Delhi District Court
Sh. Jai Singh vs Sh. Inder Singh on 22 February, 2022
CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022
: IN THE COURT OF :
Dr. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS:
NEW DELHI
Civil suit no. 332 / 2016 (517554 / 2016)
Sh. Jai Singh
S/o late Sh. Goverdhan
R/o House no. 15/377,
Arya Nagar, Jhajjhar,
District Jhajjhar, Haryana
..... plaintiff
VERSUS
1. Sh. Inder Singh
2. Sh. Chhattar Singh
3. Sh. Sriniwas,
4. Sh. Satish Chander
All sons of late Sh. Goverdhan
All residents of Vill & PO Goela Khurd,
New Delhi
5. Smt. Savita Dalal
Widow of Sh. Om Prakash Dalal,
R/o ill & PO Goela Khurd,
New Delhi
..... defendants
Page no. 1 of 47
CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022
Date of Institution of suit : 23.09.2016
Date of reserving judgment : 21.02.2022
Date of pronouncement : 22.02.2022
Appearance (Through Video Conferencing):
(i) Sh. Attin Shankar Rastogi, Advocate Ld. Counsel for the
plaintiff.
(ii) Sh. R.S. Dalal, Advocate Ld. Counsel for defendant no.2 & 4
(iii)Sh. S.K. Vashisht, Advocate ld. Counsel for defendant no. 5
SUIT FOR DECLARATION AND PERMANENT INJUNCTION
J U D G M E N T:
1. The present suit has been filed by the plaintiffs against the defendants seeking declaration, possession and permanent injunction.
2. Relevant facts as emanating from the plaint, giving rise to the cause of action in favour of plaintiff, for filing the present suit are that :
i) It is averred that father of the plaintiff and defendant no. 1 to defendant no. 4 namely, Sh. Goverdhan was recorded owner/bhumidhar and in possession of land bearing Khasra no.
175 (001), 7/25 (412), 8/11 (115), 12 (416), 13 (416), 19 (416), 20 (411) 21(411) 21/1 (208), 27 (005), 11/3 (411), 4/2 (211), 7/2 (108), 8/1 (216), 15/1 (416) and 16/5/2 (20) total measuring 15 Bigha, 13 Biswas situated in the revenue estate of the village Goela Khurd, New Delhi. (in short, the said property) Page no. 2 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022
ii) It is averred that the plaintiff is residing at the above said address for the last more than 35 years continuously. However, the plaintiff visit his villageGoela Khurd as and when required to lookafter the said property as the plaintiff is the permanent resident of villageGoela Khurd, New Delhi. The father of the plaintiff and defendant no. 14 namely Sh. Goverdhan (in short, the deceased) expired on 16.12.1964 leaving behind the following legal heirs: (1) Sh. Jai Singh plaintiff son (2) Sh. Inder Singh D1 son (3) Sh. Chhatar Singh D2 son (4) Sh. Sriniwas D3 son (5) Sh. Satish Chander D4 son (6) Smt. Indrawati daughter (7) Smt. Jai Kaur daughter (8) Smt. Prasandi Devi widow Smt. Indrawati and Smt. Jai Kaur (hereinafter referred to as the Sisters) and Smt. Prasandi Devi widow of the deceased is (hereinafter referred to as the Mother).
iii) It is averred that the aforesaid land is being governed by the provisions of Delhi Land Reforms Act, 1954 (in short, the Act) as amended upto date and as such after the death of the bhumidar only male lineal descendants are entitled to inherit the agricultural land in equal share in case no Will is being left out by the deceased, bhumidhar. The deceased, in the present case, did not execute any Will during his life time in favour of anyone, therefore, the plaintiff and the defendant no. 1 to defendant no. 4 are entitled Page no. 3 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 to inherit the said property in equal shares i.e. 1/5th share each. The Sisters or the Mother had no right, title or interest to inherit the said property after the death of the deceased as per mandate of Section 50 of the Act, as amended upto date. The LRs at serial no.
(vi) to (viii) as mentioned in para no. 3, are not the legal heirs of deceased.
iv) It is averred that the Sisters and the Mother had also shown in the revenue record as successor of the deceased, to the extent of their share. This has been shown in the revenue record inadvertently, however, both the Sisters and the Mother has no right, title or interest to inherit the said property, therefore, the mere entry in the revenue record do not convey or extinguish any title, in as much as those entries are relevant only for the purpose of collection of land revenue.
v) It is averred that the plaintiff is a law abiding citizen and was not aware about the names of the Mother and the Sisters in the revenue record as they were not entitled to inherit the said property left behind by the deceased. The Mother expired on 14.07.2014. The facts about the entry in the revenue record of the Mother and the Sisters was only known to plaintiff when plaintiff received the copy of the Khatauni.
vi) It is averred that the Sisters were aware about the factum of mentioning their names in the revenue record, and as such both Page no. 4 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 had executed the relinquishment deed in favour of all their five brothers in equal shares. Thereafter, on the basis of the said relinquishment deed, the name of the Sisters had been deleted and their shares went in the name of the plaintiff and the defendant no. 1 to defendant no. 4 in equal share. It is averred that the Mother had also executed a relinquishment deed in favour of defendant no. 1 to defendant no. 4 only to the extent of 3/4th share and she was left with 1/4th share in the said property.
vii) It is averred that the Mother was left with only 1/40th share in the said property (in short, the suit property) and she in collusion with defendant no. 1 to defendant no. 4 gifted the suit property in favour of defendant no. 5 i.e. Smt. Savita Dalal wife of Sh. Om Prakash Dalal vide registered Gift Deed dated 10.07.2007. The plaintiff only came to know about the factum of registration of the Gift Deed by the Mother only after her death i.e. after 14.07.2014. The defendant no. 5 is wife of the deceased son of plaintiff. It is averred that, in case, the aforesaid gift deed remains unchallenged, in such eventuality, the plaintiff shall suffer irreparable loss and injury and that would be cast cloud on the right, title and interest of the plaintiff over the suit property.
viii) It is averred that the Mother during her life time had also executed and registered a relinquishment deed of her share in the said property in favour of her four sons i.e. defendant no. 1 to defendant no. 4 to the extent of 1/40th share each and as such no Page no. 5 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 relinquishment deed had been executed by the Mother in favour of plaintiff and his share has been gifted out by the Mother in favour of defendant no. 5, however, the Mother had no right, title or interest in the said property in view of Section 50 of the Act,
ix) It is averred that though the defendant no. 1 to defendant no. 4 are the necessary and proper party however, no relief is being sought by plaintiff against the defendant no. 1 to defendant no. 4. The said gift deed executed by the Mother in favour of the defendant no. 5 is wrong, illegal, void, ab initio as she had no right, title or interest to inherit the said property after the death of the deceased as only the male lineal descendants are entitled to inherit the same and the net result of gift deed as mentioned above is the reduction in the share of plaintiff from 1/5th share to 7/40 share in the said property. The plaintiff is in possession of undivided 1/5th share of the said property. Hence the present suit.
3. After filing of the suit summons for settlement of issues were issued to the defendants. defendant no. 1 filed the written statement and, interalia, submitted that the suit is not maintainable as the same is based on distortion, concealment and misstatement of facts. The plaintiff is guilty of supresso of veri and suggest of falsi. The plaintiff is well aware of the inclusion of the name of the Mother and the Sisters as coshares in the revenue records in respect of the said property, however, he had never raised any objection during the lifetime of the Mother nor had he Page no. 6 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 filed any proceedings before the revenue authorities for correction of revenue entries terming them illegal in view of section 50 of the Act, as such the plaintiff himself had admitted the Mother and the Sisters as lawful cosharers of the said property.
