Delhi District Court
Sh. Hardwari Lal @ Hardwari Ram vs Cs No. 754/2017(515671/2016) on 14 June, 2021
: IN THE COURT OF :
DR. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
Civil Suit no. 754/2017 (515671/2016)
In the matter of:
1. Sh. Hardwari Lal @ Hardwari Ram
S/o late Sh. Bhagat Ram
R/o H. No. 417,
Village Mundhela Khurd, Najafgarh,
New Delhi 110 073
2. Sh. Chand Ram
S/o late Sh. Bhagat Ram
R/o H. No. 419,
Village Mundhela Khurd, Najafgarh,
New Delhi 110 073
3. Smt. Sumitra Devi,
W/o Sh. Chand Ram
R/o H. No. 419,
Village Mundhela Khurd, Najafgarh,
New Delhi 110 073
4. Smt. Sarbati
d/o late Sh. Bhagat Ram
R/o H. No. 419,
Village Mundhela Khurd, Najafgarh,
New Delhi 110 073
.....Plaintiffs
Versus
CS no. 754/2017(515671/2016)
Hardwari Lal @ Hardwari v. Laxmi Narain
Page no.1 of 69
1. Sh. Laxmi Narain
S/o late Sh. Rattan Singh
2. Smt. Ram Rati
Wd/o late Sh. Rattan Singh
3. Smt. Sunita
wd/o late Sh. Sat Narain
4. Ms. Renuka
D/o late Sh. Sat Narain
5. Ms. Poonam
minor daughter of late Sh. Sat Narain
Through her mother and natural guardian
Smt. Sunita wd/o late Sh. Sat Narain
6. Master Deepak
minor son of late Sh. Sat Narain
Through his mother and natural guardian
Smt. Sunita wd/o late Sh. Sat Narain
7. Master Satpal
minor sdon of late Sh. Sat Narain
Through his mother and natural guardian
Smt. Sunita wd/o late Sh. Sat Narain
All residents of :
House no. 95,
Village Mundhela Khurd,
New Delhi 110 073.
8. Smt. Subhagya Bahl
W/o Sh. Avtar Singh Bahl,
R/o 26, Ground Floor, Mandakini,
Greater KailashIV,
New Delhi 110 048
CS no. 754/2017(515671/2016)
Hardwari Lal @ Hardwari v. Laxmi Narain
Page no.2 of 69
9. Smt. Kamla Devi
W/o Sh. Jaswant Singh,
R/o Village Surhera
New Delhi
....Defendants
Date of Institution of suit : 27.02.2012
Date of transfer to this court : 20.07.2017
Date of reserving judgment : 14.06.2021
Date of pronouncement : 14.06.2021
SUIT FOR DECLARATION, CANCELLATION AND INJUNCTION
J U D G M E N T:
1. This is a suit for declaration, cancellation and injunction filed by the plaintiff against the defendant. Vide separate order passed today the present suit CS no. 754/2017 titled as Hardwari Lal v. Laxmi Narain and CS no. 570/2019 titled as Ram Rati & Anr. v. Subagya Bahl & Ors. are consolidated and the same be read as suit no. I and suit no. II respectively.
2. Brief facts relevant as emanating from the plaint of suit no. I, are as under :
Suit no. I
i) It is averred that plaintiff no. 1 and 2 are the sons and plaintiff no. 4 is the daughter of late Sh. Bhagat Ram respectively. Plaintiff no. 3 is the wife of plaintiff no. 2 and defendant no. 1 and 2 are the CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.3 of 69 son and widow of late Ratan Singh (brother of plaintiff 1, 2 and 4, hereinafter referred to as "the deceased") and defendant no. 3 to 7 are the widow and children of late Sh. Sat Narain, predeceased son of the deceased. The defendant nos. 8 & 9 are the vendees, who purchased share of the deceased in the undivided holding owned by the parties.
ii) It is averred that late Sh. Bhagat Ram was bhoomidhar and in cultivatory possession of land admeasuring 39 Bigha 10 biswani comprised in khata khatauni no. 129/124 (Khasra no 1 etc./525/1 admeasuring 13 bigha 7 biswa); two thirds share in land comprised in. Khata no 121/122 (Khasra no. 1 etc.19, 1 etc. /286/2, 1etc./409/3, 1 etc./522 and 1 etc./568 admeasuring 35 bigha 11 biswa); half share in land comprised in khata khatauni no. 140/144(khasra no. 1 etc./409/2 admeasuring 1 bigha 6 biswa) and; half share in land comprised in khata no. 119/119 (khasra no. 1 etc./382, 1 etc.566 admeasuring two bighas 13 biswa) in village Mundhela Khurd, Delhi (hereinafter referred to as the suit propertyI).
iii) It is averred that after the death of late Sh. Bhagat Ram plaintiff no. 1 and 2 along with the deceased and Ram Phal had succeeded to his holding in equal shares and their names were duly recorded in the revenue record vide mutation order no. 201/78 dated 04.04.1978. Shri Hari Singh was the bhoomidhar and in cultivatory possession of land admeasuring 26 bigha 6 biswa 10 biswani CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.4 of 69 comprised in Khata no. 139/144(khasra no. 1 etc./409/1 admeasuring 1 bigha 1 biswa); Khata no. 120/121 (Khasra no. 1 etc./386/1, 1 etc.567 admeasuring 11 bigha 9 biswa); one third share in Khata no. 121/122 (Khasra no.1 etc./19, 1 etc./286/2, 1 etc.409/3, 1 etc./522 and 1 etc. 568 admeasuring 35 Bigha 11 biswa) Khasra no.1 etc./409/2; half share in khata no. 119/119(Khasra no.1 etc./382, 1 etc./566 admeasuring 2 bigha 13 biswa); half share in Khata no. 140/144(Khasra no. 1etc./409/2 admeasuring 1 bigha 6 biswa); 1/8 share in khata no. 105 (Khasra no. 1.etc/214 admeasuring 9 biswa) and 1/4th share in khata no. 54 (Khasra no. 1 etc./550 admeasuring 4 biswa); in Village Mundhela Khurd (hereinafter referred to as the suit propertyII)
iv) Plaintiff no. 1, 2, 3 along with the deceased and Smt. Chander Pati widow of late Sh. Bhagat Ram had purchased the suit property II through sale deed dated 18.05.1982 and their names were duly mutated wide mutation order no. M1294 dated 16.09.1982. The entire holding i.e. suit propertyI and suit propertyII (hereinafter referred to as the said property) was held jointly by plaintiff no. 1 to 3 along with Smt. Chandra Pati, Ram Phal and the deceased. Smt. Chander Pati died on 15.2.1993 leaving behind a Will dated 10.02.1993 bequeathing her share in favour of her daughter Sarbati Devi i.e. plaintiff no. 4. Shri Ram Phal brother of plaintiff 1, 2 and the deceased had also died on 15.06.1995 and had left a will dated 05.06.1995 bequeathing his share in the suit propertyI to his brother CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.5 of 69 Hardwari Lal, plaintiff no. 1.
v) It is averred that after the death of Smt. Chander Pati, the deceased had filed an application before the revenue authorities for mutation claiming 1/3rd share out of the share of late Smt. Chander Pati, as the remaining two third share according to him, had devolved on plaintiffs no. 1 and 2 being the sons of late Smt. Chander Pati. In the said proceedings Smt. Sarbati had filed objections propounding will dated 10.02.19 93 left by her mother in her favour.
vi) It is averred that the plaintiff no. 1 had also sought grant of letters of administration in respect of the will dated 05.06.1995 executed by late Sh. Ram Phal in his favour being probate case no. 318/06 which was allowed by the ld. ADJ vide order dated 16.07.2008. An appeal was filed against the said order by the deceased bearing FAO no. 315/08.
vii) It is averred that the plaintiff had been constrained to file a suit for partition (civil suit no. 326/07) against the deceased under section 55 of the Delhi Land Reforms Act (for short, the Act) before the revenue court as the deceased had been threatening to sell his one fourth undivided share in the joint holding i.e. the suit propertyI and suit propertyII (the said property). The plaintiff filed an application under order XXXIX rule 1 and 2 CPC in the said suit seeking ad interim restraint order against the deceased from selling his one CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.6 of 69 fourth undivided share in the said property. The learned revenue court vide order dated 10.09.2007 passed the interim order directing the parties to maintain status quo qua the said property. The deceased was also served in the said suit and has also filed written statement wherein the deceased had asserted his one third share in the undivided share of both late Smt. Chander Pati and late Sh. Ram Phal over and above of his own share of 16 bigha 7 biswa and 13 biswani in the said property.
viii) It is submitted that the filing of the said suit had been necessiated as the deceased had even earlier tried to sell part of his undivided share in the said property and a suit for specific performance had also been filed against the deceased bearing Civil suit no. 1156/04, however, the learned court had refused a decree for specific performance and had directed refund of the consideration along with interest. It is averred that aggrieved by the ad interim orders passed dated 10.09.2007 by the learned revenue court, the deceased filed a petition under article 227 of the Constitution of India bearing CM (M) no. 149/08, before the Hon'ble High Court of Delhi, wherein the deceased disclosed having entered into an agreement to sell with defendant no. 8 and 9, however, no date or particulars of the alleged agreement to sell were stated in the said portion. The deceased appeared in the partition suit, wherein in the said partition suit, written statement had been filed by the deceased in AprilMay 2008, wherein he had not mentioned the details of his having entered CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.7 of 69 into any alleged agreement to sell regarding sale of his share in the said property with defendant no. 8 and 9.
ix) It is averred that a writ petition bearing no. WP(C) no. 669/08 as well as order dated 22.10.2008 allowing the writ petition was placed on record by the deceased in CM(M) no. 149/08. The said writ petition had been filed by the deceased seeking direction against the revenue authorities for grant of no objection certificate under the Delhi Land (Restrictions on Transfer) Act, for selling his share in the said property to defendant no. 8 and 9. Even in the said writ petition neither details of the alleged agreement to sell in favour of defendant no. 8 and 9 were given nor the pendency of the partition suit was disclosed. The plaintiffs had not been made a party in the said writ petition, therefore, in these circumstances, the deceased had by misrepresentation and suppression of facts fraudulently obtained the order dated 22.10.2008.
x) It is averred that, on enquiry from the revenue authorities, plaintiffs came to know that defendants no. 8 & 9 had filed an application for mutation of the names in the revenue records on the basis of an alleged sale deed dated 26.02.2009 whereby the deceased transferred his share in the said property (for short, the said sale deed) and the plaintiffs, thereafter, filed their objections in the said proceedings also.
