Delhi District Court
Sh. Jagdish Singh S/O Sh. Sahi Ram vs Smt. Savitri W/O Sh. Partap Singh on 9 September, 2011
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL DISTRICT JUDGE 01 (WEST); DELHI
RCA No.02/11
ID No. 02401C0014572011
1. Sh. Jagdish Singh S/o Sh. Sahi Ram,
2. Sh. Sunil Kumar S/o Late Sh. Baljit Singh,
3. Sh. Pawan Kumar S/o Late Sh. Baljit Singh,
4. Sh. Rohit S/o Late Krishan Kumar,
5. Arun S/o Late Sh. Krishan Kumar
All residents of B5/1, Model Town, Delhi 110009
.....Appellants
Versus
1. Smt. Savitri W/o Sh. Partap Singh,
R/o H. No. 202/22, Vikas Nagar, Rohtak, Haryana.
2. Smt. Shanti W/o Late Sh. Mahender Singh.
R/o Pana Udyan, Arya Samaj Road,
Near Subzi Mandi, Narela, Delhi.
3. Smt. Omi, W/o Late Sh. Sardar Singh @ Sardare
R/o Village Jharoda Kalan, Delhi 43
4. Smt. Phoolo Devi W/o Sh. Raj Singh @ Raja (Jhandewalan)
R/o Village Halalpur, District, Sonepat, Haryana.
5. Sh. Chhote Lal, S/o Sh. Hira Lal (now deceased) through Lrs:
A. Sh. Rajender Singh S/o Sh. Chhote Lal,
R/o B5/1, Model Town, Delhi 110009
.....Respondents.
Date of Institution : 13.01.2011
Date of Decision : 09.09.2011
RCA No.02/11 Page1/16
JUDGMENT
Vide impugned judgment and decree dt.14.12.2010, learned Civil Judge has rejected the plaint of Suit No.520/04 instituted by the plaintiff - appellants while allowing the application of the defendants U/O 7 Rule 11 CPC and holding that the suit was barred by limitation and provisions of Delhi Land Revenue Act, 1954.
2. Plaintiff instituted suit for declaration and permanent injunction on 24.12.04. An application for amendment of the plaint was filed on 21.04.08 which came to be opposed by the defendants. When application U/O 6 Rule 17 CPC i.e. for amendment of the plaint was pending, defendants filed an application U/o 7 Rule 11 CPC. Vide order dt. 06.12.10 application for amendment of the plaint was allowed and amended plaint was taken on record. As per amended plaint the relief claimed by the plaintiff reads as under : "A decree of declaration may be passed in favour of the plaintiffs, defendant no.1 to 4 declaring the Mutation order No.NT(N) M191/9697 dt.18.11.96 as null and void order and further declare the defendant no.5 and late Sh. Sahi Ram the predecessor in interest of the plaintiffs as legal heirs under the provisions of Sec.50 & 51 of DLR Act, 1954 after the death of Smt. Khazano Devi in the year, 1995 of the land in suit as mentioned in para 1 of the plaint as legal heirs of late Sh. Chhater Singh."
3. During pendency of the suit, defendant no.5 left this world and the trial court while allowing application U/s 22 Rule 4 (4) CPC exempted the plaintiffs from bringing on record LRs of the defendant. RCA No.02/11 Page2/16
4. Ultimately, vide impugned order the application U/o 7 Rule 11 CPC has been allowed and plaint rejected.
5. As per case of the plaintiffs, as per amended plaint, late Sh. Chhatar Singh S/o Sh. Hira Lal was bhumidar of agricultural land measuring 22 bigha 9 biswas comprising in Kh. No.28/17/1(15), 57/16(416), 17/2(20), 24(416), 25(416) and 7/4(416) situated in Village Barwala, Delhi. Chhatar Singh had inherited the same from his father.
