Delhi District Court
Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 1 on 5 October, 2020
IN THE COURT OF Ms. TANIA SINGH,
CIVIL JUDGE-01, CENTRAL: TIS HAZARI COURTS: DELHI
Suit No. 94075/2016
1. Sh. Chand Ram S/o Sh. Neki
2. Sh. Charan Singh
3. Sh. Ishwar Singh
4. Sh. KaramVir
Sons of Shri Khazan Singh
5. Sh. Suraj Bhan
6. Sh.Ashok Kumar
Sons of Sh.Ram Pat
7. Smt. Pataso widow of Ram Kishan
Deceased through Sh. Tanvir
S/o Sh. Randhir Singh.
8. Sh. Mohinder Singh
Deceased through L.R.
(a) Sh.Rajesh
Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 1
(b) Sh.Pradeep
Both sons of Sh. Mohinder Singh
Both R/o 426, Panna Udhyan,
Narela, Delhi.
9. Sh. Karam Singh- deceased
Through Sh. Jai Kumar
10.Sh. Jai Chand (deceased)
Through Sh. Jai Lal
Through L.R.S:-
i) Sh Jeet Singh (son)
ii) Sh. Manjeet (son)
Both resident of Village Narela, Delhi
iii) Smt. Roshni (daughter)
W/o Sh. Nahar Singh
R/o Village Samalka, Distt. Panipat,
Haryana.
iv) Smt. Baby (daughter)
W/o Sh. Jaibeer Singh
R/o Village Garh, Distt. Sonepat,
Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 2
Haryana.
v) Late Smt. Krishna (since deceased)
D/o Sh. Jai Chand
W/o Sh. Manjeet
R/o Lado Sarai, Delhi.
i)Mst. Deepak (age 14 yrs.)
ii)Ms. Jyoti (age 14 yrs.)
Both are minors & are represented by their father Sh. Manjet who is the
legal guardian of the minors.
11. Smt. Khazani
Widow of Sh. Tek Ram
All Resident of
Village Narela, Delhi. ............Plaintiffs
Versus
1. Sh. Pyare Lal (deceased)
Through L.Rs.
(i) Smt. Vedo Devi(wife)
(ii) Sh. Kuldeep(son)
Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 3
(iii) Smt. Bimla(daughter)
(iv) Sh. Bijender(son)(deceased)
Through L.Rs:-
(i) Sh.Pradeep (son)
(ii) Sh. Praveen (son)
(iii) Smt. Nirmala(wife)
(iv) Smt. Babita (daughter)
All R/o Pana Uddyan, Village Narela,
Delhi.
2. Sh. Surender
Both sons of Sh. Sis Ram
3. Sh.Devender
4. Sh.Ravinder
Both sons of Sh. Ram Mehar
S/o. Sh. Sis Ram
5. Sh. Dhani Ram
6. Sh. Kartar Singh
7. Sh. Jagat Singh
Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 4
Sons of Sh. Jai Ram
8. Sh.Narender
9. Sh. Vijay
Both sons of Sh. Hukam Chand
S/o Sh. Jai Ram
All residents of
Village Narela, Delhi.
Date of Filing : 15.05.2006
Date of pronouncement of judgment : 05.10.2020
SUIT FOR DECLARATION AND PERMANENT INJUNCTION
JUDGMENT
1. Vide this judgment, I shall dispose off the present suit filed by the plaintiff against the defendants praying for the following reliefs:-
A. A decree of declaration that the decree passed by the Court of Ld. Civil Judge Sh. K.D. Mohan on 10.02.1964 in Suit No. 47/1964 titled as Sees Ram etc vs Gopal and Ors and the order of implementation of the aforesaid decree passed by Sh. S.N. Malhotra the then Revenue Assistant in case No. 219/RA/64 passed on 09.11.66 is illegal, without jurisdiction and void and thereby set aside.
Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 5 B. Decree of permanent injunction restraining defendants No.1 to 9 from forcibly taking the possession and obstructing in the peaceful possession of the plaintiffs in land bearing Kila No. 11/25(4-16), situated in the Revenue Estate of Village Narela, Delhi and further to restrain the defendants from creating any thirdparty interest in the aforesaid property.
Case of the plaintiff as per the plaint
2. Brief facts of the case as culled out from the plaint are that the during consolidation proceedings in Village Narela, which was undertaken in the year 1952 to 1955, the predecessors in interest of the plaintiffs No. 1 to 8 namely Sh. Gopal, sh. Kali Ram and Sh. Ganga Dass were allotted 3/4th share in land bearing Rect No. 10, Kila No.11(1-13), 19(1-18), 20(4-13),21(4-16), 22(4-16), 23(2-8), Rect No. 11, kila No. 16(4-
16), 25(4-16), Rect No. 57, Kila No.3(4-16),8(4-12),13(4-16) & 26(0-4) and 7 min (1-
10), measuring 45bigha and 14 biswas and the remaining 1/4th share was allotted in the name of Sh.Karan Singh, Jai chand and Tek Ram, who are the predecessor in interest of plaintiff No. 9 to 11, who were declared as bhumidars of the post consolidation holdings. Further as per the plaint, in separate khata in thekhatoni of the year 1964-65, the bhumidari was shown as recorded in the name of the following persons with respect to khata no 223/1-85 in respect to land bearing Rect No.8, Kila No.2(4-16), 3(4-16), Rect No.11, Kila No. 25(4-16), Rect No. 17, Kila No.7(4-16), 14(4-16), RectNo.22, Kila. No25/2(2-8), Rect No.25, Kila No.20/2(1-4), Rect No. 30, Kila No. 9/3(0-12) measuring 28 bigha and 4 biswas as per the shares described below:-
Sh.Gopal Sh.Kali Ram Sons of Sh.Bharat 3/4 Sh. Ganga Das share Sh. Karan Singh Sons of 1/4th Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 6 Sh. Jai Chand Sh. JaiLal share Sh. Tek Ram Sh. Munshi Sons of 03 Sh. Lachman Mir Singh shares Sh.Sees Ram Sh. DhanniRam 01 share 05 shares Sh. Hukum Chand Sh. Kartar Singh Sons of Sh. Jai Ram Sh. Jagat Ram Sh. Nand Lal S/o Sh. Bakhtawar 09 shares Sh.Sardare S/o sh. Nandlal Sh. Umed Singh Sh. Parkash Sons of Sh. Ballu 08 shares Sh. Maha Singh Sh. Raj Singh Out of total : 22 shares
3. The dispute in present suit pertains to land bearingkila no. 11/25 (hereinafter referred to as the suit land) which is mentioned as khata no 223/1-85 in the khatoni of the year 1964-65, which as per the averments in the plaint is in physical and cultivatory possession of the plaintiff for the past 50 years and the possession is stated to be open, continuous and peaceful and adverse against defendant no.1 to 9. It is averred in the plaint that Kila No. 11/25 is adjoining Kila No. 10/21 and the southern half portion of Kila No. 11/25 and 10/21 is in possession of Sh. Suraj Bhanetcand northern half portion is in possession of plaintiffs. And there is no dividing line between the aforesaid two kilas.
