Delhi District Court
Sh. Rama Nand vs Sh. Roop Ram on 12 December, 2017
IN THE COURT OF MS. MANJUSHA WADHWA
ADJ 04 (WEST), TIS HAZARI COURTS, DELHI
Civ Dj No.609102/16
Sh. Rama Nand
S/o Shri Ram Chander
R/o Village Rajokari Pahari
New Delhi. ........Plaintiff.
versus
1.Sh. Roop Ram S/o Shri Ram Chander R/o Village Rajokari Pahari New Delhi.
2. Sh. Ram Chander (deleted since deceased vide order dated 14.05.2004)
3. M/s Hamlet Farms Pvt. Ltd.
AtC14, New Delhi South Ext. PartII, New Delhi.
4. Sh. Ramesh Chander Aggarwal S/o Sh. R.R. Agarwal R/o B35, New Delhi South Ext. PartI, New Delhi.
5. M/s Veer Plantation Pvt. Ltd.
6 Prithviraj Road,
New Delhi. .........Defendants
Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 1 of 45
Date of Filing Suit : 17.11.1994
Date of Transfer to this Court : 10.02.2016
Date of Reserving Judgment : 04.12.2017
Date of Judgment : 12.12.2017
J U D G M E N T
1. This is suit filed by the plaintiff against the defendants for seeking declaration, cancellation of documents, mandatory injunction and permanent injunction. It is not out of place to mention herein that the plaintiff had initially filed suit for permanent injunction on 17.11.1994 and later on, filed an application under Order VI Rule 17 CPC for incorporating the relief of declaration, mandatory injunction and permanent injunction which was allowed vide order dated 31.05.2008.
2. Brief facts of the case as per the plaintiff are that the deceased defendant no.2 is the father of the plaintiff and the defendant no.1. According to the plaintiff, the defendant no.2 alongwith his brothers namely, Dhaniram; Bharat Singh and Ramprasad inherited agricultural land comprised in khasra no. 882/1,882/2, 883/1, 881, 880, 875/1/1 and 655/1 besides other agricultural land and residential property in village Rajokari Pahari, New Delhi. The plaintiff further pleaded that partition was effected between the deceased defendant no.2 and his Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 2 of 45 aforesaid brothers about 14 years ago, whereby, the defendant no.2 was recorded as owner of 1/4th share of land comprised in the aforesaid khasras which was admeasured as approximately 4 bighas. The said land is assessed to revenue and land revenue has been paid regularly by the owners. The defendant no.2 was also recorded as owner of 1/4th share of approximately 27 bighas and 15 biswas of land in village Samalkha in terms of the partition arrived at between the defendant no.2 and his brothers.
3. The plaintiff further pleaded that after partition, he and the defendants no. 1 and 2 had been in joint possession of the aforesaid land, which was treated as joint family property and the parties were sharing common house and kitchen and residing together in ancestral house in the main village Rajokri, Delhi.
4. The plaintiff further pleaded that the defendant no.1, being elder brother of the plaintiff being selfish and of quarrelsome nature tried to deprive the plaintiff from enjoying his right in joint family properties due to which, an oral partition was done between the plaintiff and the defendant no.1 in the year 1978 by metes and bounds. By virtue of said partition, out of the total 7 bighas of land falling to the share of defendant no.2 in village Samalkha, 31/2 bighas were given to the plaintiff and Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 3 of 45 31/2 bighas were given to the defendant no.1. Similarly, out of 4 bighas of land falling to the share of the defendant no.2 in village Rajokari, Delhi, 2 bighas each were given to the plaintiff and the defendant no.1 and barbed wire fencing was fixed to divide respective shares of the plaintiff and defendant no.1.
5. The plaintiff claimed that he has been in continuous occupation and possession of 2 bighas of the land in village Rajokari, particularly showing the area of the plaintiff shaded in red colour(hereinafter referred to as 'suit land') and area of the defendant no. 1 shaded in blue colour as per site plan.
6. According to the plaintiff, the defendant no.2 also got partitioned the ancestral house property and since then the families have been residing in their respective portions independently and separately. The plaintiff pleaded that on 02.04.1978, the defendant no.2 recorded the memorandum of settlement before the Panchayat of village and relatives that he had done the aforesaid partition between his two sons and the same had been witnessed by Sh Bharat Singh, Ram Mahir, Ch. Jawahar Singh and it was also signed by the plaintiff, defendant no. 1 and the defendant no.2.
Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 4 of 457. According to the plaintiff, the defendant no.1 became dishonest due to appreciation in value of land and had been instigating the defendant no.2 against the plaintiff and trying to get signature of the defendant no.2 on various documents with a view to affect the right and interest of plaintiff in respect of the suit land. The plaintiff further pleaded that in May 1992, the defendant no.1 picked up quarrel with the plaintiff and tried to break the boundary wall and remove fencing, which resulted into filing of suit by the plaintiff before the Ld. Senior Sub Judge, Delhi and same is pending adjudication.
8. The plaintiff further pleaded that the defendant no.1 was meeting with property brokers of the area with a view to dispose of the land of plaintiff and on 07.11.1994, the defendant no.1 visited the suit land at about 5:00 p.m. with three musclemen carrying lathis and started breaking the barbed wire pillars angle iron post and removed the fencing which separated the suit land from the defendant's no. 1 land and thus made attempt to dispossess the plaintiff from his suit land, however, he could not succeed in his illegal designs as the plaintiff reached there before much damage could be done. The plaintiff thus filed the instant suit for seeking decree of permanent injunction restraining the defendant nos.1 and 2 from interfering in the use, occupation, enjoyment and possession of the plaintiff in respect of the suit land.
Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 5 of 459. The plaintiff further pleaded that during pendency of instant suit and the subsistence of status quo order dated 21.11.1994, the defendant nos. 3 to 5 in connivance with defendant nos. 1 & 2 attempted to dispossess the plaintiff from the suit land on 02.08.1995 and dispossessed the plaintiff on 10.12.1995 by constructing wall all around the suit land besides the other land and complaint dated 10.12.1995 was lodged with the police station, Vasant Kunj, Delhi.
10. It is the case of the plaintiff that another 'suit bearing no.
435/03(New Suit No.585/06/03)titled as Rama Nand vs. Roop Ram and anr' for seeking declaration and permanent injunction was also pending before the court of Ld. Civil Judge, Delhi, wherein, the defendant no.1 in his affidavit in evidence filed on 10.01.2005 stated that Sh. Ram Chander, defendant no.2 had already sold his entire share in agricultural land in dispute and mutation has been done in the name of purchasers.
11. According to the plaintiff, the defendants in collusion and connivance had sold the suit land and got the mutation done in the name of purchasers and dispossessed the plaintiff despite status quo order being shown to the aforesaid purchasers i.e. defendant no.3 to 5.
Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 6 of 4512. Joint written statement was filed by the defendants no. 1 and 2 to the original plaint wherein the defendants raised preliminary objection that the plaintiff has not disclosed about filing of similar suit for permanent / perpetual injunction before the ld. Senior SubJudge, Delhi being suit no.282/89 which was dismissed by the court of Sh. Pradeep Chadha, the then ld. Civil Judge, Delhi on 02.04.1992. An appeal preferred against the said order was also dismissed vide order dated 27.04.1992. They also raised an objection that suit of the plaintiff is barred by Section 185 of Delhi Land Reform Act and the relief of declaration with regard to possession and recognition as a bhumidar can be sought from Revenue Court. It is specifically pleaded that the suit land belongs to the defendant no. 2 being the recorded bhumidar, who has the absolute authority and power to deal with his land and denied the partition in 1978. The defendants denied rest of the averments of the plaint.
13. Written statement was filed by the defendant no.1 to the amended plaint wherein he took the aforesaid preliminary objections raised in the joint written statement to the original plaint. It is further pleaded that the plaintiff has no cause of action to file the present suit as the land in dispute was owned and possessed by the defendant no.2 who during his lifetime Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 7 of 45 had sold the same to the defendant nos. 3 to 5 vide registered sale deeds and they are in actual physical and continuous possession of the same.
14.On merits, the defendant no.1 admitted that he and the plaintiff are the only male descendants of their father (defendant no.2 herein) however, denied of any such partition between them. The defendant no.1 denied that plaintiff and the defendant no.1 were running common house and common kitchen and suit land was a joint family property. He denied that the plaintiff came to know about the sale of suit land from his filing of evidence by way of affidavit on 10.01.2005 in suit pending before Ld. Civil Judge, Delhi. The defendant no.1 pleaded that the plaintiff was well aware of sale of suit land by defendant no.2 at the time of its actual sale somewhere during the period 199596 and thus, the present suit is barred by limitation. It is thus prayed that suit is liable to be dismissed as such.
15. Written statement was also filed on behalf of the defendant no.3, wherein it has taken preliminary objection that the plaintiff has no locus standi to file the present suit as he is neither owner nor in possession of the suit land. The defendant no.3 pleaded that the plaintiff has sought declaration and cancellation of the documents dated 15.09.1994 in respect of Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 8 of 45 the suit land whereas the instant suit was filed in the year, 2003 i.e. after gap of 9 years, as such, the suit is barred by limitation. The defendant no. 3 further raised preliminary objection that the present suit is barred under section 185 of Delhi Land Reforms Act, 1954.
16. On merits, the defendant no.3 pleaded that sale deed dated 20.11.1995 in respect of piece of the suit land had been executed by legal heirs of late Sh. Ranjeet (the predecessor in interest of the plaintiff) and as such, the plaintiff had no concern with the suit land and thus no right to challenge the same. The defendant no.3 further pleaded that the answering defendant had got possession of the suit land in the year, 1995 and therefore, present suit for seeking declaration filed after more than 8 years is not maintainable.
17. The defendant no. 3 further pleaded that since during the life time of defendant no.2, the plaintiff as well as defendant no.1 had no right in the suit property and thus, the execution of sale deeds including sale deed dated 20.11.1995 by the legal heir of late Sh. Ranjit (predecessor in interest of plaintiff) falsify the claim of the plaintiff qua alleged partition. The defendant no. 3 denied rest of the averments of the plaint.
Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 9 of 4518. Joint written statement was filed on behalf of the defendant nos. 4 & 5 to the amended plaint wherein it is pleaded that the suit land is in their possession since its purchase from the father of plaintiff vide registered sale deed. They further pleaded that the plaintiff as per his own case is not in its possession of the suit land since December, 1995, as such, relief of injunction cannot be granted to the plaintiff. They raised an objection that the suit is barred by section 185 of Delhi Land Reform Act as well as barred by limitation. It is pleaded that sale deeds and mutation in their favour have been validly executed and cannot be cancelled. They denied that plaintiff had ever shown any status quo order to them and they are liable to restore the possession of the suit land to the plaintiff. They denied rest of the averments of the plaint as incorrect.
19. The plaintiff filed separate replication to the written statement of defendants wherein he has reiterated and reaffirmed the contents of the plaint as true and correct and denied the averments contrary to the plaint.
20. Vide order dated 15.10.2008, following issues were framed by the ld. Predecessor of this court as:
1. Whether the plaintiff is entitled of decree of declaration, that the sale deed executed by defendant no.2 in favour of defendant no.3 to defendant no.5 and the mutation of Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 10 of 45 defendant no.3, 4 & 5 as claimed are void, illegal and not binding upon the plaintiff ? OPP
2. Whether the plaintiff is entitled for decree of mandatory injunction for the possession of the property as claimed ? OPP
3. Whether the plaintiff is entitled for the decree of permanent injunction as claimed ? OPP
4. Whether the suit is not maintainable in present form ? OPD1, 4 & 5
5. Whether the suit of the plaintiff is hit by provisions of Order 2 Rule 2 of CPC? OPD
6. Whether the suit is barred by law of limitation ? OPD3
7. Whether the suit of the plaintiff is hit by the provisions of Delhi Land Forms Act ? OPD1, 3, 4, 5.
8. Whether the suit is hit by the principle of resjudicata ? OPD1
21. Plaintiff in order to prove its case has examined himself as PW1; Sh. Tulsi Ram Acharya, Ahlmad from the court of Ms. Shail Jain, Ld. ADJ (Central District), Tis Hazari Courts, Delhi as PW2; Sh. Parvinder Tomar, Patwari, Tehsil Vasant Vihar, District, New Delhi, Jam Nagar House, New Delhi as PW3; Sh. Chattarpal Singh, Kanoongo, Record Room, Tehsil Hauz Khas, Mehrauli, New Delhi as PW4; Sh. Balbir Singh Yadav, S/o late Sh. Mahasukh as PW5 and Sh. Vijay Pal Yadav, S/o Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 11 of 45 Sh. Ram Mehar as PW6. Plaintiff has relied upon the following documents as : S.No. Particulars Exhibition of documents 1 Letter dated 10.12.1995 written Ex.PW1/2 by the plaintiff to police station, Vasant Kunj, Delhi.
2 Khatoni ( for the period 1994 Ex.PW1/3
95) 3 Evidence by way of affidavit of Ex.PW1/4 plaintiff along with proceedings in suit for delcaration and permanent injunction decided by Sh. Shailender Malik, the then Ld. Civil Judge, Delhi 4 Copy of plaint, written MarkA to statement and Replication in MarkC 'suit bearing no. 435/03(New Suit No.585/06/03)titled as Rama Nand vs. Roop Ram and anr' 5 Affidavit of Sh. Ravi Nand to MarkD the effect that the plaintiff is in actual physical possession of the suit land 6 Affidavit dated 25.05.1992 of MarkE Sh Permanand 7 Site plan MarkF 8 Letter dated Nil by Sh. Sewa Ex.P1 Dass, Addl. DCP to Sh. Pritam Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 12 of 45 Singh in reference to letter regarding complaint of Sh.