Consequent upon death of Chhatar Singh in the year 1978, his widow Smt. Kazani Devi (mother of plaintiff) inherited bhumidari rights in the aforesaid land as per Sec.50 of Delhi Land Reforms Act (hereinafter referred to as the Act). She too died in the year 1995 and thereupon Sh. Sahi Ram and Sh. Chhotey Lal, real brothers of Chhatar Singh, are alleged to have inherited bhumidari rights as per Sec.51 of the Act. Case of the plaintiff is that some how the revenue officials, without any notice to Sahi Ram and defendant no.5 - Sh. Chhotey Lal, mutated the suit land in the name of defendants no.1 to 4 - Smt. Savitri, Smt. Shanti, Smt. Omi and Smt. Phulo Devi, the married daughters of Smt. Khazani Delhi in the year 1995 when she (Smt. Khajani Devi) left this world. So claim of the plaintiff is that mutation No.NT(N) M191/9697 dated 18.11.96 sanctioned in favour of defendants no.1 to 4 is null and void.
Further, it is case of the plaintiff that when suit land was being acquired, consequent upon issuance of notification for acquisition, defendants no.1 to 4 filed claims for compensation in respect of the suit RCA No.02/11 Page3/16 land. So, the plaintiffs alleged that due to filing of claims for compensation their rights and rights of defendant no.5 have been affected.
7. Defendants no.1 to 4 filed written statement raising preliminary objections. Preliminary Objection no.1 to 3 were to the maintainability of the suit , same being barred by the provisions of Delhi Land Reforms Act, Specific Relief Act, Land Acquisition Act and of Limitation.
8. As noticed above, while upholding this preliminary objection, trial court has rejected the plaint. Hence, this appeal.
Arguments heard. File perused.
9. As noticed above, after the amendment of the suit as per amended plaint, the suit is for decree of declaration : "Firstly that the mutation order dated 18.11.1996 is null and void; and Secondly that the defendant no. 5 and Late Sh. Sahi Ram, Predecessor in interest of the plaintiffs be declared as legal heirs of Sh. Chattar Singh (Since deceased) after death of Smt. Khazani Devi, under the provisions of Section 50 and 51 of Delhi Land Reforms Act, in respect of the suit land." Maintainability of suit for declaration regarding mutation order of 1996
10. In the impugned judgment, the Trial Court has held the suit not maintainable in this regard, in view of provision of Section 64 of Delhi Land Revenue Act, while observing that under the Act, the plaintiffs were required to seek declaration from the Revenue Authorities and not from Civil Courts.
In the course of arguments, learned counsel for the respondents no. RCA No.02/11 Page4/16 1 to 4 has contended that the mutation order was passed in the year 1996 but suit came to be instituted in the year 2004 and that the appropriate remedy available to the plaintiffs to challenge the mutation order was under Section 64 of Delhi Land Revenue Act, but that was not availed of and as such the appeal deserves to be dismissed.
Learned counsel for the appellants has not raised any arguments in reply to the aforesaid arguments of learned counsel for the respondents about the remedy available to a person aggrieved by the mutation order. The persons aggrieved by the mutation order passed in the year 1996 could challenge the same before the Revenue Authorities under Section 64 and 65 of Delhi Land Revenue Act. Admittedly, the remedy available under Delhi land Revenue Act was not availed of. Accordingly, the present suit having been filed in the year 2004, challenging the mutation of the year 1996, and seeking declaration in respect thereof has been rightly held to be not maintainable before the Civil Court. Maintainability of suit for decree of declaration that the plaintiff's predecessor in interest are legal heirs of Sh. Chattar Singh.
11. As noticed above, the second declaration claimed by the plaintiffs in the suit was that defendant no. 5 and Late Sh. Sahi Ram, Predecessor in interest of the plaintiffs be declared as legal heirs of Sh. Chattar Singh (Since deceased) after death of Smt. Khazani Devi, under the provisions of Section 50 and 51 of Delhi Land Reforms Act, in respect of the suit land.
Section 34 of Specific Relief Act reads as under: RCA No.02/11 Page5/16 "Discretion of court as to declaration of status or right Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."
