendant and it is argued that all the relief(s) claim have to be valued separately and their total value is the valuation for jurisdiction.
Arguments of Plaintiff
12. Shri M.S. Pawar, Ld counsel for the plaintiffs, has argued that object of the Act is to avoid the fragmentation of land. Land includes within its ambit only agriculture land and holdings. Section 55 of the Act has been relied upon to cite that a Bhoomidar may sue for partition of holding and that section 57 defines the modes of partition.
13. Next it is submitted that section 33of the Act is not applicable to abadi land. The word holding has been defined in section 3(11) (a) of Act and land in section 3(13). Ld. Counsel for the plaintiff has relied upon the judgment Ram Kishore Vs Jai Singh & Ors. 187 (2012) Delhi Law Times 37 (DB) to cite that 'holding' would be included within the definition of 'land' and not viceversa. It is submitted that the definition of land is wider than that of the holding.
14. It is next submitted that the plaintiff had filed a query under RTI Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 8 of 28 9 and it was responded by the Govt. of the NCT of Delhi that khasra 73/11 measuring 1 Bigha 10 biswa falls in extended abadi. Thus it is not hit by the provisions of the Act and the jurisdiction of Civil Courts is not excluded.
15. On the valuation aspect, it is submitted that the relief is for the enforcement of one agreement and therefore, specific performance and possession are not to be counted twice for the purpose of valuation for jurisdiction and payment of Court Fee.
Findings on Preliminary Issues
16. I have considered the submissions and the material on record. My issue wise findings on the two preliminary issues are as under: Issue No. 1: Whether the suit has been property valued for the purposes of jurisdiction and Court fee by the plaintiff on the reliefs claimed in the suit?
17. The plaintiff has valued its suit for Rs. 5,50,000/ for the relief of specific performance and possession. The defendant no. 1 and 2 have argued that under section 7 (v) of the Court Fees Act all the relief(s) claimed have to be valued separately and their total value is the valuation for jurisdiction. Plaintiff has argued that the reliefs sought are for the Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 9 of 28 10 enforcement of one agreement and therefore, specific performance and possession are not to be counted twice for the purpose of valuation for jurisdiction and payment of Court Fee.
18. In Chhote Lal vs. M/s Ansal Housing & Estate Pvt. Ltd.' 2002(2) R.C.R. (Civil) 574 it has been held by the Hon'ble High Court of Punjab & Haryana that when one relief is encompassed in another relief, the valuation has to be on one aspect only. In the present case of specific performance of an agreement to sell bearing the nomenclature 'Cash Receipt/Agreement' is sought and under it the possession of the suit property has to be delivered as well as sale deed has to be executed by the vendors. Thus the specific performance of this agreement includes the relief of delivery of possession. The plaintiff might have sought the relief of possession separately, by way of an abundant caution, though it is inherent in the relief of specific possession. Thus the suit has been properly valued for the purpose of jurisdiction and court fee.
19. The finding on the issue no. 1 is thus returned in favour of the plaintiff.
Issue no. 2: Whether a relief for a decree of specific performance and execution of sale deed would be in contravention of section 33 of the Delhi Land Reforms Act?
Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 10 of 28 11
20. Delhi Land Reforms Act, 1954 is a special statute with laudatory objectives to provide for modification of Zamindari System so as to create an uniform body of peasant proprietor intermediaries, for the unification of the (1) Punjab and (2) Agra systems of tenancy laws in force within the State of Delhi and to make provisions for other incidental and ancillary matters.
21. The term 'land' has been defined under the Act, in section 3 (13) as under: "3 (13) "land" except in sections 23 and 24, means land held or occupied for purpose connected with agriculture, horticulture or animal husbandry including pisiculture and poultry farming and includes--
(a) Buildings appurtenant thereto,
(b) Village abadis,
(c) Grovelands,
(d) Lands for village pasture or land covered by
water and used for growing singharas and other produce or land in the bed of a river and used for casual or occasional cultivation, but does not include land occupied by building in belts or areas adjacent to Delhi town, which the Chief commissioner may by a notification in the official Gazette declare as an acquisition thereto." Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 11 of 28 12
22. 'Holding' has been defined under the Act as: "3 (11a)"holding" means--
(a) In respect of--
(i) Bhumidar or Asami; or
(ii) Tenant or sub tenant under the Punjab
Tenancy Act, 1887, or the Agra tenancy Act, 1901; or
(iii) Lessee under the Bhoodan Yagna Act, 1955, a parcel or parcels of land held under one tenure, lease, engagement or grant; and
(b) In respect of proprietors, a parcel or parcels of land held as sir or khudkasht."
