Delhi District Court
Mahender Singh & Anr. vs . Manoj Kumar & Ors. on 2 August, 2011
IN THE COURT OF SHRI. ASHISH AGGARWAL, CIVIL JUDGE1,
DWARKA COURTS, DELHI
CS No: 269/11
Mahender Singh & Anr. Vs. Manoj Kumar & Ors.
Date: 02.08.2011
ORDER
1. This order shall decide the application under Order XXXIX rules 1 and 2 read with Section 151 of Code of Civil Procedure filed by the plaintiffs and the application under Order VII Rule 11 read with Section 151 of Code of Civil Procedure filed on behalf of defendant nos. 1 to 6.
Version of the Plaintiffs
2. It is stated in the plaint that the plaintiffs are brothers and sons of late Mr. Khazan Singh. The defendant nos. 1 to 4 are also brothers and sons of late Mr. Satpal. The defendant nos. 5 and 6 are brothers and sons of late Mr. Ram Kumar. The late father of defendant nos. 1 to 4 and the late father of defendant nos. 5 and 6 were also brothers and were sons of late Mr. Mehar Singh who was the brother of late Khazan Singh, father of the plaintiffs. The pedigree table is depicted hereunder:
Mahender Singh vs. Manoj Kumar & Ors. 1 of 32
CS No. 269/11
Late Mr. Mehar Singh Late Mr. Khazan Singh
Late Mr. Satpal Late Mr. Ram Kumar Plaintiff no. 1 Plaintiff no. 2.
Defendant nos. 1 to 4 Defendant nos. 5 and 6
3. The suit relates to the land in Khata Khatauni No.51/79 in Khasra No. 4//13/1 (3 bighas), and Khata Khatauni No. 103/90 in Khasra Nos. 4//1/2 (2 bighas 8 biswas), 2/2 (2 bighas 16 biswa), 3/3 (12 biswas), 8/1 (1 bigha 9 biswas), 9 (4 bighas 16 biswas), 10 (4 bighas 16 biswas), 11, (4 bighas 16 biswas), 12/1 (3 biswas), 12/2 (4 bighas 13 biswas) situated in village Salahapur, Bijwasan, New Delhi110061. (hereinafter referred to as "the suit property"). The plaintiffs have pleaded in the plaint that the suit property comprises of 29 bighas and 9 biswas of land. It is stated that of the said property, 4 bighas of land is owned by defendant nos. 1 to 4 whereas another 4 bighas of land belongs to defendant nos. 5 and 6. It is stated that defendant nos. 1 to 4 are in occupation of 3 bighas and 5 biswas of land while defendant nos. 5 and 6 are in possession of 4 bighas and 15 biswas of land. Of this land measuring 4 bighas and 15 biswas, approximately 1 bigha of land belongs to defendant nos. 1 to 4.
4. It is averred in the plaint that the total land measuring 29 bighas and 9 biswas is ancestral property and has already been partitioned with the consent Mahender Singh vs. Manoj Kumar & Ors. 2 of 32 CS No. 269/11 of the plaintiffs and defendant nos. 1 to 6. It is stated that all the parties are in settled possession of the portion of land which has fallen to their respective shares. The partition is stated to have taken place by way of amicable settlement. The plaintiffs have further pleaded that the defendant nos. 1 to 6 are trying to sell their respective shares. The plaintiffs have unequivocally stated in the plaint that they have no objection to the sale. The grievance of the plaintiffs, however, is that this sale is being carried out without demarcation of the share of the defendant nos. 1 to 6. The apprehension of the plaintiffs is that in case the defendant nos. 1 to 6 sell their share without first demarcating it, the purchaser (which in the present case are arrayed as defendant nos. 7 and 8) would try to acquire or meddle with the share of the plaintiffs. The plaintiffs have further stated that they have been repeatedly requesting defendant nos. 1 to 6 to demarcate their share before its sale but the defendant nos. 1 to 6 have omitted to do so. The plaintiffs have expressed their fear that the purchaser of the property may try to grab the portion of the land which is owned and occupied by the plaintiffs. The plaintiffs have further stated that defendant nos. 7 and 8 have threatened to grab the land of the plaintiffs.
5. Based on the above averments, the plaintiffs have prayed for the following reliefs :
"(a) pass a decree of permanent injunction in favour of plaintiffs and against the defendants thereby restraining the defendants, their associates, Mahender Singh vs. Manoj Kumar & Ors. 3 of 32 CS No. 269/11 agents, legal heirs, labours, servants etc. to possess the land of plaintiffs for which the plaintiffs are in settled possession as specifically shown in site plan in blue colour.
(b) pass a decree of Mandatory Injunction in favour of plaintiffs and against the defendants thereby restraining the defendants, their associates, agents, legal heirs for further acting upon/executing Agreement to sell for property in question without demarcating the land for which the defendant No. 1 to 6 are in possession, as shown in red colour in site plan".
6. In the application under Order XXXIX rules 1 and 2 read with Section 151 of Code of Civil Procedure the plaintiffs have made the following prayers :
"(a) pass a decree of Exparte Adinterim Injunction in favour of plaintiff and against the defendants thereby restraining the defendants, their associates, agents, legal heirs, servants etc. to possess the land of plaintiffs for which they are in settled possession, as specifically shown in site plan in blue colour.