12. Learned counsel for the appellants has submitted that Sh. Chattar Singh having died in the year 1978, his widow Smt. Khazani Devi became the Bhumidhar of the land and when the widow died in the year 1995, the land reverted back to Sh. Chattar Singh and in view of provisions of Section 50 Sh. Chotey Lal and Sahi Ram, the brothers of Chattar Singh got right and interest in the suit property.
Learned counsel has further submitted that Sh. Sahi Ram died in the year 2004 whereas Sh. Chotey Lal died on 04.09.2007. The contention of the learned counsel for the appellants is that in view of provisions of Section 50 of Delhi Land Reforms Act, mutation could not be sanctioned in the names of the married daughters of Smt. Khazani Devidefendants respondent nos. 1 to 4 herein, and as such this suit was maintainable before the Civil Court for the decree of declaration as prayed for.
In support of his submission, learned counsel has referred to decision in Anand Parkash & ors. Vs. Ram Kala & Ors. 67 (2010) DLT 225 wherein it was held that title to Bhumidari rights acquired by way of devolution and challenge raised by them to the Will cannot be RCA No.02/11 Page6/16 decided by the Revenue Courts and that appellants were not claiming any declaration for grant of Bhumidhari rights or a declaration that grant of Bhumidhari rights to respondent was wrong or illegal. As submitted by learned counsel for appellants in Anand Parkash's case the version of the appellants was that they were joint Bhumidhars of the agricultural land alongwith their brother and he having died without any other legal heir, after his death the appellants were entitled to succeed to the Bhumidhari rights of deceased, and as such, that suit was held maintainable. Learned counsel for appellants has submitted that herein the Trial Court even after having observed that in Anand Parkash's case, the suit was held to be maintainable, went on to observe without basis that the decision in that case was not applicable to the facts of this case.
As regards reference made by Trial Court in decision Hatti v. Sunder Singh AIR 1971 SC 2320, learned counsel for appellant has submitted that decision in that case is not applicable to the facts of the present case.
Learned counsel has also referred to decision in Siri Ram Vs. Jai Parkash & ors. 1991 RLR 275; Mam Raj Vs. Ram Chander & Ors. 1974 DLT 227 and submitted that provisions of Sec.185 Delhi Land Reforms Act are not applicable to the facts of present case.
It has been submitted by learned counsel for appellants that suit came to be instituted in 2004 but even if the suit land was acquired thereafter under the Land Acquisition Act in the year 2005, the suit was maintainable. In support of his submissions learned counsel has referred RCA No.02/11 Page7/16 to decisions in Shyam Lal & ors. Vs. Sham Lal and ors. 2007(1) LAR 645; Asher Ali Vs. Sukhna Seikh (deceased by LR's) & ors. AIR 1992 Gauhati 1.
Learned counsel has then referred to provisions of Sec.22, 23 & 27 of Delhi Land Revenue Act and submitted that in view of the provisions of this Act the suit was maintainable before the Civil Court.
Learned counsel for appellants has also submitted that the Trial Court, while disposing of the application U/O 7 Rule 11 CPC, took into consideration the pleas put forth by the defendant whereas as per settled law while dealing with such an application, court is required to take into consideration only the averments put forth in the plaint and not the pleas put forth in the written statement. Therefore, contention of learned counsel for appellant is that impugned judgment and decree are liable to be set aside and suit deserves to be restored to its original number.
On the other hand, learned counsel for the respondents no. 1 to 4 has contended that the suit for declaration was not maintainable for the following reasons:
1. That the suit land was acquired in 20052006, during pendency of the suit but the plaintiffs withdrew their objections before the Land Acquisition Collector.
2. That the plaintiff claimed declaration in favour of defendant no. 5 ( who died during pendency of the suit) and Sh. Sahi Ram ( who had died even prior to the institution of the suit).