4. It is submitted that the present suit is not maintainable as the same is frivolous and the plaintiff has filed the same with a view to circumvent the process of law so as to declare a legal document i.e. Gift Deed to be null and void on wild presumptions. The plaintiff, on one hand, has asserted that after the demise of the deceased on 16.12.1964 he and the defendant no. 1 to defendant no. 4 were entitled to inherit the said property in equal proportion, however, the names of the Mother and the Sisters were also shown in the revenue record inadvertently, and this fact came to his knowledge after the death of the Mother on 14.07.2014 when he received the copy of the Khatauni. Whereas, on the other hand, plaintiff has asserted that the Sisters had relinquished their respective shares, in the said property by way of a relinquishment deed in favour of plaintiff and the defendant no. 1 to defendant no.4.
5. It is submitted that the plaintiff intentionally has not mentioned the date, month and year of the execution of the said relinquishment deed nor has placed the same on record, as such it stands established that plaintiff was well aware of the factum of the name of the Mother recorded as cobhumidhar in the revenue records and he never had any objection to the same.
Page no. 7 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022
6. It is submitted that in the year 2005, the Parliament had legislated by amendment that the succession in respect of an agricultural land in Delhi would be governed by the provisions of Hindu Succession Act and not by the provisions of Section 50 of the Act, therefore, in view of the amendment made by the Parliament in Hindu Succession Act, the provisions of Section 50 of the Act, have become redundant and all the legal heirs irrespective of their gender are entitled to inherit the agricultural land on the death of a Bhumidhar, as such this assertion of the plaintiff to assert that only the male lineal are entitled to inherit the land is totally wrong.
7. It is submitted that the assertion of the plaintiff that he had no knowledge about the inclusion of the names of the Sisters and the Mother in the revenue records is factually incorrect. It is averred that plaintiff was having knowledge of the inclusion of the names of the Mother and the Sisters in the revenue records but plaintiff neither had any objections to that effect nor did he file any objections/proceedings before the revenue authorities for the correction of revenue entries in view of the Section 50 of the Act meaning thereby the plaintiff had admitted the Mother and the Sisters as his cosharers in the said property. The plaintiff has not disclosed the fact as to when the Sisters had executed relinquishment deed in favour of the plaintiff and defendant no. 1 to defendant no. 4.
Page no. 8 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022
8. It is submitted that a portion of the said property was acquired by the Govt. way back in the year 197980 for broadening of Najafgarh drain, and the plaintiff as well as other recorded owners, including the defendant no. 1 to defendant no. 4 and the Sisters and the Mother had also been awarded compensation for the same which was accepted and received by all the recorded owners including the plaintiff. The assertion of plaintiff to assert that he had no knowledge about the inclusion of the names of the Mother and Sisters in revenue records is totally wrong.
9. It is submitted that as per law a person can relinquish, transfer, alienate, gift, make a Will of his or her rights in a property held by him/her to any person during her life time and, in case, such a person died intestate the rights in the said property shall be inherited by way of succession. However, if a person had transferred/relinquished/ /alienated/gifted/made a Will in respect of his/her rights in favour of a person of his/her own choice, the rights in the immovable property shall accrue to the person in whose favour such a document has been executed. The Mother had already executed a valid document i.e. Gift Deed duly registered in favour of the defendant no. 5 and on the basis of the same, the defendant no. 5 has got the 1/40th share of the Mother in the said property i.e. the suit property and the entire procedure being valid and legal cannot be challenged in any court of law.
Page no. 9 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022
10. It is submitted that the suit has neither been valued properly nor has the appropriate court fee has been paid, plaintiff has sought two relief with regard to declaration i.e. (i) the plaintiff has sought the relief of a decree thereby declaring the Gift Deed dated 10.07.2007 be null and void and not binding on plaintiff, (ii) further the plaintiff has sought the relief of his declaration as owner to the extent to 1/5th share equivalent to the shares of defendant no. 1 to defendant no. 4 and (iii) the plaintiff has also sought a decree of permanent injunction against all the defendants. The suit is neither valued for each relief nor the proper court fee is paid.
11. Written statement has also been filed on behalf of defendant no. 2 and defendant no. 4, however, the same has been filed in the lines of written statement of defendant no. 1 and the contents of the same has not been reproduced for the sake of brevity. As the defendant has failed to file the written statement, opportunity of defendant no. 3 to file written statement was closed vide order dated 25.07.2017 and, thereafter, was proceeded ex parte vide order dated 30.10.2018.
12. Written statement has also been filed on behalf of defendant no. 5, interalia submitting that plaintiff along with brothers, Sisters and the Mother recorded as co sharers in respect of the said property of the deceased. The plaintiff is barred by rule of estoppel to agitate question of mutation after expiry of more than 50 years. The suit is not maintainable in as much as plaintiff filed Page no. 10 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 the same with a view to circumvent the process of law so as to declare the gift deed as null and void. The plaintiff has claimed to have knowledge of the entry of mutation in the name of the Mother after her death on 14.07.2014, however, plaintiff got executed the relinquishment deed in his favour and in favour of defendant no. 1 to defendant no. 4 from the Sisters but he has not disclosed the date of execution of such relinquishment deed. The plaintiff was well aware of the factum of recording of the name of the Mother as co bhumidhar / cosharer after the sad demise of the deceased but plaintiff never challenged the said mutation even after expiry of more than 46 years. It is prayed that the suit deserves to be dismissed.
13. Plaintiffs have filed replication to the written statement of the defendants thereby, denying all the allegations levelled in written statement and has reiterated its allegations levelled in the plaint.
14. On the basis of pleadings of the parties, following issues were framed vide order dated 12.03.2018 :
1. Whether the suit of the plaintiff is barred by Limitation, as prayed ? OPD5
2. Whether the plaintiff is entitled to the relief of declaration to the effect that gift deed dated 10.07.2007, executed by Smt. Prasandi Devi in favour of defendant no. 5 to be declared as null and void? OPP
3. Whether the plaintiff is entitled to declaration to the effect that he is owner to the extent of 1/5th share in the suit property? OPP Page no. 11 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022
4. Whether the plaintiff is entitled to the relief in injunction, as prayed? OPP
5. Relief;
15. Thereafter, matter was listed for recording of plaintiff's evidence. In support of his case, the plaintiff has examined himself as PW1 who has deposed on affidavit Ex.PW1/A and relied upon documents, his testimony has not been reproduced for the sake of brevity and will be adverted to at the relevant stage, PW1 relied upon following documents :
1. Certified copy of the gift deed dated 10.07.2007 is Ex. PW1/1,
2. Copy of Khata Kahatauni no. 34/32 min. of Village Goela Khurd in the name of Inder Singh & Ors. is Ex. PW1/2,
3. Death Certificate of Smt. Parsandi Devi is Ex. PW 1/3,
4. Copy of the Aadhar Card of Jai Singh is Ex. PW1/4,
16. Sh. Rakesh Kumar Kanungo from the Office of SDM Kapashera, New Delhi is examined as PW2 who has proved on record khatauni of Village Goyla Khurd for the year 20132014. Thereafter, the plaintiff's evidence was closed and matter was listed for recording of defendants evidence.
