Delhi District Court
Shri Tek Chand vs Satish Chander Dated: 09.09.2015 on 9 September, 2015
IN THE COURT OF SH. PRANJAL ANEJA, LD. CIVIL JUDGE-06/
CENTRAL TIS HAZARI COURTS, DELHI
Suit. No. 798/11
Unique ID No. 02401C0845522008
1. SHRI TEK CHAND
SON OF LATE SHRI PIRTHI,
R/o E-2/19, ASHOK VIHAR, PHASE-II, DELHI.
2. SHRI TULSI RAM ( DECEASED ) THRUGH HIS LR's
a). SHRI PRAVEEN KUMAR
SON OF LATE TULSI RAM, Son OF SHRI PRITHI,
R/o E-2/20, ASHOK VIHAR, PHASE-II, DELHI.
b). SMT. MANJU GOYAL, ( DAUGHTER ).
W/o SHRI KRISHAN GOPAL GOYAL
R/o C-11/2, MODEL TOWN, 3rd DELHI.
c). SMT. MANISHA GARG, ( DAUGHTER ).
W/o SHRI SATISH GARG,
R/o WZ 52 A, SHARDA PURI,NEAR RAMESH NAGAR,
DELHI - 110015.
d). SMT. RAJNI JAIN, ( DAUGHTER ).
W/o SHRI SUSHIL JAIN, R/o 205,
DEEPALI OUTER RING ROAD PITAM PURA DELHI.
e). SMT. RITA GOYAL,( DAUGHTER ),
W/o SHRI MUNISH GOYAL,
R/o A-340, SURYA NAGAR, GHAZIABAD ( U.P.).
.....Plaintiff
Suit No. 798/11 Page No. 1 of 12
Tek Chand Vs. Satish Chander Dated: 09.09.2015
VERSUS
1. SHRI SATISH CHANDER ( DECEASED ) THROUGH HIS LR's
a) SH. ASHISH SINGHAL
b) SH. VAIBHAV SINGHAL
BOTH SONS OF SATISH CHANDER
c) SNT, RAJ RANI SINGHAL
W/O LATE SH. SATISH CHANDER
d) MS. KAJAL
D/O LATE SH. SATISH CHANDER
All R/O KU-27, GROUND FLOOR,
PITAMPURA, DELHI-110034.
2. SHRI ANIL KUMAR,
S/O LATE SHRI NARAIN DASS,
R/O Z-306, SIDHARTA APARTMENT,
M.P. ENCLAVE, PITAMPURA,
DELHI-110088.
3. SHRI ARJUN KUMAR,
S/O LATE SHRI NARAIN DASS,
R/O C-1, KEWAL PARK,
AZADPUR, DELHI-33.
4. SHRI DHARMENDER,
S/O LATE SHRI NARAIN DASS,
R/O BP-8, 3rd FLOOR,
MIG FLATS, PITAMPURA, DELHI.
5. SHRI JAGMINDER DASS,
S/O LATE RAMANAND,
R/O CU-173, PITAMPURA,
DELHI-110088.
6. SHRI MANGAT RAM SINGHAL,
Suit No. 798/11 Page No. 2 of 12
Tek Chand Vs. Satish Chander Dated: 09.09.2015
S/O SHRI KISHAN,
R/O H. No. 10, VILLAGE SHAIRPUR,
SHALIMAR BAGH, DELHI.
7. SHRI BHAGWAT SARUP,
S/O SHRI KISHAN,
R/O AK-1, WEST SHALIMAR BAGH,
DELHI
8. SHRI VED PRAKASH SINGHAL,
S/O LATE KHUBI RAM GUPTA,
R/O VILLAGE SARAI PIPAL THALA,
DELHI
9. SHRI SIRI KISHAN,
S/O LATE HUKAM CHAND,
R/O HU-1, PITAMPURA,
DELHI.
10. SHRI RAJINDER KUMAR
S/O LATE SHRI HUKAM CHAND,
R/O HOUSE No. M-542, GURU HARKISHAN NAGAR,
PASCHIM VIHAR, DELHI.