23. Chapter III Part A of the Act deals with the Transfers (Bhumidar and Assamis). A transfer is a creation and consequent extinguishment of a right. It is dependent upon the acts of the parties. The other parts of Chapter III of the Act deals with other facets of rights viz. devolution, partition, surrender, ejectment etc. In the present lis the scope of inquiry is concerned with Chapter III part D of the Act only as the specific performance has been sought of an agreement to sell and purchase which comes within the ambit of a transfer.
24. Section 31 of the Act states that the interest of a Bhumidhar shall Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 12 of 28 13 be transferable subject to the conditions hereinafter contained. Section 33 of the Act lays down certain restrictions on transfer by a Bhumidhar as under: "33. Restrictions on the transfers by a Bhumidhar (1) No Bhumidhar shall have the right to transfer by sale or gift or otherwise any land to any person, other than a religious or charitable institution or any person in charge of any such Bhoodan movement, as the Chief Commissioner may, by notification in the Official Gazette, specify, where as a result of the transfer, the transferor shall be left with less than eight standard acres in the Union Territory of Delhi:
Provided that the Chief Commissioner may exempt from the operation of this section, the transfer of any land made before the 1st day of December, 1958, if the land covered by such transfer does not exceed on e acre in area and is used or intended to be used for purposes other than those mentioned in clause (13) of section 3. Nothing contained in sub section (1) shall preclude the transfer of land by a Bhumidhar who holds less than eight standard acres of land, if such transfer is of the entire land held by him;
Provided that such Bhumidhar may transfer a part of such land to any religious or charitable institution or other person referred to in sub Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 13 of 28 14 section (1) Explanation - For the purposes of this section, a religious or charitable institution shall mean an institution established for a religious purpose or a charitable purpose, as the case may be."
25. Section 42 of the Act defines the consequences which may ensue if a transfer is in contravention of section 33 of the Act, as under: " 42.
Transfer in contravention section 33 (1) Where a transfer of any holding or part thereof has been made in contravention of the provisions of [(Note: Substituted by Act 38 of 1965 for 'section 33') this chapter by a Bhumidhar or Asami] , [(Note: Substituted by Act 38 of 1965 for "the transferee") the transferee and every person who may have obtained possession of such holding or part] shall, notwithstanding anything in any law, be liable possession of such holding or part] shall , notwithstanding anything in any law, be liable to ejectment from such holding or part on the suit of the [(Note: Substituted by Act 38 of 1965 for "Gaon Sabha") Gaon Sabha, or the landholder as the may be], which shall thereupon become vacant land; but nothing in this section shall prejudice the right of the transferor to realize the whole or portion of the price remaining unpaid, or the right of any other person other than the transferee to proceed against such holding or land Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 14 of 28 15 in enforcement of any claim thereto .
(2) To every suit for ejectment under this section the transferor shall be made a party. (3)) Notwithstanding anything contained in sub section (1), the Revenue Assistant also may on receiving information or on his own motion, take action to eject the transferee and every person who have may obtain possession aforesaid, after following such procedure as may be prescribed."
26. Section 45 of the Act makes the transfers made in contravention of Chapter III to be void in the following terms: "45. Transfer made in contravention of this Chapter to be void (1) Any transfer made by or on behalf of a Bhumidhar or Asami in contravention of the provision of this Chapter shall be void.
(2) Nothing in sub section (1) shall apply to any transfer which has been exempted by the Chief Commissioner."
27. Section 55 of the Act lays down that the holdings of a Bhumidhar to be subject to partition: "55. Holding of a Bhumidar partible (1) A Bhumidar may sue for partition of his holding.
(2) To every such suit the Gaon Sabha concerned Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 15 of 28 16 shall be made a party."
28. Section 57 of the Act defines the mode of partition as under: "57. Mode of partition of a holding (1) Except as provided in subsection (3) whenever in a suit for partition, the Court finds--
(a) That the aggregate area of holding or holdings to be partition does not exceed eight standard acres, or
(b) That the partition will result in a holding of less than eight standard acres, The Court shall in the cases falling under clause
(a) instead of proceeding to divide the holding or holdings direct the sale of the same and a distribution of the proceeds thereof, and incases falling under clause (b) either proceed to divide the holding in accordance with such principles as may be prescribed or in the alternative dismiss the suit. (2) The rules framed under subsection (1) shall prescribe the circumstances in which compensation may be awarded to a cotenure holder to land under provisions of section 73. (3) In the case of a cotenure - holder to whom the provisions of section 36 apply and such tenure holder has let out his share or part thereof in the holding, the Court shall divide the holding by separating the share aforesaid, but in respect on the remainder of the holding the Court will proceed in Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 16 of 28 17 accordance with the provisions of this section, if applicable."