17. Smt. Savita Dalal was examined as DW1 who has deposed in terms of affidavit Ex. DW1/A. Sh. Satish Dalal has been examined as DW2 who has deposed in terms of affidavit Ex. DW2/A and has relied on the following documents :
i. Certified copy of the objections filed by plaintiff before LAC is Ex. DW2/1 Page no. 12 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 ii. Certified copy of the Award no. 117 dated 02.03.1981 is Ex.
DW2/2, iii. Certified copy of the registered relinquishment deed dated 07.06.1996 is Ex. DW2/1, No other witness was examined and, thereafter, the defendants evidence was closed
18. I have heard the arguments on behalf of counsel for parties and gone through the pleadings as well as evidence and judgments relied upon by ld. Counsel for the parties.
My issue wise findings are as under : Issue no. 2,3 & 4
19. The onus to prove these issues is on the plaintiff. ld.
counsel for the plaintiff has contended that the deceased died intestate and plaintiff and defendant 1 to defendant no.4 were entitled to be recorded as Bhumidar being male descendants of the deceased as per Section 50 of the Act. The Mother died on 14.07.2014, and plaintiff came to know that the Mother and the Sisters were recorded as owner in the Khatauni no.34/32 min of Gola Khurd Village (Ex.PW1/2). The Sisters were aware of the factum of incorporation of their name in the revenue record as co bhumidhar by inadvertence, after death of the deceased in the year 1964, therefore, the Sisters had executed the relinquishment deed dated (Ex.DW2/3). The Mother had transferred her 1/10th share in the said property in favour of defendant no. 1 to defendant no. 4 each and the remaining share to the extent of 1/40th share in Page no. 13 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 the said property was gifted by her to defendant no. 5. Therefore, the plaintiff has filed the suit in September 2016 on receipt of Khatauni Ex.PW1/2.
20. It is contended that defendants have admitted that the said property is agricultural land, therefore, regulated by the Act. The deceased died in 1964, therefore, as per Section 50 of the Act, only male descendants have to be recorded as Bhumidar in revenue record, being LRs of the deceased.
21. It is contended that section 4 of Hindu Succession Act is having overriding effect and will prevail on the provision of Hindu Succession Act, in as much as the rule of Succession stipulated under the Hindu Succession Act, 1956 was subject to any law for the time being in force relating to agricultural holdings. Therefore, if succession to an agricultural holding was stipulated in any local law applicable to an agricultural holding, provisions thereof would apply relating to devolution of interest in holding. It is further contended that effect of deletion of Subsection 2 to Section 4 of the Hindu Succession Act, 1956 after amendment in the Hindu Succession (Amendment) Act, 2005 is that with effect from the date, when such amendment Act come into force, Amending Act was promulgated succession would be as per the Hindu Succession Act, 1956. In this regard he has relied upon Mukesh & Ors. Vs. Bharat Singh and Ors., 149 (2008) DLT 114.
Page no. 14 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022
22. It is further contended that the Amended Hindu Succession Act of 2005 cannot be read retrospectively as the same has not been given a retrospective operation, therefore, successions which had taken place prior to the Amended Act cannot be disturbed. The succession to the said property opened in 1964, when the deceased died and in view of the provision of Section 50 of the Act, the Mother was barred from succeeding his interest in the said property and only male lineal descendants in the male line of descent will succeed to the said property of the deceased. As such, in view of the specific bar, the Mother or the Sisters had no right to succeed to the said property.
23. It is further contended that the provisions of Section 50(a) of the Act cannot be the subject matter of challenge, once it had been placed in the Ninth Schedule by virtue of the Constitution (17th Amendment) Act in 1964. Therefore, even after amendment in Hincu Succession Act, 2005 giving daughters the status of Coparcener, Section 50 of the Act is still not declared un constitutional in as much as succession which opened prior to 2005 amendment are valid and enforceable and prior to 2005, the provisions of the Act were applicable in full force. The defendants have admitted applicability of the Act, therefore, if the provisions are applicable then the succession shall be effected as per Section 50 of the Act. In this regard, reliance is placed upon Har Naraini Devi & Ors. v. Union Of India & Ors. 162 (2009) DLT 663. The above ratio of law in the present case makes it copiously clear that Page no. 15 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 only the male lineal descendants in the male line of descent have the right to succeed from the said property and the Mother or the Sisters had no right to succeed to the said property of the deceased.
24. It is contended that the mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. An entry in revenue records does not confer title on a person whose name appears in recordofrights. Entries in the revenue records or jamabandi have only "fiscal purpose", i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. The title of the property can only be decided by a competent civil court. In this regard reliance is placed on Jitender Singh Vs. State of Madhya Pradesh 2021 SCC Online 802, Suraj Bhan v. Financial Commissioner, (2007) 6 SCC
186.
25. It is further contended that the reliance placed upon judgment Ram Niwas by the defendants is completely misplaced in as much as the facts and circumstances are completely distinguishable from the present case. There is no reasoning or finding of any nature whatsoever regarding negation of the well settled principle of law "that mutation does not confer title." in as much as a person who, otherwise, has no right, merely by having his name entered cannot defeat rights of the rightful claimant. Otherwise also, the said judgment cannot be relied upon as the same is Page no. 16 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 complete variance with Judgment of the Hon'ble Supreme Court passed in H. Lakshmaiah Reddy and Ors. v. Venkatesh Reddy 2015 (5) SCALE 349.
26. It is further contended that the Mother and the Sisters names were mutated even after a specific bar under Section 50 of the Act. However, the title to the said property on the strength of mutation entries in the revenue records made when the plaintiff was minor, does not hold any value in as much as the mutation entries do not confer title on a person, whose names appear in record of rights and entries in the revenue records have only fiscal purpose. The mutation entries does not create/extinguish any right in the property. It is further contended that the civil court has also jurisdiction to entertain the suit as the same is not barred by the provisions of the Act. In this regard reliance is placed upon Anand Prakash & Ors. v. Ram Kala & Ors." 167 (2010) DLT 225,
27. It is further contended that the rule of estoppel as claimed is not applicable in as much as plaintiff was about 8 years of age when the deceased died in 1964. plaintiff vaguely heard about mutation when his brother Sh. Inder Singh had applied for loan for installation of tube well. Furthermore, when plaintiff's elder brother Shri. Inder Singh (defendant no.1) was pursuing the matter, when the portion of the said property was acquired by the Government for widening of the Najafgarh drain and he received the compensation from the office of LAC as well as from the Page no. 17 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 referral court of Ld. ADJ and defendants have miserably failed to disprove the said fact in cross examination of plaintiff.
28. It is further contended that Sh. Inder Singh (defendant no.1) had pursued the case relating to execution of Relinquishment deed by the Sisters and he got the said papers made and registered, hence plaintiff had no occasion to look into the documents. The Mother died on 14.07.2014 and, thereafter, in 2014 itself there was a hail storm, and the crops got damaged and all the farmers got compensation and plaintiff received compensation with respect to 7/40th share only. Therefore, plaintiff obtained the entries in the revenue records, and came to know about the entries in the name of the Mother and the Sisters as co sharers in the said property. That, even for the sake of argument, if it is assumed that plaintiff had knowledge of the mutation entries in the name of Mother and the Sisters, however, in view of the law laid down by Hon'ble Supreme Court of India there can be no estoppel against the nullity and nullity will remain nullity for any act done in furtherance of it.