(b) pass a decree of Exparte Adinterim Injunction in favour of plaintiff and against the defendants thereby restraining the defendants, their associates, agents, legal heirs for further acting upon/executing Agreement to sell for property in question without demarcating the land for which the defendant No. 1 to 6 are in possession, as shown in red colour in site plan".
Defence
7. The defendants have filed their written statement. They have stated in the written statement that the suit is not maintainable and is barred under Section 41(1)(h) of the Specific Relief Act, 1963. The defendants have stated Mahender Singh vs. Manoj Kumar & Ors. 4 of 32 CS No. 269/11 that partition of the suit property has not taken place. It is also denied that the plaintiffs are in settled possession of any exclusive portion of the suit property. The defendants have asserted that they are cosharers alongwith the plaintiffs in the entire suit property. The defendants have stated that the defendant nos. 1 to 6 are selling only their respective undivided share in the suit property. The defendants have also filed an application under Order VII Rule 11 read with Section 151 of Code of Civil Procedure for rejection of plaint on the aforesaid grounds.
Assessment of the case of the plaintiffs
8. In paragraph no.1 of the plaint, the plaintiffs have stated that they are "owners" of the entire suit property. As against this, in paragraph nos. 3 and 5 of the plaint, the plaintiffs have stated that the defendant nos. 1 to 4 and the defendant nos. 5 and 6 are owners of parts of the suit property. In paragraph no.8 of the plaint, the plaintiffs have stated that the suit property is ancestral and has been partitioned with the consent of the plaintiffs and defendant nos. 1 to 6. If this plea of the plaintiffs is accepted and it is assumed that a partition has taken place in the suit property, it would negate the claim of the plaintiffs made in paragraph no.1 of the plaint that they are owners of the entire suit property.
Mahender Singh vs. Manoj Kumar & Ors. 5 of 32 CS No. 269/11 Moreover, the averment of the plaintiffs that a partition has taken place and that the defendants nos. 1 to 6 are now owners of only a specific part of the suit property is not supported by the documents filed by the plaintiffs. The khatauni filed by the plaintiffs shows that the plaintiffs as well as defendant nos. 1 to 6 are joint cosharers and cobhumidars in respect of the entire suit property and their shares have not been divided. Had the plaintiffs and defendant nos. 1 to 6 divided their respective portions and had they been cultivating their respective portions, they would have been shown as bhumidars of the specific portion itself. This is not so. Against this omission to show the plaintiffs as exclusive bhumidars of part of the land, the plaintiffs could have instituted separate proceedings under Sections 26 and 27 of the Delhi Land Revenue Act, 1954. None of this has been done. The plaintiffs have also not placed on record any document recording the said mutual partition. The plaintiffs have not even disclosed the date on which the partition took place. On one hand, the plaintiffs have claimed to be owners of the entire suit property and on the other hand they have stated that the defendant nos. 1 to 6 have a share in the suit property. The pleadings of the plaintiffs appear to be inconsistent and contradictory.
9. Similarly, in paragraph no.1 of the plaint, the plaintiffs have claimed to be "in physical, actual and exclusive possession" of the suit property. On the other hand, in paragraph nos. 4 and 6 of the plaint, the plaintiffs have stated that Mahender Singh vs. Manoj Kumar & Ors. 6 of 32 CS No. 269/11 the defendants are in possession of certain portions of the land. Again, while the plaintiffs have, in paragraph no. 6 of the plaint asserted that the defendant nos. 5 and 6 are in possession of 4 bighas and 15 biswas of land, in paragraph no. 7, the plaintiffs have stated that one bigha of the said portion is jointly used by defendant nos. 1 to 4 along with defendant nos. 5 to 6. While the plaintiffs have stated in paragraph nos. 8 and 9 of the plaint that the plaintiffs and defendants are in settled possession of the portion of land which has fallen to their respective share by mutual partition, in paragraph no.7 of the plaint, the plaintiffs have stated that 1 bigha of land is under joint use of defendant nos. 1 to 6. These inconsistencies cannot be reconciled.
10. In paragraph no.9 of the plaint, the plaintiffs have stated that the respective shares of the parties have not been demarcated. By the expression "demarcation", the plaintiffs appear to be referring to identification of the respective shares. If the plea of the plaintiffs that a partition has taken place by mutual settlement and that the parties are in possession of their respective shares is correct, this itself implies that the respective shares have already been identified and thus demarcated. The contention of the plaintiffs that demarcation has not yet been done cannot be accepted. Since according to the plaintiffs the respective shares are already identified by partition and exclusive cultivation, the prayer (b) of the plaint restraining the sale of the land unless demarcation is Mahender Singh vs. Manoj Kumar & Ors. 7 of 32 CS No. 269/11 carried out does not lie and the plaintiffs are not entitled to restrain the sale.
11. If by use of the expression "demarcation", the plaintiffs are referring to identification of the shares for the purpose of revenue records and the recognition thereof by the revenue authorities, this can only be done by instituting a suit for partition in the event of dispute by the defendants. It is only after partition that the plaintiffs can claim exclusive ownership of their share and can protect its sale. Institution of a suit for partition would then be the usual mode of obtaining the relief claimed through this suit. Partition would also be condition precedent to the grant of consequential injunction protecting the share of the plaintiffs. Failure to take recourse to such alternative remedy which is equally efficacious would bar the maintainability of the suit under Section 41(h) of Specific Relief Act. Further, such a suit lies before the revenue assistant in accordance with entry 11 of Schedule 1 of the Delhi Land Reforms Act, 1954 and has to conform to the procedure laid down in Section 57 the Act. As per Section 55 of the Act, the Gaon Sabha has to be made a party in every such suit. The competence of this court to entertain such a suit is expressly barred by the provisions of Section 185 of the Delhi Land Reforms Act.