29. It has been held in Nathu v. Hukam Singh ILR (1982)II Delhi 437 that bhumidhari rights in the agricultural land is controlled only by the provisions of the Act. The provisions of customary law relating to restrictions on transfers do not apply to the transfer of Bhumidari rights.
30. It is the settled position of law if a statute has prescribed a particular thing to be done in a particular manner, it must be done in that manner only and unless there is a legislative intention to the contrary all other ways are forbidden.
31. Special excludes the general. A special statute prevails over the general statute. However a matter which is not covered by the special statute, general statute will continue to apply.
32. Now the moot question before this Court is whether the suit property is within the definition of 'land' within the meaning of the Act.
33. The plaintiff has described the suit property as a residential plot bearing Khata Khatoni no. 18/18 and Khasra no. 73/11 admeasuring one Bigha 1 biswa situated within the extended Lal Dora abadi area of village Hasanpur, New Delhi. In para 8 of the written statement to the Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 17 of 28 18 amended plaint the defendant nos. 1 and 2 have stated the defendants are the recorded Bhumidhars of the land bearing Khasra No. 11/8/1 (010), 12/4/14 (01), 47/1 (256), 2(03) totally measuring 26 Bighas; since the land holding of defendants is less that eight standard acres, therefore unless the defendants agree to transfer their entire land holding, they are prevented under the provisions of the Act to sell part of their land. This fact has been denied in a bald, evasive and fleeting manner in the replication by the plaintiff.
34. The plaintiff has placed on record information obtained under RTI vide no. F8/SDM/NG/RTI/2012/2160 dated 10/05/2012 wherein it has been stated by the Office of SDM (Najafgarh), Govt. of the NCT of Delhi that khasra 73/11 measuring 1 Bigha 10 biswa falls in extended abadi.
35. In the case relied by the defendant nos.1 and 2 as Balbir Singh vs. A.D.M. (Revenue) & Ors. 57(1995) DLT 547 (DB), wherein it has been held as under: "34. Extended abadi is covered by the definition of the land. This definition of land does not exempt the classes of the land now incorporated in Sub rule (5) of the Amended Rule 63 by virtue of the impugned amendments. In case there is no provi Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 18 of 28 19 sion in the Act excluding the six categories of land from the operation of the Act, by merely issuing a notification giving it to be a colour of amendments in the rules under the rule making power of Sec tion 85, which nowhere authorises the rule making authority to exempt any of the land from the opera tion of the Act, the amendments aforementioned deserves to be held to be bad in law and beyond the authority of the rule making power. For the self same reason, the amendment of Form P.5 also can not be sustained and has to be quashed and set aside, which we accordingly do by allowing these petitions. We direct the respondents to maintain the record of rights, including the Annual Register, in accordance with the provisions of the Delhi Land Revenue Act and the Delhi Land Revenue Rules, 1962, without taking into consideration the amendments carried out to Rules 49,63 and Form P.5 by virtue of the Delhi Land Revenue (Sixth Amendment) Rules, 1989, as notified on 30th November, 1989."
(underlining is mine)
36. The above judgment of the Hon'ble High Court of Delhi has been upheld by the Hon'ble Supreme Court of India in Addl. District Magistrate Vs Sri Ram (ADM ) vs. Balbir Singh (2000) 5 SCC 451 and it has been held that: Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 19 of 28 20 "15. Under Section 65A, a tenure holder or a sub tenure holder may be evicted by the Deputy Com missioner if land is not used for two consecutive years for a purpose connected with agriculture, horticulture etc. Section 81 of the Land Reforms Act provides for ejectment of a Bhumidar or Asa mi for use of a land in contravention of the provi sions of the Land Reforms Act. According to Sec tion 41 of the Land Revenue Act, all entries in the record of rights prepared under the Act shall be presumed to be true unless the contrary is proved. As a result of the amendments made in Rule 49 and Rule 63, the rights of the tenure holder or a subtenure holder occupying land in "Extended Abadi" or six categories of lands mentioned in the new Subrule (5) of Rule 63 would be adversely affected as their possession of the land in these ar eas would not be reflected in the recordofrights and Annual Register. This is contrary to the provi sions of both the Acts."
