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[Cites 43, Cited by 0]

Delhi District Court

Kamera Devi vs . Chhotey Lal & Ors. on 14 November, 2011

     IN THE COURT OF SHRI. ASHISH AGGARWAL, CIVIL JUDGE­1, 
               SOUTH WEST DISTRICT,  DWARKA COURTS, DELHI


                                        CS No: 630/11


                           Kamera Devi   Vs. Chhotey Lal & Ors.

14.11.2011

ORDER

1. This order shall decide the application under Order 39 Rules 1 and 2 read with Section 151 of Code of Civil Procedure filed on behalf of the plaintiffs, the application under Order 39 Rule 4 read with Section 151 of Code of Civil Procedure filed on behalf of defendant no.1 and the application under Section 151 of Code of Civil Procedure dated 27.09.2011 filed on behalf of defendant no.1.

2. Briefly adumbrated, the case of the plaintiffs is that they are related to each other as mother and son. The plaintiff no.1 was married to the defendant no.1. The plaintiff no.2 is the son of plaintiff no.1 and defendant no.1. The defendant nos. 1 to 5 are stated to be brothers. Defendant no.6 is the Additional District Magistrate whereas defendant no.7 is Tehsildar, Najafgarh. The case of the plaintiffs is that the defendant nos. 1 to 5 are co­bhumidars with the plaintiffs in respect of the suit properties, which are described hereinafter. It is also pleaded in the plaint that the plaintiffs and defendant nos. 1 to 5 Kamera Devi Vs. Chhotey Lal & Ors. Page 1 of 44 C.S NO. 630/11 are Hindus by religion and are engaged in agricultural activity on the joint family property. It is further pleaded in the plaint that the deceased grand­father of defendant nos. 1 to 5, Mr. Brij Ram was the owner of ancestral property which devolved upon his two sons namely Sh. Bakhtawar and Sh. Molad. The defendant nos. 1 to 5 are the sons of late Sh. Bakhtawar. It is further pleaded that part of ancestral property has devolved upon the defendant nos. 1 to 5 and the plaintiffs from another ancestor namely Sh. Lal Chand who had died without any other legal heir. The suit relates to the following properties (hereinafter collectively referred to as "the suit properties") :

a. Land bearing khasra no. 95//25/2(2­8), 96//11/2(1­14), 20/1(4­1), 126//16(4­16), 25(4­16), 131//5(4­16) total land measuring 22 bighas 11 biswas comprised in khata khatoni no. 326/293 in village Dichaon Kalan, Delhi;

b. Land bearing khasra no. 96//21/1(5­19), 105//1/2(0­8) total land measuring 6 bighas 7 biswas comprised in khata khatoni no. 327/238 in village Dichaon Kalan, Delhi;

c. Land bearing khasra no. 25//10/2(1­14), 10/3(0­6), 11/1(2­0), 11/2(2­16), 41//6min(4­12), 7min(4­12), 64//16/1(2­3), 65//1/1(4­4), 1/2(0­12), 10(4­16), 11/1(4­13), 20(6­8), 70//20/1(1­19), 20/2(0­14), 21(4­16), 116//12/3(0­14), 14(4­4), 15/2(0­8), 15/4(0­16) total land Kamera Devi Vs. Chhotey Lal & Ors. Page 2 of 44 C.S NO. 630/11 measuring 52 bighas 07 biswas comprised in khata khatoni no. 230/387 in village Dichaon Kalan, Delhi;

d. Land bearing khasra no. 116//6min(0­13) comprised in khata khatoni no. 698/609 in village Dichaon Kalan, Delhi; e. Land bearing khasra no. 65//11/2(0­3), 116//15/1(1­4), 15/3(1­16) total land measuring 3 bighas 3 biswas comprised in khata khatoni no. 727/641 in village Dichaon Kalan, Delhi; f. Land bearing khasra no. 32//21/2(2­8), 33//25/2(2­8), 41//5(4­16), 42//1(4­16), 10/1(2­16) total land measuring 17 bighas 4 biswas comprised in khata khatoni no. 26/26 in village Haibatpura, Najafgarh, Delhi;

g. Land bearing khasra no. 42//2(4­12), 3(3­4) and 9/1(0­4) total land measuring 8 bighas comprised in khata khatoni no. 77/70 in village Haibatpura, Najafgarh, Delhi;

h. Land bearing khasra no. 127//7/1(3­11), 14/1(4­4), 14/2(0­12), 17(4­16) and 24(4­16) total land measuring 17 bighas 19 biswas comprised in khata khatoni no.123/104 situated within the revenue estate of village Dichaon Kalan, Delhi.

3. The above areas of land except property described in sub­para (h) of the foregoing paragraph are stated to constitute joint family properties of the plaintiffs and defendant nos. 1 to 5. The plaintiffs claim that they are coparceners in the joint family property. The said suit Kamera Devi Vs. Chhotey Lal & Ors. Page 3 of 44 C.S NO. 630/11 properties are stated to be recorded in the name of defendant no.1 as the karta of the family. The plaintiffs have stated that they have joint share in the properties. It is further stated that the status of the property continues to be joint since no partition has taken place by metes and bounds.

4. The plaintiffs have further pleaded that defendant nos. 1 to 5 and their respective wives and children remained members of a single joint family with common kitchen and residence till the year 1992. It is stated that the earnings of the family members were kept in a joint pool and as and when spare funds accumulated, the family purchased agricultural properties. The plaintiffs have laid claim to the ownership of and share in the said properties. The plaintiffs have prayed for declaration of their share and have sought to restrain the defendant no.1 from alienating or parting with possession of the property. The plaintiffs have also sought directions to the defendant nos. 6 and 7 directing them to decide the objections of the plaintiffs and to reject the application of defendant no.1 for clearance/ NOC for sale of the suit properties.