12. In the alternative, if it is assumed that the plaintiffs are in possession of the whole of the property along with the defendant nos. 1 to 6, the prayer of the plaintiffs may be treated as being aimed at declaration of shares of the Mahender Singh vs. Manoj Kumar & Ors. 8 of 32 CS No. 269/11 parties. That would essentially amount to declaration of bhumidari rights since in agricultural land governed by Delhi Land Reforms Act, ownership has been abolished and only tenures have been created under Section 4 of the Act. The declaration of share of the plaintiffs has also not been prayed for. Unless declaration is prayed, the right of exclusive possession and injunction against dispossession and sale (as prayed by the plaintiffs) cannot be granted.
13. The plaintiffs have prayed in prayer (a) of the plaint that the land in which they are in settled possession shall not be possessed by the defendants. In prayer (b) of the plaint, the plaintiffs have prayed for restraining the defendants from selling the property without demarcating the land in which the defendant nos. 1 to 6 are in possession. The mere fact that the plaintiffs are in settled possession of part of the land, even if assumed to be correct, does not confer a higher title upon the plaintiffs so as to enable them to restrain the transfer of its ownership or to restrain a person from occupying it. Possession of land alone is not adequate to restrain its sale or to prevent anybody from recovering its possession. To be able to do so, one must have "title" and not only "possession". It appears that through the prayers made in the plaint, the plaintiffs are indirectly seeking a declaration of their ownership over part of the suit property although they have fallen short of making a specific prayer to that effect. Unless the plaintiffs first obtain a declaration as to their ownership of part Mahender Singh vs. Manoj Kumar & Ors. 9 of 32 CS No. 269/11 of the property, they are not entitled to an injunction restraining its sale. Since the prayers for injunction that the plaintiffs have made in the present suit are dependent on a declaration of their ownership, the suit in its present form is not maintainable. As such, the suit is barred by the provisions of Section 41(h) of the Specific Relief Act, 1963 owing to the existence of unavailed alternate and efficacious remedy of instituting a suit for declaration of ownership and consequential injunction. Reference in this behalf may be made to the case of Kishan Singh v. Sucha Singh (P&H) 2008(2) R.C.R.(Civil) 394 wherein it was held by Hon'ble Punjab and Haryana High Court:
"Even in absence of a decree, only way to assert right over the property was/is to seek partition of the property or a declaration of right with joint possession. These are the efficacious remedies available under law. None of the efficacious remedies have been availed. Hence bar of Section 41(h) of the Specific Relief Act will operate in the present case. For this reason also, suit filed by the appellant was not maintainable and rightly dismissed by the First Appellate Court."
14. Perusal of pleadings reveals that the plaintiffs have claimed to be exclusive bhumidars of part of the suit property on the basis of a partition which they claim to have taken place. The defendants have disputed this. The denial of the defendants of such partition casts doubt over the claim of the plaintiffs. The issue cannot be deemed to be a simple one where the plea of either party can be easily brushed aside. The rival contentions of the parties relating to title Mahender Singh vs. Manoj Kumar & Ors. 10 of 32 CS No. 269/11 (which in this context is bhumidari rights since the property is agricultural) need to be adjudicated. The issue requires evidence and analysis. As such, the plaintiffs are required to seek declaration of title (bhumidari rights) from the competent authority and then injunction from the court instead of the present suit for injunction alone. Not having obtained declaration of bhumidari rights from the concerned authorities prior to seeking the instant relief, the present suit for restraining taking over of possession and sale is not maintainable.
In this behalf, reference may be made to the case of Anathula Sudhakar v. P. Buchi Reddy, AIR 2008 SC 2033, in which it has been laid down that when there is cloud over title, the person in possession must seek declaration of title and not mere protection of possession. It was observed thus:
"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".
15. Under the garb of injunction, this court cannot declare bhumidari rights of the plaintiffs. A declaration of bhumidari rights can be granted only by the revenue assistant as per entry 4 of schedule 1 of the Delhi Land Reforms Act, 1954. The jurisdiction of this court to grant such relief is expressly barred by Section 185 of Delhi Land Reforms Act, 1954. Declaration of bhumidari rights is a condition precedent to grant of injunction protecting the rights claimed by the Mahender Singh vs. Manoj Kumar & Ors. 11 of 32 CS No. 269/11 plaintiffs since the names of the plaintiffs have not been entered in the revenue records as exclusive bhumidars.