4. The cause of action for filing the present suit has arisen on 02.03.2006, when defendant No.1 to 9 have asserted that they are the bhumidars of the suit land and threatened to take forcible possession of the same.
Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 7
5. It is further averred in the plaint that after the assertion by defendants, plaintiffs had contacted the patwari in order to examine revenue records and it has come to their knowledge that the predecessor in interest of the defendants namely Sh. Sees Ram and Sh. Jai Ram had filed suit bearing No. 47/1964 on 30.01.1964 for declaration that they are the bhumidars of the suit land. The said suit was decreed on 10.02.1964 by the court of Sh. K.D. Mohan the then Ld. Sub Judge. After obtaining the decree, the predecessor in interest of the defendants had moved the court of the then Ld. Revenue Assistant Sh. S.N. Malhotra in case No. 219/RA/64 and the correction of entries in revenue records as a consequence to decree dated 30.01.1964 was ordered and the suit land was mutated in the name of Sh.Sees ram etc.
6. It is the case of the plaintiff that neither their predecessors in interest nor the plaintiff had any knowledge about the said decree with respect to the suitland nor was any notice or summons issued to them in the aforesaid cases. By way of this suit, plaintiffs have sought declaration that the aforesaid decree be declared null and void as the same had been passed without any application of mind and in a mechanical manner. It is further averred that till the date when the cause of action has arisen, the possession of the plaintiffs was never objected to by the defendants and therefore decree for declaration and permanent injunction be passed in theirfavour, restraining the defendants to dispossess the plaintiffs without due process of law. It is also alleged that the Civil Court in any case hadno jurisdiction to pass a decree of declaration in favour of predecessors of defendantsin respect of suit land which is an agricultural land and the exclusive jurisdiction to entertain any suits for declaration regarding bhumidari is with the revenue courts. Hence, it is averred that the aforesaid decree of the court dated 10.02.1964 was passedwithout any jurisdiction and the consequent changes in the revenue records and the decree be declared null and void.
Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 8 Case of the defendants as per the Written Statement
7. Defendants through a joint WS have taken preliminary objection with respect to the suit being barred by limitation on the ground that suit for declaration of decree passed on 10.02.1964 has been filed in the year 2006 which is beyond theprescribed period of limitation for suits of this nature. Further, defendants have denied the possession of the plaintiff on the suit land and had also objected to the valuation of the suit for the purpose of court fees and jurisdiction. It is submitted by the defendants that the land in question was mortgaged to predecessors of the defendants and hence they were in the cultivatory possession of the land and had consequently acquired bhumidari rights on the basis of being in possession. It is further stated that possession of the defendants was admitted by predecessors of the plaintiffs before the court and the order under challenge was passed based upon admissions. Defendants have further taken an objection that the predecessors of plaintiff were only co sharers in the suit land and the other co sharers who were also the defendants in the decree under challenge have not been impleaded in this suit, therefore the present suit is bad for non joinder of necessary parties. It is further stated that decree under challenge was a consent decree and hence, same cannot be challenged in any court of law.
Replication
8. Plaintiffs have also filed replication wherein contents of the written statement have been denied and it is stated that the earlier suit was filed in a court having no jurisdiction and therefore a decree passed in such case even by consent is without jurisdiction and a nullity. Further it is stated that there is no limitation prescribed to challenge such decree.
9. On the basis of pleadings of the parties, following issues were framed by the Ld. Predecessor on 10.10.2007:-
Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 9
1. Whether the suit is barred by limitation as alleged in the preliminary objection No.1 in the written statement? OPD
2. Whether the suit is not maintainable as per the allegations made in the preliminary objection No.2 in the written statement? OPD
3. Whether the suit has not been valued properly for the purpose of court fees and jurisdiction and requisite court fees has not been paid. If so, its effects? OP Parties.
4. Whether the plaintiffs are estopped from challenging the decree dated
10.02.64 as the same was a consent decree as alleged in the preliminary objection No. 5 in the written statement? OPD
5. Whether the suit is bad for non-joinder of necessary parties? OPD
6. Whether the plaintiff is entitled to the relief of declaration as claimed for?
OPP
7. Whether the plaintiff is entitled to claim decree of permanent injunction as claimed for? OPP
8. Relief.
10. Issue No.3 with respect to valuation of the suit was treated as a preliminary issue and issue No.1 with respect to suit being barred by limitation was also treated as preliminary issue on 18.11.2009. Vide order dated 08.04.2010, the court of Ld. ADJ while allowing application of plaintiff u/O 6 rule 17 CPC ordered the amended plaint to be taken on record and as per the new valuation of the suit, the present case was put before the Ld. District Judge to be transferred to the court of Civil Judge. With respect to the issue of limitation, the aforesaid order records that "although as per article 58 of the Limitation Act, a suit for declaring a court decree null and void has to be filed in three years but as per Ld. Counsel for plaintiffs, it is a settled law that a decree passed without jurisdiction can be challenged even beyond the period at any point of time since it is a Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 10 void decree".Thus, submissions of Ld. Counsels on the aspect of limitation are recorded but there isno finding on this issue hence this issue is left to be decided.
11. The following additional issue was also framed vide order dated 23.9.2010.
"Whether the Court has no jurisdiction to entertain the suit in which order and decree of Revenue Assistant has been passed and same can be challenged under Delhi Land Reforms Act and Delhi Revenue Act? OPD"
12. It is pertinent mention that legal heirs of plaintiff No.9 were brought on record vide order dated 20.12.2006 and legal heirs of plaintiff No.7 were brought on record vide order dated 16.08.2007. Vide order dated 17.04.2008 the application for impleadment of legal heirs of plaintiff No.8 was also allowed. During the pendency of the suit, defendant No.1 had also expired and his legal heirs were impleaded vide order dated 16.03.2018.
13. Application for secondary evidence was allowed by this Court on 09.11.2015 and plaintiff was allowed to file certified copy of decree dated 10.02.1964 passed by Ld. Civil Court in the case titled as Sis Ram &Ors vs Gopal &Ors.
Plaintiff evidence
14. In order to prove his case, plaintiff got himself examined as PW-1. PW-1 tendered his evidence by way of affidavit Ex.PW1/A and relied upon the following documents;-
(i) Ex.PW1/2 : Original death certificate of Sh. Mohinder Singh.
