Delhi District Court
Kumari Bhawna- Minor vs Sh. Balbir Singh (Now Deceased) on 5 July, 2022
IN THE COURT OF SUMIT DASS, ADDITIONAL DISTRICT
JUDGE-04, SOUTH WEST DISTRICT, DWARKA COURTS : NEW
DELHI.
CS No.15675 OF 2016
In the matter of:
Kumari Bhawna- Minor
d/o Late Balraj
Through her mother
Smt. Renu
w/o late Sh. Balraj
r/o H.No.200, village Maidan Garhi
New Delhi. .......Plaintiff.
VERSUS
1. Sh. Balbir Singh (Now deceased)
Through LRs (already arrayed as defendant no.2,3 & 4)
s/o Late Ran Singh
r/o VPO - Dhool Siras
New Delhi.
2. Smt. Nirmala
w/o Sh. Mahabir
d/o Late Sh. Balbir Singh
r/o H.No. 192, village Maidan Garhi
New Delhi.
3. Smt. Kamal
w/o Sh. Mahender Singh
d/o Late Sh. Balbir Singh
r/o Village Maidan Garhi
CS No. 15675/16
Kumari Bhawna Minor v/s Balbir Singh & Ors. Page No. 1/13
New Delhi.
4. Smt. Sushila
w/o Sh. Laddu Ram
d/o Late Sh. Balbir Singh
r/o H.No. 192, village Maidan Garhi
New Delhi. ......Defendants.
Date of Institution : 12.11.2013
Date of Arguments : 05.07.2022
Date of Decision : 05.07.2022
SUIT FOR PARTITION, POSSESSION AND PERMANENT
INJUNCTION
JUDGMENT (ORAL)
1. Facts lies in a narrow compass. The precis of the same is as hereunder:
Balbir Singh, the defendant no.1 - who died during the pendency of the suit and was survived by the other defendants - daughters was the recorded Bhumidar of land at village Dhool Siras which was acquired vide award no. 27/2002-2003. He had one son and three daughters. His son Balraj had pre-deceased him in the year 2001 i.e. on 10.05.2001 leaving behind the plaintiff - his daughter and Smt. Renu, the wife as his legal heirs. Subsequently interse Renu and Bhawna - on one side and Balbir, litigations - a criminal case U/s 406/498A IPC and another litigation U/s 19 and 22 of the Hindu Adoption and Maintenance Act, 1956 were contested and later on compromised.CS No. 15675/16 Kumari Bhawna Minor v/s Balbir Singh & Ors. Page No. 2/13
2. With respect to the agricultural land which late Balbir Singh had in village Dhool-siras a reference petition was decided by Sh. Sanjay Kumar, the then Addl. Distt. & Sessions Judge in terms of order dated 07.08.2008 i.e. LAC No. 41/06 [Union of India v/s Balbir Singh].
2.1 In the said reference the compensation so awarded was apportioned between Balbir Singh who was recorded Bhumidar and a sum of Rs. 15 lacs was given to the plaintiff herein inasmuch as in the other cases filed by Bhawna/Renu and Balbir Singh, parties had reached to a mutual settlement. In short the factum of settlement in other cases was taken note of and out of the compensation sum of Rs. 33,78,098.93 a sum of Rs. 15 lacs was given to Bhawna, minor which was secured in the form of an FDR. The order [ relief para] of the Reference Court I am quoting as here under :-
"3. IP-3 grand daughter Kumari Bhavna is entitled to Rs. 15 lacs out of total assessed compensation of Rs. 33,78,098.93 alongwith interest from 01.01.2005 as per settlement before this court on 06.08.2008 alongwith the following conditions:-
i) Rs. 15 lacs shall be withdrawn in the name of IP-3 Kumari Bhavna, minor and shall be kept in fixed deposit in the State Bank of India, Tis Hazari till she attains majority.
ii) IP-2 Smt. Renu is entitled to withdraw interest on Rs. 15 lacs in the name of IP-3 Kumari Bhavna from 01.01.05 till her majority as per settlement dated 06.08.2008 which shall be utilised for bringing up of Kumari Bhavna."CS No. 15675/16 Kumari Bhawna Minor v/s Balbir Singh & Ors. Page No. 3/13
2.2. Subsequent thereto the instant suit has been filed in the year 2013 seeking partition of the plots which Balbir Singh had in the old Lal Dora and the extended Lal Dora which are also described in the siteplan attached alongwith the plaint and proved as Ex P-2 and P-3. The plot in Khasra No. 66 is Ex. P-2 and the plot in Khasra No 144 /1 is Ex. P-3 [there is no dispute with regard to the identity or measurement of the plots].