5. In the application under Order 39 Rules 1 and 2 read with Section 151 of Code of Civil Procedure, the plaintiffs have prayed for interim injunction restraining the defendant no.1 from transferring, alienating, selling and creating third party interest in or from parting with Kamera Devi Vs. Chhotey Lal & Ors. Page 4 of 44 C.S NO. 630/11 possession of the suit properties till the disposal of the suit. The plaintiffs have also prayed for interim injunction restraining the defendant nos. 6 and 7 from issuing no objection certificate in favour of the defendant no.1.

6. The defendant no.1 has denied the claim of the plaintiffs in his written statement and in the application under Order 39 Rule 4 read with Section 151 of Code of Civil Procedure. According to the defendant no.1, the plaintiffs have no right to restrain the alienation of the suit properties.

7. For ready reference, the suit properties are categorized and classified according to similarity of issues and contentions. The rival submissions of the parties dealt with in respect of the said categories of suit property.

a. Land bearing khasra no.95//25/2(2­8), 96//11/2(1­14), 20/1(4­1), 126//16(4­16), 25(4­16), 131//5(4­16) total land measuring 22 bighas 11 biswas comprised in khata khatoni no. 326/293 in village Dichaon Kalan, Delhi;

b. Land bearing khasra no. 96//21/1(5­19), 105//1/2(0­8) total land measuring 6 bighas 7 biswas comprised in khata khatoni no. 327/238 in village Dichaon Kalan, Delhi;

Version of the plaintiffs:

8. According to the plaintiffs, the aforesaid properties are ancestral properties having devolved upon the defendant nos. 1 to 5 from their Kamera Devi Vs. Chhotey Lal & Ors. Page 5 of 44 C.S NO. 630/11 father, who had succeeded to them from his own father. The plaintiffs have claimed that they are coparceners and co­bhumidars in respect of these properties.

Version of defendant no. 1:

9. The defendant no.1 has contended that the aforesaid properties have been purchased by the defendant nos. 1 to 5 in the year 1954 from one Sh. Gopi.

Revenue records:

10.As per khata khatoni, these properties stand in the name of the defendant nos. 1 to 5. Subsequently, the defendant nos. 1 to 5 gifted away his share in part of the properties.

Inference of the court:

11. According to the plaintiffs, plaintiff no.1 got married to defendant no.1 in the year 1960. If the aforesaid properties had been purchased in the year 1954, the plaintiffs cannot contend that they had contributed towards purchase of the property or that they had a share therein. By joint purchase of the property, it does not become joint family property or ancestral property. The ownership of the property vests in the purchasers alone and not in their family members while the Kamera Devi Vs. Chhotey Lal & Ors. Page 6 of 44 C.S NO. 630/11 former are alive.
12.Yet, even if it is assumed that the contention of the plaintiffs that these properties are ancestral is correct, that would also not bestow on them the right to restrain alienation of the properties by the defendant no.1. Firstly, a karta is entitled to dispose off joint family property for legal necessity. Hence, there is no absolute bar on the transfer of joint family property by the karta without obtaining consent of the other coparceners. As to whether there is legal necessity has to be determined after the sale, as and when challenged. Secondly, it is settled law that even if the property is ancestral and the alienation by karta is not for legal necessity, a coparcener cannot restrain it and such a suit is barred by Section 41 (h) of the Specific Relief Act, 1963. This proposition is clearly laid down in the leading case of Sunil Kumar Vs. Ram Parkash, AIR 1988 SC 576. Thirdly, even if it is assumed that the suit property is ancestral in nature, that would not confer any right, title or interest in favour of plaintiff no.1. The wife of a coparcener does not become a coparcerner in her own right and has no share in the joint family property while her husband is alive.
13.Hence, the plaintiffs cannot restrain the alienation of the aforesaid properties by the defendant no.1.

d. Land bearing khasra no. 116//6min(0­13) comprised in khata khatoni no. 698/609 in village Dichaon Kalan, Delhi; Kamera Devi Vs. Chhotey Lal & Ors. Page 7 of 44 C.S NO. 630/11 Version of the plaintiffs:

14.According to the plaintiffs, the aforesaid property is ancestral property having devolved upon the defendant nos. 1 to 5 from their father, who in turn had succeeded to it from his father. The plaintiffs have claimed that they are coparceners and co­bhumidars in respect of the property.

Version of defendant no. 1:

15.The defendant no.1 has contended that the aforesaid property has been purchased by the defendant nos. 1 and 2 from their own funds.

Revenue records:

16.As per khata khatoni, this property stands in the name of the defendant nos. 1 and 2 with equal shares therein.

Inference of the court:

17. If the property has been jointly purchased by defendant nos. 1 and 2, the family members of defendant no.1 do not acquire any right therein while the defendant no.1 is alive. By joint purchase of the property, it does not become joint family property or ancestral property. The ownership of the property vests in the purchasers alone and not in Kamera Devi Vs. Chhotey Lal & Ors. Page 8 of 44 C.S NO. 630/11 their family members.
18.Yet, even assuming the contention of the plaintiffs to be correct and assuming that the aforesaid property is joint family property, that would not entitle the plaintiffs to restrain its alienation by defendant no.1. The reason is the same as mentioned in paragraph no. 12 above to which reference may be made.
19.Hence, the plaintiffs cannot restrain the alienation of the aforesaid property by the defendant no.1.

c. Land bearing khasra no. 25//10/2(1­14), 10/3(0­6), 11/1(2­0), 11/2(2­16), 41//6min(4­12), 7min(4­12), 64//16/1(2­3), 65//1/1(4­4), 1/2(0­12), 10(4­16), 11/1(4­13), 20(6­8), 70//20/1(1­19), 20/2(0­14), 21(4­16), 116//12/3(0­14), 14(4­4), 15/2(0­8), 15/4(0­16) total land measuring 52 bighas 07 biswas comprised in khata khatoni no. 230/387 in village Dichaon Kalan, Delhi;

e. Land bearing khasra no. 65//11/2(0­3), 116//15/1(1­4), 15/3(1­16) total land measuring 3 bighas 3 biswas comprised in khata khatoni no. 727/641 in village Dichaon Kalan, Delhi Version of the plaintiffs:

20.According to the plaintiffs, the aforesaid properties are ancestral properties having devolved upon the defendant nos. 1 to 5 from their father, who in turn had succeeded to them from his father. The plaintiffs have claimed that they are coparceners and co­bhumidars in respect of these properties.
Kamera Devi Vs. Chhotey Lal & Ors. Page 9 of 44 C.S NO. 630/11

Version of defendant no. 1:

21.The defendant no.1 has admitted that these are ancestral properties.