(ii) Ex.PW1/3 : Death certificate of Smt.Pataso Devi. (iii) Ex.PW1/4(colly): Certified copy of Khatauni-chakbandi with Hindi Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 11 Translation (three pages). (iv) Ex.PW1/5(colly): Certified copy of registerKarwai with Hindi translation(two pages). (v) Ex.PW1/6 : Certified copy of khatauni for the year 1964-65withhindi Translation. (vi) Ex.PW1/7(colly): Certified copy of LR 4 with Hindi translation.(two pages). (vii) Ex.PW1/8 : Certified copy of khatauni for the year 2000-01. (viii) Ex.PW1/9 : Certified copy of khatauni for the year 2000-01. (ix) Ex.PW1/10 : Certified copy of the order dated 19.11.1996. (x) Mark A : Photocopy of Will executed by Smt. Pataso Devi . (xi) Mark B(colly) : Photocopy of Khataunipamaish with Hindi Translation(four pages) (xii) Mark C : Photocopy of Akshsizra. (xiii) Mark D : Photocopy of the Khatauni for the year 2000. (xiv) Mark E (colly) : Photocopy of report of Patwari dated 14.08.1964 (xv) Mark F : Photocopy of application dated 23.06.1964. (xvi) Mark G : Photocopy of order dated 10.02.1964. (xvii) Mark H : Photocopy of statements of Sh. Gopal etc dated Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 12 06.02.1965 with Hindi translation. (xviii) Mark I : Photocopy of application dated 20.02.2006. (xix) Ex.PW1/11 : Photocopy of judgment dated 10.02.1964. PW-1 was duly cross examined.
15.Sh. Romannusekka, LDC, Record room (CIVIL)was examined as PW-2 who deposed that as per Goshwara register for the year 1964, the file pertaining to case titled as Shish Ram vs Gopal etc bearing No. 47/64 had been destroyed on 13.10.2005. He proved on record the copy of Goshwara register i.e. Ex.PW2/1.
16.Sh. Dharam Pal was examined as PW-4. PW-4 tendered his evidence by way of affidavit which is Ex.PW4/A.
17.Sh. Raj Singh was examined as PW-5. PW-5 tendered his evidence by way of affidavit Ex.PW5/A.
18. Thereafter plaintiff's evidence was closed on 18.02.2016 vide separate statement of Ld. Counsel for the plaintiff recorded in this regard and the matter was listed for recording of defendant evidence.
Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 13 Defendant's evidence
19. In defendant's evidence, Sh. Dhani Ram was examined as DW-1. DW-1 tendered his evidence by way of affidavit Ex.DW1/A. DW-1 relied upon the following documents:-
(i) Ex.DW1/1 : Judgment dated 10.02.1964 which is also EX. PW1/11.
(ii) Ex.DW1/2 : Deposition made by forefathers of plaintiffs dated 06.02.1965.
(iii) Ex/DW1/2A : Hindi translation of depositions of forefather of the plaintiffs
(iv) Ex.DW1/3 : Distribution report of Halka Patwari. (de-exhibited as Mark A).
(v) Ex.DW1/3A : Hindi translation of report of Halka Patwari (de-exhibited asMark B).
(vi) Ex.DW1/4 : Copy of KhasraGidwari for the year 1994 till 2006.
(vii) Ex.DW1/5 : Copy of Khatauni vide No. 99/296.
(viii) Ex.DW1/6 : Order dated 09.11.1966 in case No. 319/AD/RA/64
passed by the revenue assistant.
20.Sh. Rajesh Kumar, Patwari, SDM, Narela, Delhi was examined as DW-2, who was the summoned witness. DW-2 has proved on record the copy of Khatoni register pertaining Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 14 to Khatoni No. 99/296 vide Khasra No. 11/25 measuring 4 bigha 16 biswasituated in the Revenue Estate of Village Narela for the year 2000-2001, which is Ex.DW2/1(OSR).
21.Sh. Narender Kumar, Kanungo, Office Kanungo, Tis Hazari, Delhi is the summoned witness, who is examined as DW-3. DW-3 proved on record the copy of relevant record i.e. register of KhasraGirdawari for the year 1952-1959 pertaining to suit property, the copy of the same is Ex.DW3/1(OSR) (colly).
22.Thereafter defendant's evidence was closed vide separate statement of Ld. Counsel for the defendant on 08.06.2016 and the matter was listed for final arguments.
23.I have heard final arguments on behalf of both the parties and the record has been carefully perused. Issue-wise findings are as follows:-
Issue No.1 "Whether the suit is barred by limitation as alleged in the preliminary objection No.1 in the written statement? OPD
24. Onus of this issue is upon the defendant, who had taken the objection of suit being barred by limitation in para 1 of the preliminary objections by stating that decree in question pertains to year 1964 whereas the present suit has been filed in the year 2006 and the decree in question was passed with consent of all the parties including the predecessor in interest of the plaintiffs. The plaintiffs have stated in their replication that the decree passed is void, without jurisdiction and a nullity and there is no limitation to challenge a decree which is passed without jurisdiction and void.
Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 15
25. PW-1 in his affidavit in evidence has reiterated the contents of the plaint and has deposed that the plaintiffs have acquired the knowledge about the decree in question in the year 2006 when defendants had asserted their rights over the suit land and upon inspection of the revenue records it was found that predecessor in interest of the defendants had filed a suit for declaration as bhumidars and same was decreed by the court vide EX. PW 1/11and vide consequent order passed by the then Ld. Revenue Assistant EX. DW 1/6, the bhumidari records were accordingly changed.It is further deposed that the aforesaid decree EX PW 1/11 was obtained by fraud as no notice of the same was received by the predecessors of the plaintiffs and therefore neither the plaintiff nor the predecessor in interest had any knowledge of any court order or implementation of the same by any Revenue Court, therefore cause of action for filing the present suit has arisenon 02.03.2006 when the plaintiff had contacted the Halka Patwari and came to know about the aforesaid decree.
26. With respect to the issue of limitation plaintiff maintained his stand in the cross examination that he had got the knowledge of the decree in the year 2006 and further he has no knowledge if any action was taken by his predecessor in respect of judgment dated 10.02.1964 which is Ex.PW1/11.
27. PW-4 is permanent resident of village Narela who has deposed in his affidavit Ex.PW4/A that the predecessors of defendant had filed a civil suit against the predecessors of the plaintiffs and the said suit was decreed without any notice being served to the predecessors of the plaintiffs and other recorded co bhumidars. The witness was not cross examined as defendants were proceeded exparte.
Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 16
28. PW-5 has deposed through his affidavit which is Ex.PW5/A in para 6 that defendant had tried to dispossess the plaintiff from the suit land on 02.03.2006 and it was later on revealed that the predecessor in interest of defendant had filed a suit in the civil Court and had got the decree passed and PW-5 is stated to be one of the co-owners of land. PW-5 has also not been cross examined for the same reason.
29. Defendants have also relied upon Ex.PW1/11 dated 10.02.1964 and DW1 has deposed that the decree in question was a consent decree and therefore limitation period for challenging the same has already expired. It is further deposed that Ex.PW1/11 and Ex.DW1/6 are legal and binding orders and have remained in operation and in the knowledge of the plaintiff and the predecessors has never challenged the legality of the aforesaid judgment or order and therefore the present suit is hopelessly time barred.
30. In his cross examination DW-1 submits that he does not remember if any suit has been filed against the plaintiffs or their predecessor in interest.