2.3 The present suit was primarily resisted on one particular ground that this Court has no jurisdiction to deal with the subject-matter as qua suit for partition - the jurisdiction is vested with the competent authority i.e. Revenue Assistant as per the scheme of Delhi Land Reform Act, 1954 [in short DLR Act]. This point was also summed up in issue no.2 as framed before the Hon'ble High Court [as the suit was filed before the Hon'ble High Court and owing to enhancement of pecuniary jurisdiction was transferred to District Court].
2.4 For the sake of convenience all the issues settled are reproduced as here under which would give a pointer to the controversy involved in the suit as well:
"1. Whether the plaintiff has no locus standi to seek partition of the suit property? OPD
2. Whether this Court has no jurisdiction to entertain the present case in view of Delhi Land Reforms Act by which jurisdiction of civil Court is barred? OPD
3. Whether the plaintiff is entitled to relief of CS No. 15675/16 Kumari Bhawna Minor v/s Balbir Singh & Ors. Page No. 4/13 permanent injunction and partition, as prayed for?
4. Whether the suit is not maintainable on the ground of non-joinder of necessary parties?
5. Relief."
2.5 On behalf of plaintiff the witnesses examined are as under :-
i) Renu w/o late Balraj had stepped into the witness box and tendered her evidence by way of affidavit as Ex. PW-1/A and proved the documents viz. Khatoni paimaish for the year 1979-80 as Ex. P-1, siteplans as Ex. P-2 and P-3 respectively, certified copy of the order dated 10.01.2003 as Ex. P-4. She was duly cross examined.
ii) PW-2 is Krishanbir s/o Ombir Singh, Halka Patwari. He had brought the Khatoni related to K.No.144/1 for the year 1979-80 as Ex. PW-2/A and copy of Aks Shizra of plot bearing no. 144/1 as Ex. PW- 2/B. PE was closed.
2.6 On behalf of defendant the witnesses examined are as under :
i) Ashok Dagar s/o defendant no.3 was examined as DW-1.
He had tendered the evidence by way of affidavit Ex. DW-1/A. He had proved the documents i.e. the copy of the order passed by Sh. Sanjay Kumar, Ld. ADJ dated 07.08.2008, copy of the order passed by Hon'ble High Court dated 11.05.2012 and copy of the Khata Khatoni dated 20.12.2013 as Ex. D-1 to D-3. He was duly cross examined
ii) DW-2 was Kamla Dagar. She had tendered her evidence by way of affidavit Ex. DW-2/A. She had proved the documents as proved by her son DW-1. She was duly cross examined.
CS No. 15675/16 Kumari Bhawna Minor v/s Balbir Singh & Ors. Page No. 5/13iii) Smt. Nirmala, the defendant no.2 had examined herself as DW-3 and tendered her affidavit as Ex. DW-3/A. Again she had relied the documents exhibited earlier. She was duly cross examined.
iv) DW-4 was Iqbal Singh, Halka Patwari. He had brought the summoned record copy of the Khatoni of the period 2002 to 2003 issued on 19.02.2020 with respect to Khasra No. 144/1 Ex. DW4/A. He was also duly cross examined.
Evidence accordingly was concluded.
2.7. Arguments were heard as advanced by Sh. B.S. Kharab, Ld Counsel for the plaintiff and Sh. Raghu Godara, Ld. Counsel for defendant.
3. Insofar as issue no.2 is a question of law I am dealing with the same at the very outset.
3.1 Admittedly the subject matter in the suit is the plot in Old Lal Dora and another plot in the extended Abadi/Lal Dora.
3.2 On this point I may straightaway rely upon the reported judgment titled as Raj Kishore Tyagi v/s Radhey Shyam & Ors. reported in 149 (2008) DLT 754. The relevant paragraphs are quoted hereunder:
8. As pleaded in the plaint the land is in the extended abadi. The land in the extended abadi may be land as defined under Section 3(13) of the Delhi Land Reforms Act 1954 but this land would not be a holding as defined under Section 3(11a) of the Delhi Land CS No. 15675/16 Kumari Bhawna Minor v/s Balbir Singh & Ors. Page No. 6/13 Reforms Act. Holding is defined under:
(11a) "holding" means -
(a) in respect of -
(i) Bhumidar or Asami; or
(ii) tenant or sub-tenant under the Punjab Tenancy Act, 1887, or the Agra Tenancy Act, 1901; or
(iii) lessee under the Bhoodan Yagna Act, 1955, a parcel or parcels of land held under one tenure, lease, engagement or grant; and
(b) in respect of proprietors, a parcel or parcels of land held as 'sir or khudkhasht.