In the case of Pushpa Saroha Vs. Mohinder Kumar & Ors. 2009 I AD (Delhi) 785, in similar circumstances, the Hon'ble High Court of Delhi held that the suit is not maintainable. In that case, the name of the plaintiff was not recorded as bhumidar. He prayed for partition of the suit property and injunction on the ground that he had succeeded to a share in the suit property and that a family settlement had been arrived at with the other coowners. It was held that since the plaintiff had not yet been shown as a bhumidar in the revenue records, the grant of relief sought by him would be ineffective. It was further held that the plaintiff is required to first obtain a declaration of his bhumidari rights and get his name entered as the bhumidar of the property and only thereafter can he approach a civil court for restraining the defendants from dealing with the property. It was observed as under:
"In the facts aforesaid, I also find that the plaintiff is not entitled to exercise of discretion by this court. This is for the reason that it is felt that the grant of declaration, if any, would not serve any purpose. The plaintiff even after such a declaration would still have no rights in the property unless gets herself recorded as a bhumidar thereof. The plaintiff will have to still approach the court of the Revenue Assistant. In the circumstance, the time of this court ought not to be taken in adjudicating the relief claimed which as aforesaid would be infructuous. The provisions of Section 186 of the Act are relevant in this regard. The Revenue courts are empowered to, if they consider a question regarding title to Mahender Singh vs. Manoj Kumar & Ors. 12 of 32 CS No. 269/11 any land put in issue in a proceedings before them, to frame an issue on the said question of title and to submit the record to the competent civil court for the decision of that issue only.
The reliefs in the plaint claimed by the plaintiff, are even otherwise directly in the teeth of the bar contained in the Section 185 (Supra). Merely by claver drafting, the provisions of law cannot be defeated. Schedule 1 to the Act in entry 4 thereof provides for an application for declaration of bhumidari rights under Sections 10,11,12, 13, 73, 74, 79 & 85 to lie before the court of the Revenue Assistant. The relief which the plaintiff is seeking in the present suit is nothing but a declaration of her rights and which in the context of the property subject matter of the suit are bhumidari rights" .
In the present case too, the plaintiffs are essentially seeking a recognition and enforcement of their rights as exclusive bhumidars although their names are not so recorded in the khatauni. Unless they first get their names so entered as exclusive bhumidars, they cannot be entitled to the relief of consequential injunction for keeping out the other cobhumidars.
16. It is clear that if the parties are in possession of their respective shares, that itself amounts to demarcation and there is no need of further demarcation. The prayer of the plaintiffs is to restrain the sale of the property without first demarcating it. By the pleadings of the plaintiffs that partition has been carried out and parties are already in possession of their respective shares, this prayer has been rendered infructuous.
Mahender Singh vs. Manoj Kumar & Ors. 13 of 32 CS No. 269/11
17. If the plaintiffs are of the view that the defendants have not disputed the existence of partition (which otherwise is contrary to the record), even then they require their names to be shown as bhumidars in respect of a specific part of the suit property to the exclusion of the defendants. For this purpose, they are required to apply for modification of entries in the khatauni on the basis of partition and exclusive use of the land. This has not been done and the plaintiffs appear to be trying to obtain a relief from this court which otherwise only revenue authorities are competent to grant. Even if it is assumed that the settlement has already taken place and effect has to be given to the said settlement through the court, the plaintiffs are required to pray for specific performance of the said terms of settlement. The suit for grant of injunction is even then barred by Section 41(h) of the Specific Relief Act.
18. Ld. Counsel for plaintiffs has placed reliance on a number of decisions of higher courts to buttress his argument that this court has jurisdiction to entertain the suit. I am afraid, the decisions do not support the case of the plaintiffs.
Ld. Counsel for plaintiffs has placed reliance on the case of Vinod Kumar Sharma Vs. Smt. Seema Sethi 2009 II AD (Delhi) 782. In that case, the Hon'ble High Court of Delhi refused to reject the plaint on the ground that on bare perusal of the plaint, it could not be said that the jurisdiction of the civil Mahender Singh vs. Manoj Kumar & Ors. 14 of 32 CS No. 269/11 court was ousted by Section 185 of the Delhi Land Reforms Act. The judgment does not apply to the facts of the present case since in that case it was doubtful whether the property is governed by the Delhi Land Reforms Act. In paragraph no.6 of the decision of the Hon'ble Court, it was held that the issue cannot be decided without recording evidence. However in the present case it is not in dispute that the property is covered by the Delhi Land Reforms Act and therefore there is no need of holding trial to decide the said issue.
Ld. Counsel for plaintiffs has also relied upon the decision of Hon'ble High Court of Delhi in case of Sri Ram Vs. Jai Prakash & Ors. 1991 RLR 275. In that case, it was held that a suit for declaration of rights of succession and consequential injunction is maintainable before a civil court. The facts of the case do not apply to the present case. In the present case, the issue before the court does not relate to rights of succession. The parties to the case do not dispute the right of either party to succeed to the land as cobhumidars by way of intestate succession. The status of the parties as cobhumidars have also been recognized by the revenue authorities by making appropriate entry in the revenue records. That the plaintiffs and defendant nos. 1 to 6 have thus become coowners of the suit property is not in dispute and therefore is not under determination by this court. Hence the principle laid down in the aforesaid decision that succession rights are to be decided by a civil court does not apply Mahender Singh vs. Manoj Kumar & Ors. 15 of 32 CS No. 269/11 to the present case. The plaintiffs herein are instead seeking exclusive bhumidari rights and that can be declared only by the revenue assistant.