31. Ld. Counsel for plaintiff has argued that there is no limitation period for challenging the judgment passed without any jurisdiction and since the civil court had no jurisdiction to declare a person as bhumidar of an agricultural land, the decree Ex.PW1/11 is void, illegal and passed without jurisdiction and there is no limitation to challenge a decree which is void since its inception. It is further argued that plaintiffs were not in knowledge of Ex.PW/11 and limitation period of three years is to be calculated from the date of the knowledge i.e. from 02.03.2006, therefore the suit has been filed within time. Ld. Counsel for plaintiff has relied upon the following judgments.
Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 17 (1).Ibrahim vs Smt. Sharifan AIR 1980 Punjab and Haryana 25 wherein it was held by Hon'ble High Court of Punjab and Chandigarh that mere entry of mutation in the name of the defendant would not furnish any cause of action to the plaintiff therefore, suit filed is within limitation and right to sue had accrued when defendant actually threatened to take forcible possession of the land and not when mutation was sanctioned in favour of the defendant.
This case is however not applicable as the defendants in this particular case had never asserted their rights on the land after the mutation in favour of the plaintiff, however, in the case in hand, the defendants hadapparently filed suit no. 47/1964 for declaration as bhoomidars, asserting their rights on the suit land and further filed an application for mutation before the revenue assistant.
(2).Bedi and Another vs Girdhari since deceased and others in regular Second Appeal No. 899/1977 decided by the Hon'ble Punjab and Haryana High Court on 28.01.1986, wherein it was held that in case the plaintiffs remained in possession of the suit land even after the mutation, the plaintiffs could ignore the entry of mutation in favour of the contestant defendant and the plaintiffs could come to the court at any time when there was threat to their possession.
This above stated case is also not applicable in the present facts and circumstances of the case.
(3). Shakuntala Devi vs FCI and others 161 2009 DLT 300 Pronounced by the Delhi High Court wherein the petitioner had prayed for quashing of the order dated 16.08.1988 passed by the consolidation officer allowing the application filed by the respondents for mutation of land. Ld counsel for plaintiff relies upon para no 10 of the judgment which is reproduced below:-
"hence, the counsel for respondents was justified in stating at the best, the revenue authorities could impose a mutation fine on the respondents and recover the same Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 18 from them after the application for mutation was allowed. The proceedings for correction of annual register do not attract limitation act."
However, the aforesaid judgment is inapplicable in the facts and circumstances of the case. In the cited case the petitioner had applied for deletion of name of the daughter as bhumidar after 22 years of her marriage, when the mutation was recorded in her name at the time she was unmarried.The scope of the discussion in this case is thus entirely different.
32. Ld. Counsel for defendant has argued that Ex.PW1/11 and Ex.DW1/6 records the presence of predecessor in interest of the plaintiff therefore it cannot be said that plaintiffs have acquired the knowledge about the decree in the year 2006.
33. In the background of rival contentions of the parties, it is relevant to cite the following judgments:-
33.1 The judgment of the hon'ble apex Court in the case of State of Punjab vs Gurdev Singh 1991 AIR 2219, para No.6 is relevant;
"first of all, to say that the suit is not governed by the law of limitation runs afoul of our limitation act. The statute of limitation was intended to provide a time limit for all suits conceivable. Section 3 of the limitation act provides that a suit, appeal or application instituted after the 'prescribed period of limitation'must subject to the provisions of section 4 to 24 be dismissed although limitation has not been set up as a defence."
Further in para 10 of the judgment it was observed as follows;
"It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the court for relief of declaration that the order against him is inoperative and not binding Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 19 upon him. He must approach the court within prescribed period of limitation. If the statutory limit expires the court cannot give the declaration sought for."
33.2. In another case titled as Devi Sarup vs Smt. Veena Nirwant and others, in Civil Revision No 6473 of 2005 the Hon'ble Punjab and Haryana High Court had observed that:-
"This submission was countered by the learned counsel for the contesting respondents that the compromise dated 25.4.1998 is void ab initio. Hence, the law of limitation does not apply to challenge it and the same could be challenged at any time."
Reliance was placed on judgments reports as Punjab state v Sansaar Preet Mandal, 1990 2 RRR 130 (P AND H), 1990 PUNJAB Law Journal 322 and Sorangir v Manjit Singh, 1988 (1) RRR 193 (PAND H).
The court while rejecting the submission of the counsel observed that :-
"36. The submission is not acceptable to this court. The settled law is that order may be void or voidable, a declaration has to be sought from a court of law. Reference may be made to the judgment of the hon'ble apex court reported as Sultan Sadik v Sanjay Raj Subha, 2004 (1) RCR CIVIL 767 SC. The same view was taken by our own Hon'ble High Court reported as Swarana Ram v state of Punjab 2004 (2) RCR CIVIL 25 (P and H) in which it was held as under;-
"it is a settled proposition of law that even void orders have to be challenged so that the same can be declared void. Even void orders continue to have effect till the same are declared non-est."
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37. Even if decree dated 25.04.1998 is void, the law of limitation is not abrogated."
34. In view of the law discussed asabove,within no extent of imagination it can be held that a void decree is not subject to any limitation to be challenged on the ground of fraud or incompetency of court passing it. Statute of limitation is a statute of repose framed with an intent to achieve quietus upon contesting claims. To say that there is no limitation period to challenge a decree on whatever grounds, is adverse to the object of the limitation all together.
35. Further the reliance is placed on judgment pronounced Hon'ble High Court of Madhya Pradesh in the case of Smt. GangeshKumariKak vs The State Of Madhya Pradesh on 24 January, 2018inW.P. No.4995/2015 wherein it was observed in para 11 that, "The Apex Court considering similar question inSneh Gupta vs Devi Samp 2010(1) MPLJ (S.C.) 70, (2009) 6 SCC 194 held that if an order is void or voidable, the same must be set aside. Thus, the compromise/consent decree, which is as good as a contested decree even if void was required to be set aside. If the compromise has been accepted in absence of all the parties, the same would be void and the decree based thereupon must be set aside. The compromise may be void or voidable but it is required to be set aside by filing a suit within the period of limitation. A consent/compromise decree must be set aside if it has been passed in violation of law. For the said purpose, the provisions contained in the Limitation Act, 1963 would be applicable."
36. In the present facts and circumstances, Article 59 of the Limitation Act is relevant to be examined. Same is reproduced below:-
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59. To cancel or set aside an Three years When the facts entitling the instrument or decree or for the plaintiff to have the instrument rescission of a contract. or decree cancelled or set aside or the contract rescinded first becomes known to him.
37. Therefore, it is clear that challenge to a decree which is allegedly passed under the influence of fraud or passed by a court not having any jurisdiction must be brought within three years from the dateof knowledge of the decree.
38. In the present case Ex.PW 1/11 duly records the presence of the predecessors of the plaintiffs andEx.DW 1/6 records that predecessors of plaintiffs were present and that their statements have been recorded and they have given their no objection to the transfer of bhoomidari rights in the favour of predecessors of defendants. The plaintiffs in this case cannot in any case depose on the behalf of their predecessors who are now deceased that no notice of the earlier case was served upon them. It is interesting to note that pw 5 had personal knowledge to depose that the said suit was decreed without any notice being served to the predecessor in interest of the plaintiffs and other recorded co bhumidars.