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xi) It is averred that the plaintiff had also filed an application under order 39 rule 3A CPC in the partition suit pending before the revenue court against the deceased for violation of the order dated 10.09.2007. After the death of the deceased on 05.08.2011 and in the absence of defendants no. 1 to 4 being brought on record in CM (M) no. 149/08, the Hon'ble High Court has dismissed the same. The appeal filed by the deceased bearing FAO no. 315/08 against the order dated 16.07.08 in probate case no. 318/06 stands abated. In the mutation proceedings initiated by the deceased in respect of the share of late Smt. Chander Pati before the revenue authorities, legal heirs of the deceased have admitted that Will had been left by late Smt. Chander Pati.
xii) It is averred that the plaintiffs have three fourth share in the entire undivided agricultural holding i.e. the said property while the share of the deceased now stood devolved on defendants 1 to 7 is 1/4th. The said property is in possession and cultivation of the plaintiffs and defendants no. 1 to 7 which still stands unpartitioned. The possession of the share of the deceased in the said property was never handed over by the deceased to defendant no. 8 and 9. The said sale deed by the deceased, specially keeping in view the pendency of partition suit is void and untenable. Apart from that after partition, the share of the deceased in the said property would be of less then eight standard acres,therefore, in view of the provisions of the Act and specially provisions of section 57(1) of the Act and Rules CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.9 of 69 38 and 39 of the Rules, the said sale deed is also null and void.
xiii) It is averred that after valuation of the share of the deceased, the same has to be offered to the other cobhoomidhars i.e the plaintiffs. The provisions have been specifically incorporated into the Act keeping in with the objective of the Act to avoid fragmentation of agricultural land, thus by operation of law, plaintiffs have statutory right to purchase the share of the deceased after partition from the joint holding, therefore, the sale is not only against the provision of the statute but also infringes and violates the right of the plaintiffs as cobhoomidhar under the law.
xiv) It is averred that apart from the provisions governing partition of the land and the statutory rights of the shareholders, the sale is also in violation in contravention of Section 33 of the Act, whereby a bhoomidhar holding less than eight standard acres of land can only affect transfer of his holding, if the entire land held by him is transferred. However, the land sought to be transferred by the deceased by the said sale deed is 3.3867 acres, which is not the entire land held by the deceased in the said property. The said sale deed is executed in contravention of the Act, therefore, it is a void sale in terms of Section 45 of the said Act and liable to be so declared. The defendants no. 8 and 9 have threatened the plaintiffs and their agents of taking forcible possession of the said property or creation of 3rd party interest in the said property. Thereafter the CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.10 of 69 present suit has been filed.
Written statement of defendant no. 1 and 2
3. After filing of the suit summons for settlement of issues were issued to the defendants. Defendant no. 1 and 2 have filed written statement and submitted that the suit filed by the plaintiffs is not maintainable as no cause of action has ever been arisen in favour of the plaintiffs to file the present suit. The deceased could not execute the sale deed in favour of defendant no. 8 and 9 affecting the share of defendant no. 1 and 2 as the said property is joint agricultural holding. The defendant no. 1 and 2 had also filed a separate suit bearing no. 539/1 against defendant no. 3 and defendants no. 8 and 9 which is pending disposal.
4. It is submitted that the said property was held jointly by the plaintiffs no. 1 to 3 along with late Smt. Chander Pati, late Sh. Ram Phal and the deceased, the predecessorininterest of the defendants no. 1 and 2. The alleged Wills dated 10.02.1993 and 05.06.1995 were deliberately got executed before the death of Smt. Chander Pati and late Sh. Ramphal respectively. The filing of the application by the deceased for mutation of share of late Smt. Chander Pati is a matter of record. The defendants no. 1 and 2 came to know about the application for mutation filed by defendant no. 8 and 9 after the death of the deceased and they have immediately filed their objections in this regard as they were adversely affected. The defendant no. 1 and 2 were constrained to file a civil suit bearing CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.11 of 69 no. 539/2012 titled as Ramrati & Anr. V. Subhagya Bahl & Ors. against the defendants no. 3, 8 and 9 in order to protect their rights and for seeking the relief of declaration, cancellation of the said sale deed as well as permanent and mandatory injunction against the alleged sale of one fourth share in the said property by the deceased which is pending adjudication. It is submitted that after hearing the arguments the status quo was also passed in favour of the defendant no. 1 and 2 who are in possession of the share of the deceased in the said property and defendant no. 8 and 9 had never became owner in possession of any part of the said property. The said sale deed is a sham transaction and the same is outcome of a conspiracy between defendant no. 3, 8 and 9. Furthermore, the deceased could not have sold his share in the said property in view of the family settlement dated 24.12.2006.
5. Replication to the written statement of defendant no. 1 and 2 have also been filed on behalf of the plaintiff wherein the contents of the plaint has been reiterated and allegations leveled in the written statement are denied.
Written statement filed on behalf of defendant no. 8 and 9
6. The defendant no. 8 and 9 have also filed the written statement, and, interalia, have submitted that the plaintiffs have colluded with defendant no. 1 to 7 after the demise of the deceased and had filed the present suit which is nothing but gross misuse or abuse of the provisions of the Code and the plaintiffs have concealed CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.12 of 69 the material facts with oblique purpose. The present dispute relates to the said sale deed executed by the deceased. The deceased initially entered into an agreement to sell dated 27.06.2007 with one Sh. Subhash Yadav for the sale of his one fourth share in 65 bigha 7 biswas of land i.e. the said property. The deceased had represented that the said property was in the name of late Sh. Bhagat Ram and Sh. Hari Singh and share of Sh. Hari Singh has been purchased jointly by the deceased, plaintiff no. 1 to 3 and late Smt. Chander Pati. The deceased further represented that he was in exclusive possession and cultivation of his one fourth share in the said property. It is submitted that an agreement to sell dated 27.06.2007 was signed by the deceased, Smt. Sunita/ defendant no. 3 and Sh. Laxmi Narain/defendant no. 1; through which the deceased had received a sum of ₹ 8 lakhs and had also issued a separate receipt. It is submitted that under the agreement to sell dated 27.06.2007, the vendee Subhash Yadav had an option to nominate the said agreement to any person. Shri Subash Yadav proposed to husband of defendant no. 8 and Jaswant Singh, husband of defendant no. 9 to purchase the share of the deceased in the said property who had agreed to purchase the share of the deceased in the said property for a sum of ₹ 6,025,000. An agreement to sell was executed between the deceased, Subash Yadav, Jaswant Singh and Avtar Singh.
7. It is submitted that the partition of the agricultural land, the mode of partition, the manner of partition of the property and the decision to partition the said property lies exclusively with the special CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.13 of 69 forum i.e. court of revenue assistant under section 185 of the Act, therefore, the civil courts are completely barred from deciding any issue touching upon the partition of an agricultural land. Secondly, under the provision of the Act, the partition of agricultural land is not mandatory and that the revenue assistant in its discretion may or may not ordered partition of holding. Thirdly, there is no statutory right of preemption under the Delhi land reforms Act. In addition to it, there is no bar under the Delhi land reforms Act on parties themselves partitioning their shares in the agricultural land. The deceased was already in exclusive cultivatory possession of his 1/4th share in the said property. Moreover, under section 44 of the Act the landholder has an unqualified right to transfer his holding in a joint property. It is submitted that the plaintiffs has themselves stated unconditionally in CS No.326/2007 that the deceased was cultivating his 1/4th share in the said property and, therefore, no question of partition arises. It is submitted that the averments made in the plaint lies within the exclusive jurisdiction of revenue assistant and that the alleged right of plaintiff's claim as mentioned above cannot be adjudicated by this court, therefore, the present suit is barred by law and no cause of action accrued in favour of the plaintiffs to seek the relief claim therein. It is prayed that the suit filed by the plaintiff be dismissed.
8. The plaintiff filed replication to the written statement filed by defendant no. 8 & 9 reiterating the contents of the plaint and denied the allegations levelled in the written statement.
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9. After completion of the pleadings, vide order dated 13.05.2012, following issues were framed in Suit I :
(a) Whether the sale by Shri Rattan Singh in favour of Smt. Subhagya Bahl and Smt. Kamla is in violation of interim order in the partition suit before the revenue authorities and if so, to what effect? OPP
(b) Whether the sale by Shri Rattan Singh in favour of Smt. Subhagya Bahl and Smt. Kamla Devi is in violation of any of the provision of the Delhi Land Reforms Act and if so, to what effect? OPP
(c) Whether the plaintiffs have no locus standi to seek the relief of cancellation of sale deed? OPD 8 & 9
(d) Whether the plaintiffs are in collusion with the defendants no. 1 to 7 and if so, to what effect? OPD 8 & 9
(e) Relief ;
Evidence in SuitI
10. Thereafter, the matter was listed for recording of plaintiff's evidence. In order to prove its case, plaintiff No. 2 has been examined as PW1/A, who has deposed in terms of affidavit Ex. PW1/A and has relied upon the following documents :
(i) The sale deed dated 18.05.19 82 is exhibited as Ex.
PW1/1,
(ii) Certified copy of the plaint in Suit no. 326/2007 and the application under Order XXXIX rule 1 & 2 CPC are Ex. PW1/2 & Ex. PW1/3, respectively.
(iii) Certified copy of the order dated 10.09.2007 is Ex. PW1/4,
(iv) Certified copy of the written statement is Ex. PW1/5, CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.15 of 69
(v) Certified copy of the CM(M) No. 149/08 and WP(C) No. 669/08 are Ex. PW1/6 & Ex. PW1/7,
11. PW1 has been cross examined at length and thereafter the plaintiffs evidence in the matter was closed and matter was listed for recording of defendants evidence.
12. In order to prove its case, defendant No. 1 Laxmi Narain has been examined as DW1 who has deposed in terms of Ex. DW1/1, and has relied upon the following documents :
(i) The plaint of suit no. 539/12 is Ex. DW1/1,
(ii) The family settlement dated 24.12.2006 is Ex. DW1/2,
13. Sh. Shri Bhagwan has been examined as DW2 who has deposed in the lines of defendant No. 1. DW 1 is the attesting witness of the family settlement dated 24.12.2006. He has proved on record the family settlement dated 24.12.2006 as Ex. D2.
14. Smt. Subhagya Bahl, has been examined as DW3, who has deposed in terms of her examination in chief by way of affidavit as exhibit DW3/A.
15. Shri Jaswant Singh has been examined as DW4 who has deposed in terms of his examination in chief by way of affidavit as Ex. DW4/A. CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.16 of 69 Suit no. II (CS No. 570/2019) Ram Rati v. Subhagya Bahl)
16. The relevant facts necessary for disposal of the SuitII are as under:
i) The plaintiff no. 1 is the widow and plaintiff no. 2 is son of late Rattan Singh (in short, the deceased) who died on 05.08.2011 and defendant no. 3 is widow of Sat Narain, the predeceased son of the deceased, who died on 15.09.2006. The deceased was co bhoomidhar along with late Sh. Hardwari Lal, Sh. Chand Ram, Smt. Sumitra and Smt. Sarbati of the joint holding of agricultural land admeasuring 65 bigha 7 biswas (the said property). The said property comprised of land inherited by the deceased along with his brother Sh. Hardwari Lal, Sh. Chand Ram and late Sh.Ram Phal from his father late Sh. Bhagat Ram, who was a bhoomidhar (the suit propertyI) as well as the land jointly purchased by the deceased along with Sh. Hardwari Lal, Sh. Chand Ram, Smt. Sumitra and late Smt. Chander Pati from one Sh. Hari Singh (the suit propertyII). The details of the land and share of the deceased along with others as duly mutated through mutation order dated 04.04.1978 after the death of the father of the parties namely late Sh. Bhagat Ram and the mutation order dated 16.09.1982 after purchase of the land from Sh. Hari Singh have already been reproduced in para no. 2(ii) and 2(iii) of this judgment.