9. To put it pithily, land comprised in a holding would be such land which has to be used for an agricultural purpose as defined under the Delhi Land Reforms Act 1954 and in relation whereto the proprietary interest would be that as a bhoomidar, sir, khudkhasht, or an asami."
3.3. Definition of land U/s 3(13) was pressed upon to contend that the usage of land is important and village Abadi are also included therein.
As mentioned above there is a distinction between the words 'land' and 'holding' as defined U/s 3 (11a) of the DLR Act. If I look at the schedule at entry no. 11 which pertains to suit for partition of a holding of a Bhumidar the jurisdiction is with the Revenue Assistant however for the said purpose the land should be used for agricultural purposes and in reference thereto the nature of interest should be that of Bhumidar, Asami or that of Sir or Khudkasht.
CS No. 15675/16 Kumari Bhawna Minor v/s Balbir Singh & Ors. Page No. 7/133.4 The land either in Old Lal Dora or extended Lal Dora/ Abadi are land plots primarily carved out to cater to the residential needs of the village inhabitants. They are not used for agricultural purposes - infact the case argued by the defendants that one plot in the Old Lal Dora was used for residence and the umbrage or exception qua the DLR Act was with the other plot of 500 sq. yards which was in the extended Abadi. This submission perse to my mind is incongruous or inconsistent with the fact that the properties at Lal Dora - Old Lal Dora or New Lal Dora are properties for residential purposes in which ownership rights are vested which can also be transferred unlike the bar on piecemeal transfer on agricultural land to prevent fragmented holdings.
3.5 Insofar as this particular aspect is concerned i.e. usage of the land the testimony of PW-2 Krishan Veer, Halka Patwari categorically mention that this plot of land was in the extended Abadi of village Dhool- Siras. To supplant this in the testimony of DW-4 Iqbal Singh Patwari also had deposed during his cross examination that the plot is meant for residential purposes. Thus, the basic fundamental ingredients that the land should be used for agriculture purpose ceases to exist in view of the deposition of PW-2 and DW-4. Thus, to my mind insofar as the question of jurisdiction is concerned the jurisdiction lies before the Civil Court.
4. That being the scenario this issue is decided in favour of the plaintiff and against the defendant.
CS No. 15675/16 Kumari Bhawna Minor v/s Balbir Singh & Ors. Page No. 8/135. Coming to the other issues another important aspect which I need to spell out is the fact that Balbir Singh while he was alive had got recorded a statement before the Court of Ld. ADJ which reads as under:
"I have compromised with the plaintiffs (both). I undertake that out of the compensation against award No. 27/2002-2003 which I will receive from LAC/ADM South West Kapas Hera, Delhi. I will authorize plaintiff no.1 Smt. Renu to collect Rs. 3.50 lacs for herself and Rs. 15 lacs for plaintiff no.2 Ms. Bhawna, my grand daughter. However, the amount of Rs. 15 lacs which I wish to give plaintiff no.2 shall be kept in the name of plaintiff no.2 in a fixed deposit with the bank for a period of 15 years. However the interest amount on fixed deposit may be utilized for the upkeep and day to day expenses of plaintiff no.2. I also undertake not to sell my house and plot/ in village Dhool siras and the same would go to my grand daughter after I and my wife are not more in this world. This compromise is made on the assurance of the plaintiff that she would not pursue her case U/s 498/406/34 IPC vide FIR No. 479/2001 of PS Mehrauli pending in the Court of Ms. Bimla Kumari, M.M. New Delhi ad would either withdraw the case or get the proceedings quashed by High court U/s 482 Cr.PC. The plaintiff has also assured that she would withdraw the case file by the plaintiff no.2 against the defendant which is now pending in the Court of Dr. Sahabuddin, civil Judge, Delhi. I do not have any objection if the plaintiffs come and live with us."
5.1 The said statement was taken note of by the Ld. ADJ while deciding the reference petition and amount accordingly was also distributed.
CS No. 15675/16 Kumari Bhawna Minor v/s Balbir Singh & Ors. Page No. 9/135.2 Further the said statement reveals that an undertaking was recorded by Balbir Singh that he would not sell his house and plot and the same would go to his grand daughter after he and his wife are no more. This statement to my mind cannot be brushed away as the same was given before a Court and also there is an acknowledgment of the interest of the plaintiff insofar as the said plots are concerned. Plaintiff has restricted her claim to 1/4th share and not sued on the basis of the said statement+ itself.
5.3. Dehors the aforesaid no testamentary disposition has been done otherwise by the said Balbir Singh during his lifetime after recognizing the rights of the plaintiff or the claim of the plaintiff that they were seeking a right/share in the compensation amount as well as the plots in question.