39. It is settled law that all judicial acts are presumed to have been duly performed and as per the law of evidence there is sacrosanctity attached to the judicial records. Hence, if the presence of the predecessors is recorded in Ex.PW 1/11 then the plaintiffs cannot be held to have acquired the knowledge of the decree in question at any later date. Therefore, suit filed to set aside decree dated 10.02.1964 in the year 2006i.eafter more than 40 years, is hopelessly time barred.
40. In view of the law discussed above and considering the application of the same on present facts and circumstances, this issue is accordingly decided against the plaintiffs.
Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 22 Issue No.2 and 7 are taken up together of discussion.
"2. Whether the suit is not maintainable as per the allegations made in the preliminary objection No.2 in the written statement? OPD
7. Whether the plaintiff is entitled to claim decree of permanent injunction as claimed for? OPP"
41. Defendants through their WS have taken preliminary objection stating that the present suit is not maintainable as the plaintiffs are not in possession of the suit land and therefore a suit for simplicitor injunction without seeking relief of possession is not maintainable u/s 34 Specific Relief Act. Plaintiffs have replied to the aforesaid objection in their replication by stating that the relief of possession is not necessary, as when the prayer for declaration is granted in the present suit, plaintiffs shall be co-sharers in the suit land and they will eventually file suit for partition.
42. As per the plaint, the suit land has remained in actual, physical and cultivatory possession of the plaintiffs since consolidation proceedings held in the year 1954-55. It is further stated that the plaintiffs are in possession of the suit land and the adjoining land of Kila No.10/21 without any dispute or threat to their rights. However, it was only on 02.03.2006 that defendants had started raising dispute with respect to the suit land. It is only after the dispute having been raised by the defendants that the plaintiffs had approached the revenue authority and came to know about the Ex.PW1/11 and Ex.DW1/6. The plaintiffs have asserted their possession over the suit land. However,the defendants have denied the possession of the plaintiffs. It is stated in the WS that the land in question was mortgaged to the defendant's predecessors who were actually in cutltivatory possession of the land in question and they had acquired the rights of bhumidar on the basis of their cultivatory possession by virtue of provisions of Delhi land Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 23 Reforms Act 1954, the possession of the defendants was admitted by the predecessor in interest of the plaintiffs before the Court, the order under challenge was passed upon such admission and a decree of permanent injunction was also passed against the predecessors of plaintiffs. It is further stated that the defendants are the bhumidars in possession as per the revenue record.
43. The plaintiffs have denied the assertion of the land being given in mortgage to the predecessor in interest of the defendants. The averment with respect to any mortgage does not find any mention in the affidavits in evidence led by the defendants.
44. PW-1 has reiterated the contents of the plaint in his affidavit which is Ex.PW1/A. Plaintiff has relied upon Ex.PW1/4 which is the certified copy of KhatauniChakbandi wherein the name of the predecessor in interest of the plaintiffs namely Sh. Gopal, Kaliram, Ganga Dassetcis recorded asbhumidars of the suit land along withSh.Sees ram and Jai ram i.e the predecessor interest of the defendants. Further Ex.PW1/5 i.e. the Karwahi register pertaining to the year 1965 records the name of predecessor in interest of plaintiff and name of Sh.Sees ram against suit land. Ex.PW1/9 is the khatauni record of the year 2000-2001 wherein the recorded bhumidars in the suit land bearing khasra No. 11/25 are the predecessor in interest of the defendants namely Sh.Devender Singh son of Sh.Ram Mohan, Sh.Pyare Lal, Sh. Mohinder son of Sh. Sis Ram etc.The order of the Ld. Revenue Assistant Ex.DW1/6 vide which the suit land is mutated in favour of the defendants is dated 09.11.1966.
45. In his cross examination the plaintiff has declined the suggestion that defendant No.1 to 9 are in possession of cultivator suit land.PW-1 has stated that he has no knowledge to answer that mutation with respect to decree i.e. Ex.PW1/11 has already been taken in the year 1966.
Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 24
46. PW-3 has been examined who is the resident of the same village and he has deposed in his affidavit Ex.PW3/A that he has seen the actual cultivatory possession of the plaintiff on Khasra No. 11/25 which is a suit land. The witness was not subject to cross examination as the defendants were exparte.
47. PW-4 is another resident of same village who has deposed on affidavit Ex.PW4/A who deposed that he has personally seen that the suit land in possession of the plaintiff since the plaintiffs were declared bhumidars and he had not seen possession of any other person on the suit land. PW-4 was also not subject to cross examination on the same reason that the defendant were declared exparte.
48. PW-5 has deposed on his affidavit that he is one of the co-owners in the suit land and that the land in question has always remained in physical and cultivatory possession of the plaintiffs since the year 1954-55 till today.
49. DW 1 is his affidavit deposes that the suit land was jointly held by the forefathers of the parties. The averment made by the defendants in the WS that the suit land was mortgaged to the predecessors of the defendants and therefore it was in possession of the defendants, does not find mention in the affidavit of evidence.Defendant on the other hand has placed reliance upon Ex.DW1/1 which is also Ex.PW1/11 and have deposed that the suit land was mutated in the name of predecessor in interest of the defendant vide Ex.DW1/6.DW-1 has further relied upon Ex.DW1/4 which is the copy of Khasragirdawari for the year 1994 till 2000 which shows the defendants as the tenure holder of the suit land as classified in the khataunirecords. Defendant has also examinedDW2 who is the patwari, SDM Narela who brought on record the khatoni Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 25 register for the year 2001 which is Ex.DW2/1, itrecords the name of son of Sh.Sis Ram, Sh. Surrender Singh as bhumidars of the suit land.
50. It is argued by Ld. Counsel for plaintiff that the entries in Khasragirdawari showing the possession of the defendants cannot be taken into consideration to prove the possession of the defendants as the mutation has been accepted as a result of the decree under challenge which was a nullity and thus the revenue record before the date of decree i.e. 10.02.1964 would be presumed to be true.Ld counsel for plaintiff has also relied upon judgment of the apex court in case titled as SankalChandJai Chand Bhai Patel and ors vs Vithal Bhai Jay Chand Bhai Patel and ors 1996 7 Supreme 658 and has relied upon para 6 of the judgment which is reproduced below;
"6.it is settled law that mutation entries are only to enable the state to collect revenues from the persons in possession and enjoyment of the property and that the right, title, interest as to the property should be established de hors the entries. Mutation entries do not create any title or interest therein."
51. In the present facts and contentions of the ld counsels, it is necessary and relevant to examine and rely upon judgment of the Hon'ble Delhi High Court in the case of Smt. Phoolwati and others vs Smt. Ramdei and others 2008150 DLT 105,relevant paras of judgment are reproduced below:-
"6.Mutation in the revenue record is a record of possession of the land. It is done after due notice to the earlier recorded owner of the land and after verification on the spot by the Revenue Authorities. It is settled law that Court has to presume that all official Acts have been performed in due course and in accordance with the procedure laid down. There is no presumption that official acts were performed contrary to the law. Thus, Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 26 recording of defendant nos. 1 to 3 and Shri Madan Lal as the persons in possession and their names in KhasraGirdawari after entertaining their mutation applications shows that the defendants continued in possession of the property from 1982 onwards and got the property mutated in their names in Revenue record as well.