3. That relief of possession was not claimed in the suit. RCA No.02/11 Page8/16
In support of this contention, learned counsel for respondent no. 1 to 4 has referred to decision in Sanat Kumar Mitra v. Hem Chandra AIR 1961 Calcutta 411, wherein it has been held by Hon'ble High Court that Where a suit is instituted by the plaintiff not for a declaration of his own right to property or his right to a legal character, but to challenge the defendants' pretensions to a legal character and right to property, such a suit does not come under S. 42."
That was not a suit instituted by the plaintiff for declaration of his own right to the property or his right to a legal character. On the other hand, that was a suit to challenge the defendant's pretensions to a legal character and to right to property. Hon'ble High Court held that the suit did not fall within the ambit of Section 42.
Learned counsel for respondents no. 1 to 4 has referred to decision in Ram Saran & anr. vs. Smt. Ganga Devi AIR 1972 Supreme Court 2685 to contend that the appeal deserves to the dismissed as the plaintiffs appellants did not seek possession of the properties which is with the defendants.
Therein, it was found by the factfindingsCourts that Smt. Ganga Devi was in possession of the some of the suit properties. The plaintiff therein had not sought for possession of those properties. They merely claimed a declaration that they were the owners of the suit properties. Accordingly, the suit was held to be not maintainable.
Learned counsel for the respondent no. 1 to 4 has also referred to decision in Pyare vs. The Financial Commissioner and Ors. 2001 VII RCA No.02/11 Page9/16 AD (Delhi) page 630, to contend that the suit property having been acquired under the Land Acquisition Act, during the pendency of the suit, the present suit was not maintainable.
13. In Anand Parkash's case (Supra), the plaintiffs ( appellants - respondent no.2) had filed a suit for declaration with consequent relief of permanent injunction on the ground that four plaintiffs / appellants and late Sh. Pahlad were the joint bhumidars of agricultural land and residential plot; that Pahlad died on 07.01.2000 as a bachelor and by virtue of provisions of Sec.50 of Delhi Land Reforms Act, the appellants succeeded to his estate being his real brothers and natural heirs. On 18.04.2011, they moved an application for mutating the share in the agricultural bhumidhari holding left by Sh. Pahlad in their names. Subsequently respondent no.1 in moved another application before tehsil for mutation in his name on the ground that Pahlad had executed the Will dt.15.07.96 in his favour. But the appellants pleaded that the Will was forged and fabricated documents.
The suit was contested by the respondent raising preliminary objection that suit as claimed for declaration with consequence relief was not maintainable as the Civil Court had no jurisdiction to entertain the suit in respect of agricultural land. On merits, respondent denied that after the death of Sh. Pahlad, the plaintiff had succeeded to his estate. The trial court held that the suit was barred U/s 185 of Delhi Land Reforms Act and Civil Court had no jurisdiction to entertain the suit. Under issue no.2 Trial Court held that probate court was empowered to adjudicate upon the RCA No.02/11 Page10/16 proof or validity of the Will and the Civil Court could not go into question. Accordingly the suit was dismissed as not maintainable. The Hon'ble High Court observed that only entry no.28 of Schedule - I of Delhi Land Reforms Act provided for declaratory the suit as provided in Sec.104 but the said entry had no appliction to the case. As regards provisions of Sec.50 of Delhi Land Reforms Act Hon'ble High Court observed that plaintiffs had filed the suit to establish their title and to challenge the Will prepounded by the respondent and further that the title to the bhumidhari rights acquired by the plaintiffs by way of devolution and the challenge raised by them to the Will could not be decided by the Revenue Court. Reference was also made to the decision in Siri Ram Vs. Jai Parkash & ors. 1991 RLR 275; Mam Raj Vs. Ram Chander & Ors. 1974 DLT 227; Jai Bhagwan Vs. Lachmi Devi and Ors. 1972 RLR 25; Cdr. Bhupindr Singh Rekhi Vs. C.S. Rekhi & Ors. 76 (1998) DLT 257; and Sankalchan Jaychandbhai Patel and Ors. Vs. Vithalbhai Jaychandbhai Patel and Ors. 1996 VII AD (SC) 721. Accordingly, Hon'ble High Court concluded that in view of provisions of Sec.41 of Delhi Land Reforms Act and the enunciation of law by the Hon'ble High Court and by Hon'ble Supreme Court that suit was maintainable.