37. In Smt. Mukesh And Ors. vs Shri Bharat Singh And Ors. 149 (2008) DLT 114 it has been held: "12. On the issue whether the Delhi Land Reforms Act was or was not attracted to the suit land, suffice would it be to state that in the plaint there are no averments that the land is not governed by the Delhi Land Reforms Act, 1954. In the written statement Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 20 of 28 21 filed a defense has been taken in unequivocal terms that the land, being agricultural land, is governed by the Delhi Land Reforms Act, 1954. In replication filed by the appellants there is a bald denial to the pleas in the written statement pertaining to the appli cability of the Delhi Land Reforms Act.
13. Thus, appellants have prima facie no case to es tablish that the Delhi Land Reforms Act did not apply to the suit land. My prima facie reasoning is rein forced on account of the plea in the plaint itself where reference is made to the land with a reference to the measurement in kilas and entry in the khata khatoni which entries are maintained only in respect of the agricultural lands."
38. Whether the Khasra Girdawri can be relied upon without any for mal proof, is a question which must be answered by this Court before re lying upon the same without a formal proof.
39. In Regal Traders Pvt. Ltd. & Anr. vs Lt. Governor Of Delhi & Ors. 42 (1990) DLT 44 it has been held as: "19. ...It is settled law that khasra girdawaris are public documents and can properly be proved by the production of certified copies and they are admissible under Section 35 of the Evidence Act...."
Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 21 of 28 22
40. Thus the Khasra Girdawri filed on record have to be taken at face value.
41. As per section 3(13) of the Act land includes village abadi and the aforesaid judgments pronounce that extended abadi is also included in the definition of land. Therefore the suit property comes within the definition of land within the meaning of the Act.
42. Now it is to be seen if the bar of section 33 of the Act is applicable in the facts and circumstances of the present case. The land of which transfer is contemplated is measuring 1 Bigha and I biswa. The defendant nos. 1 and 2 have taken an objection of section 33 stating that their total holding is less than 8 standard acres and the alleged sale is not of their entire holding of land and that they shall be left with less than 8 Standard acres of land if the alleged sale happens. Thus contravention of section 33 of the Act has been alleged. In the replication there is no demure of plaintiff to these factual aspects. These facts have not been specifically denied either in the pleadings or during the course of arguments. Thus, there is deemed admission on the part of plaintiff.
43. In the case of Sardar Singh vs. Addl. District Magistrate & Ors. 1995 (32) DRJ (DB) which has been relied upon by the defendant nos. 1 Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 22 of 28 23 and 2 it has been held as under: (7) A bare reading of provision would show that there is a restriction imposed on a Bhumidhar to transfer by sale, gift or otherwise any land to any person other than the religious or charitable insti tution etc. where as a result of the transfer, the Bhumidhar is left with less than 8 standard acres of land in Union territory of Delhi. This restriction in subsection (1) of Section 33 is subject to what is contained in subsection (2) of the said provision and it says that this restriction shall not apply where a Bhumidhar who holds less than 8 standard acres of land transfers his entire holding. In the in stant case the holding of respondent No. 4 is ad mittedly less than 8 standard acres. He holds one half share in land measuring 47 bighas 3 biswas. In other words, it is about 24 bighas of land which is held by him and it is the entire holding which is sought to be transferred by virtue of agreements of sale in favor of the two petitioners. The case, thus, squarely falls in the exception contained in sub section (2) of Section 33. When respondent No. 4 who is a Bhumidhar and holds less than eight stan dard acres is transferring his entire holdings there is no question of applicability of Section 33 of the Act and on that basis respondents could not have withheld the issuance of 'No Objection Certificate', Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 23 of 28 24 which is required to be issued under the provision of the Act.
44. Ld. Counsel for plaintiff has relied upon Ram Kishore Vs Jai Singh & Ors. 187 (2012) Delhi Law Times 37 (DB). The said case per tains to the partition of land and not to transfer. Partition is between the coowners and is poles apart from transfer. Chapter III part F (section 55 to 61 deals) with partition (Bhumidhari). The instant lis is no issue or as pect of partition, it has cause of action propounded on an agreement to sell. Relevant paras of the judgment read as under: "12. Thus, as per the said Section, Revenue Courts alone would have jurisdiction to take cognizance of suits which are mentioned in Column '7' of Schedule 'I' of the Act. Entry 11 under Schedule 'I' lists, in Column '7', the Court of the Revenue Assistant as the Court where 'Suit forPartition of Holding of a Bhoomidar' can be filed.