Ld. Counsel for plaintiffs has further relied upon the decision of Hon'ble High Court of Delhi in the case of Cdr. Bhupinder Singh Rekhi Vs. C.S. Rekhi 76 (1998) DLT 257. In that case, the Hon'ble High Court of Delhi held that a civil suit for declaration of title on the ground of purchase from its owner is maintainable. In that case the plaintiff had agreed to purchase agricultural land from the defendant. On that basis, the plaintiff instituted a suit against the defendant for declaration of his title. In the present case, the issue is not of declaration of title and the suit is not founded on an agreement to sell or purchase. This is not a dispute between a vendor and vendee. The plaintiffs have claimed exclusive bhumidari rights and therefore the judgment cited by the Ld. Counsel for plaintiffs is not applicable to the present case.
Ld. Counsel for plaintiffs has also relied upon the decision of the Hon'ble High Court of Delhi in the case of Master Anant Narayan Rai Vs. Mr. Siddharth Rai, CS (OS) 1737/2007 decided on 25.03.2010. In that case, the Hon'ble High Court of Delhi did not deal with the issue of jurisdiction of the court and left it open to be decided with other issues. As such, the said order is of no help to the plaintiffs.
Mahender Singh vs. Manoj Kumar & Ors. 16 of 32 CS No. 269/11 Ld. Counsel for plaintiffs has further relied upon the decision of the Hon'ble High Court of Delhi in the case of Ramesh Chander Aggarwal Vs. Ram Pal, FAO 240/2006 decided on 12.01.2010. In that case, the plaintiff had instituted the suit praying for permanent and mandatory injunction against the defendants on the ground that he had purchased the share of the defendants in agricultural land and was in possession of the entire land along with the defendants. It was stated that the defendants were raising boundary walls and construction of the property in contravention of the provisions of Delhi Land Reforms Act. In that case, it was the admitted position of the parties that a partition had taken place. On that basis, Hon'ble High Court of Delhi upheld the order of grant of interim injunction restraining the said activity. In the present case, on the other hand, it is not the admitted position of the parties that a partition has taken place. Hence, the plaintiffs are required to assert and obtain a declaration of their exclusive bhumidari rights from the competent authority and their suit is not maintainable. The aforesaid decision is not applicable to the present case.
19. Apart from the embargo of jurisdiction, on merits too, the plaintiffs have failed to make out a case for grant of injunction. Admittedly, by the sale, the defendant nos. 1 to 6 are merely proposing to transfer their own share in favour of the purchasers. The purchasers would then step into the shoes of the Mahender Singh vs. Manoj Kumar & Ors. 17 of 32 CS No. 269/11 vendors. In case the purchasers try to encroach upon the rights of the plaintiffs after the purchase, the plaintiffs would then be entitled to institute a suit against them to restrain them from doing so. However, the fear of the plaintiffs that the purchasers would do this is no ground to restrain the sale itself. The plaintiffs have no locus standi and no cause of action to institute the present suit.
20. There is no restriction under the law over the proposed sale. In my opinion, the law of contract does not lay down any prohibition on the transfer of cobhumidari rights. The bhumidars are under no contractual obligation, express or implied, to stay in the same capacity or not to alienate their interest. Bhumidari rights are therefore freely transferable.
21. Under the Transfer of Property Act, 1882 too, the transfer of bhumidari rights is not prohibited. Section 44 of the Transfer of Property Act provides that when a coowner of a immovable property transfers his share or interest therein, the transferee acquires such share or interest as is necessary to give effect to the transfer, the right to joint possession, common enjoyment and partition subject to the preexisting conditions and liabilities. From the above provision, it follows that a cobhumidar is entitled to transfer his rights in the suit property commonly held by him without the consent of the other cobhumidar.
In the case of Maharu V. Dhansai reported in AIR 1992 MP 220, the Hon'ble High Court of Madhya Pradesh held that undivided interest in Mahender Singh vs. Manoj Kumar & Ors. 18 of 32 CS No. 269/11 coparcenary property can be sold. In such an event, "the purchaser only steps into the shoes of the transferor and is invested with till the rights and is subject to all the disabilities of the transferor. He at best, is entitled to only joint possession with the non alienating coowners and if resisted he may recover joint possession by a suit. He is, in fact, only bound by the arrangements, if any, as to exclusive possession by different co owners entered into, before he acquired the interest in the joint property.'' In the case of K. S Krishan Vs. Krishnan reported in AIR 1993 Kerala 134, the Hon'ble Kerala High Court held as under:
"Each of the cosharers is entitled to possession and enjoyment of the whole property alongwith others. He has an equal right to the possession of every part and parcel of the property. It may be that their interests are unequal but still they have got unity of possession and each of the co sharers can transfer his share and the transferee becomes a cosharer along with others. In view of S. 44 Transfer of Property Act transferee can also enforce partition of his rights but subject to the conditions and liabilities affecting at the date of the transfer."
In the case of Lalita James Vs. Ajit Kumar reported in AIR 1991 Madhya Pradesh 15, it has been held that a transferee of coownership rights is entitled to joint possession and common enjoyment of the property but not exclusive possession.
Mahender Singh vs. Manoj Kumar & Ors. 19 of 32 CS No. 269/11 In the case of Ram Dass and another Vs. Shisha Singh and others reported in AIR 2007 P & H 200, the Hon'ble Punjab and Haryana High Court held that an agreement to sell land executed by a cosharer is enforceable against the other cosharers and that the latter have no right to object to the same. It was observed as under :
"No law prohibits a cosharer from alienating his share in the joint property . Any alienation so made by a cosharer is always subject to the partition and rights of other coshares . The vendees simply step into the shoes of the vendor/cosharers and will acquire status of a cosharer and all their rights to the extent of the land purchased will remain subject to the partition and rights of other coshares. Therefore, the agreement to sell cannot be said to be illegal or bad per se merely because the other cosharers did not joint in the transaction of proposed sale" .