Rama Nand Yadav.
9 Family settlement / partition Ex.P2 dated 02.04.1978 10 Letter dated 19.12.1988 written Ex.P3 by Ram Sahia addressed to Sub Registrar of documents with respect to the complaint of Sh.
Rama Nand Yadav 11 Site plan Ex.P4 12 Khatoni ( for the period 1981 Ex.P5 1982) 13 Reply on behalf of defendant Ex.DW1/P2 no.2 to the application filed by the plaintiff under Order 22 Rule 4 CPC 14 Will executed by Ram Chander Mark in favour of the defendant no.1 PW2/X
22. On the other hand, the defendant no.1 in his defense has examined himself as DW1. Defendant No.1 has relied upon the following documents as: S.No. Particulars Exhibition of documents 1 Khatouni Consolidation Ex.DW1/1 colly 2 Certified copy of plaint in 'suit Ex.DW1/2 Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 13 of 45 no. 280/89 titled as Sh. Rama Nand Vs Sh. Ram Chander and another' 3 Certified copy of Written Ex.DW1/3 statement filed on behalf of defendant nos. 1 and 2 in 'suit no. 280/89 titled as Sh. Rama Nand Vs Sh. Ram Chander and another' 4 Certified copy of Replication on Ex.DW1/4 behalf of the plaintiff in 'suit no. 280/89 titled as Sh. Rama Nand Vs Sh. Ram Chander and another' 5 Certified copy of Judgment and Ex.DW1/5 decree dated 02.04.1990 passed in 'suit no. 280/89 titled as Sh.
Rama Nand Vs Sh. Ram Chander and another' 6 Certified copy of Judgment and Ex.DW1/6 decree dated 27.04.1992 passed in 'RCA no. 153/1990 titled as Sh. Rama Nand Vs Sh. Ram Chander and another' 7 Certified copy of appeal being Ex.DW1/7 'RCA no. 153/1990 titled as Sh.
Rama Nand Vs Sh. Ram Chander and another' 8 Certified copy of plaint in 'suit Ex.DW1/8 bearing no. 435/03(New Suit No.585/06/03)titled as Rama Nand vs. Roop Ram and anr' 9 Certified copy of joint written Ex.DW1/9 statement in 'suit bearing no.
Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 14 of 45435/03 (New Suit No.585/06/
03)titled as Rama Nand vs. Roop Ram and anr' 10 Certified copy of judgment and Ex.DW1/10 decree dated 31.05.2007 in 'suit bearing no.435/03 (New Suit No.585/06/03)titled as Rama Nand vs. Roop Ram and anr' 11 Certified copy of Khatoni Ex.DW1/11
23. The issue wise finding is given in the succeeding paragraphs.
Issue No.7. Whether the suit of the plaintiff is hit by the provisions of Delhi Land Forms Act ? OPD 1, 3, 4, 5.
24. The onus to prove this issue was on the defendants. Ld. Counsel for the defendants submitted that the present suit is not maintainable in terms of Section 185 and 186 of Delhi Land Reforms Act, 1954. He submitted that the civil court can only decide the issue of title over the agricultural land provided the revenue court framed it afresh and refer the same for adjudication before the civil court.
25. Per contra, ld. counsel for the plaintiff submitted that the suit for declaration and cancellation of transfer documents and mutation in favour of the defendant nos. 3 to 5 would not amount to declaration of bhumidari rights and that revenue Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 15 of 45 court has no jurisdiction to entertain the suit for declaration and cancellation of documents. He has placed reliance upon the judgment of Hon'ble High Court of Delhi reported as 2013 (133) DRJ 49 (DB) titled as Mansa Ram vs. Tilak & ors; DRJ 1991 (Supp) 209 titled as Siri Ram vs. Jai Prakash & ors to the effect the civil court has jurisdiction to try the present suit.
26. It is worthwhile to mention herein that the plaintiff initially filed the instant suit for permanent injunction against his brother, defendant no.1 and father as defendant no.2 praying that the defendants be restrained from interfering with the possession of the plaintiff in respect of the suit land. During the pendency of the present suit, the plaintiff sought amendment in the plaint on the premise that on 10.01.2005, the defendant no.1 filed an affidavit in evidence in 'suit bearing no. 435/03(New Suit No.585/06/03)titled as Rama Nand vs. Roop Ram and anr' which was filed for seeking declaration and permanent injunction stating that the defendant no. 2 herein had sold his entire share in the agricultural land in dispute and mutation in this regard has been entered into the revenue records in the name of purchasers. Accordingly, plaintiff sought relief against the defendant nos.3 to 5 also by way of amendment in the plaint interalia praying that decree of declaration be passed to the effect that the sale deeds executed Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 16 of 45 in favour of the defendant nos.3 to 5 by the deceased defendant no.2 and mutation thereof in the revenue records may be ordered to be declared void, illegal, without authority and not binding upon the plaintiff; sale deeds executed in favour of the defendant nos. 3 to 5 with respect to the suit land be cancelled; decree of mandatory injunction be passed against the defendants thereby restoring the physical possession of the plaintiff in respect of the suit land; decree of permanent injunction be passed thereby restraining the defendants from interfering with the possession of the plaintiff in respect of the suit land.
27. As per Section 185 of Delhi Land Reform Act, 1954, jurisdiction of civil court is barred with respect to the entries stipulated in column 3 of schedule 1 to the Delhi Land Reform Act, 1954.