11. SHRI ASHOK GUPTA,
S/O SHRI KHUBI RAM,
R/O 81-B, BLOK C & JU,
MAHARAJA AGGARSEN APARTMENT,
PITAMPURA, DELHI.
12. SHRI JAGDISH,
S/O LATE SHRI HUKAM CHAND,
R/O VILLAGE HAIDARPUR,
DELHI.
13. SHRI SHIV CHARAN,
S/O LATE HUKUM CHAND,
R/O VILLAGE HAIDARPUR,
DELHI.
Suit No. 798/11 Page No. 3 of 12
Tek Chand Vs. Satish Chander Dated: 09.09.2015
14. SHRI YOGESH
S/O LATE RAM SINGH
R/O VILLAGE HAIDARPUR,
DELHI.
15. SHRI NARESH
S/O LATE SHRI RAM SINGH
R/O VILLAGE HAIDARPUR, DELHI.
16. SHRI DEPAK BANSAL,
S/O LATE RADHEY SHYAM,
R/O VILLAGE HAIDARPUR,
DELHI.
17. SHRI RAJESH BANSAL,
S/O LATE RADHEY SHYAM,
R/O VILLAGE HAIDARPUR,
DELHI.
.....Defendants
SUIT FOR DECLARATION WITH PERMANENT INJUNCTION
DATE OF INSTITUTION OF THE CASE : 04.06.2008
DATE ON WHICH RESERVED FOR ORDER : 07.09.2015
DATE OF ORDER/JUDGMENT : 09.09.2015
JUDGMENT
1. This order of mine will decide the application u/o 7 rule 11 CPC filed on 02.04.2013 on behalf of defendants No. 1(a) to 4, 9, 10, 12 to 17.
2. It is stated in the application that the suit is not maintainable as the Suit No. 798/11 Page No. 4 of 12 Tek Chand Vs. Satish Chander Dated: 09.09.2015 plaint does not disclose a cause of action. That with regard to the prayer for declaration, the same is barred by law as there is a clear admission by the plaintiff being co-owner and thus there is no cause of action. It is contented that in the plaint plaintiff admit that the land in question was allegedly acquired and mutation was changed in the name of Government then all the parties to the suit were co-sharers in possession and hence, in the event of requisition, the same status has to prevail.
3. It is further contented that the prayer for cancellation of mutation is barred by law since the suit land is admittedly governed by Punjab Land Revenue Act, 1887 and mutation can be challenged only before Revenue Courts and the impugned mutation, ordered and implemented by Revenues Authorities in favour of plaintiff and defendants, cannot be challenged before a Civil Court. Rejection of the plaint is prayed.
4. In reply, it is denied that the defendants have been in possession of the suit property. It is admitted that the suit land is governed by Punjab Land Revenue Act, 1887 and Section 45 of which provides the right to file a suit for declaratory decree by persons aggrieved by an entry in a record. It is further contented that the Hon'ble High Court of Delhi in WP (C) No. 27590/1996 titled as Madan Lal Sharma & Ors Vs. MCD while deciding this writ gave the finding that Civil Court can entertain Suit No. 798/11 Page No. 5 of 12 Tek Chand Vs. Satish Chander Dated: 09.09.2015 and try a dispute pertaining to any entry in the records of rights maintained under the Punjab Land Revenue, Act, 1887. It is contented that Revenue Authorities did not follow the rules and laws as envisaged in Punjab Land Revenue, Act, 1887. It is further contented that plaintiffs were not served before making any change/ correction in the records of rights.
5. I have heard the arguments and perused the record.
6. Plaintiffs seek a decree of declaration that they are the exclusive owner in possession of suit lands bearing Khasra No. 430/61/2 (1-7) and 432/64/2 (5-8). In this context it is disclosed in the plaint that plaintiffs had earlier filed a suit for declaration in the year 1969 as suit No. 605/69 titled Tek Chand & Anrs. Vs. Union of India with the prayer to declare the plaintiffs as owner in possession of these lands. Decree of declaration was granted vide judgment dated 05.10.1970 holding that plaintiffs were the owner in possession of the land and mutation and possession of the Government was declared as wrong, illegal and hence, set aside.