22. The only restriction on the transfer of such rights is laid down under the second paragraph of Section 44 which deals with dwelling houses jointly owned by an undivided family. This restriction is not applicable to transfer of plots or agricultural land.
23. It is not in dispute that the land proposed to be sold is of the extent of less than eight standard acres. Under the ordinary rule engrafted in Section 31 of Delhi Land Reforms Act, 1954, a bhumidar is entitled to transfer his interest. However, this general entitlement is subject to the conditions laid down in the Act. One of the said conditions is provided in Section 33 (1) of the Delhi Land Mahender Singh vs. Manoj Kumar & Ors. 20 of 32 CS No. 269/11 Reforms Act according to which a bhumidar cannot transfer land to any person if he would, after the transfer, be left with less than eight standard acres of land. This provision has to be read conjointly with Section 33 (2) of the Act which permits such transfer if the bhumidar holds less than eight standards acres of land and proposes to transfer the entire land held by him.
24. It is not in dispute that after the transfer proposed in the instant case, the transferor would be left with less than eight standards acres of land. It is also not in dispute that the transferors currently hold less than eight standards acres of land. By the proposed transfer, and after the transfer, the defendants no.1 to 6 will become divested of all of their rights in the land. Hence the expression "entire land held by him'' refers to only the share of the said defendants in the land. The expression ''held by him'' must be construed to refer to the property in which the bhumidar has proprietary rights. One of the fundamental proprietary rights is the right to transfer the property. The defendants do not have any legal right to transfer the entire land and can transfer only their share in the land. As such, their rights are restricted to only their shares and therefore, it is only their share which can be said to be "held'' by them.
In the case of Sardar Singh Vs. Addl. District Magistrate & Ors reported in 1995 (32) DRJ (DB), the Hon'ble High Court of Delhi decided a Mahender Singh vs. Manoj Kumar & Ors. 21 of 32 CS No. 269/11 similar issue. In that case, the vendor was holding half share in a land unit. He agreed to sell the same and proposed to execute a sale deed. He applied for permission to sell. The tehsildar declined permission. The Additional District Magistrate agreed with the decision of the tehsildar on the ground inter alia of violation of section 33 of Delhi Land Reforms Act, 1954. This decision was challenged by a writ petition. The Additional District Magistrate justified the decision on the ground that the vendor was only a cosharer and there was violation of section 33 of Delhi Land Reforms Act, 1954. This contention was rejected by the Hon'ble High Court. It was noted that the share of the vendor in the unit was his entire holding which was sought to be transferred. It was held that for this reason, the prohibition on sale contained in section 33 of the Delhi Land Reforms Act did not come into play. The Hon'ble High Court ordered that the sale deed executed by the vendor shall be registered without insisting on production of "No Objection Certificate".
In the case of Mangey Ram and another Vs. Madan Jha, Financial Commissioner and others reported in 166 (2010) DLT 702, the Hon'ble High Court of Delhi held that Section 33 of Delhi Land Reforms Act is not violated by the transfer by cobhumidar of his own share and that the said share is his entire holding for the purpose of Section 33 (2) of the Act.
Mahender Singh vs. Manoj Kumar & Ors. 22 of 32 CS No. 269/11 The above decisions make it abundantly manifest that it is the share of the cobhumidar that constitutes his entire holding and that if he transfers the same, the sale cannot be said to be in contravention of section 33 of the Delhi Land Reforms Act.
Hence, it is clear that the defendants no. 1 to 6 are proposing to transfer the entire land held by them and as such the transfer is not in contravention of Section 33 of the Delhi Land Reforms Act, 1954.
Since the sale of their share in the suit property is not prohibited by the law, the plaintiffs have no right to restrain the same.
25. The present suit has been instituted by one coowner (cobhumidar) against another seeking exclusive possession and title. The relief, if granted, would have the effect of partition. Partition alone would confer exclusive bhumidari/ownership rights upon the parties in respect of specific portions of the land. Short of partition, the plaintiffs cannot claim exclusive rights in any part of the land. Unless partition is carried out, each coowner/cobhumidar is deemed to be in possession of the entire land. A cobhumidar therefore is not entitled to injunction against another cobhumidar restraining the latter from alienating or taking possession of the share of the former. In this behalf, reference may be made to the case of Balwinder Singh Vs. Gurcharan Singh & Ors. 2010 (4) CCC 5 (P&H). In that case it was observed as under:
Mahender Singh vs. Manoj Kumar & Ors. 23 of 32 CS No. 269/11 "Admittedly, the defendantsrespondents are coowners in the disputed property. The only grievance of the appellant before this court is that the defendantrespondents have not right to alienate more than their share or specific khasra number out of the disputed property. As per the settled law, any alienation out of the joint property by a coshares would amount to alienation of the property out of the share. Even the alienation of any specific khasra number or specific portion amounts to alienation of the share which is subject to adjustment at the time of partition. It is also well settled that suit for permanent injunction against a coowner is not maintainable".