If one is aggrieved by the entries in Revenue record, the remedy is provided under Delhi Land Reforms Act for correction of record, for regaining possession, for ejectment of transferee etc. The Civil Court is not only barred from entertaining such claims, but is bound to honour the revenue records as correct. Any amount of oral pleadings cannot be considered by Civil Court in respect of possession over the agricultural land, contrary to record. If this is allowed, anybody can fabricate evidence in respect of his possession, create some witnesses and file a civil suit in a Civil Court. It is for this reason that law has specifically barred filing of civil suits in respect of agricultural land and has provided an elaborate procedure under revenue laws and only Revenue Authorities have been given power to decide the issues in respect of the agricultural land.
52. It is also relevant to discuss the law laid down by the Hon'ble Apex Court in the case of Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs&Ors on 25 March, 2008AIR 2008 SC 2033, the relevantparas are reproduced below:-
"The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 27 11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."
53. It is settled law that in order to be entitled for relief of injunction against forcible dispossession, plaintiff must adduce cogent evidence to show that he is in recent possession of the property. In the present case, as per the plaint itself the defendants are in recorded possession of the suit land. Ex DW 2/1 which is the khatoni of the year 2000- 2001 records the possession of the defendants in the suit land and the same also records the date of commencement of bhoomidari rights since the year 1965. There is no evidence on record to establish the possession of the plaintiffs on the suit land. Ex PW 1//11 also records that predecessors of plaintiffs were permanently restrained from taking Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 28 the possession of the suit land, meaning thereby defendants were in possession of the suit land since then.
54. Plaintiffs have also raised a claim of holding possession of the suit land adverse to the defendants in para no 13 of Ex.Pw1/A. To claim ownership by way of adverse possession, the claimant is first required to admit that he was never the rightful owner and that someone else was the lawful owner and to the knowledge of lawful owner the claimant had made hostile and unlawful entry in the said property and the rightful owner has not initiated any action against the claimant for a period of 12 years, in order to perfect title by way of adverse possession. There are neither any pleadings about these ingredients nor any evidence on record to show adverse possession.
55. In the facts and circumstances of the case and after applying the law as discussed above to the same, it is held that plaintiffs are not in possession of the suit land and therefore relief of injunction without accompanying relief of possession is hit by the law as laid down by the Hon'ble Apex Court in Anathula Sudhakar ( supra).
56. Further, considering the revenue records which record the possession of the defendants, the plaintiffs are held not entitled to the relief of permanent injunction as claimed for.
57. Issue no 2 and 7 are thus decided in favour of the defendants and against the plaintiffs.
Issue No.3 "Whether the suit has not been valued properly for the purpose of court fees and jurisdiction and requisite court fees has not been paid. If so,its effects? OP Parties." Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 29
58. This was taken up as preliminary issue and vide order dated 08.04.2010, the Ld. ADJ allowed the application filed by the plaintiff u/O 6 Rule 17 CPC and the plaint was amended to the effect that valuation of the suit for the purpose of court fees and jurisdiction was rectified and the suit was held to be triable by the court of Civil Judge.
59. It is argued by ld. counsel for defendant that court fees must have been paid on the market value of the propertyas the plaintiffs are seeking bhoomidari rights in the garb of the present suit.
60. On the other hand, it is urged by the ld. counsel for plaintiff that plaintiffs have valued the suit for purpose of declaration at Rs. 200/- and a fixed court fees has been paid and for the relief of injunction suit has been valued at Rs. 130/- upon which a fixed court fees has been paid.
61. In support of his case plaintiffs have relied upon the following judgments; (1). Rajinder Kaur and Anr. Vs Daljit Kaur and Ors.(2006) 143 PLR 690 (2). SitaWanti vs Yash pal Singh 2007 (1) Civil Court cases 431 ( P and H).
62.In this background, it is necessary to examine Section 7 (iv) ( c) of Court Fees Act.
Section 7:Computation of fees payable in certain suits.--The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:--
(iv) In suits--
Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 30 for a declaratory decree and consequential relief.--(c) to obtain a declaratory decree or order, where consequential relief is prayed, According to the amount at which the relief sought is valued in the plaint or memorandum of appeal :
63. Present suit has been filed by the plaintiffs alleging that they are in possession of the suit land and for relief that decree dated 10.02.1964 and the order of revenue assistant Ex.DW1/6 be declared null and void. Plaintiffs have not claimed relief of possession neither declaration of that they are bhoomidars of the same, as per the plaintiffs if the decree under challenge is declared null and void then automatically the as per the earlier record they would be deemed to be the bhoomidars.
64. In view of the judgments cited by the plaintiff and the law laid down as above, it is clear that section 7 (iv) (c) is attracted in the present case and there is no question of payment of ad valorem fees based upon the averments of the plaint.
65. Hence, this issue is decided in favour of the plaintiffs.
Issue No.4 and 6 are taken up together for discussion "4. Whether the plaintiffs are estopped from challenging the decree dated 10.02.64 as the same was consent decree as alleged in the preliminary objection No. 5 in the written statement? OPD
6. Whether the plaintiff is entitled to the relief of declaration as claimed for? OPP"
66. The defendants have taken this objection in the WS that the decree in question which is Ex.PW1/11 was a consent decree which was passed in the presence of Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 31 predecessors of the plaintiffs and therefore the successors i.e. the plaintiffs herein arebound by the same and hence estopped from challenging the said decree.
67. In replication, the fact of the decree being a consent decree is denied.
68. PW-2 who is the LDC, Record Room Civil Tis Hazari was examined as a witness who stated on oath that the file pertaining to case title as Sis Ram vs Gopal etc in suit No. 47/64 has been destroyed on 13.10.2005 and the relevant copy of Goshwara register is EX.PW2/1.
69. Since the case file of the particular case was not available, the Court vide order dated 09.11.2015 allowed the application of the plaintiff to lead secondary evidence. The pleadings of the parties or their statements and the judgment passed by the court in aforesaid suit are not part of the record.It is only the decree dated 10.02.1964 which has been relied upon by both the parties and therefore it is marked as Ex. PW1/11 and Ex.DW1/1.
70. It is reflected from perusal of Ex. PW 1/11that decree of declaration is passed to the effect that order of revenue assistant declaring the defendants (predecessors of plaintiffs) as bhumidar of the suit land along with the plaintiffs is illegal and void and plaintiffs were held entitled as bhumidars with respect to the suit land. The contention of the ld. counsel for defendants that Ex. Pw1/11 is a consent decree is not in consonance with the record. Ex.pw1/11 does not record the factum of the same being a consent decree, neither are the statements of the partiesare reflected to be recorded nor any no objection on behalf of any party has been recorded in the same.
Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 32
71. Hence, perusal of the record reveals that the said decree was not a consent decree and hence issue of estoppel does not arise.
Issue no 4 is therefore decided in favour of the plaintiffs and against the defendant.
Issue no.6 is now taken up for consideration
72. It has already been held in findings of issue no. 1 that present suit filed in the year 2005 challenging the decree dated 10.02.1964 is barred by limitation.
73. However, it is settled law that a decree passed under the influence of fraud or passed by an incompetent court can be challenged in appeal or even at the stage of execution. The aggrieved party may also file an independent suit for setting aside the same.
74. It is the case of the plaintiff that Ex PW 1/11 was vitiated by fraud and was passed in a mechanical manner without any application of mind.
75. Firstly, the objection of the decree being passed by playing fraud is examined.
PW 1 through Ex PW 1/A deposes that notice of the said suit was not received by the predecessors. It is interesting to note that plaintiff is deposing with respect to a fact which is subject knowledge of his deceased grandfather.
76. The decree records the presence of the predecessor in interest of defendants and the plaintiffs. As per Section 114 (e) of Indian Evidence Act the Court may presume that all the judicial acts have been regularly performed. The argument of the plaintiff that no notice of the suit was received by their predecessor in interest is therefore ruled out as decree records the presence of Sh. Gopal, Kali Ram, Ganga Dass, Karan Singh, Jai Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 33 Chand, Tek Ram, Munshi, Laksham, Nand Lal and others who are stated to be the predecessors of the plaintiff as per para 9 and 9A of the plaint.
77. Decree further records that the order of the Revenue Assistant declaring the defendants therein as bhumidars of the land in suit along with plaintiffs is illegal and it is held that it is only plaintiffs(defendants herein)alone who are in possession of the suit land and who are entitled to be declared asbhumidars. The decree of permanent injunction as a consequential relief was also passed in favour of the plaintiffs and the defendants were restrained from taking possession of the land from the plaintiffs. The decree is with respect to the same suit land which is the matter of consideration in the present suit i.e. Khasra No.11/25 measuring 4 bighas and 16 biswas.
78. Plaintiffs has tried to establish the contention of fraud by stating in the plaint as well as Ex.PW1/A that the alleged statements recorded before the revenue assistant contain thumb impressions of Sh. Tek Ram despite the fact that he used to sign and this fact can be verified from his service record at DESU;in the same way signature of Sh. Jai Chand are appended on the statements but he used to put thumb impression and this can be verified from his service record in NDPL. Plaintiffs have however not brought on record any evidence in order to corroborate his depositions. They have not examined any of the records from any of the aforesaid departments.
79. Ex.Dw1/6 is the order of the revenue assistant dated 09.11.1966 which records the presence of the predecessors in interest of the plaintiffs namely Sh. Ganga Das, Gopal, Tek Ram, Jai Chand, KaranSinghetc. as respondents. It is further recorded that earlier orders of the revenue assistant granting bhoomidari rights to the respondents has been held as illegal by the civil court decree in suit no. 47/1964. However, perusal of the same also reveals that the ld. revenue assistant has ordered changes in the revenue record not Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 34 merely on the basis of the decree of the civil court Ex. PW1/11, but also on the statements of the respondents with respect to their no objection in correction of the bhoomidari records in favourof the respondents, recorded before the Tehsildar. Statements of the respondents are relied upon as Ex. DW 1/2 and its Hindi translation as Ex.Dw 1/2 A.
80. Therefore, there is nothing on record suggesting any incident of fraud being played upon the predecessors of plaintiff. It is apparent from the record that predecessors had notice of the decree and changes in bhoomidari records and after more than 40 years no question can be raised on the rights and interests which have already attained finality.
Hence, the challenge upon Ex PW 1/11 and Ex DW 1/6 being passed by fraud is ruled out.
81. The second limb of the argument of the ld. counsel for plaintiff is that the Ex.PW 1/11 has been passed by a court incompetent to decide the question of bhumidari rights.
82. Reliance has been placed on the judgment of Hon'ble Supreme Court in the case of Hatti v Surrender Singh 1971 AIR 2320, the relevant paras are reproduced below, "1.The appellant Hatti was declared a Bhumidar of some land belonging to the respondent, Sunder Singh, under section 13 of the Delhi Land Reforms Act No. 8 of 1954 (hereinafter referred to as "the Act"). The respondent then brought a suit in the Civil Court claiming three reliefs. The first relief claimed was for a declaration that the declaration of Bhumidari issued in the name of the appellant with respect to the land in dispute was wrong, illegal, without jurisdiction, ultra vires, void and ineffective against the respondent. The second relief was that the respondent be declared entitled Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 35 to Bhumidari rights under section 11 of the Act; and the third relief was for possession of the land.
6.It is true that the declarations made by the revenue authorities without going, through the judicial procedure are subject to due adjudication of rights; but such adjudication must be by an application under item 4 of Schedule I and not by approach to the Civil Court. The jurisdiction of the Civil Court is clearly barred by section 185 of the Act read with the various items of the First Schedule mentioned above. If a Bhumidar seeks a declaration of his right, he has to approach the Revenue Assistant by an application under item 4, while, if a Gaon Sabha wants a clarification in respect of any person claiming to be entitled to any right in any land, it can institute a suit for a declaration under item 28, and the Revenue Assistant can make a declaration of the right of such person."
83. Further reliance is placed upon the judgment of the Hon'ble Delhi High Court in the case titled asGaon Sabha Of LadoSarai vs Jage Ram on 23 February, 1973ILR 1973 Delhi 984 in which reliance was placed on judgment in the case of Hatti v Sunder Singh ( supra).
84. As already observed above, the case file of the aforesaid suit is not on record and therefore, the pleadings and the relief for which the case was filed cannot be examined.
85. Be that as it may, it has already been held in finding on issue no. 1 that challenge to the decree passed in the year 1964 at this stage, is barred by limitation. Contention of the plaintiffs that the decree was passed by playing fraud upon the parties and the court Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 36 has also been rejected.Challenge to Ex. Pw1/11 could have been brought by the predecessors of plaintiffs within the stipulated time on the ground that the same has been passed by a court of incompetent jurisdiction or any other valid ground.
86. Hence, issue no 6 is decided against the plaintiffs.
Issue No.5 "Whether the suit is bad for non-joinder of necessary parties? OPD"
87. It is further the objection of the defendant that the present suit is bad for non joinder of necessary party as the suit land had belonged to persons mentioned in para No.3 of the plaint in the year 1964 as per the Revenue record. Therefore, the other original co-sharers in the suit land are also interested party in the suit and suit is bad for non joinder of necessaryparties.
88. Plaintiffs on the other hand have denied the avermentof the defendant in their replication. The plaintiffs have denied that in the year 1964,as per the revenue record, suit land had belonged to the persons mentioned in para no.3 of the plaint.
89. Plaintiffs have also filed additional arguments upon this issue along with certain certified copies of orders passed by the ld revenue assistant, at the stage of final arguments. However, these documents have not been filed at the relevant stage and neither have been filed with the liberty ofthe court at a later stage, as is apparent from the order dated 09.01.2019 which records filing of additional arguments only. Hence, same cannot be read in evidence.