7. It is pertinent to note that under para 13 of the present plaint, it is averred that the plaintiffs and defendants were the joint owners of the suit property who were dispossessed and mutation was transfer in the Suit No. 798/11 Page No. 6 of 12 Tek Chand Vs. Satish Chander Dated: 09.09.2015 name of Government vide award no. 666 of 1947-48. Thus, clearly the plaintiffs admit the past position with respect to the joint ownership of the suit property. This past position has been restored back by mutation order No. 426 dated 13.10.1995 and mutation order No. 1692 dated 23.04.2008 passed by the Revenue Court i.e. SDM/ Revenue Assistant concerned wherein the names of plaintiffs and defendants have been again recorded/ mutated against the suit property and the revenue records were corrected. The said judgment and decree dated 05.10.1970 passed in the said declaratory suit No. 605/1969 clearly records that the suit land was not acquired vide award No. 666 and the possession of the land was never actually taken by the Government or police department. Apart from this observation my attention is also drawn towards para 19 of the afore said judgment dated 05.10.1970 in which the following finding has been arrived at:-
"The suit land comprised in Khasra No. 61 and 64 was owned by various persons including TeK Chand and Tulsi Ram sons of Prithvi from this evidence on the file, it is clear that the plaintiffs are the joint owners with others of the land comprised in Kh. No. 61 and 64 that is the land in dispute. It is also clear that the plaintiff are now in exclusive possession of the land comprised in Kh. No. 61 and 64".
8. Thus, although the other joint owners i.e. defendants in the present suit were not joined/ impleaded as parties in the said suit of 1969 and the operative portion of the judgment or the decree does not expressly records the right of other joint owners, yet the above quoted finding Suit No. 798/11 Page No. 7 of 12 Tek Chand Vs. Satish Chander Dated: 09.09.2015 clearly recognizes the rights of other joint owners as well and therefore the plaintiffs cannot be allowed to plead that they alone resisted the illegal acts of the government and defendants did not object and they filed the said declaratory suit of 1969 in which they were declared as owners by virtue of said judgment dated 05.10.1970. A joint owner also remains a joint owner irrespective of possession unless there is a partition by metes and bounds or relinquishment. Thus, even if assuming that the defendants were not in possession, their joint ownership cannot be displaced under law unless there is a relinquishment or partition. Thus, I see no cause of action with the plaintiffs to plead and seek the relief of declaration as to they being the exclusive owner in possession of the suit property.
9. Regarding the other relief sought i.e. for declaration of the mutation order No. 426 dated 13.10.1995 and mutation order No. 1692 dated 23.04.2008 to be declared as wrong, illegal, void and ultra virus and to be set aside, it is observed that this relief flows from the first relief of declaration as to exclusive ownership and since no cause of action has been found with respect to that relief, this declaration regarding mutation entries is also not sustainable under law. Moreover, it has been argued on behalf of applicants/ defendants that section 158 of Punjab Land Revenue, Act, 1887 excludes the jurisdiction of the Civil Court in the present matter and section 45 of this Act does not apply.
Suit No. 798/11 Page No. 8 of 12Tek Chand Vs. Satish Chander Dated: 09.09.2015 For the sake of convenience both the relevant provision are re- produced as under:-
Section 45- Suit For declaratory decree by persons aggrieved by an entry in a record.- If any person considers himself aggrieved as to any right of which he is in the possession by an entry in a record-of-rights or in an annual record, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877.
Section 158- Exclusion of jurisdiction of Civil Court in matters within the jurisdiction of Revenue officers.- Except as otherwise provided by this Act-
1. ..........................................
.........................................
2. A Civil Court shall not exercise jurisdiction over any of the following matters, namely-
......................................................... ......................................................... .........................................................
(v) the forming of a record-of-rights or annual record, or the preparation, signing or attestation of any of the documents included in such record;
(vi) the correction of any entry in a record of rights, annual record or Suit No. 798/11 Page No. 9 of 12 Tek Chand Vs. Satish Chander Dated: 09.09.2015 register of mutations;
........................................................... ..........................................................