28. Schedule 1 to the Delhi Land Reform Act, 1954, provides for description of the suit, application and other proceedings in column 3 which relates to the Sections of the Act in column 2 of the schedule and the competent court to entertain the said proceedings in column 7 of the schedule. In this regard, it is relevant to refer to the judgment of Hon'ble High Court of Delhi being RFA No.621/03, titled as Ashok Kumar & ors vs. Munni Devi & ors decided on 05.03.2012 wherein, the Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 17 of 45 Lordship has observed in para 5 as under : "5. In my opinion, the trial Court has fallen into a grave error in holding that the Civil Courts did not have jurisdiction in view of Section 185 of the Act. Section 185 has already been reproduced above and which Section shows that the Revenue Courts have jurisdiction to try such suits which are mentioned in columns 2 and 3 of the Schedule I of the Act, and it is only with respect to such suits that the jurisdiction of the Civil Courts will be barred. The sections and type of the suits which are mentioned in columns 2 & 3 of the Schedule I of the Act, do not cover suits such as the subject suit for declaration, injunction and for cancellation of a sale deed/power of attorney on the ground of the same having been forged and fabricated. Such causes of action/reliefs of declaration and injunction which pertain to invalidity of the title documents which are said to have been got executed on the basis of a forged and fabricated General Power of Attorney are not covered under any of the Sections under columns 2 & 3 of Schedule I and they can be thus decided by a Civil Court. A reference to columns 2 and 3 of Schedule I of the Act shows that in none of the sections or the description of suits, mentioned in columns 2 and 3 of the Schedule I respectively, the subject suit would be covered. The only sections which can be said to be somewhat related to the issues/causes of action/reliefs in the suit are Sections 13 and 104. Section 13 pertains to an application to regain possession after bhumidhari rights are got declared and for which period of limitation is one year from the commencement of the Act. The Act commenced in the year 1954 and the subject suit for declaration and injunction cannot be said to be pertaining to Section 13 of the Act, and also because no declaration of bhumidhari rights envisaged under Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 18 of 45 Section 13 is in issue in the subject suit. Therefore, the subject legal proceedings are not covered under serial No.3 of the Schedule I which pertains to Section 13, being an application to regain possession. So far as the Section 104 is concerned which is the subject matter of serial No.28 of the Schedule I, the said section pertains to a declaratory suit which is filed on behalf of Gaon Sabha against a person claiming entitlement to any right to the land which is the subject matter of the Act. Obviously, the subject suit filed by the private persons is not a suit for declaration, covered by Section 104. A reference to all other Sections which are the subject matter of column 2 of the Schedule I and the description of such suits under those sections as stated in column 3 of Schedule I shows that there is no section for filing of a suit of the nature of the suit in question. A reference to the column 2 and the description of the Sections in column 3 shows that the proceedings which are the subject matter of the Revenue Courts are those proceedings, which are with respect to either declaration of Bhumidhari rights (as distinguished from inter se dispute of claim of ownership/bhumidhari rights on account of transfer by title deeds/sale deeds including by forging a power of attorney), suits which are with respect to exchange of bhumidhari land or for partition of a bhumidhari land or suit for ejectment filed by an Asami or a suit for injunction or damage caused to a holding of a person etc etc. These suits which the Civil Courts are barred from taking cognizance of are basically suits of a bhumidhar or Asami or Gaon Sabha and that too provided they are first of all the subject matter of the Sections which are stated in column 2 of the Schedule I."
Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 19 of 4529. Adverting to the facts of the present case, it is noted that relief of declaration and cancellation of documents executed by the defendant no.2 in favour of the defendant nos. 3 to 5 are not covered under any of the Sections as mentioned in column 2 of the schedule 1 to the Delhi Land Reforms Act, 1954.
30. Regarding the contention of ld counsel for the defendant that the civil court can only decide the issue of title of agricultural land provided the revenue court framed it first and refer it for adjudication before civil court, reference is made to the judgment of the Hon'ble High Court of Delhi passed in RSA No. 252/13 titled as Ms. Suresh Bala & ors vs. Ram Pal decided on 15.01.2014 wherein their lordship has observed that Section 186 does not imply that suits where title is in question, and which suits are not the subject matter of columns 2 and 3 of the Schedule I, such suits have to be filed in the Revenue Courts. It was further observed that in fact, it is other way round that firstly the suits must in substance be the suits essentially covered under columns 2 and 3 of the Schedule I of the Act, and only thereafter if title of the land is in question then the Revenue Court will refer the issue of title to Civil Court, however, if the suits itself are not falling under columns 2 and 3 of Schedule I, for such suits jurisdiction of the Civil Court is not barred. In view thereof, suit of the plaintiff is not Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 20 of 45 hit by the provisions of Delhi Land Reforms Act, 1954 and thus, issue no.7 is decided in favour of the plaintiff and against the defendants.
Issue No.6: Whether the suit is barred by law of limitation ? OPD3
31. The onus to prove this issue was on the defendants. Ld. counsels for the defendants submitted that as per para 24A of the plaint, the plaintiff was dispossessed from the suit land on 10.12.1995 by defendant nos. 3 to 5 in connivance with the defendant nos. 1 & 2, as such, cause of action arose in favour of the plaintiff on 10.12.1995. He further submitted that the plaintiff was already aware of the existence of the defendant nos. 3 to 5 on or about 10.12.1995 and could avail appropriate remedy under law within three years thereafter.
32.Per contra, ld. counsel for the plaintiff submitted that the present suit is filed within a period of limitation as the plaintiff came to the know about the alleged sale of the suit land by the defendant no.2 in favour of the defendant nos. 3 to 5 only on 10.01.2005, when the defendant no.1 filed the affidavit in evidence in 'suit bearing no. 435/03(New Suit No.585/06/03)titled as Rama Nand vs. Roop Ram and anr' filed for seeking declaration and permanent injunction.
Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 21 of 4533. As per article 59 of Schedule to the Limitation Act, the period of limitation is three years for seeking cancellation or setting aside of an instrument when the facts entitling the plaintiff to have the cancellation or setting aside of the instrument first become known to him. In the instant case, the plaintiff pleaded to have known about the said facts only on 10.01.2005 when the affidavit in evidence was filed by the defendant no.1 in 'suit bearing no. 435/03 titled as Rama Nand vs. Roop Ram and anr' whereby, the defendant no. 1 stated that the defendant no.2, Ram Chander had already sold his entire share in agricultural land in dispute and mutation in this regard had been entered in the revenue records in the name of the purchasers.
34. On the other side, the defendants case is that as per own case of the plaintiff, he was dispossessed from the suit land on 10.12.1995 by the defendant nos. 3 to 5 in connivance and conspiracy of defendant no. 1 & 2 and thus, the relief of declaration and cancellation of the registered documents should have been sought as per article 59 of the schedule to the Limitation Act within three years thereafter.
35. This court has perused the complaint dated 10.12.1995, Ex.PW1/2 lodged by the plaintiff with police station Vasant Kunj, New Delhi which is with respect to the alleged Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 22 of 45 dispossession from the suit land. However, there is no averment in the said complaint that the plaintiff had knowledge of the execution of the sale deeds in favour of the defendant nos. 3 to 5. The plaintiff claimed to have derived knowledge on 10.01.2005 from the affidavit in evidence of the defendant no.1 filed in 'suit bearing no. 435/03(New Suit No.585/06/03) titled as Rama Nand vs. Roop Ram and anr' and thereafter, sought amendment in the present suit for incorporating the relief of declaration and cancellation of the registered sale deed executed in favour of the defendant nos. 3 to 5 which is within three years from the date of knowledge derived by the plaintiff. In view thereof, this suit is not barred by limitation. Accordingly, issue no. 6 is decided in favour of the plaintiff and against the defendants.