5.4 Insofar as the entitlement of the plaintiff is concerned she is the daughter of pre-deceased son of Balbir Singh. Renu is the wife of Balraj. Balbir Singh had four legal heirs - one son and three daughters. Intestate succession follows or if applied each legal heir is entitled to 1/4 share.
5.5 On the aspect of share no argument has been adduced by the defendants' side.
CS No. 15675/16 Kumari Bhawna Minor v/s Balbir Singh & Ors. Page No. 10/136. Ld. Counsel for the defendant had argued that plaintiff and her mother are not in possession of the suit plots hence, the suit ought to have been properly valued and Court fees fixed thereon.
Qua the same no issue has been framed. There ought to have been a specific objection raised which could have been summed up in a distinct issue failing which at the end of the trial this objection cannot be taken. Secondly the statement recorded before Ld. ADJ still holds the ground. The property would have fallen in the hands of the plaintiff so the recognition of her right(s) is implicit.
7. It has been further argued that the settlement of Rs. 15 lacs was full and final settlement and there remains no legal right/entitlement insofar as the suit plots are concerned. Same to my mind is also not a plea which is mentioned in the written statement. Rather the plaintiff and her mother had settled for the compensation amount as awarded by the Reference Court - they had confined themselves within the claim of Rs. 15 lacs, out of Rs. 33 lacs odd received by Balbir Singh leaving him to claim the enhancement of compensation in superior Courts. Ld. Counsel for the defendants had fairly admitted that they had approached the superior Courts for enhancement in which the plaintiff had not sought any amount.
8. Ld. counsel for the plaintiff also adds that they had not challenged the order of the reference Court and this statement he is giving CS No. 15675/16 Kumari Bhawna Minor v/s Balbir Singh & Ors. Page No. 11/13 at bar.
9. Another line of argument propounded by Ld. Counsel for defendant that during the lifetime of Balbir Singh a suit for partition would not have lie/maintainable - this aspect to my mind does not requires to be dealt with as Balbir Singh is no more. He has died and survived his his LRs. Apart from the aforesaid there is also a statement recorded by Balbir Singh during his lifetime as mentioned above.
10. Coming to issue no.4 which spells out the consequences of non joinder of necessary parties. Issue reads as under- "Whether the suit is not maintainable on the ground of non joinder of necessary parties?"
All the legal heirs of Balbir Singh are parties to the suit. Smt. Renu is pursuing on behalf of plaintiff and her interest is not inimical to that of the plaintiff rather being mother she states that Bhawna is entitled to the share of her father. Issue is decided accordingly in favour of the plaintiff and against the defendant.
11. Coming to the other issues i.e. Issue No. 1 and 3. Same reads as under :
1. Whether the plaintiff has no locus standi to seek partition of the suit property? OPD
3. Whether the plaintiff is entitled to relief of permanent injunction and partition, as prayed for?
As discussed in the preceding paragraphs the plaintiff is a legal heir of the pre-deceased son of defendant no.1 and is entitled to CS No. 15675/16 Kumari Bhawna Minor v/s Balbir Singh & Ors. Page No. 12/13 claim partition. Nothing otherwise has been pointed out which would debar the plaintiff to seek partition of the suit property. As fortiori since she has 1/4th share in the suit plots she is entitled for a decree of injunction as well. To put it pithily, in the eventuality if the defendants fritter away the suit land/plots the interest of the plaintiff shall be jeopardized which cannot be compensated in monetary terms - the balance of convenience also lies in her favour.
12. RELIEF :- In view of the aforesaid discussion the legal right to claim share/ partition in the property of Balbir Singh exists in favour of Bhawna and Renu on the basis of law of inheritance coupled with the fact that the provision of DLR Act are not applicable insofar as the suit lands/plots are concerned. It is the suit which is triable by the Civil Court.
13. The suit is accordingly decreed. Plaintiff is entitled to a preliminary decree of 1/4th share in the suit plots as show in Ex P-2 and P-3. Furthermore plaintiff is also entitled to the relief of permanent injunction restraining the defendants from creating any third party interest in the suit plots as shown in Ex. P-2 and Ex.P-3. Decree sheet be prepared accordingly.
Announced in the open Court
on 05.07.2022 (Sumit Dass)
ADJ-04(South West District)
Dwarka Courts/New Delhi.
CS No. 15675/16
Kumari Bhawna Minor v/s Balbir Singh & Ors. Page No. 13/13
CS No. 15675/16
Kumari Bhawna Minor v/s Balbir Singh & Ors. Page No. 14/13