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ii) The deceased along with his brother Sh. Hardwari Lal, Sh. Chand Ram and late Sh. Ram Phal was also in cultivatory possession of land admeasuring 6 biswa 10 biswani in Khata no. 140/144 which land had earlier been in cultivatory possession of late Sh. Bhagat Ram.
iii) Apart from the land mentioned above, the deceased along with his brother late Sh. Hardwari, Sh. Chand Ram, Smt. Sumitra and Smt. Chander Pati was also in cultivatory possession of land admeasuring 2 bigha 2.5 biswani in Khasra no. 1 etc. 214 (1 biswa 2.5 biswani) and Khasra no.1 etc. 550 (1 biswa) being a part of the suit propertyII.
iv) Smt. Chander Pati died on 15.02.19 93 and Smt. Sarbati daughter of late Smt. Chander Pati and sister of the deceased claimed her right to succeed to the share of late Smt. Chander Pati in the suit propertyII, vide will dated 10.02.1993. Shri Sh. Ram Phal, the brother of the deceased also died on 15.06.1995 and Sh. Hardwari Lal claimed to have succeeded to the share of late Sh. Ram Phal in the suit propertyI through Will dated 05.06.1995. The deceased contested both the wills claiming 1/3 share in the holding of both late Smt. Chander Pati and late Sh. Ram Phal.
v) The deceased entered into a family settlement dated CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.18 of 69 24.12.2006 with the plaintiffs and defendant no. 3, widow of the predeceased son of the deceased and it was agreed upon that out of 1/4 share in the said property i.e. 16 Bigha 13 biswani of the deceased in the undivided and un partitioned holdings(the said property), the deceased would have 1/4 share, the plaintiffs would have also 1/4 share each and defendant no. 3 along with her children would have 1/4 share. The share of each of the parties was 4 bigha 1 biswa and 18.25 biswani. The said family settlement was duly acted upon and agricultural land (1/4th share of the deceased in the said property) was divided into four shares.
vi) The deceased, subsequently, had conveyed that the deceased along with defendant no. 3 had entered into an agreement to sell their share to defendant no. 1 and 2 for an amount of ₹ 40 lakhs per acre and the sale deed shall be executed after partition of the holdings for which his brother Sh. Hardwari, Sh. Chand Ram, Smt. Sumitra wife of Sh. Chand Ram and Smt. Sarbati had already filed a suit for partition before the revenue court. The entire holdings (the said property) continued to be in possession and cultivation of the cobhoomidhars including the plaintiffs and even continued to be so today. The plaintiffs after the demise of the deceased were informed by defendant no. 1 and 2, that they have initiated mutation proceedings of their name in the revenue record alleging that the defendant no. 1 and 2 have purchased the share of the deceased in the unpartitioned agricultural land (the said property).
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vii) The plaintiff no. 2 on further inquiries learned that defendant nos. 1 and 2 have sought mutation of their names on the basis of the said sale deed. The plaintiff had filed objections before the revenue authorities requesting that no mutation be carried out as there was no question for the deceased to have sold his undivided share in the agricultural holdings (the said property) in which the plaintiffs had half share.
viii) The plaintiffs alleged that the said sale deed is a fraud played by the defendants in as much as the plaintiff had never consented to have their share also sold by the deceased. The said sale deed also depicts that the amount of sale consideration is unconscionable in as much as the price of the land is ₹ 55 lakhs per acre whereas the sale consideration is only mentioned as ₹ 60,00,025, therefore, there is a apparent collusion between the defendants and the deceased as the signature of the deceased has been obtained fraudulently and by way of misrepresentation.
ix) That apart from a fraud being played upon by the defendants, the said sale deed allegedly executed by the deceased is invalid in view of the section 33 of the Act in as much as the deceased had a share of 16 Bigha 7 biswa 13 biswani apart from the land comprised in Khasra no. 214 and 515 purchased from Sh. Hari Singh, which is apparently less than eight standard acres. It is also reflected in the CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.20 of 69 sale deed that Sh. Hari Singh had not sold his entire holding. The land detailed in the said sale deed alleged to have been executed by the deceased is for the land admeasuring 16 Bigha 5 biswa 2.5 biswani, therefore, the said sale deed is illegal/null and void.
x) It is further averred that the said sale deed is outcome of the fraud and collusion between the defendants and barred by the provisions of the Act, in as much as no sale could be affected as there existed the rights of the children of late Sh. Sat Narain, the pre deceased son of the deceased in view of the amended provisions of the Hindu Succession Act. The minor children of the predeceased son of the deceased namely Ms. Renuka, Poonam(minor daughter), Master Deepak (minor son) and master Satpal (minor son) have a right the suit propertyI, therefore, no sale could have been affected by the deceased in respect of the land, in which the right of these children of the predeceased son of the deceased had a share. Furthermore, there was no legal necessity for the deceased to have sold his 1/4 share in the said property which included the share of the plaintiffs and children of late Sh. Sat Narain. The deceased could not, in any case, have any right to sell his share in the unpartitioned land (the suit propertyII) purchased by him from Sh. Hari Singh. The said sale transaction is also barred by section 33 of the Act.
xi) It is averred that the plaintiff along with the cobhoomidhar namely Sh. Hardwari Lal, Sh. Chand Ram, Smt. Sumitra and Smt. CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.21 of 69 Sarbati are in cultivatory possession of the joint un partitioned land (the said property). The defendant no. 1 and 2 despite being aware of having no right under the void sale deed have been threatening to obtaining forcible possession of the 1/4th share of the deceased in the said property. Hence the suit.
Written Statement of defendant no. 1 & 2
17. The defendant no. 1 and 2 were served and they filed written statement and inter alia submitted that the plaintiffs have filed the present suit without there being any right in the suit land. The plaintiffs want to challenge the said sale deed after the demise of the deceased, whereas the said sale deed was executed with the consent of the plaintiffs. The deceased had sold his 1/4 share in the 65 bighas 7 biswa of land i.e. the said property and prior to that the deceased had entered into an agreement to sell dated 27.06.2007 with Sh. Subhash Yadav, wherein the deceased had represented that his family members including the plaintiffs and defendant no. 3 are owner in possession of the said property. The said agreement to sell was entered into with the consent and knowledge of plaintiffs and defendant no. 3 for an amount of ₹ 8 lakhs as earnest money which was received by the deceased.
18. It is further averred that the vendee in terms of the said agreement to sell dated 27.06.2007, had an option to nominate and assign the said agreement to sell to any person and, therefore, the vendee under the agreement to sell dated 27.06.2007 proposed to CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.22 of 69 late Sh. Avtar Singh, husband of defendant no. 1 and Sh. Jaswant Singh husband of defendant no. 2, who agreed to purchase the 1/4th share of the deceased in the said property from the deceased for an amount of ₹ 6,025,000. It was agreed upon that the sale deed will be executed in favour of defendant no. 1 and 2. The deceased, Sh. Subhash Yadav and late Shri Avtar Singh and Jaswant Singh applied for grant of no objection certificate under the provisions of Delhi land (Restriction on Transfer) Act 1972, however, the authorities concerned failed to grant necessary sanction to the deceased. The deceased filed writ petition no. 669/2008 before the Hon'ble High Court of Delhi and the Hon'ble High Court of Delhi was pleased to disposed off the said writ petition through order dated 22.10.2008 with directions to the authorities concerned to consider the case of the deceased for grant of no objection certificate. Thereafter, the deceased was granted no objection certificate and the said sale deed was registered on 26.02.2009.
19. The plaintiffs and defendant no. 3 were party to all negotiations in respect of the sale transaction between the deceased on one part and late Avtar Singh, Jaswant Singh and Subash Yadav on the other part with respect to the sale of the share of the deceased in the said property and various amount of money from the vendees was received by the deceased on demand of the plaintiffs and defendant no. 3. Even the sale deed is signed as a witness by defendant no.3/Sunita, daughterinlaw of the deceased. The agreement to sell and receipt dated 27.06.2007 is also signed by CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.23 of 69 Sunita, (defendant no. 3) and Laxmi Narain (plaintiff no. 2).
20. It is averred that the plaintiff no. 2 has never worked and has always been a burden on the deceased and plaintiff no. 2 had incurred heavy debts, which were paid by the deceased under duress and fear. A suit titled Dayanand versus Laxmi Narain bearing no. 74/2007 was filed against plaintiff no. 2 for recovery of an amount of ₹ 616,000 and another suit bearing suit no. 38/2007 titled as Mahavir Singh versus Laxmi Narain was filed against plaintiff no. 2 for the recovery of ₹ 6, 16,000 and both the above said suit were settled only when the deceased paid the debts of the plaintiff no. 2. The said money was paid by the deceased from the sale consideration received from the sale of his share in the said proeprty. The plaintiffs and defendant no. 3 and Sh. Hardwari Lal, Sh. Chand Ram, Smt. Sumitra and Smt. Sarbati were hands in gloves with each other and have entered into a conspiracy to harass defendant no. 1 and 2 to extract money. Sh. Hardwari Lal, Sh. Chand Ram, Smt. Sumitra Devi and Smt. Sarbati have also filed a suit for cancellation of the said sale deed. The family settlement dated to 24.12. 2006 is a forged and fabricated document made by the plaintiffs and defendant no. 3 to make out a case against defendant no. 1 and 2.
21. It is submitted that the deceased during his lifetime had filed a FAO no. 315/2008 challenging the will propounded by Sh. Hardwari Lal claiming the estate left behind by late Sh. Ram Phal. The deceased also challenged the will of late Smt. Chander Pati, his CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.24 of 69 mother. The plaintiffs and defendant no. 3 would be directly beneficiary of the successful outcome of both the cases, however, the plaintiffs and defendant no. 3 did not persue the said proceedings. The defendant no. 1 and 2 have filed the proceedings of the mutation case no. 155/2010, however, defendant no. 1 and 2 have not been supplied with any objections filed by the plaintiffs in the said mutation case. The plaintiffs never filed objections against the said mutation applied by defendant no. 1 and 2, however, after the demise of the deceased on 05. 08. 2011, the plaintiffs have filed the objections merely to create evidence to support their frivolous case. The case of the plaintiff is based on falsity in as much as plaintiffs and defendant no. 3 were consenting parties to the agreement to sell dated 27.06.2007 and the sale deed dated 26.02.2009. The plaintiffs and defendant no. 3 were also the beneficiary of the sale consideration received by the deceased.
22. It is averred that the plaintiffs and defendant no. 3 have never raised any objection during the lifetime of the deceased either against the sale of share of the deceased in the said property or against the possession of defendant no. 1 and 2 over the portion of the said property. Now the plaintiff has turned dishonest and sought cancellation of the said sale deed. The plaintiffs are neither in possession of the portion of said property nor they have any title to the portion of said property, therefore, in such an event, only the revenue court under the provisions of the Act can decide the claims of the plaintiffs as per the mandate of law laid down by the superior CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.25 of 69 courts. The suit is also barred by section 34 of the Specific Relief Act as plaintiffs have only sought declaration of the cancellation of the document without seeking the for the relief of title and possession. The deceased was in exclusive cultivatory possession of his 1/4 share in 65 Bigha 7 biswa of land(the said property). The deceased was owner in possession in the joint holding with Sh. Hardwari Lal, Sh. Chand Ram, Smt. Sumitra and Smt. Sarbati. Before the purchase of the share of the deceased in the said property, late Sh. Avtar Singh and Sh. Jaswant Singh acted with due diligence by verifying the revenue record to ascertain the entitlement of the deceased of his share in the said property, however, the deceased never represented about his entitlement over 6 biswa 10 biswani of the land in Khata no. 140/144 and 2 Bigha 2.5 biswani in Khasra no. 1 etc 214 and 1 biswa in Khasra no. 1etc. 550 as alleged by the plaintiffs.