He however submits that the ancestral properties have been partitioned.

Revenue records:

22.As per khata khatoni, these properties stand in the name of the defendant nos. 1 to 5 and other relatives not including the plaintiffs.

Inference of the court:

23.Assuming the contention of the plaintiffs to be correct and treating the aforesaid properties as ancestral, even then the plaintiffs are not entitled to restrain their alienation by defendant no.1 for the same reason as explained in paragraph no. 12 above to which reference may be made.

24.Hence, the plaintiffs cannot restrain the alienation of the aforesaid properties by the defendant no.1.

f. Land bearing khasra no. 32//21/2(2­8), 33//25/2(2­8), 41//5(4­16), 42//1(4­16), 10/1(2­16) total land measuring 17 bighas 4 biswas comprised in khata khatoni no. 26/26 in village Haibatpura, Najafgarh, Delhi;

Kamera Devi Vs. Chhotey Lal & Ors. Page 10 of 44 C.S NO. 630/11 g. Land bearing khasra no. 42//2(4­12), 3(3­4) and 9/1(0­4) total land measuring 8 bighas comprised in khata khatoni no. 77/70 in village Haibatpura, Najafgarh, Delhi;

Version of the plaintiffs:

25.According to the plaintiffs, the aforesaid properties were purchased by the joint family in the name of defendant nos. 1 to 5 out of joint family funds in the year 1967 and 1969 respectively. The plaintiffs claim that these are joint family properties. The plaintiffs have claimed that they are coparceners and co­bhumidars in respect of these properties. The plaintiffs have also pleaded that the ornaments belonging to plaintiff no.1 had been entrusted to defendant no.1 and the defendant no.1 unauthorizedly sold the ornaments and purchased the above properties. The plaintiffs have stated that this fact has been admitted by the defendant no.1 in the year 1967.

Version of defendant no.1:

26.The defendant no.1 has contended that the aforesaid properties have been purchased by the defendant nos. 1 to 5 in the year 1967 and 1969 respectively.

Revenue records:

27. As per khata khatoni, these properties stand in the name of the Kamera Devi Vs. Chhotey Lal & Ors. Page 11 of 44 C.S NO. 630/11 defendant nos. 1 to 5.

Inference of the court:

28.It is undisputed that the aforesaid properties have not been inherited by the defendants from their father and that they have been purchased by the defendant nos. 1 to 5. There is nothing on record to show that the properties have been purchased out of joint family funds. Source of funds has not been disclosed or reflected by the plaintiffs from any document. By joint purchase of the property, it does not become joint family property or ancestral property. The ownership of the property vests in the purchasers alone and not in their family members while the former are alive.
29.According to the sale deeds, the properties have been sold to only the defendant nos. 1 to 5 in their individual capacity and not to joint family. The sale deeds do not show any transfer of title in favour of the joint family. In immovable property, rights are transferred only through registered instruments. Reference may be made to Section 54 of the Transfer of Property Act, 1882 and Section 17 (1) of the Registration Act, 1908. Since, in the instant case, there is no registered document by which the title could have been transferred in favour of the plaintiffs or the joint family, they cannot claim to have Kamera Devi Vs. Chhotey Lal & Ors. Page 12 of 44 C.S NO. 630/11 become the owners of the said properties. This has been repeatedly emphasized by the Hon'ble Supreme Court in the case of Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr. 2009(7) SCC 363 and more recently in the case of Suraj Lamp & Industries Pvt. Ltd.

vs. State of Haryana & Anr. SLP(C) No. 13917/2009 dated 11.10.2011. Since there is no registered document conferring title or ownership rights in favour of the joint family, the joint family cannot be stated to be the owner of the properties.

30.Moreover, since the joint family or the plaintiffs have not been shown as purchasers of the properties, oral evidence to demonstrate that this was the actual intention underlying the document is not admissible and is barred by the Section 92 of the Evidence Act, 1872. There is no material to show that by the said sale deeds, it is actually the joint family which had purported to purchase the suit properties.

31. Further, the title documents comprising of registered sale deeds do not show that the payment of purchase price was made by the joint family or from joint family funds. Such a presumption can therefore not be drawn in light of clear covenants contained in the sale deeds.

32.From the above, it is clear that the aforementioned properties cannot be treated as joint family properties and the plaintiffs have no right or interest therein.

33.Yet, even assuming the contention of the plaintiffs to be correct and Kamera Devi Vs. Chhotey Lal & Ors. Page 13 of 44 C.S NO. 630/11 assuming that the aforesaid properties are joint family properties, that would not entitle the plaintiffs to restrain their alienation by defendant no.1. The reason is the same as mentioned in paragraph no. 12 above to which reference may be made.

34.The plaintiffs have pleaded that the ornaments belonging to plaintiff no.1 had been entrusted to the defendant no.1 and the defendant no. 1 has unauthorizedly sold the ornaments and used part of sale proceeds to acquire the aforesaid properties. According to the plaintiffs, this fact has been admitted by the defendant no.1 to the plaintiff no.1 in the year 1967.