26. For these reasons, in my opinion, the plaintiffs have failed to make out a prima facie case in his favour. This is the foremost requirement to be fulfilled for the grant of interim injunction. Since the plaintiffs have failed to meet this standard, the application under Order 39 rules 1 and 2 read with Section 151 of Code of Civil Procedure is dismissed.
Maintainability of the suit
27. The Court now proceeds to decide the application under Order VII Rule 11 read with Section 151 of Code of Civil Procedure filed on behalf of defendant nos. 1 to 6. By the said application, the defendants have prayed for rejection of the plaint.
Mahender Singh vs. Manoj Kumar & Ors. 24 of 32 CS No. 269/11
28. Although the case is at an early stage, the plaint is subjected to scrutiny to assess its maintainability in view of the observations of Hon'ble Supreme Court in the case of Sopan Sukhdeo Sable and Others V. Assistant Charity Commissioner and others (2004) 3 SCC 137 in which it was held that it is obligatory for the Court to reject the plaint in the event of noticing any of the infirmities mentioned in Order 7 rule 11 of Code of Civil Procedure.
29. As noted above, the bare perusal of the plaint and documents enclosed therewith reveals the following:
a. That the plaint suffers from various anomalies, inconsistencies and contradictions. The averments made in the plaint are vague. Important details including the date of partition by family settlement have not been pleaded.
In the case of M/s. Hari Gokal Jewellers Vs. Satish Kapur ILR (2006) I Delhi 679, Division Bench of Hon'ble High Court of Delhi held that a plaint which is vague or vexatious must be outrightly rejected. It was observed that "It is the abundant duty of the plaintiff to clearly and unambiguously plead his case." It was held that vague averments do not give rise to any cause of action. The said decision squarely applies to the present case since in this case too, the plaintiffs have failed to state with certainty as to whether the shares of the coowners have been demarcated or not.
Mahender Singh vs. Manoj Kumar & Ors. 25 of 32 CS No. 269/11 In the case of Shree Bhagwan & Ors. Vs. Suraj Bhan & Ors. ILR (2006) II Delhi 366, Hon'ble High Court of Delhi held that pleadings of the suit must not be ambiguous or ambivalent.
b. That the claim of the plaintiffs over exclusive bhumidari rights is not supported by the documents placed on record by the plaintiffs. According to the khatoni of the suit property, the plaintiffs are cobhumidars with defendant nos. 1 to 6 in respect of the entire suit property and the plaintiffs are not exclusive bhumidars in any specific portion thereof.
In the case of Phoolwati & Ors. vs. Ram Dei and Ors., 150 (2008) DLT 105, the Hon'ble High Court of Delhi held as under:
"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 transfer, etc. The Civil court is not only barred from entertaining such claims, but is bound to honour the revenue records as correct".
c. That if the contention of the plaintiffs that partition has been carried out and parties are in possession of their respective shares, that implies that shares has been identified and if that is so, the prayer of the plaintiffs to restrain the sale till identification of the shares has been rendered infructuous. d. That in case it is deemed that the demarcation has not been carried out, it can be carried out only upon partition of the suit property. The plaintiffs Mahender Singh vs. Manoj Kumar & Ors. 26 of 32 CS No. 269/11 have not prayed for partition and therefore, the said relief cannot be granted. e. Partition is the alternative and efficacious remedy available to the plaintiffs and since the said remedy has not been availed, the suit for injunction is barred by Section 41(h) of the Specific Relief Act, 1963. f. A suit for partition lies before the revenue authorities under Schedule I of the Delhi Land Reforms Act. The grant of such relief by a civil court is prohibited by Section 185 of the Delhi Land Reforms Act.
g. Even if it is assumed that the settlement has already taken place and effect has to be given to the said settlement through the court, the plaintiffs are required to pray for specific performance of the said terms of settlement. The suit for grant of injunction is even then barred by Section 41(h) of the Specific Relief Act.
h. Under the Delhi Land Reforms Act, ownership has been abolished and has been replaced by tenures. The plaintiffs can therefore not be entitled to be declared as owners of a specific partition of the land and to assert their right, they must first obtain a declaration of bhumidari rights prior to obtaining injunction. The said declaration has not been obtained by them. i. It is only a revenue assistant who is empowered to grant declaration of bhumidari rights. A civil court cannot grant the said relief and its jurisdiction is barred by Section 185 of the Delhi Land Reforms Act.
Mahender Singh vs. Manoj Kumar & Ors. 27 of 32
CS No. 269/11
j. Owing to the unavailed remedy of obtaining declaration of bhumidari
rights, the suit for injunction is barred by Section 41(h) of the Specific Relief Act. k. Mere possession of the plaintiffs over part of the land does not confer title over the said land and is not sufficient to restrain its sale and to prevent anybody from recovering its possession. In order to obtain the said relief, the plaintiffs have to establish that they are exclusive bhumidars of the land. The declaration of bhumidari rights is condition precedent to the grant of injunction and the present suit is therefore not maintainable as held in the case of Anathula Sudhakar v. P. Buchi Reddy, AIR 2008 SC 2033.
l. Since the plaintiffs have not been shown as exclusive bhumidars of part of the suit property in respect of which an injunction is being sought, the suit is not maintainable unless the plaintiffs first approach revenue authorities and get their names recorded as exclusive bhumidars of that portion as held in the case of Pushpa Saroha Vs. Mohinder Kumar & Ors. 2009 I AD (Delhi) 785. m. Even if the contention of the plaintiffs is accepted to be correct, they are not entitled to restrain the sale of the property or recovery of possession of part thereof. The sale by a coowner/cobhumidar (since the plaintiffs have been shown as cobhumidars in the revenue records) of his share is permitted under the Contract Act, Transfer of Property Act and the Delhi Land Reforms Act. A suit by one coowner against another to restrain a sale of the commonly owned Mahender Singh vs. Manoj Kumar & Ors. 28 of 32 CS No. 269/11 property is not maintainable.