23. It is submitted that Sh. Hardwari Lal, Sh. Chand Ram, Smt. Sumitra and Smt. Sarbati have admitted that the deceased was in exclusive continuing possession of his 1/4 share in the said property in plaint in the suit no. 326/2007, therefore, there was no question of any partition pending between the parties. The deceased had received an amount of ₹ 29 lakhs up to September 2007 and the deceased has signed and executed the sale deed on 26.02.2009, however, during his lifetime he never challenged the said sale deed. Now the plaintiff with other alleged cobhoomidhar have devised a false story to harass the defendant no. 1 and 2 to extract the money. It was represented by the deceased to the vendees that the holdings CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.26 of 69 of the deceased are separate and partitioned and the said fact has also been admitted by the alleged cobhoomidhar in partition suit no. 326/2007. It is denied that the sale deed is barred by section 33 of the Act. Plaintiff has no right to challenge the sale deed on the basis of bar under section 33 of the Act. The defendant no. 1 and 2 have been in possession of the suit land since 26.02.2009. The suit deserves to be dismissed.
24. The plaintiff filed replication to the written statement filed by defendant no. 1 & 2 reiterating the contents of the plaint and denied the allegations levelled in the written statement.
25. After completion of the pleadings, vide order dated 13.05.2012, following issues were framed in Suit II :
Issues in Suit II
(a) Whether there was any family settlement in the branch of Shri Rattan Singh and in which the land of which sale deed has been executed by Shri Rattan Singh in favour of Smt.Subhagya Bahl and Smt. Kamla Devi had fallen to the share of Smt. Ram Rati, Sh. Laxmi Narain and and Smt. Sunita and if so to what effect? OPP
(b) Whether Smt. Ram Rati, Shri Hari Narain and Smt. Sunita were privy to a sale by Shri Rattan Singh and if so, to what effect ? OPD CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.27 of 69
(c) Whether the sale by Shri Rattan Singh in favour of Smt. Subhagya Bahl and Smt. Kamla Devi is in violation of any of the provision of the Delhi Land Reforms Act and if so, to what effect? OPP
(d) Relief ;
26. Plaintiff no. 2 appeared as PW1 and filed his evidence affidavit, however, through order dated 30.11.2019, this suitII was clubbed with suitI for the purpose of recording evidence and it was ordered that the evidence led in suitI is to be tread in suitII, in terms of the statement of the parties.
27. I have heard the ld. counsel for the parties and with their assistance have gone through the record and the written submissions filed by them.
(Findings on issues in Suit I and Suit II) Issue no. (a) of Suit I
28. To prove its case plaintiff no.2/Sh. Chand Ram appeared as PW1 and testified through his evidence affidavit Ex. PW1/A and reiterated the contents of the plaint. PW1 testified that the property owned by Sh.Hari Singh admeasuring 26 Bigha 6 Bigha 10 biswani (the suit propertyII) was purchased by the deceased, late Smt. Chander Pati and plaintiff no. 1 to 3 through the sale deed dated 18.05.1982 (Ex. PW1/1) and the same was mutated through mutation order M1294 dated 16.09.1982. The entire holding (the said property) which includes the suit propertyI inherited from late Sh.
CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.28 of 69 Bhagat Ram and the suit propertyII purchased from Sh. Hari Singh was jointly held by plaintiff no. 1 to 3 along with late Smt. Chander Pati, late Sh. Ram Phal and the deceased. The estate left by Smt. Chander Pati was bequeathed in favour of plaintiff no. 4 through will dated 10.02.1993. Shri Ram Phal, the brother of plaintiff 1, 2 and the deceased, died on 15.06.1995 who had left a will dated 05.06.1995 bequeathing his share in the suit propertyI to plaintiff no. 1. The deceased after the death of his mother Smt. Chander Pati filed an application before the revenue authorities for mutation of land to the extent of 1/3rd share of Smt. Chander Pati in the suit propertyII, however, Smt. Sarbati filed an objection on the basis of will dated 10.02.1993 left by her mother late Smt. Chander Pati. The plaintiff no. 1 has also got a letter of administration in respect of will dated 05.06.1995 left behind by late Sh. Ram Phal in his favour through probate order dated 16.07.2008 passed in probate case no. 318/2006.
29. PW1, further testified that plaintiffs had been constrained to file a suit for partition(case no. 326/2007) against the deceased under section 55 of the Act before the revenue court as the deceased had been threatening to sell his 1/4 undivided share in the joint holding (the said property). An application under order XXXIX rule 1 and 2 CPC had been filed by the plaintiffs seeking ad interim restraint order against the deceased restraining the deceased from selling his 1/4 undivided share in terms of Ex. PW1/2 and Ex. PW1/3 and the revenue court passed the status quo order dated 10.09.2007(Ex.
CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.29 of 69 PW1/4) and the deceased was served in the said partition suit and filed written statement (Ex. PW1/5). The deceased has sought his 1/3 share in the undivided share of both late Smt. Chander Pati and late Sh. Ram Phal over and above his own share of 16 Bigha 17 biswa and 13 biswani in the said property.
30. PW1 further testified that the deceased tried to sell part of his undivided 1/4 share in the joint holding and a suit for specific performance has been filed against him bearing CS no. 256/2004, however, the specific performance was declined and deceased was directed to refund the sale consideration along with interest. The deceased has filed a writ petition no. WP(C) 669/2008 and order dated 22.10.2008, was passed in his favour however, the deceased neither made the plaintiffs as a party in writ petition nor had disclosed the pendency of any partition suit and fraudulently obtained the order dated 22.10.2008 from Hon'ble High Court of Delhi. It transpired that defendant no. 8 & 9 (defendant no. 1 and 2 in suitII) are seeking mutation of the share of the deceased in the said property on the basis of the said sale deed, therefore, the plaintiffs filed an application under order 39 rule 2A CPC in the suit pending before the revenue court for violation of the status quo order dated 10.09.2007. The CM(M) no. 149/2008 already stood dismissed being abated after the demise of the deceased. The deceased had filed FAO no. 315/2008 against the order dated 16.07.2008 in probate case no. 318/2006 which also stood abated.
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31. PW1 further testified that the plaintiffs have 3/4th share in the said property while the share of the deceased, now devolved on the defendant no. 1 to 7 is 1/4th. The sale deed has been executed in violation of the interim order, therefore, the same is null and void. The deceased has sought transfer of 3.3867 acres of land in terms of the said sale deed, however, the share of the deceased comes to 3.413 acres other than assertions of the deceased regarding 1/3 rd share in the share of Smt. Chander Pati in the suit property II and 1/3 rd share in the suit propertyI, left behind by late Sh. Ram Phal. The share of the deceased in the said property is 3.4091 acres.
32. During the course of examination PW1 admitted that defendant no. 8 and 9 had not sought possession of the said property. PW1 admitted that the deceased had not sold his entire share through the said sale deed dated 26.02.2009. PW1 did not know whether there was an agreement to sell executed by the deceased on the date when PW1 has filed a suit for partition. The share of the late Sh. Ram Phal in the suit propertyI, has devolved upon Sh. Hardwari Lal on the basis of the will. PW1 admitted that the will of late Sh. Ram Phal was challenged by the deceased and the said will was declared genuine by the probate court, Tis Hazari Courts. The deceased has filed an appeal before the Hon'ble court for grant of probate, however, the appeal has abated because legal heirs of the deceased were not brought on record. The deceased has challenged the order granting status quo in the suit for partition and PW1 might have filed reply in the appeal filed before the Hon'ble CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.31 of 69 High Court of Delhi. No family partition has taken place between the parties.
33. Shri Laxmi Narain appeared as DW1 and testified through affidavit by way of evidence Ex. DW1/A and reiterated the contents of the written statement and, interalia, testified that the deceased could not executed a sale deed in favour of defendant no. 1 affecting the share of the other coowners. The defendant no. 1 and 2 (plaintiffs in suitII) have filed separate suit titled as Ram Rati v. Subhagya Bahal against the defendant no. 3 and defendant no. 8 and 9 which is pending for disposal. The defendant nos.1 and 2 have filed objection before the revenue authorities on coming to know of the application for mutation filed by defendant no. 8 and 9 after the demise of the deceased. The said property was held jointly by plaintiff no. 1 to 3 along with late Smt. Chander Pati, late Sh. Ram Phal and the deceased. The deceased had filed application for mutation of the 1/3rd share of late Smt. Chander Pati in the suit property II to which objection was filed by one Smt. Sarbati on the behest of the plaintiffs, to usurp the share of the deceased.
34. DW1 testified that the suit for partition filed by the plaintiffs against the deceased is presently pending adjudication before the revenue court. The said property is in cultivatory possession of the defendant nos. 1 and 2, and 3 to 7 jointly with the plaintiffs and no part of the said property was ever handed over by the deceased to defendant no. 8 and 9. DW1 admitted that the CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.32 of 69 deceased alongwith Sh. Hardwari Lal, late Smt. Chander Pati and Smt. Sumitra wife of Sh. Chand Ram has purchased the suit propertyII, from one Sh. Hari Singh jointly in village Mundhela Khurd and the said property which included Suit propertyI and suit propertyII) was jointly held by the plaintiffs along with late Smt. Chander Pati, late Sh. Ram Phal and the deceased.
35. DW1 admitted that Smt. Chander Pati has bequeathed her share in the suit propertyII in favour of her daughter Smt. Sarbati Devi by will dated 10.02.1993. DW1, thereafter, admitted that the share of late Sh. Ram Phal, in the suit propertyI was bequeathed in favour of Sh. Hardwari Lal by virtue of the Will executed in his favour by late Sh. Ram Phal. DW1 admitted, the execution of DW1/2 and testified that settlement was acted upon and all the family members used to cultivate the said property jointly.
36. Sh. Sri Bhagwan appeared as DW2 and testified through affidavit by way of evidence exhibited as Ex. D2 and reiterated the contents of the written statement. DW2 testified that family settlement was signed on 24.12.2016 by the deceased, his son Laxmi Narain, his wife Ram Rati and his daughterinlaw, Sunita, wife of late Sh. Sat Narain predeceased son of the deceased in his presence as well as in the presence of Sh. Dharam Pal. In cross examination DW2 admitted that family settlement Ex. DW 1/2 was got executed in his presence by the deceased.
CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.33 of 69
37. Defendant no. 8 appeared as DW 3 and testified through her affidavit by way of evidence Ex. DW3/A and reiterated the contents of the written statement and testified that the share of the deceased in the said property was purchased by defendant no. 8 and 9 from the deceased after the deceased had obtained the no objection certificate from the competent authority under the Act. The defendant no. 1 to 7 have never challenged the said sale deed during the lifetime of the deceased and after the death of the deceased the plaintiff and defendant no. 1 to 7 have turned dishonest. The deceased had challenged the forged will dated 10.02.1993 propounded by his sister claiming share of his mother late Smt. Chander Pati, (in the suit propertyII), however, all the defendants with malafide intention had entered into a settlement with plaintiffs and they never defended the claim of the deceased in those legal proceedings despite the fact that the said claim, if had been allowed, defendant nos. 1 to 7 would have been the direct beneficiary of the same. Defendant no. 1 to 7 have actively participated in the entire sale from the execution of agreement to sell dated 27.06.2007 and receipt dated 27.06.2007 till the execution and registration of the said sale deed.