90. It is argued by the ldcounsel for plaintiff that one Sh. Munshi ram and sh. Lachman who were the co-owners of the suit land and also the defendants in the decree under Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 37 challenge had filed a petitions for declaration of bhoomidari rights u/s 85 of DLR Act in case titled as Munshi vs Sees ram and ors and vide order dated 27.06.1974 name of Sh. Munshi ram was ordered to be recorded as a bhoomidar with respect to land bearing kh. No 25/20/2, measuring 01 bigha 4 biswa and in the said petition the defendants have admitted the contents of the petition and therefore nothing remains for claiming relief for Sh Munshi and therefore he was not impleaded as a party.
91. The contentions of Ld. Counsel are completely baseless, it appears from the certified copy of orders filed with the additional written arguments that the Lachman and Munshi Ram had approached the appropriate authorities on the basis of their continuous possession in the suit land and the revenue assistant had ordered in their favour recognizing their possession and ordering their rights of bhoomidari on khasra no 25/20/2 and not khasra no 11/25 which is the suit land.
92. Ld. Counsel for defendants have rightly pointed out that the Sh. Munshi and Lachman were arrayed as defendants in the case under challenge as respondents no 9 and 10 and non impleadment of their successors in suit challenging the decree is bad for non joinder as it will adversely affect their rights.
93. In replication it is stated that plaintiffs have challenged the decree dated 10.02.1964 on the ground of it been passed without jurisdiction and plaintiffs are not seeking annulment of any rights of descendants of Munshi and Lachman.
94. For determining the question as to who is the necessary party to be impleaded in the suit, there are two tests which are laid down by catena of judgments:- (I) there must be a right to some relief against such party in respect of the matter involved in the proceeding in question and (ii) it should not be possible to pass an effective decree in the Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 38 absence of such party. The eventual interest of a party in the fruits of litigation cannot be held to be the true test of impleading a party.
The persons who ought to be joined as necessary parties are the persons whose presence is necessary to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit are proper parties.
95. Considering the averments made by the parties in pleadings and arguments advanced by the ld. counsels, it is pertinent to note that undoubtedly Sh. Munshi and Lachman were defendants in the decree under challenge. Plaintiff has not been successful in drawing out any exception with respectnon impleadment of their successors. There is nothing on record to suggest that non impleadment of the descendantsof Sh.Munshi and Lachman is justified and the decision in this suit shall not affect their rights.
96. Hence, it is clear that suit is bad for non impleadment of necessary parties.
Issue no. 5 is accordingly decided against the plaintiffs Issue No.8 "Whether the Court has no jurisdiction to entertain the suit in which order and decree of Revenue Assistant has been passed and same can be challenged under Delhi Land Reforms Act and Delhi Revenue Act? OPD"
97. The defendants have taken this objection that this Court has no jurisdiction to entertain this suit in which the order of Revenue Assistant has been challenged. The Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 39 plaintiff on the other hand has stated in the replication that Court of Revenue Assistant had followed the decree of the Court which is Ex.PW1/11 and since the very foundation of the decree is void whole proceedings before the Revenue Assistant are nonest. Ld. Counsel for plaintiff has relied upon section 41 of Delhi Land Revenue Act and argues that under this provision mutation recorded in the revenue record is not final and the party aggrieved has a right to challenge the said mutation before the civil court and could establish its right to be recorded in the revenue record. Section 41 of the Delhi land revenue act is reproduced below.
41.Presumption as to entries--All entries in the record-of-rights prepared in accordance with the provisions of this Chapter shall be presumed to be true until the contrary is proved; and all decisions under this Chapter in cases of disputes shall, subject to the provisions of sub-section (3) of Section 27, be binding on all revenue Courts in respect of the subject-matter of such disputes; but no such entry or decisions shall affect the right of any person to claim and establish in the Civil Court any interest in land which is required to be recorded in the register prescribed by Section 20.
98. This particular provision is used in a completely different context, as per section 35 of the Delhi Land Revenue Act, bhoomidars may be called upon to erect boundary marks on their fields as directed by the record officer and section 41 deals with dispute in record of rights and not bhoomidari rights. Therefore, the provision stated is inapplicable to the present facts.
99. Ld counsel for defendant has relied upon the following judgments in support of his contentions:-
(i)Hatti v sunder singh1971 AIR SC 2320
(ii)Gaon Sabha of Ladosarai vs JageRam ILR 1973 984 Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 40
(iii)Subhadra v Surrender Singh in RSA no. 255/2015, 256/2015 &259/2015.
100. Both the parties have relied upon the landmark judgment in the case titled as Hatti Singh vs Sunder Singh (supra). Ld. Counsel for plaintiff have cited the aforesaid judgment to support his contention that civil court had no jurisdiction to pass decree( Ex. PW1/11) with regard to bhoomidari rights in agricultural land therefore, the said decree is void. Ld counsel for defendant argues that the present suit has actually been filed for declaration of bhoomidari rights in favour of the plaintiffs in the garb of the reliefsfor setting aside ex PW1/11and Ex. DW1/6.
In the present facts, it is relevant to place reliance on para 6 of the judgment in Hatti v Sunder Singh (supra), relevant portion is reproduced below, Khanna, J., in the case of Lai Singh v. Sardara& Another(1) correctly interpreted the scope and purpose of the Rules, under which forms of declaration of Bhumidari rights are issued, but, in our opinion, incorrectly inferred that, since there is no effectual adjudication of rights by the revenue authorities while declaring Bhumidari rights, their declaration must be subject to the due adjudication of rights which, in the absence of anything to the contrary, can only be by a Civil Court. It is true that the declarations made by the revenue authorities without going, through the judicial procedure are subject to due adjudication of rights; but such adjudication must be by an application under item 4 of Schedule I and not byapproach to the Civil Court.
101. As already observed in the findings on the aforesaid issues, a person aggrieved by a decree of civil court may have recourse through filing appeal, raising objections at the stage of execution and even by bringing a separate suit for declaration that the earlier decree was passed under the influence of fraud, if such is a case. Therefore, the relief of declaration for setting aside the decree in question is not outside the jurisdiction of this court, if sought within the prescribed period of limitation. However, in view of the law as Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 41 discussed above, relief with respect to setting aside of the order of revenue assistant which was allegedly passed without giving notice to the other parties or under the influence of fraud is outside the purview of the jurisdiction of this court.
This issue is decided accordingly against the plaintiffs.
Relief
102. In view of the findings on issue no. 1,2,5,6,7, and 8 the plaintiffs are held not entitled to any of the reliefs claimed for. Accordingly, present suit stands dismissed.
103. No order as to cost.
104. Decree sheet be prepared accordingly.
105. File be consigned to record room after due compliance.
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Today on 05.10.2020 (TANIA SINGH)
Civil Judge-01,Central,
TisHazari Courts/Delhi
Suit No:-594075/2016 Chand Ram & Ors vs Pyare Lal & Ors Page 42