35.This plea of the plaintiffs appears to be vague. The plaintiffs have not specified the names of the persons who gave/gifted those ornaments to the plaintiff no.1. The plaintiffs have not disclosed the date when plaintiff no.1 handed over the ornaments to defendant no.1. The plaintiffs have not stated the date on which the ornaments were allegedly sold by the defendant no.1. The plaintiffs have not stated at what price the ornaments were sold by the defendant no.1. The plaintiffs have further failed to state the value of the ornaments on the date of sale. The plaintiffs have not described the ornaments with sufficient precision so as to assist the court in arriving at their market value. If the plaintiffs have known of the sale as well as the use of sale proceeds, they would also know of the price at which the Kamera Devi Vs. Chhotey Lal & Ors. Page 14 of 44 C.S NO. 630/11 ornaments were sold or the identity of the purchaser of the ornaments. None of this has been disclosed. The plaintiffs have not stated the proportion of the sale proceeds or the extent of money that was used in buying the aforesaid properties. The plea of the plaintiffs also appears to be difficult to believe. The land comprised in khatoni no. 77/70 was purchased in the year 1969. According to the plaintiffs, in the year 1967, the defendant no.1 admitted having used up partial sale proceeds for purchase of the properties. It cannot be comprehended as to how, in the year 1967, the defendant no.1 could have admitted a purchase of property that took place in the year 1969.

36.It is also difficult to appreciate that despite getting to know in the year 1967 itself that her ornaments have been unauthorizedly sold by the defendant no.1, the plaintiff no.1 remained silent for all these years and eventually laid claim to the property only in the year 2011 i.e. after more than 40 years. The claim of the plaintiffs over these properties is essentially for recovery of the value of sale proceeds of ornaments. For this, the plaintiffs ought to sue within three years from the date of misappropriation of ornaments by the defendant no.1. The claim of the plaintiffs is highly belated and is clearly barred by limitation. Moreover, the plaintiffs cannot also plead that they were unaware of this misappropriation since admittedly the plaintiffs had Kamera Devi Vs. Chhotey Lal & Ors. Page 15 of 44 C.S NO. 630/11 learnt of the misappropriation of ornaments and unauthorized sale in the year 1967 itself and that too from the defendant no.1 himself leaving no manner of doubt and creating a clear right to sue. Ld. Counsel for plaintiffs has argued that the right of the plaintiffs has been denied by defendant no.1 for the first time in the year 2011 itself and therefore the period of limitation must commence from that day. It is difficult to assume that the plaintiffs were not prompted to sue for recovery despite learning, in the year 1967, of the unauthorized sale. It is not credible that the plaintiffs continued to believe that they are owners of the property which had been purchased out of the sale proceeds despite the fact that the name of neither of them figured as the registered owner of the properties. The very fact that the property was not purchased in the name of the plaintiffs was expressive of denial of their rights by the defendant no.1. They had no reason to believe that they are the owners of the property. They could not have waited for the defendant no.1 to try and dispose off the property so as to sue the latter. The explanation for delay in instituting the suit for recovery of the properties on the ground of unauthorized sale of the ornaments is totally misconceived and is liable to be rejected.

37. Moreover, for the alleged misappropriation of ornaments and their sale, the plaintiffs have a right to recover the ornaments or their market value. This is the only remedy available to the plaintiffs. It Kamera Devi Vs. Chhotey Lal & Ors. Page 16 of 44 C.S NO. 630/11 would be too far­fetched and totally unjust to permit the plaintiffs to recover the aforesaid properties as a consequence of the sale of ornaments, particularly when there is nothing on record to suggest that the properties were purchased out of sale proceeds of the said ornaments.

38.Hence, the plaintiffs cannot lay claim to any share or interest in the aforementioned properties and cannot restrain their alienation. h. Land bearing khasra no. 127//7/1(3­11), 14/1(4­4), 14/2(0­12), 17(4­16) and 24(4­16) total land measuring 17 bighas 19 biswas comprised in khata khatoni no. 123/104 situated within the revenue estate of village Dichaon Kalan, Delhi. Version of the plaintiffs:

39.According to the plaintiffs, the ornaments belonging to plaintiff no.1 had been entrusted to defendant no.1. The defendant no.1 unauthorizedly sold the ornaments. Part of the sale proceeds were lent to Smt. Chandro Devi. Smt. Chandro Devi failed to later return the money. The defendant no.1 instituted a suit against Smt. Chandro Devi for recovery of money. The suit was decreed. The decree was sought to be executed. In execution, the aforesaid property which belonged to Smt. Chandro Devi was auctioned and through the auction it was transferred to the defendant no.1. The plaintiffs have Kamera Devi Vs. Chhotey Lal & Ors. Page 17 of 44 C.S NO. 630/11 stated that the aforesaid property has thus been acquired by the plaintiff by misappropriation of the ornaments belonging to plaintiff no. 1 and therefore the plaintiff no.1 has title over the said property.

Version of defendant no.1:

40.The defendant no.1 has denied that the aforesaid property was acquired from the sale of ornaments belonging to the plaintiff.

According to the defendant no.1, he had lent his own money to Smt. Chandro Devi. He instituted a suit for recovery of the said money. The suit was decreed. In execution proceedings, the aforesaid property was sold and the sale deed was got executed by the Ld. Civil Judge in favour of the defendant no.1. Copy of the sale certificate and supporting documents have been filed by the defendant no.1. Revenue records:

41. As per khata khatoni, the property stands in the exclusive name of the defendant no. 1.

Inference of the court:

42.It is undisputed that the aforesaid property has not been inherited by the defendant no.1 from his father and it has been obtained by the Kamera Devi Vs. Chhotey Lal & Ors. Page 18 of 44 C.S NO. 630/11 defendant no.1 in execution proceedings. According to the sale deed, the property has been purchased by defendant no. 1 alone. In immovable property, rights are transferred only through registered instruments, as held above. Since in the instant case, there is no registered document in favour of the plaintiffs, they cannot claim to have become the owners of the suit property. Reference may be made to paragraph no. 29 above.
43.Moreover, since the plaintiff no.1 has not been shown as purchaser of the property, oral evidence to demonstrate that this was the actual intention underlying the document is not admissible and is barred by the Section 92 of the Evidence Act, 1872.
44.This plea of the plaintiffs appears to be vague. There is nothing on record to suggest that the ornaments belonging to plaintiff no.1 had been entrusted to defendant no.1 or that the ornaments were sold by the defendant no.1 or that this act was performed without the consent of plaintiff no.1 or that the sale proceeds were lent to Smt. Chandro Devi. The plaintiffs have not specified the names of the persons who gave/gifted those ornaments to the plaintiff no.1. The plaintiffs have not disclosed the date when plaintiff no.1 handed over the ornaments to defendant no.1. The plaintiffs have not stated the date on which the ornaments were allegedly sold by the defendant no.1. The plaintiffs have not stated at what price the ornaments were sold by the Kamera Devi Vs. Chhotey Lal & Ors. Page 19 of 44 C.S NO. 630/11 defendant no.1. The plaintiffs have further failed to state the value of the ornaments on the date of sale. The plaintiffs have not described the ornaments with sufficient precision so as to assist the court in arriving at their market value. If the plaintiffs have known of the sale as well as the use of sale proceeds, they would also know of the price at which the ornaments were sold or the identity of the purchaser of the ornaments. None of this has been disclosed. The plaintiffs have not stated the proportion of the sale proceeds or the extent of money which was lent to Smt. Chandro Devi. The plaintiffs have not disclosed the extent of decretal sum and the price at which the property of Smt. Chandro Devi was purchased by defendant no.1 in auction. The plaintiffs have not filed any document to establish that the sum which was lent to Smt. Chandro Devi was the same as was obtained through the sale of ornaments of plaintiff no.1.
45.The claim of the plaintiffs over the aforesaid property is essentially for recovery of the value of sale proceeds of ornaments. For this, the plaintiffs ought to sue within three years from the date of misappropriation of ornaments by the defendant no.1. The claim of the plaintiffs is inordinately delayed and is barred by limitation.

Moreover, the plaintiffs cannot also plead that they were unaware of this misappropriation since admittedly the plaintiffs had learnt of the misappropriation of ornaments and unauthorized sale in the year Kamera Devi Vs. Chhotey Lal & Ors. Page 20 of 44 C.S NO. 630/11 1967 itself and that too from the defendant no.1 himself. Ld. Counsel for plaintiffs has argued that the right of the plaintiffs has been denied by defendant no.1 for the first time in the year 2011 itself and therefore the period of limitation must commence from that day. This contention must be negatived for reasons elaborated in paragraph no.36 above.

46.The recovery of immovable property is also not the proper remedy available to the plaintiffs, for reasons similar to those detailed in paragraph no. 37 above.

47. The plaintiffs have not challenged the validity of the sale of ornaments. The plaintiffs have not sought recovery of damages from defendant no.1. The plaintiffs never became nor applied to become a party in the suits filed against Smt. Chandro Devi or in execution proceedings. The plaintiffs also did not institute a suit against the defendant no.1 for recovery of her ornaments or value thereof. They have not challenged the auction whereby the immovable property was transferred in favour of the defendant no.1.

48.If the contention of the plaintiffs was to be accepted and even if it is assumed that the plaintiff no.1 is entitled to the ownership of entire property, that would imply that the defendant no.1 is not having any share or interest in the aforesaid property. If that is so, the defendant no.1 would not be a co­sharer in the property and the plaintiff no.1 Kamera Devi Vs. Chhotey Lal & Ors. Page 21 of 44 C.S NO. 630/11 alone would be entitled to ownership of the property. If that is the case, the defendant no.1 would be a trespasser in the property having no right, title or interest therein. For recovering the suit property from the defendant no.1, the plaintiffs are required to institute a suit for recovery of possession. Since the defendant no.1 would not then be a co­sharer, the plaintiff cannot seek merely declaration of his share. The title of the plaintiff is adverse to that of the defendant no.1. He must assert his title and recover possession. A suit for mere declaration of share and injunction is barred by Section 41(h) of Specific Relief Act owing to the existence of unavailed remedy of instituting a suit for recovery of possession. Further, such a suit would also not lie before this court since such suit would have to be valued, for the purpose of jurisdiction, as per market value of the property which is much beyond the pecuniary jurisdiction of this court. Moreover, a suit for ejecting a trespasser would lie before the revenue assistant since the property is governed by the Delhi Land Reforms Act, 1954. This court cannot pass an order which has the effect of ejecting a trespasser in view of the remedy being provided under item no.19 of Schedule I of the Delhi Land Reforms Act. The competence of this court is barred by Section 185 of Delhi Land Reforms Act as well as Section 41(h) of the Specific Relief Act, 1963. Further, such suit is barred by limitation being instituted beyond Kamera Devi Vs. Chhotey Lal & Ors. Page 22 of 44 C.S NO. 630/11 the period prescribed in the said Schedule. The said bar of limitation cannot be circumvented by clever drafting of pleadings as attempted herein.

49.The plaintiffs cannot be permitted to canvass their claim to the property after lapse of 42 years from the alleged date of misappropriation. The plaintiffs ought to have challenged the sale in favour of defendant no.1. The plaintiffs could have filed an application under Order 21 Rule 90 on the ground that her interest is affected by the sale or that she is the true owner of the property. Once a sale certificate is issued under Order 21 Rules 92 and 94 of Code of Civil Procedure, the sale becomes absolute. The plaintiffs never came forth, during the execution proceedings, to lay claim over the aforesaid property.