38. DW3 further testified that the legal heirs of the deceased turned dishonest after his demise and sought cancellation of the said sale deed, which was executed with their consent and with their involvement. DW3 testified that defendant nos. 8 & 9 came to know about the suit no. 74/2007 titled Dayanand versus Ashwani Narayan, CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.34 of 69 which was filed against defendant no. 4 for the recovery of ₹ 616,000 and another suit bearing no. 30/2007 titled as Mahavir Singh versus Laxmi Narain where the deceased had to pay the debt amount of his son/defendant no. 4. The plaintiffs have already admitted the actual possession of the deceased with respect to his 1/4th share in the said property in the partition case no. 26/2007. In crossexamination DW 3 admitted that she was not present at the time when any of the document was executed between her husband, Sh. Subhash Yadav and the deceased in the year 2007, however, she came to know about the documents in the year 2009.
39. Learned counsel for the plaintiff during the course of arguments has raised the contention that a suit for partition i.e. the said suit was filed by the plaintiff against the deceased under section 55 of the Act and along with this said suit an application under order 39 rule 1 and 2 CPC seeking interim order was also filed by the plaintiff and injunction order was passed on 10.10.2007(Ex. PW1/4) directing the parties to maintain status quo till further orders, however, the deceased appeared in the said suit and filed written statement(Ex. PW1/5) thereby acknowledging that the said property was jointly held. The 1/4th share of the deceased in the said property comes to 16 bigha 7 biswa and 13 biswani out of the total joint holding admeasuring 65 bigha 7 biswa (the said property). The deceased has challenged the order dated 10.09.2007 through petition no. CM (M) no. 149/2008 before the Hon'ble High Court of Delhi which was dismissed as abated on the demise of deceased.
CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.35 of 69 The said sale deed executed by the deceased transferring his undivided 1/4th share in the said property, during the operation of the ad interim orders in the partition suit, which is still pending before the revenue authorities, has been executed in contravention of the Act as well as statutory rights of the plaintiff being co bhoomidhar under the Act. The said sale deed be declared null and void being executed in flagrant violation of the status quo order dated 10.10.2007. In support of his contention is he has relied on following judgments : "Krishna Kumar Khemka v. Grindlays Bank PLC 1990(3) SCC 669, Styabrata Biswas vs Kalyan Kumar Kisku 1994 (2) SCC 266, Surjit Singh & Ors. v. Harbans Singh & Ors.1995(6) SCC 50, Savitri Devi v. Civil Judge, Sr. Division AIR 2003 Allahabad 321, Mulraj v. Murthi Raghonathji Maharaj, AIR 1961 SCC 1386, Keshrimal Jivji Shah v. Bank of Maharashtra 2004 (122) Co.Cases 831 Bombay, Praveen Garg v. Oriental Bank of Commerce 128(2006) DLT 811 and RMG Builders Pvt. Ltd. v. U.S. Constructions Pvt. Ltd., judgments passed by Hon'ble High Court of Delhi in CAS (C) no. 86/12.
40. The ld.counsel for defendant nos. 1 & 2 (plaintiff in suit II) have also argued on the same lines as has been argued by ld. counsel for plaintiffs.
41. In rebuttal, the counsel for defendant no. 8 and 9 in (civil suit I) and defendant no. 1 and 2 (civil suit II) has raised the contention that the said defendants has purchased the 1/4th share of CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.36 of 69 the deceased in the said property through the said sale deed by making payment of the full consideration in good faith after taking due and reasonable care in assessing the title of the deceased.
42. It is further the contention of defendant nos. 8 & 9 that even if the said sale deed has been executed during the subsistence of the interim order dated 10.09.2007 passed by ld. revenue court, even then on the basis of principle of lis pendens as provided under Section 52 of the Transfer of Property Act, the defendant no. 8 and 9 stepped into the shoes of the deceased; and on the basis of the said interim order, the said sale deed cannot be held illegal and cannot be declared null and void. In support of his contention he has relied upon the following judgments: Nagubhai Ammal v. B. Shyam Rao 1956 AIR (SC) 593, Madhukar Nivrut Jagtap v. Pramilabai Chandulal Parandekar 2020 (1) CLJ 188 SC, Pranakrushna v. Umakant Panda AIR 1989 Orissa 148, AIR 1919 Madras, 712, AIR 1920 Magpur 712, AIR 1954 Allahabad 422, AIR 1951 Hyderabad 167, Sheikh Khan Aali v. Pastorji Eduljee Guyder judgment passed by Hon'ble High Court of Calcutta in case no. 1769/1894, Bishnu Dev Shah v. Natho Yadav 1981 (29) BL JR 462, Pritam Singh v. Virsa Singh 1990(1) RCR 246, T.V. Ashok Kumar Govindamal, judgment passed by Hon'ble Supreme Court in CA 10325/2010, Hardev Singh v. Gurmail Singh AIR 2007 (SC) 1058.
43. It may be noted that the sole controversy under this CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.37 of 69 issue is that whether the said sale deed executed in violation of the order dated 10.09.2007 passed by the revenue court directing the parties to maintain status quo will per se render the said sale deed null and void and/or whether the said sale deed is bound by the principle of lis pendens as provided under Section 52 of the Transfer of Property Act.
44. It may be noted that the ratio of case law N. Ammal (supra) Madhukar Nivrut Jagtap (supra), Bishnudeo Shah (supra) Sheikh Khan Aali (supra) and Pranakrushna (supra) is to the effect that the doctrine of lis pendens is not to annul all transfers effected by parties to a suit but only to render them subservient to rights of parties under decree which may be made in that suit. The Section 52 of the Transfer of Property Act did not completely bar transactions pending in a suit in which the rights to the parties are in question and, therefore, the transfer relating to the property in dispute is not void. The mandate of doctrine of lis pendens is that if the property is transferred during the pendency of lis, the subsequent transferee will be bound by the ultimate decree that may be passed in the suit.
45. In Bishnudeo Shah (supra), it was held that in a partition suit, transfer of the share by the cosharer in the ancestral property owned by all cosharers was also held to be bound by the doctrine of lis pendens. Relevant observation as contained in para no. 6 are reproduced as under :
CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.38 of 69 "Learned Counsel for the respondents urged that in a partition suit the doctrine of lis pendens does not apply, I am unable to accept this contention as being well founded in law. Learned Counsel placed reliance upon a decision of the Calcutta High Court in the case of Shaik Khan Ali v. Pestoriji Eduljee Guydar. 1Cal. W.N. 62. That was a case in which in a partition suit the shares of the parties were admitted and it was admitted case of the contesting parties that they wanted a partition by metes and bounds. In that event, the transfer by one of the admitted cosharers was held not to be hit by the doctrine of lis pendens. It is no doubt true that if in a partition suit the shares of all parties are admitted, the doctrine of lis pendens is inapplicable because in the event of a decree being passed, the transferee would be entitled to substitute security. That is not the case here. As already stated above, the compromise decree clearly states that there had already been a previous partition in the family by metes and bounds in which the disputed land had fallen to the share of Shiva Singh and Mathura Singh, who were in actual possession of the same before the institution of the suit. The effect of the decree thus would . be that there was no unity of title and unity of possession between the parties on the date of the institution of the suit and that makes all the difference. "
In Nagubhai Ammal (supra), it was held that the doctrine of lis pendens did not wipe out the sale altogether but merely rendered the said sale, subject to the decree in the said suit. The effect of Section 52 is not to wipe it out altogether but to subordinate it on the rights based on the decree in the suit. As between the parties to the transaction, however, it was perfectly valid and operated to vest title of the transferor in the transferee. The words "so as to affect the rights of any other party thereto CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.39 of 69 under any decree or order which may be made therein", make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is in this view that transfers pendentelite have been held to be valid and operative as between the parties.
Similarly, in Madhukar Nivrut Jagtap (supra), it was observed that the effect of doctrine of lis pendens is not to annul all transfers effected by parties to a suit but only to render them subservient to rights of parties under decree or order which may be made in that suit.
46. Thus, the object of Section 52 of the TP Act is merely to make the alienation subservient to the decision of the Court and not to restrain the parties from entering into it or making it void, abinitio or illegal or making the party subject to consequences for breach of order of the Court. Thus, the effect of the Doctrine of Lis Pendens is not to annul the conveyance, but only to render it subservient to the rights of the parties to the litigation. As against it, the object of Order XXXIX Rule 1 and 2 CPC is to totally restrain a party, pending the litigation, from creating any third party interests in the suit property and ensuring that the suit property remains in the same condition as it was on the date of filing of the suit. Thus, the object of Order XXXIX Rule 1 and 2 CPC, under which the order of injunction is passed, is totally different from that of Section 52 of the TP Act. This provision restrains the party from entering into any sort of transaction or CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.40 of 69 alienation, whatever may be the circumstances or whatever may be the exigencies.
47. Thus, it is not only the purport, import and object of Order XXXIX Rule 1 and 2 of CPC of granting the relief of interim injunction restraining the other party from creating third party interest in the property pending the suit, is different than that of the Principle of lis pendens contained in Section 52 of Transfer of Property Act, but even the consequences for the breach of such order are different, as it may entail into punishment, which consequences are not at all contemplated under Section 52 of Transfer of Property Act. Alienation of property lis pendens is merely in the nature of a gamble, which party may willingly enter into without any apprehension of abovesaid consequences as such party has always the chance of winning the case and thereby retaining the property. The only consequence the party may face, is of loosing that property and nothing more. In that respect also, the transaction will always remain binding between transferor and purchaser. Therefore, alienee can very much receive purchaseprice from transferor as such transaction does not suffer from any taint of illegality. As against it, the order of temporary injunction can and does avoid multiplicity and complications by deterring the party at the threshold itself from entering into transactions, which effect Doctrine of Lis Pendens does not have.
48. It may be noted that the ratio of the case law relied upon CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.41 of 69 by the counsel for the plaintiffs as detailed in para no.39 of the judgment regarding the effect of interim injunction on the sale deed executed during the subsistence of such interim injunction was reiterated by Hon'ble High Court in case titled as RMG Builders (supra) and in Para no. 7 of the said judgment, it was observed as under :
"7. In fact, the Apex Court and the different High Courts have consistently taken the view that execution of any sale deed in disobedience of an interim order of the Court is a nullity. Some of the relevant judgments are reproduced hereinbelow:
(i) In Krishna Kumar Khemka vs. Grindlays Bank P.L.C. (1990) 3 SCC 669, it has been held as under: "16. .....Therefore the tenancy created in favour of the Tatas was in breach of the order of the Court and consequently the Tatas cannot claim any protection under the provisions of the Act and they are liable to be evicted. ......In any event as observed above, the new tenancy created in their favour contrary to the orders of the Court does not create a right and is liable to be cancelled....."
(ii) In Satyabrata Biswas vs. Kalyan Kumar Kisku, (1994) 2 SCC 266¸ it has been held as under: "29. ...... Hence, the grant of sublease is contrary to the order of status quo. Any act done on the teeth of the order of status quo is clearly illegal. All actions including the grant of sublease are clearly illegal....
xxx xxx xxx CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.42 of 69
31. The parties are relegated to the position as on 159 1988. Somani Builders are hereby directed to deliver vacant possession to the Special Officer within one month from today...."
(iii) In Surjit Singh vs. Harbans Singh, (1995) 6 SCC 50, it has been held as under: "4. ....In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes....."