29. It is further contended that mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. It cannot be assumed that as a result of the mutation, the plaintiff divested himself of the title and possession. It cannot be said that Page no. 18 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 plaintiff by his conduct had acquiesced and divested himself of title of his share in said property. Even if, it is presumed that plaintiff was aware and acquiesced the mutation entry, the acquiesce of plaintiff does not confer/create any tile/right in favor of the Mother as the same is barred by Section 50 of the Act in as much as the Mother was neither the owner nor in possession. Hence, she was not competent to execute any legally valid and enforceable Gift Deed. In this regard, reliance is placed upon H. Lakshmaiah Reddy and Ors. v. Venkatesh Reddy" 2015 (5) SCALE 349.
30. It is further contended that the amended Hindu Succession Act, 2005 being the prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backwards and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. Under the amended Section 6, since the right is given by birth, that is, an antecedent event, and the provisions operate concerning claiming rights on and from the date of the Amendment Act. The provisions contained in the amended Section 6 of the Act confer status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities. Therefore, reliance placed upon judgment of Vineeta Sharma by defendants has no relevance to the facts and circumstances of the present case as the question in the said case was regarding the rights of daughter's after the amendment in the Hindu Succession Act and not in respect of the Page no. 19 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 rights of widow of the recorded bhumidar. The amendment in Hindu Succession Act was enacted to bring daughters on the same footing as of the son's and has no application on the widows. Hence, Vineta Sharma's Judgment has no relevance in the present case.
31. It is further contended that defendants have miserably failed to prove that they are in possession of the said property. On the other hand, defendant no. 5 stated that she in not aware as to whether plaintiff is in possession of the suit property or not. The plaintiff has categorically proved that he is in the possession of the said property and frequently visits for its upkeep and maintenance. Perusal of the Gift Deed dated 10.07.2007 would reveal that the Mother alleged that "Donor is the owner of above said property in revenue record" whereas mere mutation in revenue record does not confer title. Secondly the Mother alleged that she was in possession however as per the evidence led by parties, the plaintiff is in the possession of the said property.
32. Per Contra ld. Counsel for defendant no. 4 has contended that the plaintiff along with defendant no. 1 to defendant no. 4 and the Mother and the Sisters recorded as bhumidhar on the demise of the deceased in the 1964. The plaintiff has never raised any objection and, thereafter, the Sisters had executed relinquishment deed dated 07.06.1996 in respect of their share in the said property in the name of plaintiff and defendant no. 1 to Page no. 20 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 defendant no. 4 and on that day also, plaintiff never raised any objection.
33. It is further contended that after amendment of Hindu Succession Act, 1956, in the year 2005, the Act has become a redundant. The plaintiff was having knowledge of inclusion of the name of the Mother and the Sisters in revenue record but he never filed any objection before revenue authority regarding such correction of the revenue record, in terms of Section 50 of the Act. Therefore, plaintiff admitted the Mother and the Sisters as co sharer /bhumidar in the said property. The Mother and the Sisters had received compensation for the land acquired way back in the year 197980, as such, plaintiff failed to assert his rights, despite having knowledge of inclusion of name of the Mother and the Sisters as cosharer in the revenue record. The plaintiff was well aware of execution of Gift Deed in favour of defendant no. 5 by the Mother, but he never challenged the said Gift Deed. Defendant no. 5 has raised the principle of rule of estoppel as plaintiff has failed to challenge the order of mutation of the said property even after the expiry of more than 43 years.
34. It is contended that admittedly, thereafter, a portion of the said property was acquired and all the parties has received compensation for such land acquired by Government. The reliance placed upon by Counsel for plaintiff on Jitender Singh (supra) is misplaced in as much as all the classI legal heirs of the deceased Page no. 21 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 have been recorded as bhumidhar by the concerned Revenue Officer by passing the order of mutation which remained unchallenged by plaintiff till date which has become binding on plaintiff.
35. It is further contended that the Mother was a coowner of the said property, therefore, the gift deed has been validly executed as per the mandate of Section 44 of The Transfer of Property Act, 1882. In the same manner, the reliance placed upon Mukesh (supra) is misplaced in as much as the competent revenue Authority has passed the order recording name of plaintiff, defendant no. 1 to defendant no. 4, the Mother and the Sisters under Rule 104 of the Delhi Land Revenue Rules, 1962 in favour of the surviving legal heirs of the deceased and the said order has never been challenged by plaintiff within period of 30 days as provided under the Rule. In support of his contention counsel for defendant no. 4 has relied upon the judgments Ram Niwas v. The Financial Commissioner WP(C) No. 1070/1986 and Sukh Ram v. Ramesh Chandra Aggarwal & Ors. CS (OS) No. 494/2011 judgments passed by Hon'ble High Court of Delhi
36. Ld. Counsel for defendant no. 5 has also filed written submission and interalia contended that plaintiff in his cross examination has admitted that he came to know about the mutation of the said property in the name of all the legal heirs of the deceased, on the sad demise of Sh. Lal Bahadur Shashtri, the Page no. 22 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 then Prime Minister of India, when loan was availed for installation of a tubewell in the said property. Therefore, the mutation was in the knowledge of plaintiff since 1996 but till date, he has never challenged the said mutation even during the lifetime of the Mother. The plaintiff has also admitted the factum of receipt of compensation by all the legal heirs of the deceased. The plaintiff was also knowing the factum of execution of Relinquishment Deed dated 07.06.1996 (Ex. DW2/2) executed by the Sisters in favour of plaintiff and defendant no. 1 to defendant no. 4. The plaintiff also faced the charges of murder of his son i.e. the deceased husband of defendant no. 5. All these facts depicts that plaintiff was having knowledge of all the proceedings in respect of the said property by the legal heirs of the deceased.
37. It is further contended that the ld. Counsel for the plaintiff has strongly placed reliance upon Section 50 of the Act in order to contend that only male descendants of the deceased were entitled to inherit the share of the ancestral property left behind by the deceased. However, Section 50 of the Act is subject to the provision of Section 48, 52 and 48 provides for the devolution of share by a bhumidhar by way of a Will, and plaintiff in her deposition admitted that he was having the knowledge of order of mutation since 1966 and, thereafter frequent exercise of such Bhumidhari right by the Mother in respect of the said property. However, plaintiff has never challenged the mutation order nor sought any restraint regarding exercise of bhumidhari right by the Page no. 23 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 Mother. The contention of the plaintiff that by way of sheer inadvertence, name of the Mother and the Sisters was recorded in the revenue order as legal heirs of the deceased. However, no evidence has been laid in this regard and till the mutation has not been set aside by the competent appellate authority, the same has been binding on all the parties. It is further contended that all the entry in the revenue record under provision of Act are presumed to be true until the contrary is proved as per the mandate of various provisions of the Act.
38. It is further contended that the jurisdiction of Civil Court to entertain the present suit is barred by virtue of Section 185 of the Act in as much as the said property being agricultural land. Therefore, suit can be filed before the court of Revenue Assistant under Section 104 r/w Schedule 1 apended to Section 185 of the Act. The plaintiff has also not sought the relief of possession as consequential relief as per the mandate of Section 34 of the Specific Relief Act, therefore, suit is not maintainable. In this regard reliance is placed upon Jai Pal & Ors. v. Randhir Singh & Ors. W.P.(C) no. 2047/2011 judgment passed by Hon'ble High Court of Delhi and Hatti v. Sunder Singh, 1971 AIR 2320.