Issue no. 4: Whether the suit is not maintainable in present form ? OPD1, 4 & 5 AND Issue No. 5: Whether the suit of the plaintiff is hit by provisions of Order 2 Rule 2 of CPC? OPD
36. Ld. counsel for the defendants contended that the plaintiff had initially filed 'suit bearing no. 435/03(New Suit No.585/06/03)titled as Rama Nand vs. Roop Ram and anr' in the year 1992 wherein, he had sought relief of declaration of Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 23 of 45 being in cultivatory physical possession and permanent injunction, whereas, filed the present suit subsequently on 17.11.1994 for seeking relief of permanent injunction. It is his contention that the plaintiff as per his own case derived knowledge about the execution of the registered sale deeds in the 'suit bearing no. 435/03(New Suit No.585/06/03)titled as Rama Nand vs. Roop Ram and anr' and thus ought to have sought necessary amendment in the said suit only and not in the present suit. It is thus submitted that amendment sought for in the present suit is not warranted and also hit by Order II Rule 2 CPC. He placed reliance on the judgment reported as 167 (2010) DLT 766 titled as J.D. Jain & ors vs Sharma Associates.
37. Per contra, ld. counsel for the plaintiff submitted that relief of declaration and cancellation of registered sale deeds has been sought in the instant suit only on deriving knowledge about execution of same on 10.01.2005 pursuant to filing of affidavit in evidence by the defendant no. 1 in 'suit bearing no. 435/03(New Suit No.585/06/03) titled as Rama Nand vs. Roop Ram and anr' and thus cause of action has arisen on 10.01.2005 and the present suit is not hit by Order II Rule 2 CPC. He placed reliance upon the judgment titled as Abnashi Singh & ors. vs. Smt. Lajwant Kaur, AIR 1977 Punjab & Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 24 of 45 Haryana 1; The Timken Company vs. The Timken Services Pvt. Ltd., 200 (2013) DLT 453.
38. Heard ld. counsel for the parties and perused the record.
39. It is settled law that three conditions must be fulfilled before it is held that the suit is barred under provision of Order II Rule 2 CPC as :
a) that the second suit has been filed in respect of the same cause of action on which previous suit was based;
b) the plaintiff was entitled to more than one relief in respect of the same cause of action; and
c) being entitled to more than one relief; plaintiff without leave of the court omitted to sue for the relief for which the second suit has been filed.
40. In the instant case, cause of action for claiming relief of declaration and cancellation of the registered sale deeds has arisen only during the pendency of 'suit bearing no. 435/03(New Suit No.585/06/03) titled as Rama Nand vs. Roop Ram and anr' which was subsequently sought in the instant suit. In view thereof, present suit is not hit by Order II Rule 2 CPC and is maintainable. Accordingly, issue no. 4 and 5 are decided in favour of the plaintiff and against the defendants.
Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 25 of 45Issue No. 8. Whether the suit is hit by the principle of res judicata ? OPD1
41. Ld. counsel for the defendants contended that right of the plaintiff in regard to possession of the suit land has already been adjudicated upon in 'suit bearing no. 435/03(New Suit No.585/06/03) titled as Rama Nand vs. Roop Ram and anr' vide judgment dated 31.05.2007, Ex DW1/10 and therefore, the said issue cannot be adjudicated upon again by this court as hit by the principle of res judicata. It is further submitted that the issue with regard to family settlement has also been decided in 'suit bearing no. 435/03(New Suit No.585/06/03) titled as Rama Nand vs. Roop Ram and anr' wherein it was observed that the evidence led on behalf of plaintiff and documents proved on record do not establish that any family settlement was implemented. It is thus submitted that the plaintiff cannot reagitate the issue of possession in the instant suit and the suit is thus barred by principle of res judicata.
42. Per contra, ld. counsel for the plaintiff submitted that the suit is not barred by principle of res judicata as the review application being review petition no. 202/15 filed in 'RSA NO. 228/14 and titled as Rama Nand vs. Roop Ram' is still pending for adjudication before the Hon'ble High Court of Delhi.
Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 26 of 4543. Heard ld. counsel for the parties and perused the record.
44. Admittedly, the plaintiff had filed suit for declaration and permanent injunction being 'suit bearing no. 435/03(New Suit No.585/06/03) titled as Rama Nand vs. Roop Ram and anr' seeking relief of decree of declaration thereby declaring that the plaintiff is in cultivatory physical possession of the suit land shown in red in the site plan and sought permanent injunction to restrain the defendants nos. 1 and 2 from dispossessing him from the suit land. In the said case, following issues were framed as:
i) Whether the suit of the plaintiff is not maintainable ? OPD
ii) Whether the plaintiff is entitled for relief claimed in the suit ? OPP
iii) Relief.
45. While deciding issue no.1 in suit no. 435/03 (New Suit No.585/06/03), the then ld. Civil Judge has discussed the evidence led by the plaintiff with respect to the alleged oral family settlement as well as cultivatory physical possession and specifically observed that family settlement was written by the parties but evidence led on behalf of the parties and documents proved on record do not establish that any such family Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 27 of 45 settlement was implemented and further, the plaintiff has failed to establish of being in cultivatory physical possession of the suit land since 1978.
46.Perusal of the judgment dated 31.05.2007 passed by Ld. Civil Judge in 'suit bearing no. 435/03(New Suit No.585/06/03)titled as Rama Nand vs. Roop Ram and anr', Ex DW1/10 filed by the plaintiff against the defendant no. 1 and 2 herein shows that issue of family settlement as well as cultivatory physical possession of the plaintiff was adjudicated upon and findings was returned on the same. Once finding has been given by the court in the suit filed by the plaintiff himself, the said finding cannot be reagitated again by filing the instant suit before this court. The contention of ld. counsel for the plaintiff that since review in second appeal is still pending for adjudication; the decision on the issue of cultivatory physical possession is not binding on this court, is of no merit.
47. Section 11 of CPC stipulates that once an issue or a point has been decided and attained finality, the said issue should not be allowed to be reopened and reagitated again. Needless to say, the judgment dated 31.05.2007, Ex DW1/10 has been rendered by the Court of competent jurisdiction with respect to the issue of cultivatory physical possession of the plaintiff and family Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 28 of 45 settlement, Ex P2 is conclusive. Pertinently, decision on the said claim absolutely bars the subsequent suit involving the same claim. Reliance is placed on the judgment of Bhanu Kumar Jain vs. Archana Kaur, AIR 2005 SC 626. In view thereof, issue of cultivatory physical possession as well as family settlement which has been decided by the court of Ld. Civil Judge in 'suit bearing no. 435/03(New Suit No.585/06/03)titled as Rama Nand vs. Roop Ram and anr' is binding on the plaintiff and cannot be re agitated in the instant suit. Issue No.8 is decided accordingly.