(iv) In Savitri Devi vs. Civil Judge, Gorakhpur, AIR 2003 Allahabad 321, it has been held as under: "10. .....It is settled legal proposition that sale deeds so executed are a nullity as having been executed in disobedience of the interim order of the Court. In Mulraj v. Murti Raghunathji Maharaj, AIR 1967 SC 1386, the Hon'ble Supreme Court considered the effect of action taken subsequent to passing of an interim order in its disobedience and held that any action taken in disobedience of the order passed by the Court would be illegal, subsequent action would be a nullity.
xxx xxx xxx
12. Therefore, there is no doubt that the alleged sale deeds are nullity, meaning thereby non est, CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.43 of 69 unenforceable and in executable and deserve to be ignored.
xxx xxx xxx
28. To sum up the case, the sale deeds allegedly executed by the respondent No.3 in favour of respondent Nos. 4 to 6 are nullity as had been executed in disobedience of the interim order passed by the trial Court on 1881992........"
(v) In Ashwani Kumar vs. Lachi Ram, AIR 2003 HP 28, it has been held as under: "17. .....If after the grant of temporary injunction by the Court, a party brings about any change in the subjectmatter of the suit in disregard of the orders of the Courts, it is within the power of the Court to restore the things to the position where they stood immediately before the grant of the ad interim injunction."
(vi) In Keshrimal Jivji Shah vs. Bank of Maharashtra, (2004) 122 Comp Cas 831 (Bom), it has been held as under: "26. ......It is time that we recognize the principle that transfer of immovable property in violation of an order of injunction or prohibition issued by Court of law, confers no right, title or interest in the transferee, as it is no transfer at all. The transferee cannot be allowed to reap advantage or benefit from such transfer merely because he is not party to the proceedings in which order of injunction or other prohibitory direction or restraint came to be issued. It is enough that the transferor is a party and the order was in force. These two conditions being satisfied, the transfer must not be upheld. If this CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.44 of 69 course is not adopted then the tendency to flout orders of Courts which is increasing day by day can never be curbed......"
(vii) In Punjab National Bank vs. Delite Properties Pvt. Ltd., AIR 2004 Calcutta 114, it has been held as under: "17. It is settled position of the law that if any person or persons in breach of the order of Court comes in possession in a suit property they do not acquire any right or authority and they are to be dealt with amongst other by passing the order of eviction and further with an appropriate order of punishment...."
(viii) In Praveen Garg vs. Oriental Bank of Commerce, 128 (2006) DLT 811, it has been held as under: "6. The question that arises for my consideration is whether the Recovery Officer in view of a stay order by the competent court could have proceeded with such an auction and whether such an auction which then creates a title, can be set aside?.......From the law enunciated by the Supreme Court it is clear that sale of property is non est. The Recovery Officer had no right to subject the property to sale.
Consequently, any auction pursuant thereto would be of no consequence."
(ix) In Madhur Poddar vs. Ashok Poddar, (2006) 2 Calcutta Law Times 133 (HC), it has been held as under: "7. ....I am of the further view that if any property is sold and/or alienated in reach of the order of injunction transferee cannot get any title. Under the law such as action would be invalid and nonest....
CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.45 of 69 xxx xxx xxx
49. The law is thus settled. There is nothing to the contrary. If an argument to the contrary were to be accepted Court orders would loose their meaning and administration of justice will be affected. Here the breach was carried out with impunity and with misplaced confidence that they will get away with the wrong. The order has to be enforced. The property has to be brought back to the company. The respondents cannot be allowed to either escape the punishment or the consequences of their action."
49. However, there is another line of judgments passed by the superior courts, wherein the view has been taken that, even if, the sale deed is executed in violation of the interim order passed by the court, the said sale deed is not per se be declared as null and void, however, the same shall be bound by the principles of lis pendens as provided under Section 52 of the Transfer of Property Act. The said sale deed shall be subject to the final fate of the order/decree passed by the court concerned. It is also relevant to mention here that in Pranakrushna (supra), on the similar facts, it has been observed as under :
"Considering the basic question and examining the scheme of S. 64 and Order 39 of the Code, and the authorities on the subject, I feel myself in respectful agreement with the view expressed by G.K. Misra, J. Although the view of the English Court has been that since a transferee pendente lite from a party would be bound by the result of the suit, no' injunction need be granted against a party that he should not make any alienation of the property in suit. (See (1841) 49 ASR CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.46 of 69
252), the consensus of the Indian courts is that the fact that a party is protected by lis pendens is no ground why he should not also be further protected by an order of injunction restraining the other party from alienating the property. There is abundance of authorities of the Indian courts that the doctrine of lis pendens contained in S. 52 of the T.P. Act does not completely bar transaction pending in a suit in which the right to that property is in question and therefore the transfer relating to the property in Dispute is not void. 11 simply lays down that if such a transfer takes place, the subsequent transferee will be bound by the ultimate decree that may be passed in the suit. All, such transfers, therefore, are only voidable and that too at the option of the affected party to the proceeding. Apart from the decision of the Lahore High Court which had taken this view, I find that the High Courts of Madras, Nagpur, Allahabad and Hyderabad have also taken somewhat similar views in AIR 1919 Mad 772; AIR 1920 Nag 12; AIR 1954 All 422 and AIR 1951 Hyd 167. I, therefore, with due reference to P.C. Misra, J. find myself unable to subscribe to his doubt expressed in the referring order. It may, however, appear to some mind that if in spite of an order of injunction a marketable title can be conveyed by the person restrained by a court of law and the person claiming protection under the order of injunction has again to vindicate his right, against the purchaser, then what at all would be the advantage of getting the order of injunction inasmuch as even without any such order, the transaction would be hit by the doctrine of lis pendens.
7A. This plea prima facie may raise the finger. But on going deeper, there would appear an apparent distinction between an alienation made in violation of the order of injunction and that without any such order. The person obtaining an order of injunction has got some additional advantage of prosecuting the offender CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.47 of 69 and also getting his| properties attached and sold as laid down under Order 39, Rule 2A of the Code. This would work out a deterrent for his indulging in the: act of violation of the order of injunction. The order of injunction, in my view, does not in any way militate against the right, title and interest of the offender in the property in question like an order of attachment of the property which makes the property in custodia legis. The order of restraint does not in that way deprive or suspend any right of a person, but only aims at a prohibition to act in a particular manner. In a case of attachment also, private alienations are not invalidated for all purposes; but it is only as against the claims enforceable under the attachment. I would, therefore, reject the contention of Mr. Kar for the petitioners that the alienation in question would be void in the eye of law. "
50. It may be noted that plaintiffs are seeking an order from the Court declaring the said sale deed to be invalid in view of the alleged breach of injunction order. However, the alleged breach of the interim order did not automatically lead to declare said sale deed as null and void. In this regard, though not quoted, reliance is placed upon Thomson Press (India) Ltd. vs. Nanak Builders & Investors P. Ltd. & Ors., AIR 2013 SC 2389., wherein the Supreme Court observed in para52 as under:
"52.There is, therefore, little room for any doubt that the transfer of the suit property pendete lite is not void ab initio and that the purchaser of any such property takes the bargain subject to the rights of the plaintiff in the pending suit. Although the above decisions do not deal CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.48 of 69 with a fact situation where the sale deed is executed in breach of an injunction issued by a competent Court, we do not see any reason why the breach of any such injunction should render the transfer whether by way of an absolute sale or otherwise ineffective. The party committing the breach may doubtless incur the liability to be punished for the breach committed by it but the sale by itself may remain valid as between the parties to the transaction subject only to any directions which the competent Court may issue in the suit against the vendor."
51. Thus, in the aforesaid decision of the Supreme Court, it has been made explicitly clear that even if the sale deed is executed in breach of any order of injunction, the sale, by itself, will not be invalid. The sale will remain valid as between the parties to the transaction subject only to any directions which the competent court may issue in the suit against the vendor. At the same time, the Supreme Court clarified that the party, committing breach, may undoubtedly, incur the liability to be punished for the breach committed, but the sale, by itself, may remain valid as between the parties to the transaction.
52. It may be noted that the ratio of Thompson Press (supra) was taken into consideration by the Hon'ble High Court of Delhi. In CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.49 of 69 this regard, though not quoted reliance is placed on judgment Om Prakash v. Santosh Chaddha, passed in RFA No. 18/2003,wherein Hon'ble High Court of Delhi has observed as under :
"21. That brings me to Thomson Press (India) Limited and A.K. Chatterjee supra relied upon by the counsel for the appellant. The Supreme Court in Thomson Press India Ltd., noticed not only Surjeet Singh and Vidur Impex & Traders Pvt. Ltd. supra but also a host of other judgments and:
(i). held that the question involved in Surjit Singh was of impleadment of an assignee under an Assignment Deed executed in violation of the injunction order and impleadment was refused for the reasoning aforementioned;
(ii). further held that subsequently a three Judge Bench in Savitri Devi Vs. District Judge, Gorakhpur (1999) 2 SCC 577 also faced with the question of impleadment of an assignees in violation of an injunction order had allowed such impleadment, holding that the plea of the assignees of being a bona fide transferee for value in good faith may have to be decided before it could be held that the assignment in their favour created no interest in the property and that if the application for impleadment is thrown out without a decision on the said plea, the assignees will certainly come up with a separate suit to enforce their alleged rights and which would result in multiplicity of proceedings; the assignees were thus held to be necessary and proper parties;
Surjit Singh was distinguished by observing that in that case there was no dispute that the assignees had knowledge of order of injunction whereas the same was to be decided in Savitri Devi;
CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.50 of 69
(iii). gave no reasoning as to why the observations aforementioned in Vidur Impex & Traders Pvt. Ltd. did not apply;
(iv). held the impleadment of subsequent transferee to be permissible by Section 19(b) of Specific Relief Act;
(v). found the assignee seeking impleadment to have entered into a clandestine transaction with full knowledge of injunction order but nevertheless allowed impleadment as a party for enforcing performance against him;
(vi). Justice T.S. Thakur in his supplementing judgment held that it was a settled legal position that a transfer pendente lite is not illegal ipso jure but remains subservient to the pending litigation and further held that though it was so held in the context of lis pendens and not in the context of transfer in breach of an order of injunction but there was no reason why the breach of any such injunction should render the transfer ineffective in as much as though the party committing breach may incur liability for consequences thereof but the sale or transfer by itself may remain valid as between the parties thereto subject only to any direction which the Court which had granted the injunction may issue against a transferor or vendor.
22. Thus, we on the one hand have judgments of Surjit Singh and Vidur Impex & Traders Pvt. Ltd. holding a sale/transfer or assignment in violation of injunction order to be not conferring any title and to be ignored and on the other hand the judgment in Thomson Press holding such transfer/sale assignment in violation of injunction order to be valid between the parties thereto though remaining subject to directions/orders of the CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.51 of 69 Court granting the injunction. All the said three judgments are by Benches presided by two Judges. Savitri Devi which is a judgment of a three Judge Bench does not deal with the said aspect.
23. In view of the subsequent judgment in Thomson Press, need is not felt to deal with my own judgment in A.K. Chatterjee.