50.Hence, the plaintiffs cannot lay claim to any share or interest in the aforementioned property and cannot restrain its alienation. COMMON INFERENCES:

51. Certain inferences are common to the abovementioned suit properties and are detailed herein.

52.The plaintiffs have claimed that they have a share in the suit properties. They have prayed for declaration of their ownership over Kamera Devi Vs. Chhotey Lal & Ors. Page 23 of 44 C.S NO. 630/11 part or whole of the suit properties. Admittedly, the suit properties are agricultural properties governed by Delhi Land Reforms Act. In such properties, by enactment of the Delhi Land Reforms Act, 1954, ownership has been abolished and in its place, bhumidari rights have been laid down. Since the concept of ownership over such properties has ceased to survive, ownership in favour of the plaintiffs cannot be declared. At best, the claim over "ownership" shall be construed as a claim to "bhumidari rights". The plaintiffs would then have to be assumed to be seeking a declaration of bhumidari rights from this court. That cannot be done. 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.

53.It is worthy to note that in none of the suit properties is the name of either plaintiff entered as a co­owner/co­bhumidar in revenue records. The name of the defendant no.1 has also not been entered as a karta or in representative capacity. There is nothing in the revenue records/khatoni which could suggest that the plaintiffs have a share in the aforesaid properties. It is further not in dispute that the defendant no. 1 is a recorded bhumidar of the suit properties. Even if it is assumed that the plaintiffs are entitled to an undivided share in Kamera Devi Vs. Chhotey Lal & Ors. Page 24 of 44 C.S NO. 630/11 the suit properties, in order to assert their rights, the plaintiffs are required to be first shown as co­bhumidars of the suit properties in the revenue records. 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 Kamera Devi Vs. Chhotey Lal & Ors. Page 25 of 44 C.S NO. 630/11 this regard. The Revenue courts are empowered to, if they consider a question regarding title to 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 bhumidars although their names are not so recorded in the khatauni. Unless they first get their names so entered as bhumidars, they cannot be entitled to the relief of consequential injunction restraining alienation of the suit properties.

54.The claim of the plaintiffs over bhumidari rights/ co­ownership is not supported by the documents placed on record by the plaintiffs. According to the khatoni of the suit properties, the plaintiffs have no bhumidari rights in the suit properties. 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:

Kamera Devi Vs. Chhotey Lal & Ors. Page 26 of 44 C.S NO. 630/11

"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".

This court has been held to be bound by the entries made in the revenue record. The revenue record does not reflect that the plaintiffs have any share or interest in the suit properties. Hence, the plaintiffs cannot be permitted to assert their ownership and to restrain the defendant no.1 from alienating his share in the suit properties.

55.The plaintiffs have stated in the plaint that they have already approached the revenue authorities and have claimed to be co­ bhumidars in the suit properties. Despite the said assertion of the plaintiffs, the defendant nos. 6 and 7 have not shown them as co­ bhumidars in the suit properties. This refusal of the defendant no. 6 and 7 to recognize the plaintiffs as co­bhumidars is an appealable decision. Hence it was open to the plaintiffs to challenge this refusal by way of appeal. The said ground cannot be taken by way of separate suit in view of existence of this alternate remedy.

56.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, Kamera Devi Vs. Chhotey Lal & Ors. Page 27 of 44 C.S NO. 630/11 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.

57. The suit properties in question are agricultural properties and are admittedly governed by the Delhi Land Reforms Act. After the death of a bhumidar, they are subject to succession under the Delhi Land Reforms Act which overrides the uncodified Hindu Law of joint family property and coparcenary. The concept of survivorship does not apply to agricultural property as the rights of ownership have been extinguished by the Delhi Land Reforms Act and only bhumidari rights have been conferred by the said Act, which are, by corollary, Kamera Devi Vs. Chhotey Lal & Ors. Page 28 of 44 C.S NO. 630/11 subject to transfer and devolution only in accordance with the Act. As per the rules of succession engrafted in Section 50 of the Delhi Land Reforms Act, 1954, the holding of a bhumidar devolves to his sons upon his death. The grand­son or the wife of a son are not entitled to any share while the son is alive. Nor does the said share become joint family property. Reference may be made to the decision of Full Bench of Hon'ble Allahabad High Court in the case of Ram Awalamb & Ors. vs. Jata Shankar & Ors., AIR 1969 All 526. The position has remained the same even after the Hindu Succession (Amendment) Act, 2005 came into force. Hence the plaintiffs have no right, title or interest in the suit property and the defendant no.1 is the bhumidar thereof.

58.The plaintiffs have themselves stated in paragraph no.3 of the plaint that "Sh. Brij Ram was owner in respect of ancestral suit property during his life time and after his death the same had been devolved upon his two sons". In the same paragraph, the plaintiffs have further stated that "After the death of Sh. Bakhtawar the ancestral suit property was devolved upon...". Thus, the plaintiffs have repeatedly averred that the ancestral properties were subject to "devolution". In case of property owned by a joint family or a coparcener, the suit property does not "devolve". It continues to vest in the joint family irrespective of the addition of members (by birth) or deletion of Kamera Devi Vs. Chhotey Lal & Ors. Page 29 of 44 C.S NO. 630/11 members (by death). The very fact that the properties have been devolving upon heirs shows that the properties have been subjected to succession and not survivorship. Such properties vest in the surviving legal heirs and the wife and son of a surviving legal heir do not secure any right in such property. As such, no restriction can be placed on the rights of the legal heirs, which in this case is the defendant no. 1, to deal with the property in so far as it is in accordance with the Delhi Land Reforms Act.