30. The Delhi Land Reforms Act, 1954 is a complete code in itself and therefore the jurisdiction of a civil court to provide the reliefs covered by the said Act is impliedly barred. Further, a suit for injunction also stands barred by operation of Section 41(h) of the Specific Relief Act, 1963 in view of the availability of alternative and efficacious remedy provided under the Act. In addition, Section 185 of the Delhi Land Reforms Act expressly bars the maintainability of the present suit. Keeping in view the embargo laid down in the said provision, this court cannot entertain the instant suit.
Reference may be made to the decision of Hon'ble Supreme Court in case Hatti Vs. Sunder Singh AIR 1971 SC 2320. In that case, it was held that the jurisdiction to entertain suits on matters governed by the Delhi Land Reforms Act vests solely with the revenue authorities described in Schedule I of the Act and the jurisdiction of a civil court to entertain such suits is barred. It was held that although title disputes can be adjudicated by a civil court, such adjudication can be done only upon reference being made by the Revenue Court. A suit cannot directly be entertained by a civil court.
The prayers made in the plaint are clearly barred by law and the plaintiffs have no cause of action sustaining the scrutiny of law.
Mahender Singh vs. Manoj Kumar & Ors. 29 of 32 CS No. 269/11
31. Ld. Counsel for plaintiffs has relied upon the decision of Hon'ble High Court of Delhi in the case of Inspiration Clothes & U Vs. Colby International Ltd. 88 (2000) DLT 769 (DB) and the decision of Hon'ble Supreme Court in the case of Mayar Ltd. Vs. Owners and Parties, Vessel M.V. Fortune Express AIR 2006 SC 1828 to support his argument that for the purpose of examining whether a plaint is liable to be rejected, it is only the plaint and the documents of the plaintiffs that can be considered by the court. There is no dispute about this proposition of law. However in the present case, the bare perusal of the plaint and documents enclosed therewith establish that although the plaintiffs are seeking enforcement of exclusive bhumidari rights, they have not been recognized as exclusive bhumidars and they have also not made any efforts to obtain the said recognition/declaration.
32. Ld. Counsel for plaintiffs has further relied upon the decisions of Mohd. Maqdoom Ali Vs. District Collector, Mahaboobnagar & Anr. 1998(2) CCC 181 (AP) and Mahohar Lal Chatrath & Anr. Vs. Municipal Corporation of Delhi AIR 2000 Delhi 40 to support his contention that mere existence of alternative remedy does not bar a suit. In the case of Mohd. Maqdoom Ali (supra), the Hon'ble Andhra Pradesh High Court held that since there was no provision under the special law for grant of injunction, the civil suit was maintainable. In the present case however the grant of injunction is predicated on the prior Mahender Singh vs. Manoj Kumar & Ors. 30 of 32 CS No. 269/11 declaration of exclusive bhumidari rights for which there is a provision and procedure engrafted in the Delhi Law Reforms Act. Therefore, as held in the case of Pushpa Saroha (supra), the present suit for injunction is not maintainable. In the case of Manohar Lal Chatrath (supra), it was noticed that the fundamental procedure of law has not been followed and therefore the case did not come within the purview of the Delhi Municipal Corporation Act. The court therefore refused to reject the plaint. In the present case, however, there is no such plea and consequently the statutory remedy provided under the Delhi Land Reforms Act cannot be avoided.
33. In these circumstances, I find no good ground to keep the suit pending or to put it to trial. Even if the plaintiffs succeed in proving the averments made in the plaint, they would not become entitled to the relief claimed by them.
In the case of T. Arivandam v. T.V. Satyapal and Another, (1977) 4 SCC 467, the Hon'ble Supreme Court has held that if on a meaningful, not formal, reading of the plaint if is manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, the court should reject the plaint under Order VII Rule 11 of the Code of Civil Procedure.
In the case of Liverpool & London S.P.& I Association Ltd. Vs. Sea Success I & Another (2004) 9 SCC 512 it was held that when no cause of action Mahender Singh vs. Manoj Kumar & Ors. 31 of 32 CS No. 269/11 is disclosed by the plaint, courts should not unnecessarily protract the hearing of suit. It was directed that in such cases, the court must save expenses, achieve expedition and avoid the courts' resources being used up in cases which will serve no useful purpose. It was further held that a litigation which, in the opinion of the court, is doomed to fail should not be allowed to be used as a tool of harassment.
34. Applying the principle laid down in the aforesaid decisions, the application filed by the defendant nos. 1 to 6 under Order 7 Rule 11 read with Section 151 of Code of Civil Procedure is allowed. The plaint is rejected.
File be consigned to record room.
(Ashish Aggarwal)
Civil JudgeI/Dwarka Courts
Delhi/02.08.2011
Mahender Singh vs. Manoj Kumar & Ors. 32 of 32
CS No. 269/11