39. It may be noted that the contention of the Counsel for the plaintiff is that mutation entries recorded in the Revenue Record did not confer title and the Mother and the Sister, being not the male decedent, were not having right in the said property Page no. 24 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 owned by the deceased. It may be relevant to state that there is no dispute regarding the ratio of the law laid down by Hon'ble Supreme Court in H.L. Reddy (supra) that mutation entries did not confer title. However, the said case law is distinguishable from the facts of present case in as much as in that case, mutation was entered into the name of his son on the consent given by his father as father and son both being classI legal heirs of the deceased were entitled to 1/2 share each of the properties of the deceased and, thereafter, father challenged the title of his son on the basis of the said mutation. However, the legal heirs of the deceased were recorded as bhumidar in the revenue record by the Revenue Officer as per law under the Act and the plaintiff was supposed to challenged the said mutation as per the rules made in this regard under the Act. The contention of the Counsel for defendant is that said mutation was entered into the name of the LRs on the basis of will left by the deceased, however, there is no material on record in support of this contention. Therefore, this contention deserved to be rejected and is hereby rejected.
40. The plaintiff has prayed for the following in the plaint which is reproduced as under :
(i) Pass a decree for declaration and permanent injunction in favour of the plaintiff and against the defendants, thereby declaring that the gift deed dated 10.07.2007 vide Regn. no. 10234 in Addl. Book no. I, Vol. 3988 on pages 91 to 97 on 10.07.2007 be null and void and not binding on the plaintiff and further the plaintiff be declared the owner to the extent of 1/5th Page no. 25 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 share i.e. equivalent to the share of all brothers (i.e. defendant no. 1 to defendant no. 4) i.e. 1/5th share each and further the defendants be restrained from creating third party interest in the said agricultural land/property.
A bare perusal of this prayer clause depicts that plaintiff has sought declaration of his 1/5th share in the said property as per Section 50 of the Act. However, plaintiff never object to the recording of the name of the Mother and Sisters as Bhumidhar of the deceased in revenue record as per Section 20 & Section 22 of the Delhi Land Revenue Act (in short, the Revenue Act). At this stage, it may also be relevant to mention here that as per Section 22 of the Revenue Act, the record regarding recording of any person as bhumidar either by sale or by transfer other than a lease permitted under the Delhi Land Revenue Act, shall be reported to the Tehsildar and will be recorded as per the register maintained under Section 20 of the Revenue Act. The entries regarding mutation are presumed to be genuine as per Section 41 of the Act. Section 20 and 22 of the Revenue Act are as under :
"20. (1) There shall be a record of rights for each village subject to such exceptions as may be prescribed (2) The recordofrights shall consist of a register of all persons cultivating or otherwise occupying land specifying the particulars required by section 40.
XXXX
22.Report of succession or transfer of possession (1)Every person obtaining possession on admission by the Gaon Sabha as Bhumidhar or Asami or by succession or Page no. 26 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 by transfer other than a lease permitted under the Delhi Land Reforms Act, 1954, of any land in a village which is required to be recorded in the register specified in Section20 shall report such admission, succession or transfer to the Tehsildar, (2) In the case of any admission by the Gaon Sabha as Bhumidhar or Assami or of a succession or transfer, other than a lease permitted under Delhi Land Reforms Act,1954, the report shall be made immediately after it has taken place. (3) In the case of lease permitted under the Delhi Land Reforms Act, 1954, the report shall be made by less or immediately after the lease has been delivered possession there under (4) If the person so succeeding, or otherwise obtaining possession, or, in the case of a lease; the lessor: is a minor or otherwise disqualified, the guardian on other person who has charge of his property shall make the report required by this section.
(5) No revenue court shall entertain a suit or application by the person so succeeding or otherwise obtaining possession or, in, the case of a lease, by the less or until such person has made the report required by this section."
So far as knowledge is concerned, plaintiff has pleaded that in 2014, after the death of his Mother, he could scan the said mutation recorded in the name of the Mother. However, as per the pleadings of plaintiff, he came to know in 1966 regarding the said mutation when loan for installation of a tubewell in the said property was taken. However, even for the sake of argument, is presumed that the plaintiff was minor at that time, even then in the Page no. 27 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 year 1980, he must have attained majority and in 197980, a portion of the said property was acquired and plaintiff as well as the other legal heirs of the deceased, so recorded as bhumidhar in the revenue record in respect of the said property, has also received the compensation for the land so acquired by the State in terms of the document Ex. DW2/1 and DW2/2 (copy of the award). Therefore, at that time, the plaintiff being major must have known that the other legal heirs of the deceased including the Mother and the Sisters had received the compensation as cosharer/co bhumidhar of the said property.
41. It may also be relevant to mention that the plaintiff can be attributed with knowledge of the factum of recording of such mutation in the name of the Mother and the Sisters in as much as the Sisters had executed Relinquishment Deed dated 07.06.1996 (Ex. DW 2/3) in favour of plaintiff and defendant no. 1 to defendant no. 4 and at that time, plaintiff must be knowing that the Sisters and the Mother have been recorded cobhumidhar / cosharer of the said property and the Sisters have executed Relinquishment Deed in respect of their share in the said property in favour of plaintiff and defendant no. 1 to defendant no. 4. However, the plaintiff has never challenged the said entries regarding mutation in the name of his Mother and Sisters.
42. It may be noted here that in Ram Niwas (supra) mutation of the said immovable property was entered into the Page no. 28 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 name of widow of the deceased as Bhumidhar namely Misri Devi and the petitioner (therein)/ Des Raj @ Dedh Raj got mutated half share in the said immovable property in the name of Misri Devi. In the said case, the said immovable property belonged to one Ram Saran and after his death, the said immovable property was inherited by Des Raj @ Dedh Raj, Sahaj Ram and Rati Ram. Sh. Ram Saran died and his one third share was mutated in the name of his wife Smt. Misri Devi and thereafter, Sahaj Ram died issue less and his 1/3 share in the said immovable property devolved upon Sh. Dedh Raj and Smt. Misri Devi. Thereafter, Dedh Raj got sanctioned of the mutation of 1/3rd share of late Sehaj ram in the said immovable property in his name and in the name of Smt. Misri Devi to the extent of half share each. The said mutation was never challenged by Dedh Raj in as much as proceedings were initiated by Dedh Raj. However, lateron, Dedh Raj challenged the records before the revenue authorities for rejection of the said mutation under Section 11 of the Act, however, his claim was rejected by the revenue authorities and feeling aggrieved by the order of the revenue authorities Sh. Dedh Raj filed the above said writ petition and in the said writ petition, it has been observed as under :
"24. The common thread running through the order of the Revenue Assistant, Additional Collector and the Financial Commissioner is of the application under Section 11 being not maintainable for the reason of mutation and mutation having not been challenged. I am unable to find any illegality requiring interference in the said reasoning.......
XXXXX Page no. 29 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 It thus cannot be said that the records maintained under the said two Acts are not records of title inasmuch as after coming into force of the said Laws, it is only the rights under the said Laws which are recognized. The Record of Rights under Sections 20 & 22 is required to record changes that take place and any transaction that may affect any of the rights or interest in the land recorded. The procedure and manner of making the said records and the settlement of disputes as to entries therein is all provided in the Revenue Act.