59.The plaintiffs have asserted that they have a share in the suit properties. Even assuming this to be correct, the plaintiffs do not have any right to insist on joint ownership. In other words, they cannot compel the defendant no.1 to continue in joint ownership of the suit properties. The plaintiffs can protect and preserve their share, if any, only by having it separated and identified. This can be done only by filing a suit for partition. 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. Kamera Devi Vs. Chhotey Lal & Ors. Page 30 of 44 C.S NO. 630/11

60.The present suit has been instituted by the plaintiffs claiming that they are co­owners (co­bhumidars) and further claiming that the defendants are other co­owners (co­bhumidars). The plaintiffs have prayed for declaration of their share in the suit properties. The relief, if granted, would have the effect of partition. Partition alone would recognize and quantify the share of the plaintiffs. 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:

"Admittedly, the defendants­respondents are co­owners in the disputed property. The only grievance of the appellant before this court is that the defendant­respondents have no 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".

61. 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 Kamera Devi Vs. Chhotey Lal & Ors. Page 31 of 44 C.S NO. 630/11 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.

62.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/gift, the defendant no.1 is merely proposing to transfer his own share. The transferees would then step into the shoes of the transferor. In case the transferees try to encroach upon the rights of the plaintiffs, if any, the plaintiffs may then be entitled to institute a suit against them to restrain them from doing so. However, the fear of the plaintiffs that the transferees would do this is no ground to restrain the transfer itself. The plaintiffs have no locus standi and no cause of action to institute the present suit. Even if the defendant no.1 sells or transfers the entire suit properties, the transfer would take effect only to the extent of the share of the defendant no.1 therein. This being the settled possession of law, no prejudice would be caused to the plaintiffs by the proposed sale. Admittedly, the defendant no.1 has proprietary interest in the suit properties. One of the essential facets of proprietary interest is the right to transfer. No unreasonable restriction can be placed on the said right. The Kamera Devi Vs. Chhotey Lal & Ors. Page 32 of 44 C.S NO. 630/11 defendant no.1 cannot be forced to continue to own his share in the suit properties against his wishes.

63.There is no restriction under the law over the proposed transfer. 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.

64.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 co­ bhumidars.

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 coparcenary property can be sold. In such an event, "the purchaser Kamera Devi Vs. Chhotey Lal & Ors. Page 33 of 44 C.S NO. 630/11 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 co­ owners 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 co­owners 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 MP 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.

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 co­ Kamera Devi Vs. Chhotey Lal & Ors. Page 34 of 44 C.S NO. 630/11 sharer 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".

65.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.

66.The court sees no impediment in allowing the defendant no.1 to sell or dispose off his share in the suit properties under the Delhi Land Reforms Act too. In this behalf reference may be made to the case of Sardar Singh Vs. Addl. District Magistrate & Ors reported in 1995 (32) DRJ (DB), wherein the Hon'ble High Court of Delhi decided a 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 Kamera Devi Vs. Chhotey Lal & Ors. Page 35 of 44 C.S NO. 630/11 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.

67. 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 Kamera Devi Vs. Chhotey Lal & Ors. Page 36 of 44 C.S NO. 630/11 transfer by defendant no. 1, who apparently is proposing to transfer the entire land held by him, is not in contravention of Section 33 of the Delhi Land Reforms Act, 1954. Since the sale or disposal of his share in the suit property is not prohibited by the law, the plaintiffs have no right to restrain the same.

68.The abovementioned suit properties were acquired in the name of the defendants. The name of the plaintiffs did not figure in the deeds which recorded the said transfer. The said transfers which conferred rights in favour of the defendants to the exclusion of the plaintiffs have not been challenged by the plaintiffs. No declaration to their nullity has been sought. Till the said transfers are assailed, the defendants continue to be owners of the suit properties to the exclusion of the plaintiffs. The plaintiffs cannot then claim any right in the suit properties.

69.By the present suit, the plaintiffs have prayed for declaration of their share in the suit properties and consequential injunction. For the relief of declaration of ownership over immovable property and consequential relief of injunction, the plaintiff is required to value the suit for the purpose of court fees in accordance with Section 7(iv) (c) of the Court Fees Act, 1870. From the plaint it is amply evident that the relief of declaration prayed for by the plaintiff is not surplusage and is a condition precedent to the grant of consequential relief. The Kamera Devi Vs. Chhotey Lal & Ors. Page 37 of 44 C.S NO. 630/11 plaintiff has clearly pleaded in the plaint that the defendant no. 1 has denied the title of the plaintiffs and has set up a rival claim over ownership of the suit property.

Reference may be made to the case of Shamsher Singh Vs. Rajender Prasad AIR 1973 SC 2384, wherein the Hon'ble Supreme Court held as follows :­ "The court in deciding the question of court fee should look into the allegations in the plaint to see what is the substantive relief that is asked for. Mere astuteness in drafting the plaint will not be allowed to stand in the way of court looking at the substance of the relief asked for".

Declaration of ownership in these circumstances is essential in order to obtain consequential relief as held in the case of Anathula Sudhakar vs. P. Buchi Reddy AIR 2008 SC 2033. In as much as declaration of ownership is precondition to the grant of injunction, keeping in view the second proviso of Section 7(iv)(c) of the Court Fees Act and the decision of Full Bench of Hon'ble High Court of Delhi in the case of Purushottam Dass vs. Har Narain AIR 1978 Delhi 114, the present suit is required to be valued as per the market value of the suit property. The said market value would also be the value of the suit for the purpose of jurisdiction as laid down in Section 8 of the Suits Valuation Act, 1887. Yet the plaintiffs have not so valued the suit. If valued in the manner provided by law, the suit is bound to be Kamera Devi Vs. Chhotey Lal & Ors. Page 38 of 44 C.S NO. 630/11 beyond the pecuniary jurisdiction of this court. In a suit which cannot be entertained by the court, the court would also not be competent to grant interim injunction.