24. Though there appears to be a dichotomy of views as aforesaid but it is worth highlighting that all the cases aforesaid were concerned with the question of allowing impleadment or not of assignee in violation of an injunction order in the proceeding/suit in which the injunction order was issued. While in Surjit Singh and Vidur Impex & Traders Pvt. Ltd., for the reason of holding such assignment to be conferring no title, impleadment was refused, in Thomson Press it was allowed, not by holding such assignment to be valid but for the reason of such assignee being bound by the final judgment/decree in such suit/proceeding. Savitri Devi though also allowed impleadment, but for the reason of adjudicating whether the assignee had knowledge of order of injunction or not "
53. A bare perusal of the ratio of the judgment passed in the case of Om Prakash (supra) by placing reliance upon Thompson Press (supra) leads to conclude that, even if the said sale deed has been executed in violation of the interim order/status quo order passed by the ld. revenue court, the said sale deed will be bound by the doctrine of lis pendens and will be subject only to any direction issued by the revenue court, which has granted the injunction against the transferor or vendor. Therefore, in view of the ratio of the case law, as discussed above, the said sale deed cannot be declared null CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.52 of 69 and void and, thereafter, cancelled in as much as mere violation of the status quo order passed by the revenue court does not ipso facto rendered said sale deed as null and void, however, the same is subject to the final fate of ultimate decree/order passed in the said partition suit pending before the revenue court. Apart from that, it may also be noted that it is the pleaded case of the plaintiffs that the deceased was having 1/4th share in the said property, otherwise, the deceased has sold the land to defendant No. 8 and 9, which did not include complete 1/4th fourth of the deceased in the said property and, therefore, the said sale deed is also hit by Section 33 of the Act.
54. Therefore, it is not the case of the plaintiffs that the deceased has disposed off the land more than his 1/4 th share in the said property through the said sale deed to defendant No. 8 and 9, therefore, as per the ratio of Vishnu Das Shah(supra) doctrine of lis pendens is applicable to the said sale deed and the said sale deed will be subject to the final outcome/order/decree passed in the said partition suit pending before the revenue court.
55. From the above discussion at the cost of repetition, it can be safely concluded that the said sale deed cannot be declared null and void only on the ground that the status quo order has been passed by the revenue court, otherwise, the same is bound by the doctrine of lis pendens and the said sale deed would be subject to any directions passed by the revenue court at the time of final adjudication of the said partition suit.
CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.53 of 69 Issue no. (b) of SuitI Issue no. (c) of SuitII
56. During the course of argument, the contention of ld. counsel for plaintiffs is that the share of the deceased in the said property after partition would be less than eight standard acres, therefore, in view of the provision of the Act specially section 57(1) and rule 38 and 39 of the Rules, after valuation of the share of the deceased the same has to be offered to the other co bhoomidhar/plaintiffs. The said provision has been specifically incorporated into the Act keeping in view the objective of the Act to avoid fragmentation of agricultural land, therefore, plaintiffs by operation of law has statutory rights to purchase the share of the deceased after its partition from the joint holding. The sale is thus not only against the provision of the statute but also violates the rights of the plaintiff as cobhoomidhar under the law.
57. It is further the contention of the plaintiffs that the sale deed is also in violation and contravention of Section 33 of the Act which provides that the bhoomidhar holding less than 8 standard acres of land can only transfer his holding, if the entire land held by the transferor is transferred. The land sought to be transferred by the deceased through the said sale deed is 3.386 acres, which is not the entire share held by the deceased in the said property. The deceased in the partition proceedings as well as in the writ petition filed by the deceased had asserted his 1/4 share in the said proeprty to be 16 CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.54 of 69 Bigha 7 biswa 13 biswani (3.413 acres) other than his share in the share of late Smt. Chander Pati and late Sh. Ram Phal in suit propertyII & suit propertyI respectively. However, according to the plaintiffs the share of the deceased in the said property is 3.4091 acres, therefore, the land sought to be transferred by the said sale deed is not the entire land of the deceased and the said sale deed is thus barred by section 33 of the Act. Furthermore, the said sale deed could not have been executed by the deceased as the deceased itself has claimed 1/3 share in the land of late Smt. Chander Pati and late Sh. Ram Phal over and above his 1/4 share in the said property and the sale deed thus was not for the entire share of the deceased in the said property as sought to be asserted and claimed by the deceased. Therefore, the sale deed transferring 3.386 acres of land of the deceased is void in terms of section 45 of the said Act.
58. In the same manner, the contention of defendant no. 1 and 2 (plaintiffs in suitII) is on the same lines as that of the plaintiffs and, interalia, it is contended the deceased has not sold his entire land holding to defendant no. 8 and 9 as his actual landholding was only 3.4091 acres, whereas the deceased has disposed of only 3.386 acres through the said sale deed and therefore, he would have been left with less than 8 standard acres of land. This fact has not been denied by the defendant no. 8 and 9 either specifically or by necessary implication in their written statement.
59. It is further the contention of defendant no. 1 and 2 CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.55 of 69 (plaintiffs in suitII) that the deceased was having a share in Khasra no. 1 etc. /214 and 1 etc./ 550, as per the record produced by the Patwari before this court and both these Khasras have private wells there, and as per section 8 of the Act, both these wells have continued to be held privately and, therefore, form part of the land of the deceased in the said property. Apart from that, there is also the part of the estate falling in Khasra no. 386/2, having a public well which has been sold as land in terms of sale deed dated 18.05.1982 executed by late Sh. Hari Singh in favour of the deceased and his brothers and the said khasra no. 386/2 also stood transferred under the said sale deed. No specific mention has been made of these two private well separately anywhere either under the sale deed dated 18.05.1982 or the said sale deed. There is no disclosure about the third well situated in khasra no.386/2 in the said sale deed. The land falling in both the said Khasra numbers got transferred with their respective khara numbers in the said sale deed accordingly. Therefore, the existence of well in the said khasra numbers did not take away the status of land falling in those khasra numbers as that of the "land" as defined under the Act and this land falling in above said Khasra numbers is to be treated as "land" under the Act for the purpose of Section 33 of the Act. Therefore, violation of section 33 of the Act is a writ large as per the contents of the said sale deed, as such, the said sale deed is barred by section 45 of the Act.
60. It is further the contention of ld. counsel for defendant nos. 1 & 2 (plaintiff in suitII) that the cognizance of the suit under CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.56 of 69 section 185 of the Act has been provided in respect of only cases mentioned under column 3 of schedule I and only court mentioned in column 7 have been given such powers and in respect of violation of section 33 of the Act suit for ejectment will lie, if the possession is with the plaintiff as per Section 42 of the Act, and as per section 185 r/w Column 3 and Column 7 of ScheduleI the court of revenue assistant can take cognizance. However, under section 45 of the Act, when the issue of possession is not involved, then the civil court can take cognizance as no bar under section 185 r/w column 3 and column 7 of scheduleI has been made either directly or by necessary implication, therefore, jurisdiction to entertain the civil suit would be with the civil court under section 9 of CPC only. Admittedly, the defendant no. 8 and 9 are not in possession of 1/4th share of the deceased in the said property and defendants no. 8 and 9 have never initiated any proceedings for ejectment, therefore, the civil court has power to take cognizance for violation of section 33 r/w section 45 of the Act. As far as no objection certificate granted by the concerned authorities is concerned the same has never been produced by defendant no. 8 and 9 before this court, therefore, the said sale deed, is violative of the provision of the Act.
61. Per contra, the contention of learned counsel for defendant no. 8 and 9 (defendant no. 1 & 2 in suitII) is that plaintiffs have filed wrong document in respect of wrong Khasra no.409 (16) in as much as the actual Khasra no. is 409/2 having one Bigha and 6 biswa of land, which is well proved by the plaintiff itself. The Khata CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.57 of 69 khatoni contains the details of Khasra no. 409/2 as well as in the written submissions it is contended to be khasra no. 409, but in the entire pleadings, plaintiffs have not mentioned any Khasra no. 409, however, plaintiffs have mentioned Khasra no. 409/2(16) in para no. 2 and 4 of the plaint. Therefore, the plaintiff has wrongly argued that the Khata no. 140/144 is having Khasra no. 409 and not the Khasra no. 409/2.
62. It is further the contention of the defendant no. 8 & 9 that plaintiffs Ram Rati and Laxmi Narain (plaintiff in suitII) has tried to mislead this court by way of filing written submission in as much as, the items at Sl. no. 12 in the comparative table detailed in the said written submission, depicts the share of land of the deceased in the said property. It is claimed that deceased had 1/4 th share in Khasra no. 409/2(16), whereas the deceased has 3/16th share in khasra no. 409/2 (16), which was to be transferred to the defendant nos. 8 and 9 by way of the said sale deed also. The khasra no. 409/2 is admeasuring 1 bigha 6 biswa wherein, late Sh. Hari Singh was having half share, therefore, the deceased got 1/8 share in Khasra no. 409/2 from Sh. Hari Singh in terms of sale deed dated 18.05.1982 and after the death of his father late Sh. Bhagat Ram, the deceased got 1/16 share of late Sh. Bhagat Ram, in the said khasra. Therefore the deceased was having 3/16 share in Khasra no. 409/2 Khata no. 140/144.
63. It is the further the contention of defendant no. 8 and 9 CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.58 of 69 (defendant no. 1 & 2 in suitII) that as per section 57 of the Indian evidence Act, this court has power to take judicial notice of the fact that the deceased has got no objection certificate in respect of the sale/purchase of the agricultural land. The NOC no. 5132 dated 06.02. 2009 is mentioned in the said sale deed, therefore, there is no violation of section 33 of the DLR Act. Furthermore, if there is violation of section 33 of the Act the jurisdiction vest with the revenue court and not with the civil court. In this regard reliance has been placed upon : Vidya Dhari Khanna v. Sandeep Khanna 46 (1992) DLT 682, Shribhagwan v. V.R. M. Estate Pvt. Ltd. 221(215) DLT 207, Rohtash Singh v. Newzone Buildtech Pvt. Ltd., 2019 Law Suits (Del.) 1259.
64. It may be noted that the sum and substance of the contention of the plaintiffs and defendant No. 1 and 2 (plaintiff in suit II) is that that deceased had not disposed off his1/4 th share in the said property and, therefore, the said sale deed is hit by section 33 of the Act and be declared as null and void by virtue of section 45 of the Act, whereas the contention of the learned counsel for defendant No. 8 and 9 (defendant no. 1 & 2 in SuitII) is that whatever the share of the deceased was in the said property was transferred through the said sale deed in favour of defendant No. 8 and 9 after getting the no objection certificate from the revenue authority, therefore, the deceased was left with no other land so that the said sale deed may be held to be hit by section 33 of the Act.
CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.59 of 69
65. In this regard it may be noted that in the written submissions filed by defendant No. 1 and 2, it is the contention of learned counsel for defendant no. 1 & 2 that the total area falling in1/4th share of the deceased in the said property was 3.4094 acres whereas the agreement to sell dated 27.06.2007 contains the details of the land owned by the deceased to the tune of 3.4036 acres and at the time of execution of the said sale deed, the deceased has transferred 3.3867 acres of land as his 1/4th share in the said proeprty to defenadnt no. 8 & 9, therefore, the alleged difference between the total area of land owned by the deceased and transferred the same, to defendant no. 8 & 9 and the total area earmarked to the dceased as his 1/4th share in the said proeprty comes to 108.96 sq.yds (0.0227 acres).