Issue No.1. Whether the plaintiff is entitled of decree of declaration, that the sale deed executed by defendant no.2 in favour of defendant no.3 to defendant no.5 and the mutation of defendant no.3, 4 & 5 as claimed are void, illegal and not binding upon the plaintiff ? OPP Issue No. 2. Whether the plaintiff is entitled for decree of mandatory injunction for the possession of the property as claimed ? OPP AND Issue No.3. Whether the plaintiff is entitled for the decree of permanent injunction as claimed ? OPP
48. The aforesaid issues being interlinked are taken up together.
Onus to prove the aforesaid issues was on the plaintiff. Ld. Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 29 of 45 Counsel for the plaintiff submitted that the plaintiff and the defendant no. 1 are son of the defendant no.2, who alongwith his three brothers inherited the suit land besides other agricultural land and residential property in village Rajokari, New Delhi. He submitted that there was partition between the defendant no.2 and his brothers whereby, the defendant no.2 was recorded as owner of the suit land admeasuring approximately 4 bighas. He further submitted that due to quarrel between the family members, an oral partition was done between the plaintiff and the defendant no.1, as a result of which, 2 bighas of the suit land fell to the share of the plaintiff and 2 bighas of the suit land was given to the defendant no.1. He submitted that the said partition was done by metes and bounds and barbed wire fencing was fixed to divide the share of the plaintiff and the defendant no. 1. It is his further contention that the oral partition was reduced into writing on 02.04.1978, Ex.P2 in the form of Memorandum of understanding by the defendant no.2 before the Panchayat of village and relatives. He further submitted that after the said partition in the year 1978, the plaintiff has been in uninterrupted possession of the suit land as shown in red in the site plan.
49. Per contra, ld. counsel for the defendants submitted that the suit land is an agricultural land and as per Delhi Land Reforms Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 30 of 45 Act, 1954, Bhumidar has rights over the suit land and admittedly, the defendant no. 2 was recorded Bhumidar of the suit land till the same was sold to the defendant nos. 3 to 5 herein. It is further submitted that the family settlement, Ex.P2 though not validly and legally proved was mere wish of defendant no.2 and since the said partition was not registered or the land was not partitioned as per Section 55 of Delhi Land Reform Act, 1954, it cannot be presumed that the plaintiff derived any title from Ex.P2. It is also submitted that plaintiff has failed to prove his cultivatory possession of the suit land in 'suit bearing no. 435/03(New Suit No.585/06/03) titled as Rama Nand vs. Roop Ram and anr' decided by the Court of Sh. Shailender Malik, the then ld. Civil Judge, Delhi on 31.05.2007, Ex.DW1/10, therefore, the plaintiff has no right or legal character to file the present suit for seeking relief of declaration under Section 34 of Specific Relief Act.
50. Heard ld. counsel for the parties and perused the record.
51. The arguments of the ld. counsel for the plaintiff is two fold.
The first limb of argument of ld. counsel for the plaintiff is that the oral partition of the suit land was arrived at in the year 1978 and the same was reduced into writing on 02.04.1978 vide Ex.P2, which bears the signature of the defendant nos. 1 & 2.
Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 31 of 45It is his contention that after the execution of the Ex.P2, he has become owner of the suit land and thus, the defendant no.1 had no right to sell the suit land to the defendant nos. 3 to 5 herein.
52. The second limb of argument of ld. counsel for the plaintiff is that vide order dated 21.11.1994, status quo was passed with respect to the title and possession of the suit land by the Hon'ble High court of Delhi, where the instant suit was then pending and thus, the suit land could not have been sold during the pendency of the present suit by the defendant no.2 in favour of the defendant nos. 3 to 5. It is his contention that the mutation done on 01.05.1996 and 16.08.1996 is void and thus, not only the status quo ante with respect to the possession and title of the suit land is warranted but also possession is required to be restored to the plaintiff since the plaintiff was dispossessed on 10.12.1995 during the pendency of the present suit.
53. Heard ld. counsel for the parties and perused the record.
54. This suit was initially filed for permanent injunction restraining the defendant nos. 1 & 2 from interfering with the possession of the plaintiff in the suit land and further restraining them from selling the suit land or any part thereof. The plaintiff later on incorporated the relief of declaration, Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 32 of 45 mandatory and permanent injunction against the defendant nos.1 & 2 as well as the defendant nos.3 to 5, who were subsequently impleaded vide order dated 01.07.2006. Admittedly, the plaintiff had filed another 'suit bearing no. 435/03(New Suit No.585/06/03) titled as Rama Nand vs. Roop Ram and anr' against the defendant nos. 1 & 2 for seeking relief of declaration and permanent injunction which was decided by the court of Sh. Shailender Malik, the then ld. Civil Judge, Delhi vide judgment and decree dated 31.05.2007, Ex DW1/10. In the said suit, the then ld. Civil Judge, Delhi has considered the aspect of the family settlement, Ex.P2 and also the aspect of cultivatory possession of the plaintiff in the suit land. The case of the plaintiff in the said suit in nutshell is that the plaintiff has been continuously in cultivatory possession of the suit land since 1978 and later, the defendant no.1 herein had tried to dispossess the plaintiff by removing fencing separating the suit land of the plaintiff from the land of the defendant no.1. which led to the filing of the said suit. The then ld. Civil Judge had decided issue of existence of the document, Ex.P2 i.e. family settlement and the cultivatory physical possession of the plaintiff qua suit land. It was held in the said suit that the plaintiff has failed to establish his being in cultivatory physical possession of the suit land since 1978 and observed that once the possession has not been established, no case has been made Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 33 of 45 out for injunction as well. Relevant portion of the judgment and decree dated 31.05.2007 passed in the said suit, Ex.DW1/10 is reproduced as under : "30. After appreciating evidence led on behalf of parties. First question for consideration is whether there was any family settlement arrived at between parties. In this regard, ld counsel for plaintiff has put emphasis on documents dated 2.4.78 Ex PW1/4 which is certified copy of original which is stated to be lying on record of suit no. 243/03/84 which is writing of family settlement. Besides this ld counsel for plaintiff also heavily relied upon complaint of Late Ram Chander Ex PW1/29. Moreover emphasis is given on letter dated 23.8.78 of Sh. Sewa Dass, Addl. DCP Ex PW1/15I (which Ex P1 in record of suit no. 243/03/84 as certified copy of that has been placed on record).
31. On behalf of defendant, exhibition of these documents were objected to, on the ground of mode of proof. In facts, defendant is denying that any family settlement was arrived at or subsequently reduced into writing. I find that document Ex PW1/4 is been properly exhibited because this document bears signature of plaintiff. Moreover it is proved after summoning the record. Besides this, ld predecessor of this court noted in his order dated 8.11.04 that document being part of judicial record, can be taken on record. Apart from, document has been proved by PW9 Chandaki Ram who has testified that document Ex PW1/4 bears his signature. Thus all this evidence at least establish that such document was written by parties. This fact get corroboration from police complaint of Late Ram Chander Ex PW1/29 and Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 34 of 45 official letter of Addl. ACP dated 23.8.78. Both these documents give reference of alleged family settlement. Both these documents cannot be ignored for coming to just conclusion because these documents cannot be fabricated, rather coming from record of government agency. On the other hand, there is only denial from evidence of DW1 and DW2 regarding this document.