XXX Section 22(5) of the Revenue Act is significant in this regard. It prohibits a Revenue Court from entertaining a suit or application "not merely under the Revenue Act" by a person until such person had made a report as required to be made as successor for transfer under the Revenue Act.
25. Insofar as reliance by the petitioner on the judgment of the Apex Court in Suraj Bhan (supra) is concerned, the Supreme Court did not interfere with the orders of the Revenue Court and High Court insofar as approving mutation applied for in accordance with the law.
XXX The Supreme Court in Vishwa Vijay Bharati Vs. Fakhrul Hassan 1976 (3) SCC 642 held that entries in the revenue record ought generally to be accepted at their face value and Courts should not embark upon an appellate enquiry into their correctness unless it is shown to be made fraudulently and surreptitiously.
XXXX The Allahabad High Court also in Jagdeo Vs. Deputy Director of Consolidation MANU/UP/1079/2006 held that Page no. 30 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 revenue entries in respect of agricultural lands have great value since a meticulous procedure has been prescribed for recording, correcting and maintaining the same and that they cannot be equated with entries for purposes of house tax etc. under Municipalities Act in respect of buildings. It was further held that the purchaser of agricultural land and others dealing therewith check the right of vendor from the revenue records only."
A bare perusal of the ratio of this judgment depicts that the plaintiff was supposed to challenged the mutation as per the provisions of law before the revenue Authorities as observed by Hon'ble High Court in Ram Niwas (supra) which plaintiff failed to take as per law and filed the present suit.
43. In the same manner in Jai Pal (supra) mutation entered into between the name of the parties has taken place in the year 1958 and which was challenged after about 50 years and Hon'ble High Court has observed in Para No. 5 & 6 as under :
"5. A Division Bench of this Court in Babu Ram and Ors vs. Union of India & Ors., 125(2005)DLT 259 (DB) has succinctly reiterated the distinction between void and voidable orders in these words: "20. A careful reading of the above would show that what distinguishes an order that is void from another that is voidable essentially lies in whether the order in question is outside the jurisdiction of the authority making the same. On the other hand, if it is an order that is within the jurisdiction of the authority making the same but the order suffers from an error or irregularity that falls within the jurisdictional sphere of the authority making the order, it is voidable.
Page no. 31 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 xxx xxx xxx
24. It is, therefore, evident that expressions "void" and "voidable" have more than one facet. Transactions and decrees which are wholly without jurisdiction are void ab initio and no declaration may be necessary for avoiding the same. Law does not take any notice of such acts, transactions or decrees which can be disregarded in collateral proceedings or otherwise. There are, however, transactions, which will remain good unless declared to be otherwise. For instance, transactions against a minor without being represented by a next friend may be voidable at the instance of the minor in appropriate proceedings in which case it becomes void from the beginning. The third category may be the cases where an act or transaction is good unless declared to be void. Such a transaction is voidable because the apparent state of affairs is the real state of affairs and a party who alleges otherwise, shall have to prove it. For instance, if the document is forged and fabricated, a declaration to that effect is necessary for otherwise the document is legally effective."
6. In the instant case, even if it is taken that the mutation order of 23rd February, 1958 was contrary to the provisions of Delhi Land Reforms Act, 1954, still, it was a voidable order and not a void order and so, appeal had to be filed within the period of limitation of thirty days, as W.P.(C) No.2047/2011 Page 3 mandated by Section 67 of Delhi Land Revenue Act, 1954. Even if it is taken that respondents' appeal against collector's order (Annexure P1) was not maintainable, still it can be treated as a revision and thus this so called technicality cannot be a ground to upset the impugned order."
Page no. 32 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022
44. A bare perusal of the ratio of the said case law depicts that the said mutation order passed in favour of Mother is voidable order passed by the revenue authorities under the Act which the plaintiff was supposed to challenge within the prescribed period of limitation which plaintiff failed to do so. Therefore, no relief can be granted to the plaintiff.
45. So far as the jurisdiction of the Civil Courts to entertain the present suit is concerned, reliance is placed upon the ratio of Anand Prakash (supra). However, in Anand Prakash (supra) the plaintiff (therein) had sought title over the immovable property on the basis of inheritance under Section 50 of the Act, whereas, the defendants (therein) sought title over the immovable property on the basis of Will and, in the said facts and circumstances, it was held that there is not corresponding entry for cognizance of disputes arising out of the succession under Section 50, Schedule I of the Act. Therefore, the substantial relief involved in the said suit did not fall under any entry of Schedule I of the Act and in this context the suit was held to be maintainable before civil court and the relevant portion is reproduced as under :
"16.......
8. From the perusal of the above section it is clear that this saves only those cases which are mentioned in column 7 of Schedule I of the Delhi Land Reforms Act. Thus, the scope of Section 185 is confined to the specific matters enumerated in Schedule I of that Act and to none other. The present suit of the petitioner plaintiff for declaration Page no. 33 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 and permanent injunction seeking that he is sole heir and successor of Shri Om Parkash is not covered under specific matters enumerated in Schedule I of the Act and, therefore, the civil court has every jurisdiction to try the suit. Reliance was placed by the learned counsel for the respondent No.1 on Entry 28 of Schedule I and, according to him, the jurisdiction of civil court is barred. Mere perusal of Entry 28 of Schedule I relates to the declaratory suit under Section 104 of the Act. Such a suit is permissible to be filed by the Gaon Sabha only against any person claiming to be entitled to any right in any land or his right therein. Here it is not a suit by the Gaon Sabha. Therefore, this argument is of no help to respondent No.1.
9. Strong reliance placed by counsel for respondent No.1 in a case reported as Hatti v. Sunder Singh (AIR 1971 SC 2320) was also conecived. A close scrutiny of that judgment reveals that the case centres round 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 has held that all these reliefs can be granted by revenue courts. The disputes regarding declaration of bhoomidari rights is, inter alia, provided in Sections 11 and 13 of the Act and remedy for the disputes about it are included at item No.4 of Schedule I of the Act.
The question of seeking possession from a person without authority is provided for under Section 84 of the Act and the same is entered at serial No.19 of Schedule I of the said Act. Having thus found that all the three reliefs claimed in that suit were provided for in Schedule I of the Act, therefore, the jurisdiction of the civil court to grant the same did not arise. It is thus clear that in the present suit no declaration whether Shri Om Parkash has acquired bhoomidari rights has been prayed for by the petitioner.
Page no. 34 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 But the only question which has been raised is as to who is the rightful successor of his title therein. The Act does not make any provision for cognizance of such questions under it. Counsel for the respondents next argued that the petitioner was seeking succession to the land in question under Section 50 of the Act. Section 50 only lays down the order of succession to the land of a bhoomidar. It nowhere provides the forum which is to decide if disputes arise regarding succession. There is no corresponding entry for cognizance of disputes arising to the succession under Section 50 in Schedule I of the Act. Therefore, the main question involved in the present case does not fall under any entry of Schedule I of the Act. Therefore, Section 185 of the Act does not affect the jurisdiction of civil court to try the present. The argument of counsel for respondent No.1, therefore, has to fail."