(vii) ..........................................................
(viii) ...........................................................
..........................................................."
10. It was argued by the Ld. Counsel for the plaintiff that the words ' Except as otherwise provided by this Act' used in the beginning of section 158 clearly gives way for section 45 of the Act and thus the plaintiffs have right to file the present suit in order to seek declaration with respect to mutation entries. But I find no merits in this contention for two reasons. Firstly, that there has been correction in the entries of the revenue record vide these mutation orders and this topic/ matter is clearly and specifically covered in one of the clause (vi) of sub-section 2 of section 158 amongst numerous other clauses covering other topics/ matters and therefore this specific provision over-rides the general provision of section 45 which gives a general right to any person to institute a suit for declaration under Specific Relief Act. Secondly, the reading of one of the mutation order No. 1692, dated 23.04.2008 passed by the Revenue Court of SDM/ Revenue Assistant shows that the same has been passed on merits after examining in detail the records and arguments of all the parties. Thus, trying the relief of Suit No. 798/11 Page No. 10 of 12 Tek Chand Vs. Satish Chander Dated: 09.09.2015 declaring the said mutation orders to be wrong, illegal, void and deserving to be set aside would tantamount to sitting in appeal over the said Revenue Court which would be impermissible since there is an appellate heirarchy provided under the Act.
11. In fact it is noted that the plaintiff participated in the proceeding in the said mutation as is seen in the order dated 23.04.2008 passed for mutation No. 1692 wherein the objection filed by plaintiff Sh. Tek Chand was set aside being devoid of merits and thus even the contention of the plaintiffs raised in the reply to the present application that they were not served before making change/ correction in the record of rights does not have any force as the objections of the plaintiff are seen to be dismissed by the Ld. Revenue Court. The necessary excerpts from the said mutation order No. 1692 dated 23.04.2008 needs to be re-produced as under:-
"The incorrect entries existing in the revenue records requires to be corrected as per the directions of the Hon'ble Court. The logical outcome shall be that the entires existing prior to the mutation No. 200 & 201 dated 27.05.1948 should be restored. The objection filed by Sh. Tek Chand in this regard is set aside as it is devoid of merits. The suit which he had filed was for correction of the revenue records which he challenged, in the suit that revenue entries were wrongly made by the above said mutations. Moreover the land in question was owned by other co-sharer also out of which Sh. Tek Chand was one of the co- sharer. Just by getting the suit of declaration passed he cannot get the share of the other co-sharer forfeited. In a similar case a mutation No. Suit No. 798/11 Page No. 11 of 12 Tek Chand Vs. Satish Chander Dated: 09.09.2015 426 dated 13.10.1995 was entered wherein the mutation of the Khasra No. 430/61 was done. In this mutation also, as per the orders of the Ld. Civil Judge's order dated 05.10.1970 the mutation was done in favour of the recorded owners of the land. The similar procedure of implementation is naturally to be followed in respect of this case also. Hence, the application filed for mutation is allowed as per the entries existed before 27.05.1948 and to be corrected as per the existing legal heirs. Order accordingly, file be consigned to the record room".
12. Thus, on the basis of above reasoning, I find that the jurisdiction of this Court with respect to the relief regarding mutation orders is barred by virtue of Section 158 of Punjab Land Revenue Act, 1887.
13. In view of the findings that the plaintiffs have no cause of action as to declaration of exclusive ownership and the declaration regarding mutation orders being barred by law, the prayer for permanent injunction is also not sustainable for want of cause of action.
14. Consequently, the plaint in the present suit is rejected under Order 7 rule 11 (a) and (d) CPC, 1908. Application is accordingly allowed.
15.In the circumstance of the case, parties to bear their own costs.
16.File be consigned to record room after necessary compliance.
Announced in open Court On 09.09.2015 ) (Pranjal Aneja) Civil Judge-06/Central Tis Hazari Court, Delhi Suit No. 798/11 Page No. 12 of 12 Tek Chand Vs. Satish Chander Dated: 09.09.2015