32. Having discussed regarding proof of document Ex PW1/4. Question which directly attached is whether actually family settlement was arrived at and implemented by parties. Plaintiff claims after the family settlement in 1978, he was put in possession of land measuring 2 bigha shown 'red' in the site plan being coming to his share. So according to plaintiff this family settlement was implemented also. However, I find that evidence led on behalf of plaintiff and documents proved on record, do not establish that any such family settlement was implemented. There are more than one reason for this conclusion which I will discuss following. Before that it is appropriate to mention again that relief sought by plaintiff is that it be declared that he is in cultivatory possession of land in question since 1978. Thus most important aspect in this case was not just to show writing of family settlement but was to show that such family settlement was actually implemented and plaintiff was put into 'cultivatory possession' of land in question. A family settlement of partition has no legal significance if facts do not show that such arrangement was accepted and implemented by all parties. Partition in metes & bounds probably convey this important aspect of legal requirement. Acceptance of all concerned partiies for any family settlement get corroboration only when such family settlement was acted upon and implemented.
Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 35 of 4533. In present case, plaintiff in order to establish his possession in agricultural land has though examined witnesses PW4 to 6 and PW8 plaintiff in fact tries to prove that after alleged family settlement, he purchased agricultural instrument and he sold agricultural produce 'Barsim' to some one. I am afraid such like evidence cannot be accepted to establish cultivatory possession of plaintiff that too since 1978 till filing present suit. Admittedly plaintiff has no khasra girdawri (P4) or even P5 form. However this aspect will be discussed little later, let us evaluate evidence led to establish possession. PW4 as discussed earlier is Mukesh Kumar from M/s Samart Hardware. He examined to prove one bill no. 7649 dated 14.4.78 Ex PW1/7 showing that plaintiff purchased some instruments. First of all this aspect is not properly proved because witness PW4 had no first hand knowledge of issuance of bill book of his firm. Similarly PW5 was examined to establish cash memo Ex PW1/5 & 6. PW5 himself is not proprietor and is servant. He admits that he did not issue those cash memos. Nor can tell sale tax number of company of which cash memo he came in witness box to establish. Such evidence does not lead anyone to anywhere. Next is PW6 he says that in year 1986 and 1988 he purchased 'Barsim' and he took receipt for this Ex PW1/15A to 15B. First of all it took most improbable that in village culture that if one village will take 'Barsim' from another, he will take receipt of such transaction. Moreover evidence of PW6 can be believed when he himself has his agricultural land of 45 bigha. PW6 instead of taking receipt from Ram Chander who was recorded bhoomidhar of land would take receipt from plaintiff.
34. PW8 is Kailash Kumar, Patwari who prove Khasra Girdawari of land in question Ex PW1/16 to Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 36 of 45 27 pertaining to period from 197879 to 199091. Column no. 4 of all these Girdawaris does not contain name of plaintiff rather show name of cobhumidhars (four sons of late Ranjit). There is no P5 nor any entry in Girdawari. Admittedly Khatoni Ex PW1/1 was in the name of Ram Chander and his brother. It has come in evidence of defendant that subsequently name of some one else who purchased it was mutated. So name of plaintiff has never been either in form No. P 4 or P5.
35. Now coming to most appropriate proof of being in cultivatory possession. It is appropriate to mention 'The Delhi Land Reform Rule, 1962, Rule 49 to Rule
62. Rule 49 provides that patwari shall make field to field inspection every year of every village of his halqua. These inspection tour will be twice in agricultural year and wil'l be complete on 30 th Septeber and 15th February. Patwari shall make correction in Map. Than Khasra P4 will be prepared. Rule 63 says that column no.4 shall contain the name of tenure holder and subtenure holder which shall be derived from the information contained in Khatoni. Subrule 3 further says that if a person other than the one recorded in column no. 4 & 5 of P4 is found to be cultivatory occupation of land, then in case the land is vested in Gaon Sabha Form P 5 A will be issued and in case of any other land, form P5 will be issued. Thus, it is clear from the abovesaid discussion of Delhi Land Revenue Rules that it is not possible that if some person is in cultivatory possession that too since 1978 and there will neither be any entry made by Patwari either in P4 or P5 has not been issued. Another important aspect which is required to be noted is that if plaintiff claims himself to be in cultivatory possession since 1978, then it is hard to understand as to why he has never moved any Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 37 of 45 application to Patwari or any other revenue authorities for entering his name regarding possession in the revenue record. Admittedly there is no application or document on record showing that plaintiff has ever made any attempt for entering his name in the revenue record to establish that he has been in cultivatory possession. Thus, from the abovesaid discussion, it is clear that plaintiff has failed to establish of being in cultivatory possession of land in question since 1978. Similarly, once the possession has not been established, there is no case made out for the relief of injunction as well. Accordingly, issue no.(ii) stands decided against the plaintiff."
55. Admittedly, the aforesaid judgment dated 31.05.2007, Ex.DW1/10 has been confirmed in the first appeal as well as in the second appeal, however, review application in second appeal is stated to be pending before the Hon'ble High Court of Delhi. Be that as it may, the findings on the said issues are final till the same are disturbed by the Appellate Court, which has not been done so far. Meaning thereby, the plaintiff has not been in cultivatory physical possession of the suit land since 1978 and thus, there was no question of dispossessing the plaintiff from the suit land on 10.12.1995 by the defendants. Further, the then ld. Civil Judge held that family settlement had been arrived at as per Ex.P2, however, same was never acted upon by the parties as observed in para 32 of the said judgment. It was also observed by the ld. Civil Judge that family Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 38 of 45 settlement of partition has no legal consequence as the facts do not show that such family arrangement was accepted and implemented by all parties.
56. The inference which is drawn from the aforesaid judgment dated 31.05.2007, Ex.DW1/10 passed in 'suit bearing no. 435/03(New Suit No.585/06/03) titled as Rama Nand vs. Roop Ram and anr' is that the family settlement, Ex 2 is of no legal consequence which implies that the defendant no.2 continued to be the owner of the suit land. Further, the plaintiff was not in cultivatory physical possession of the suit land which implies that he was never dispossessed by the defendants. In the aforesaid factual matrix, the plaintiff was having no right over the suit land and thus, the relief of declaration regarding the cancellation of the sale deeds executed by the defendant no.2 in favour of the defendant nos. 3 to 5 could not be sought by him. Being legal owner of the suit land, the defendant no.2 was having right to dispose of the same during his lifetime and thus, the sale deeds executed by him could not have been challenged by the plaintiff.