70.Counsel for plaintiffs has relied upon the case titled Maharwal Khewaji Trust (Regd.) Faridkot Vs. Baldev Dass AIR 2005 SC 104 to support his contention that the status of the property cannot be disturbed during the pendency of the suit. I am afraid the said decision does not advance the case of the plaintiffs. It is only in the facts of that case that the Hon'ble Supreme Court held that the status of the property must not be disturbed during the pendency of the suit. This is evident from the expressions "We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done" and "Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the Courts below, namely, the lower appellate court and the High Court erred in making the impugned orders" used in the judgment. The facts of that case have not been set out in the decision so as to ascertain whether the decision applies to the facts of the present case. Hence, the decision Kamera Devi Vs. Chhotey Lal & Ors. Page 39 of 44 C.S NO. 630/11 cannot be used as an authority to contend that in every suit relating to title over immovable property, the defendant must be restrained from selling or alienating it. I do not think the Hon'ble Supreme Court intended to laid down such a broad proposition of law. If that was the case, the very filing of a suit would operate as stay on alienation of the property and there would be no requirement of hearing arguments on or deciding the application for interim relief. The time tested requirement of showing the existence of a prima facie case in favour of the plaintiffs as a condition precedent to the grant of injunction has not been dispensed with by the Hon'ble Supreme Court. Hence, the plaintiff cannot be permitted to contend that the defendant is compulsorily required to be restrained from alienating the suit property.

71. The rights that may or may not accrue to the transferees are not required to be adjudicated in this suit. This Court has been, through this suit, called upon to decide whether the defendant no.1 has the right to transfer. The rights that may accrue to the transferee are not under consideration. Hence, it is not required to be decided whether the transferee would be entitled to joint possession of the suit property or would only have the right to partition. For the purpose of the suit, it would suffice to hold that a co­bhumidar is entitled to sell or transfer his rights in the land without the consent of the other co­ Kamera Devi Vs. Chhotey Lal & Ors. Page 40 of 44 C.S NO. 630/11 bhumidars and no restriction on this transfer has been laid down under the law. For the same reason, the plaintiffs cannot restrain the defendant no.1 from parting with possession of the suit properties. Hence the plaintiffs are not entitled to interim injunction restraining the defendant no. 1 from transferring, alienating, selling and creating third party interest in or from parting with possession of the suit properties.

72.The other prayer of the plaintiffs is to restrain the Additional District Magistrate and the Tehsildar from issuing no objection certificate in favour of the defendant no.1. According to the plaintiffs, the defendant no.1 has sought permission from defendant nos. 6 and 7 for the proposed transfer of his interest in immovable properties.

73.No objection certificate / permission for the transfer is granted by revenue authorities in accordance with the Delhi Land Reforms Act. This is the discretion of the revenue authorities which has to be exercised on the basis of their own assessment of the merits of the request. The court cannot substitute its own discretion for that of the revenue authorities. Nor can the court compel the authorities to exercise their discretion in favour of either party. This court does not exercise powers of appeal over the orders of the revenue authorities. Moreover, the plaintiffs are at liberty to challenge the decision of the revenue authorities as to grant or refusal of permission/NOC. This is Kamera Devi Vs. Chhotey Lal & Ors. Page 41 of 44 C.S NO. 630/11 an alternative remedy available to the plaintiff. There is no reason for the statutory remedy to be bypassed by the present civil suit. Owing to the existence of alternate remedy, the present suit for injunction is barred by Section 41(h) of the Specific Relief Act, 1963. The existence of the said alternate remedy operates as a bar to the maintainability of the civil suit and the jurisdiction of this court stands ousted. For this reason, the prayer of the plaintiffs for restraining the defendant nos. 6 and 7 from issuing No Objection Certificate in favour of the defendant no.1 is declined.

74.From the abovesaid, the plaintiffs have failed to make out a prima facie case in their favour. This is the first condition which is required to be fulfilled before interim injunction can be granted in favour of the plaintiffs. Unless an arguable case is made out and it is shown to the court at least prima facie that the plaintiff has a right or share in the suit property and is entitled to restrain its alienation, an embargo cannot be placed by the court on the proprietary right of the defendant no.1 to sell or dispose off the property. In the present case, even assuming the version of the plaintiffs to be correct, they do not stand entitled to restrain the same. This view is fortified by the decisions of the higher court which are binding on this court. If without having any interest in the property, plaintiffs are granted an interim injunction restraining its sale and transfer, that would entitle Kamera Devi Vs. Chhotey Lal & Ors. Page 42 of 44 C.S NO. 630/11 any bystander to create dispute over properties and restrain their alienation so as to vex the rightful owner or to coerce him to yield to unreasonable demands. That cannot be the intention of the legislature. Hence, the Hon'ble Supreme Court and the Hon'ble High Court of Delhi have repeatedly emphasized that interim injunction must be granted only where there is a bona fide dispute about the title of the property. Where it is patently clear from the plaint itself that the plaintiffs have no right to restrain the suit property, interim injunction cannot be granted. Hence, there is no merit in the application under Order 39 Rules 1 and 2 read with Section 151 of Code of Civil Procedure filed on behalf of the plaintiffs. The application is accordingly dismissed. The ad interim order passed on 01.07.2011 and continued on subsequent dates of hearing is hereby vacated. The application under Order 39 Rule 4 read with Section 151 of Code of Civil Procedure filed on behalf of the defendant no.1 is also accordingly disposed off.

75.The application under Section 151 of Code of Civil Procedure dated 27.09.2011 filed on behalf of defendant no.1 prays for clarification of the order of status quo till the interim order is vacated. The interim order referred to in the application has already been vacated. Since the application sought the clarification only till vacating of interim order and since the order stands vacated, the application has been Kamera Devi Vs. Chhotey Lal & Ors. Page 43 of 44 C.S NO. 630/11 rendered infructuous. There is no need of clarification of the order which has been vacated. The instant application of the defendant no. 1 is therefore hereby dismissed.

76.Nothing stated hereinabove shall be construed as an expression on the merits of the case.

(Ashish Aggarwal) Civil Judge­I South­West District, Delhi/14.11.2011 Kamera Devi Vs. Chhotey Lal & Ors. Page 44 of 44 C.S NO. 630/11