66. First of all, this court would like to deal with the contention of learned counsel for defendant no. 1 and 2 (plaintiffs in suitII) that the land falling in Khasra numbers at serial no. 12, 13, 14 of the comparative chart mentioned in the written submissions, showing the details of 1/4th share of the deceased in the the said property, is conspicuous by its absence in the said sale deed is as under:
CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.60 of 69 Sl.No. Khasra Part of Share in Part of ATS Share Partorf Sale Share in Number land in land in dated in ATS Deed dated Sale reference reference 27.06.2007 26.02.2009 Deed Sl. Nos.1 to 11 XXXX
12. 1 + 1/4th + 1/4th + 3/16th etc./409/2 (16)
13. 1 + 1/32th X X X X etc./214(0
9)
14. 1 + 1/16th X X X X etc./550(0
4) Total 66 bighas 16 bighas 7 biswas 6 16 bighas 6 biswas 16 bighas 5 biswas Area biswani 15 biswani 2.5 biswani 3.4094 acres 3.4036 acres 3.3867 acres
67. So far as Khasra no.1 etc. 409/2 (16) is concerned, it is the contention of learned counsel for defendant no. 1 and 2 that the deceased was having1/4th share in the said Khasra number and the said details of this particular khasra number were also mentioned in the agreement to sell dated 27.06.2007, however, the details of the share of the deceased in the said Khasra no. are transferred to defendant no. 8 & 9 the extent of 3/16 th share only. In this regard, suffice is to say that late Sh. Hari Singh, predecessorininterest of the suit propertyII was having half share in Khasra no. 1 etc. 409/2, therefore, the deceased got 1/8th share in Khasra no. 1 etc. 409/2 from the said Hari Singh through sale deed dated 18.05.1982 and on the demise of his father the deceased got 1/16th share in Khasra no. 1 etc.409/2 (by his father late Shri Bhagat Ram. Therefore, the share CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.61 of 69 of the deceased in said Khasra no. 409/2(16)= 1300x3/16 = 243.75 (244 sq. yards) which has been transferred by the deceased to the defendant nos.8 and 9 through the said sale deed.
68. As far as the Khasra no. 1 etc./214 (09) and 1 etc./550 (04) are concerned, the share of the deceased is claimed to be 1/8 th share and 1/4th share respectively (in amended written submissions of defendant no. 1 & 2 it is 1/32th share and 1/16th share respectively), however, no such details of these Khasra numbers has been detailed either in the said sale deed or in the said agreement to sell dated 27.06.07. The contention of the learned counsel for defendant no. 8 and 9 is that the deceased is not having 1/8th share and 1/4th share in the above said khasras, however, the share of land of the deceased in said Khasra number comes to 1/32th share and 1/16th share respectively. Therefore, the share of the deceased in these khasra numbers comes to 14.625 sq. yards and 12.5 sq. yards respectively which comes to about 27 sq. yards and this area is included in the public wells situated in the said khasra. It may be noted that the area of land in Khasra no. 1 etc. 214(09) and 1 etc. 550(04) which was owned by the deceased comes to 27 sq. yards and this is the total area which is stated to be not included in the said sale deed. Otherwise, also, this area is very small area in comparison to the area of 8 biswas in the above said two khasra numbers wherein the public wells are situated.
69. It may be relevant to mention here that in the above said CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.62 of 69 both Khasra numbers as per the field book placed on record by the concerned Patwari, who was summoned, and during the course of argument, the relevant portion of the said field book was taken on record with the consent of ld. counsel for the parties, and a bare perusal of the entries in the said field book in respect of the above said two khasra numbers depicts that there are public wells admeasuring 4 biswa each detailed as Gair Mumkin Pukhta Jadi and Gair Mumkin Chah Pukhta situated in the said khasra numbers. Therefore, these two khasra numbers are forming part and parcel of the public wells so the above said two khasra numbers are excluded from the purview of the "land" as defined under the Act.
70. It may be relevant to mention here that there is no deficiency so far as the 1/4th share of the deceased in the said property which has been transferred by the deceased to defendant no. 8 and 9 through the said sale deed, even if, for the sake of arguments, it is presumed that there is a deficiency in the area of the land constituting 1/4th share of the deceased in the said property, though not admitted, the deceased has got a NOC from the revenue authorities bearing no. 5132 and the said NOC has been detailed in the said sale deed of which a judicial notice can be taken by this court by virtue of section 57 of the Indian Evidence Act. Apart from that the public servants are supposed to act as per the duty assigned to them, therefore, issuance of said NOC before execution of sale deed by the deceased in favour of defendant no. 8 and 9 is deemed to have been issued by the revenue authorities after taking into CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.63 of 69 consideration the fact that the deceased was left with no land less than eight standard acres of land. The inclusion of land earmarked for public well in khasra no. 386/2 in the said sale deed did not lead to conclude that the said land earmarked for public wells in khasra no. 1 etc. 214 (09) and 1 etc. 550 (04) must have been included in the said sale deed. The ld. revenue authorities has issued NOC after going through the record wherein the total land belonging to the deceased i.e. his 1/4th share in the said property was detailed. Otherwise also, the total area of the deceased which is not included in the said sale deed comes about 27 sq. yards and not as claimed by the plaintiffs (defendant no. 1 & 2) as 108 sq. yards (0.0227 acres).
71. Therefore, the said sale deed on this ground cannot be said to have been executed in violation of section 33 of the Act and therefore, cannot be declared null and void as per the mandate of section 45 of the Act.
72. As far as the contention of the counsel for the plaintiff that by virtue of Section 57 of the Act, plaintiffs are entitled to the 1/4th share of the deceased in the said property is concerned, suffice is to say that Section 57 provides for the mode and manner of the division of the land of the cobhumidhars and as observed above, the said sale deed is subject to order/decree, if any, passed by the revenue court, on the basis of doctrine of lis pendens. Accordingly this issue is decided in favour of defendant No. 8 and 9 and against CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.64 of 69 the plaintiffs.
73. So far as the contention of learned counsel for defendant no. 1 and 2(plaintiff in suitII) that this court has jurisdiction to deal with objection as to whether the sale deed is hit by section 33 of the Act is concerned, suffice is to say that if there is any contravention of provision of section 33 of the Act, the suit will lie before the revenue authority. In this regard it is relevant to reproduce the law laid down by Hon'ble High Court of Delhi in Siri Bhagwan (supra), wherein it has been observed as under:
"The last submission of the learned counsel for the plaintiff that Section 33 of the DLRA is in his favour and this land in fact could not have been mutated in favour of the defendants is again a prayer which cannot be gone into by this court as a contravention of the provisions of Sction 33 are contained in Section 42 and the Schedule attached to the DLRA clearly shows that such a suit will lie before the Revenue Assistant"
So is the ratio of Rohtash Singh (supra) wherein it has been observed that :
"as far as the claim of the plaintiff with respect to violation of Section 33 of the Delhi Land Reforms Act and qua mutation entries is concerned, the remedies with respect thereto in any case do not lie before the Civil Court and lie before the CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.65 of 69 revenue authorities."
In the same manner Vidya Dhari Khanna (supra) in para no. 7 it has been observed that :
"as regards Section 33(1) of the delhi Land Reforms Act, the plaintiffs cannot make any grievance. The authorities under that act can make grievance against the donor if she violates any provision of that law. This matter should not have any impediment in her way"
74. Therefore, if the defendants are having any grouse with regard to grant of NOC by the revenue authorities to the deceased for execution of sale deed in favour of defendant no. 8 and 9 and violations, if any, of the provision of section 33 of the Act, defendants/plaintiffs may approach the revenue authorities as per law. Therefore, these issues are decided in favour of defendant no. 8 and 9 and against the plaintiffs and defendant no. 1 and 2(plaintiffs in suitII).
Issue no. (a) & (b) of suitII
75. During the course of arguments learned counsel for defendant no. 1 and 2(plaintiff in suitII) has argued that there is a family settlement executed between the deceased and his legal heirs in terms of family settlement dated 24.12.2006 Ex.DW1/2, therefore, the deceased has no right to execute the said sale deed in favour of defendant no. 8 and 9.
CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.66 of 69
76. Controverting the said contention, learned counsel for defendant no. 8 and 9 has contended that the legal heirs of the deceased which includes one of the plaintiff and defendant no. 3 (in suitII), who were parties to the sale transaction which has taken place between deceased and defendant no. 8 and 9 including the agreement to sell as well as the said sale deed.
77. In this regard it may be noted that two of the legal heir of deceased namely Sunita (defenadnt no. 3) and Laxmi Narain (plaintiff no. 2 in suitII), had been privy to the sale transaction leading to the execution of the said sale deed and defendant no. 1 and 2 (plaintiff in suitII) had never agitated this family settlement either before the revenue court where the said suit for partition between the parties is pending since 2007 nor the said family settlement was ever got mutated in the revenue record. The said family settlement is neither registered nor being brought on record in any revenue proceedings including seeking the mutation thereof.
78. It is the settled law that an unregistered family partition whereby the rights of the parties are created, cannot be looked into for any purpose except collateral purposes. Therefore, on the basis of this family settlement exhibit DW1/2 it cannot be stated that deceased has no right to dispose off his 1/4th share in the said property. Otherwise also, defendant nos. 8 and 9, have verified the revenue record, wherein the deceased was shown as owner in CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.67 of 69 possession of his 1/4th share in the said property and defendant nos. 8 and 9, therefore, are the ostensible owner and are protected by the provisions of Section 41 of the Transfer of Property Act. The plaintiff no.2/Lakshmi Narain (in suit no.II) is the signatory of the agreement to sell and defendant no. 3/Sunita (in suit no.II) is the signatory to the said sale deed and agreement to sell. Therefore, it can be safely concluded that at least defendant no. 3 and plaintiff no. 2 were privy to the sale of the 1/4th share in the said property owned by the deceased. In view thereof these issues are accordingly decided in favour of defendant no. 8 and 9 (defendant no. 1 and 2 in suitII) and against plaintiffs (in suit no.II) and defendant no. 1 & 2.
Issue nos. (c) and (d) of SuitI
79. The onus to prove these issues is on defendant no. 8 and 9, however, defendant nos.8 and 9 have neither led any evidence so as to infer that plaintiff has no locus standi to seek the relief of cancellation of sale deed nor the defendant no. 8 and 9 has led the evidence as to how defendant no. 17 and plaintiffs are in collusion amongst each other. However, the plaintiffs have no right to challenge the sale deed, but plaintiffs sought cancellation of the said sale deed executed by deceased transferring his 1/4th share in the said property to defendant nos. 8 & 9 during the subsistence of status quo order passed by the revenue court, as such plaintiffs have locus standi to file the present suit on the basis of violation of the status quo order passed by the revenue court, therefore, in the absence of any evidence led in this regard by defendant no. 8 and 9 these issues CS no. 754/2017(515671/2016) Hardwari Lal @ Hardwari v. Laxmi Narain Page no.68 of 69 are decided in favour of the plaintiffs and against defendant nos. 8 and 9.
Relief
80. From the above discussion and in view of the findings recorded on the issues in both the suits, the plaintiff in both the suit nos.1 and suit no. II are not entitled to any relief, therefore, both the suits are hereby dismissed.
Decree sheet be drawn accordingly.
A copy of this judgment/decree be placed on the file of suit no.II.
File be consigned to the record room.
Digitally signed
Announced in the open court on DR VIJAY by DR VIJAY
14th Day of June, 2021 KUMAR KUMAR DAHIYA
Date: 2021.07.02
DAHIYA 12:42:36 +0530
(V.K. DAHIYA)
ADDL.DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
CS no. 754/2017(515671/2016)
Hardwari Lal @ Hardwari v. Laxmi Narain
Page no.69 of 69