57. Even PW1 during his crossexamination dated 06.07.2012 admitted that the defendant no.2 was the Bhumidar of the suit land and his name was never recorded as cultivator in the revenue records. PW1 deposed during crossexamination Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 39 of 45 dated 06.07.2012 as : " ...It is correct that the name of the cultivator of the agricultural land has to be recorded in the revenue record i.e. Khasra Girdawri and Khatoni. (Vol. In our case the name of the cultivator has been recorded of my father). It is correct that it is the owner of the land who is alone legally competent to create third party interest in respect thereof. I do not know whether my father had sold his entire land to the defendant nos. 3 to 5 (Vol. I came to know about this fact when the defendant no. 1 herein filed an affidavit in evidence in the earlier suit). It is correct that my name has never been recorded as the cultivator of the land in question in the revenue record at any point of time.... ".
58. PW1 further deposed during his crossexamination dated 28.02.2013 as : "...It is correct that my father was recorded owner of agricultural land. [Vol. I and my brother Roop Ram were in actual possession of the land by virtue of partition."
59. It is noteworthy that the defendant no.2 was the recorded owner of the suit land and that once the family settlement, Ex.P2 was never implemented and acted upon between the parties; the defendant nos. 2 had right to deal with the property the way he wanted during his life time.
60. It is also worthwhile to mention herein that plaintiff had earlier also filed 'suit no. 280/89 titled as Sh. Rama Nand Vs Sh. Ram Chander and another' on 07.03.1989, Ex DW1/2 for seeking Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 40 of 45 perpetual injunction against the defendant nos. 1 & 2 on the premise that the plaintiff being son of the defendant no. 2 and grandson of Sh. Ranjit is entitled to 1/4th share in the suit land. Pertinently, the plaintiff also relied upon the family settlement dated 02.04.1978 in the suit no. 280/89 and claimed to be in cultivatory physical possession of the suit land. The plaintiff claimed in the suit no. 280/89 that the defendant no.2 herein under the influence of the defendant no.1 herein was threatening to dispose of his 1/4th share in the suit land with the object of depriving the plaintiff of his due share in the ancestral property and thus, prayed for relief of permanent injunction. In the suit no. 280/89, following preliminary issue was framed as : " Whether rules of coparcenery are applicable over the land in dispute ? "
61. The then ld. Civil Judge vide judgment and decree dated 02.04.1990, Ex DW1/5 in 'suit no. 280/89 titled as Sh. Rama Nand Vs Sh. Ram Chander and another', held that the rules of coparcenery are not applicable over the suit land. It was held that the defendant no. 2 herein is absolute holder of the suit land being bhumidar, as such, plaintiff as son can claim no injunction from the court restraining the defendant no.2 / father from parting with possession of the suit land.
Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 41 of 4562. The finding in 'suit no. 280/89 titled as Sh. Rama Nand Vs Sh.
Ram Chander and another' given by court of Sh. Pradeep Chadha, the then ld. Sub Judge whereby it was observed that the plaintiff has no right to claim injunction from the court restraining father being bhumidar from parting with the possession of the suit land and further finding given by the court of Sh. Shailender Malik, the then ld. Civil Judge in 'suit bearing no. 435/03(New Suit No.585/06/03)titled as Rama Nand vs. Roop Ram and anr' that the plaintiff has not been in cultivatory physical possession since 1978 as claimed by him; as such, the plaintiff cannot reagitate the issues already decided again in the present suit.
63. It is thus evident that the defendant no.2 had right to deal with the suit land in the manner he wanted and selling of the same to the defendant nos. 3 to 5 cannot be questioned by the plaintiff herein.
64. Now, second limb of arguments of the plaintiff is that once the status quo order dated 21.11.1994 was passed with respect to the possession and title of the suit land by the Hon'ble High Court of Delhi where the suit was then pending, the defendant no.2 could not have sold the suit land to the defendant nos. 3 to 5 and the transfer of the same during the operation of the status quo is null and void and not operative in law. It is thus his Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 42 of 45 contention that once transfer of suit land is declared as null and void, he along with the defendant no.1 would be entitled to equal share in the said land.
65. In order to appreciate the contention of ld. counsel for the plaintiff, it is necessary to peruse the order dated 21.11.1994, relevant portion of which is reproduced as under : "21.11.1994 IA 10033/94 ...Notice for 8th March, 1995. In the meantime, defendants are directed to maintain status quo in relation to 2 bighas of land comprised in Khasra Nos.655/1, 875/1/1 and 880 in village Rajokari, New Delhi, shown in the plan in relation to possession and title.
Compliance of Order 39 Rule 3 CPC be made."
66.The meaningful reading of order dated 21.11.1994 is that status quo with respect to the title and possession of the suit land was passed till the next date of hearing as the 'word' used in the order is 'meantime' which implies 'till next date of hearing' and not 'till pendency of the present suit'.
67. Even if it is assumed for the sake of arguments that the status quo was operating at the time of the sale of the suit land to the defendant nos. 3 to 5 by the defendant no. 2, suffice is to state Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 43 of 45 that interim order was not passed on merits of the case but on the basis of the averments made in the plaint. It is also relevant to mention herein that the plaintiff has not disclosed about the previously instituted suit being Suit no. 280/89 decided by the court of Sh. Pradeep Chadha, the then Ld. Senior SubJudge on 02.04.1990, Ex. DW1/5, meaning thereby, the said interim order was obtained on the concealment of the facts, therefore, the plaintiff would not be entitled to derive any benefit from the said status quo order.
68. Ld. Counsel for the plaintiff has relied upon the following judgments as:
1. 85 (2000) 828 Delhi, Sanjay Gupta v. Kala Wati,
2. IV (2012) CLT 228 SC Vidurimpex & Traders Pvt Ltd. & ors., Bhagwati Developers Pvt. Ltd. v. Tosh Apartments Pvt. Ltd & ors.
3. AIR 2013 SC 2235, Jehal Tanti & ors. v. Nageshwar Singh (D) thr. Lrs.
4. 156 (2009) DLT 475, A.K. Chatterjee v. Ashok Kumar Chatterjee.
5.AIR 2006 Andhra Pradesh, Arjuna Subramanya Reddy v. Arjuna China Thangavelu.
69. The aforesaid judgments are distinguishable in the peculiar facts of the present case. In view of above, the plaintiff is not entitled to relief of declaration as sought for regarding cancellation of the sale deed executed by the defendant no.2 in favour of the defendant nos. 3 to 5.
Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 44 of 4570. Having decided issue no. 2 in favour of the defendants, issue nos. 1 and 3 are also decided in favour of the defendants and against the plaintiff.
Relief
71. In view of the above, suit filed by the plaintiff against the defendants is dismissed with no order as to costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open court on (Manjusha Wadhwa) this 12th December, 2017 Addl. District Judge04 (West) Tis Hazari Courts, Delhi Civ DJ No.609102/16 Sh. Rama Nand vs. Sh. Roop Ram & ors. Page 45 of 45