46. I found substance in the contention of ld. counsel for defendant no. 4 so far as jurisdiction of civil courts to entertain the present suit is concerned in as much as in case Sukh Ram (supra) plaintiff (therein) has sought cancellation and declaration of the Relinquishment deed and the Will involved in the said suit which has not been found maintainable as the plaintiff (therein) had admitted the execution of Will as well as the Relinquishment deed and the main relief prayed by plaintiff (therein) has been found to be sought was for the Bhumidhari rights by plaintiff (therein) in the ancestral property and plaint was rejected. The relevant observations is reproduced as under :
"13. The dicta in Ram Niwas vs. Pitamber Singh and Ors. (supra) & Hatti vs. Sunder Singh (supra) clearly lay down that the issue of declaration of bhumidari rights, as per S. 186 of the Delhi Land Reforms Act, could only be taken Page no. 35 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 up by the Revenue Court. If a question of title arises in an application for bhumidari rights, the said issue will be framed and will be referred to a competent Civil Court."
47. Therefore, from the above said discussion, it can be safely concluded that the plaintiff in the present case has not dispute the gift deed having been obtained by practicing fraud and forgery in as much as the only claim in the relevant relief clause as pleaded in the plaint is to the extent that the mother got mutated the said property in her name in violation of Section 50 of the Act and, therefore, she was not entitled to execute the said gift deed. The main relief sought in the plaint is mutation entry in the name of Mother in the year 1964 in violation of Section 50 of the Act and on that basis the plaintiff has claimed 1/5th share in the said property left behind by the deceased as per the mandate of Section 50 of the Act.
48. As a sequel to the abovesaid discussion, the sum and substance of the relief sought by the plaintiff is seeking bhumidari rights in the said property as per the mandate of Section 50 of the Act, however, as discussed above plaintiff failed to take any steps for challenging the said mutation entered into the name of Mother and the Sisters way back in 1964, therefore, the revenue court has jurisdiction to try the present matter and civil court has no jurisdiction to entertain the present suit.
49. It is argued by Counsel for defendants that plaintiff is not aggrieved with the mutation entry of the year 1964 in the name Page no. 36 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 of the Mother but, even if, for the sake of arguments, it is taken that the said mutation was wrongly effected in the name of the Mother in the year 1964, she has become Bhumidhar of the said property as per section 85 of the Act for no suit under section 84 of the Act was ever filed by Gaon Sabha for her eviction and then her status was not of a successor but of a Bhumidhar.
50. On the other hand, it is argued by the Ld. Counsel for plaintiff that as per section 50 of the Act, the said property could not devolve upon the Mother and the said mutation entry in the name of Mother in the year 1964 was wrong and against the provision of law.
51. It is argued that before amendment of 2005, Hindu Succession Act was not applicable to the succession governed by Section 50 of the Act, as per exception provided under section 4(2) of the Hindu Succession Act 1956.
52. It may be observed that with effect from the date when the Amended Act was promulgated succession would be as per the Hindu Succession ACT, 2005. Though not quoted reliance is placed upon Nirmala v GNCT judgment passed by Hon'ble High Court of Delhi in CWP(C) no. 6435/2007 wherein the ratio of Har Naraini Devi (supra) was considered and it was observed that before amendment of 2005 in Hindu Succession Act 1956, the agricultural land/property being property of Bhumidar will devolve Page no. 37 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 as per section 50 of the Act only but after coming into force of the amendment in Hindu Succession Act, 2005 the Section 50 of the Act would have to yield to the provisions of Hindu Succession Act. So is the ratio of the case law Mukesh (supra).
53. It may also be observed here that Hon'ble Supreme Court in judgment Vineeta Sharma v. Rakesh Sharma & Ors., over ruled the Prakash & Ors. v. Phulvati & Ors., and made the following observations :
"129. Resultantly, we answer the reference as under:
(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the Page no. 38 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of ClassI as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.
54. A bare perusal of the above said ratio of law depicts that right from the day of passing of the Hindu Succession Act, 1956, the daughter is held to be coparcener in the estate left behind the deceased, in case no partition has been effected amongst the coparceners, therefore, the succession will be regulated by the provisions of Hindu Succession Act and not by Section 50 of the Act, meaning thereby the provision of Section 50 has been eclipsed. It may also be noted that no written partition of the said property had never came in existence between the male Page no. 39 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 descendants of the deceased, however, the names of plaintiff, defendant no. 1 to defendant no. 4, the Mother and the Sisters were entered into the record as cobhumidhar /co sharer which fact lead to conclude that by way of oral partition all the LRs of the deceased become cosharer/cobhumidhar. The ratio of Vineeta Sharma is to the effect that the daughter can be declared co sharer since coming into force the Hindu Succession Act 1958 and therefore, daughter is classI heir /coparcener and the deceased is classI legal heir and is entitled to share as per Hindu Succession Act and as per the dicta of law laid down in Vineeta (supra) the said mutation cannot be stated to be not in consonance with the Hindu Succession Act. In view of the above, the reliance placed upon in case law Jitender (supra), Suraj Bhan (supra) and Anand Prakash (supra) pales into insignificance.
55. Although the Mother was not entitled to be recorded as Bhumidhar of the said property yet it is a matter of record that the said mutation was sanctioned in favour of the Mother in the year 1964 by the revenue authorities under relevant provisions of the Act and, thereafter, it remained unchallenged. The said fact has made a complete distinction for applicability of section 50 of the Act as I am duly satisfied with the contention of Counsel for defendants that the status of the Mother and the Sisters had converted into a Bhumidhar, as no suit for eviction was filed by Gaon Sabha. For better understanding, the provision of section 84 and 85 of the Act are reproduced as follows:
Page no. 40 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 "84.(1) A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, and
a) where the land forms part of the holding of a Bhumidhar or Asami without the consent of such Bhu midhar or Asami, or
(b) where the land does not form part of the holding of a Bhumidhar or Asami without the,consent of the Gaon Sabha, shall be liable to ejectment on the suit of the Bhumidhar, Asami or Gaon Sabha, as the case may be, and shall also be liable to pay damages.
(2) Where any person against whom a decree for ejectment from any land has been executed in pursuance of a suit under subsection (1) reenters or attempts to re enter upon such land otherwise than under authority of law, he shall be presumed to have done so with intent to intimidate or annoy the person in possession or the Gaon Sabha, as the case may be, within the meaning of section 441 of the Indian Penal Code.
85. If a suit is not brought under section 84 or a decree obtained in any such suit is not executed within the period of limitation provided for the filing of the suit or the execution of the decree, the person taking or retaining possession shall
(i) where the land forms part of the holding of a Bhumidhar, become a Bhumidhar thereof;
(ii) where the land forms part of the holding of an Asami on behalf of the Gaon Sabha, become an Asami thereof;
(iii) in any case to which the provisions of clause (b) of '[subsection (1) of section 841 apply.' become a Bhumidhar or Asami as if he had been admitted to the possession of the land by the Gaon Sabha.
Page no. 41 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 Provided that if in the revenue records of the fasli year ending on the 30th June, 1954, the land referred to in clause (iii) was not included in the holding of the person taking or retaining possession or his predecessorin interest, or was not recorded as being in the cultivation of such person or his predecessorininterest, then, notwithstanding the expiry of. the aforesaid period of limitation for such suit or decree, the suit may be filed or the decree obtained in such suit may be executed within a period of three years from the date of passing of the Delhi Land Reforms (Amendment) Act, 1965:
Provided further that the benefit of the extension of the period of limitation under the preceding proviso shall got be availed of in any case where a person who has become a Bhumidhar in respect of any land under clause
(iii) has transferred such land to another person for valuable consideration before the 10th May, 1965 Now as per Schedule I proposed under section 185 of the Act, period of limitation to file a suit for ejectment is three years. Now the next question for application of the said provision is whether the possession of the suit property was with the Mother and after the death of the Mother, it is with defendant no. 5 or with plaintiff as per the case of plaintiff, as pleaded in plaint. However, the plaintiff has failed to prove his possession in suit property in as much as the Khasra Girdwari for the year 201516 Ex. PW1/2 defendant 5 is shown to be in possession of the suit property.