13. It is clear that the bar under Section 185 of the Delhi Land Reforms Act 1954 would apply only to partition of such lands as constitute a holding of a bhoomidar and not the abadi lands in a village."
45. Thus on the admitted facts the suit is hit by section 33 of the Act and as such the transaction in question attract the provisions under sec tion 42 and 45.
Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 24 of 28 25
46. Under section 2(h) of the Contract Act, 1872 'an agreement en forceable by law is a contract'. Section 23 of the Act lays down as under: "23. What consideration and objects are lawful, and what not--The consideration or object of an agreement is lawful, unless --
It is forbidden by law, or is of such a nature that, if permitted, it would de feat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or proper ty of another; or the Court regards it as immoral, or opposed to pub lic policy.
In each of these cases, the consideration or object an agreement is said to be unlawful. Every agree ment of which the object or consideration is un lawful is void."
47. In the case cited by the plaintiff as SBI Vs M/s Aditya Finance & Leasing Co. P. Ltd. & Anr. 75(1998) DLT42 it has been held as under: ".....Needless to say that under Section 23 of the Contract Act an agreement is lawful unless it is forbidden by law or is of such a nature that, if per mitted it would defeat the provisions of any law or is fraudulent or involves or implies, injury, to the person or property of another, or the Court regards it as immoral or opposed to public policy. In each Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 25 of 28 26 of these cases, the agreement is unlawful and void. Taking note of the ratio in Waman Shriniwas Kin ny's case (supra) the contract whereof specific per formance is sought by the plaintiff being in contra vention of the aforesaid Section 14 is prima facie unlawful and void under Section 23 and the same thus cannot be legally enforced against the defen dants...."
48. In another case cited by the plaintiff as Mannalal Vs Kedar Nath AIR 1997 SC 536, it has been held: "19. Where a contract, express or implied, is ex pressly or by implication forbidden by statute, no court will lend its assistance to give it effect. (See Mellis v. Shirley(1). A contract is void if prohibit ed by a statute under a penalty, even without ex press declaration that the contract is void, because such a penalty implies a prohibition. The penalty may be imposed with intent merely to deter per sons from entering into the contract. or for the pur poses of revenue or that the contract shall not be entered into so as to be valid at law. A distinction is sometimes made between contracts entered into with the object of committing an illegal act and contracts expressly or impliedly prohibited by statute. The distinction is that in the former class one has only to look and see what acts the statute prohibits; it does not matter whether or not it pro hibits a contract; if a contract is made to do a pro Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 26 of 28 27 hibited act, that contract will be unenforceable. In the latter class, one has to consider not What act the statute prohibits, by what contracts it prohibits. One is not concerned at all with the intent of the parties, if the parties enter into a prohibited con tract, that contract is unenforceable. (See St. John Shipping Corporation v. Joseph Rank("). See also Halsbury's Laws of England Third Edition Vol. 8, p.141).
20. It is well established that a contract which in volves in its fulfilment the doing of an act prohibit ed by statute is void. The legal maxim 'A pactis privatorum publico juri non derogatur means that 'private agreements cannot alter the general law. Where a contract, express or implied, is expressly or by implication forbidden by statute, no court can lend its assistance to give it effect. (See Mellis v. Shirley L.B.) (Supra). What is done in contra vention of the provisions of an Act of the Legisla ture cannot be made the subject of an action.
21. If anything is against law though it is not pro hibited in the statute but only a penalty is annexed the agreement is void. In every case where a statute inflicts a penalty for doing an act, though the act be not prohibited, yet the thing is unlawful, because it is not intended that a statute would in flict a penalty for a lawful act."
49. In the case cited by the plaintiff as Rozan Mian vs. Tahera Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 27 of 28 28 Begum & Others (2007) 12 SCC 175 an unlawful agreement is held to be void.
50. In the facts and circumstances of the case the provisions of section 45 of the Act read with section 23 of the Contract Act the propounded agreement is in contravention of the law and thus not capable of specific enforcement.
51. The finding on this issue is returned in favour of the defendants.
RELIEF
52. In view of the finding on issue no. 2 the suit is not maintainable. Hence it is ordered as follow: The suit is dismissed in view of the bar of section 33 read with section 45 of the Delhi Land Reforms Act, 1954.
53. Decree sheet be drawn accordingly.
54. File be consigned to Record Room.
Announced in the Open Court On this 30th day of July 2012 (MAN MOHAN SHARMA) ADJ (Central)1, Delhi Rajender Kumar Vs. Kasturi C.S. No. 56/07 Page no. 28 of 28