56. It is to be observed that there is a presumption of law in her favour to the effect that possession follows the title. Once it is established that the title of the suit property has passed in favour Page no. 42 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 of the Mother, presumption of law is there that possession of the suit property was with her only. Though not quoted reliance is placed upon AIR 1931 PC 162.
57. Apart from the fact that Gaon Sabha was competent to file suit as observed above, even the plaintiff was also entitled under rule 8(4) the Delhi Land Reforms Rule to file the suit within two months of such declaration. In this regard Hon'ble High Court is Ram Niwas (supra) in para 21, 22 has observed as under :
"21. Rule 8(4) of the Reforms Rules requires anyone challenging the correctness of entries in the forms of declaration to, except where it refers to a clerical omission or error, file a regular suit within two months of such issuance of certificate of Bhumidhari.
22. Another Division Bench of this Court in Gaon Sabha Vs. Jage Ram 1973 Rajdhani Law Reporter 597 held that the person who wants to challenge the correctness of the entries in the land revenue forms has first to apply to the Revenue Assistant under Rule 8(4) of the Reforms Rules and the Revenue Assistant may then require him to file a regular suit in a Civil Court."
58. Consequently, the application of the provision of section 84 of the Act in the given facts cannot be in question and the conclusion is that there was neither any suit against the Mother filed by Gaon Sabha from 1964, when mutation was effected in her favour, she became Bhumidhar of the suit property as per provision of section 85 of the Act nor the plaintiff filed any suit under Rule 8(4) of the Delhi Land Reforms Act.
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59. Accordingly, I am of the opinion that the Mother herself became Bhumidhar and therefore entitled to execute gift deed in favour of defendant. So far as ration of H.L. Reddy (supra) is concerned, suffice is to say that plaintiff may be held not to be bound by the principles of acquiescence, however, as observed above plaintiff did not challenge mutation despite the fact that mutation has preemptive value and act of not challenging the entry of the mutation entry divest plaintiff to claim any relief. These issues are accordingly decided in favour of the defendant and against the plaintiff.
Issue no. 1
60. The onus to prove this issue was upon defendant no.5. It is argued by Counsel for defendant no. 5 that present suit is barred by limitation on several grounds. The Mother was recorded the Bhumidar of the said property way back in 1964, therefore, the mutation of the year 1964 cannot be challenged and suit is apparently barred by limitation. It is argued that the suit of plaintiff is on the basis of a claim of a reversioner and the limitation for filing said suit is 12 years as per Article 65(a) of the schedule to the Limitation Act.
61. On the other hand, Ld. Counsel for plaintiff on the basis of judgment relied upon in this regard has argued that mutation did not confer title & there was no need for plaintiff to challenge the said mutation in the name of the Mother.
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62. Let me advert to the aspect of limitation on each ground as raised on behalf of defendant 5 one by one. Coming to the first contention, it is to be observed that as per case of plaintiff, he came to know about the mutation entry in question only in 2014, when he got the copy of Khatauni. Now, except making a bald averment, the plaintiff has not led any evidence to prove said version. Plaintiff neither led any oral nor documentary evidence to establish that plaintiff came to know about the same after 14.07.2014 on the sad demise of the Mother. Undoubtedly, the burden was upon the plaintiff to prove that his case is within the period of limitation; however, plaintiff has completely failed to discharge said burden.
63. A few facts noted below also show that the suit is time barred :
(i) The mutation proceedings were recorded with all the LRs of the deceased. The plaintiff claimed to be minor at that time as he was born in 1956 and aged about 8 years in the year 1964. The plaintiff as per his admission came to know about the said mutation in the year 1966 when his brother had availed the loan for installing the tube well. The plaintiff attained majority in the year 1984, and thereafter, he never challenged the said mutation in the name of the Mother.
(ii) A portion of the said property was acquired by Govt. in terms of the award Ex.DW2/2. The plaintiff filed objections before the Ld. Land Acquisition Court through Ex.DW2/1. The plaintiff never claimed to be in possession of the suit property in the name of the Mother. Moreover, defendants have claimed to have received the compensation of their land acquired by the Govt. but plaintiff has not denied the said fact in replication. When a party on the basis of mutation receives compensation for acquisition of land and other party whose case is that mutation was de hors the rules and possession of land was taken from him by the Collector, remained Page no. 45 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 mute spectator, it is inconceivable to say that no cause of action had arisen to challenge the said mutation.
(iii) It is admitted case of parties that the Sisters had executed relinquishment deed dated 07.06.1996 Ex.DW2/3 in favour of the plaintiff and defendants 1 to defendant 4. The fact that plaintiff took release deed from the Sisters shows that the plaintiff never treated the mutation as void and accepted said mutation as valid. That is why necessity to get executed the relinquishment deed had arisen.
(iv) It is the claim of plaintiff only that mutation was wrongly effected in favour of the Mother and the Sisters, as LRs of the deceased. Otherwise, plaintiff and defendant no. 1 to defendant no.
4 were entitled to succeed the said property.
Though, not quoted reliance is placed upon Shyam Lal @ Kuldeep v. Sanjay Kumar, judgment passed in Civil Appeal no. 2888/2001 by Hon'ble Supreme Court wherein it was observed that the period of limitation for seeking declaration of a mutation entry as null and void was only three years as provided under Article 58 of the Schedule to the Limitation Act.
64. Accordingly, the right of the Mother to execute the gift deed in favour of defendant no. 5, if any, was on the basis of said mutation entry but the plaintiff undoubtedly, even if suit of plaintiff is decreed for the relief of declaration qua the gift deed and mutation entry of the year 2007 is set aside and no order is passed qua said mutation entry of the year 1964, there will be an ambiguous position to the effect that, on the one hand, right of the Mother in the suit property will be there in revenue record as being successor of the deceased and at the same time, her right to transfer the suit property Page no. 46 of 47 CS no. 332/2016 Jai Singh v. Inder Singh & Ors. Date of Decision : 22.02.2022 by way of gift deed and subsequent mutation would be declared as null & void. It appears that plaintiff has cleverly omitted the relief regarding mutation in the year1964 as being aware that said relief would be apparently barred by limitation.
65. From the above discussion, it can be safely concluded that plaintiff was knowing the factum of mutation of the said property i.e. the share of the Mother as cobhumidhar in the said property at least since the year 197980 when the portion of the said property was acquired by the Govt., therefore, suit of the plaintiff is barred by limitation. This issue is accordingly decided in the favour of defendant no. 5 and against the plaintiff.
Relief:
66. In view of the findings on issues aforesaid, I am of the considered opinion that plaintiff has not been able to establish its case against defendants. The suit filed by the plaitniff is accordingly dismissed.
Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally
signed by
VIJAY
VIJAY KUMAR
Announced in the open court on KUMAR DAHIYA
22nd Day of February, 2022. DAHIYA Date:
2022.03.10
15:23:17
+0530
(V.K. DAHIYA)
ADDL. DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
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