In Siri Ram's case (Supra) plaintiff - petitioner therein had filed the suit for declaration and permanent injunction to the effect that he was sole heir and successor of Sh. Om Parkash. Hon'ble High Court, while observing that Sec.185 (1) saves only those cases which are mentioned in RCA No.02/11 Page11/16 Column no.7 of Schedule - I of Delhi Land Reforms Act and to none other, held that the suit was not covered under specific matters enumerated in Schedule I of the Act. Hon'ble High Court held that Civil Court had every jurisdiction to try the suit. Distinguishing the case referred to Hatti v. Sunder Singh AIR 1971 SC 2320 it was observed that in the suit filed by Siri Ram no declaration whether Sh. Om Parkash had acquired bhudidhari rights had been prayed for, and the only question was as to who was the rightful successor of his title therein. Delhi Land Reforms Act does not make any provision for cognizance of such questions under it. Accordingly, Hon'ble High Court held that Sec.185 of the Act did not affect the jurisdiction of the civil court to try the suit filed by Siri Ram.
In Mam Raj's case (Supra) plaintiff had claimed decree of permanent injunction on the basis of succession to bhumidhari by virtue of a Will. Hon'ble High Court held that the suit where permanent injunction was claimed on the basis of succession to bhumidhari rights, was not covered by any entry in column - 3 of 1st Schedule and thereby was not either expressly or impliedly barred by the Land Reforms Act.
In the case of Hatti v. Sunder Singh AIR 1971 SC 2320, Hon'ble Apex Court held that a claim under Section 11 of the Act for declaration of bhumidari rights was not maintainable in civil court in view of provisions of Section 185 of the Act read with Schedule I and exclusive jurisdiction for adjudication of such claims vested in the appropriate Revenue Court.
RCA No.02/11 Page12/16
In the case of Adarsh Murgai vs. Delhi Adminstration etc. 1992 Rajdhani Law Reporter 228, plaintiff wanted to establish that she had bhumidari rights and bhumidari rights were granted by Revenue Authority was illegal. The Hon'ble High Court has observed to declare the said order dated 17.07.1989 to be illegal. The Court had first to hold that plaintiff in fact holder of the Bhumidari rights and that would be declared in her favout which the Hon'ble Court was not competent to grant.
Hon,ble High Court further held the suit barred by provisions of Section 185 (1) of Delhi Reforms Act and not maintainable before civil court, while observing in the manner as under: "12. But in the present case the very title of the land in question is in dispute. Defendant No. 3 has already been declared a bhumidar by a competent revenue court whereas plaintiff has yet to establish her right. By seeking this inunction what the plaintiff wants this Court to do is to deprive the defendant no. 3 from her right declared in her favour by a Court of competent jurisdiction and in substance a declaration in her favour that she is the holder of Bhumidari rights. Therefore, as observed above in substance she is asking for declaration which this Court cannot give and the judgment in Hatti vs. Sundar Singh (Supra) is on all four applicable to the facts of the present case."
In Pyare's case (Supra) while the proceedings under Section 85 of Delhi Land Reforms Act filed by the petitioner therein were pending, before the Revenue Assistant, for being declared as Bhumidhar of the land, the land was acquired under Land Acquisition Act and the Revenue Assistant dismissed the application on the ground that land stood acquired and the Revenue Court had no jurisdiction to try the application. The RCA No.02/11 Page13/16 order passed by the Revenue Assistant was upheld in appeal before the Additional Collector. The petitioner then approached the Financial Commissioner by way of Second Appeal, but the second appeal was also dismissed when the Financial commissioner was of the view that the question relating to Bhumdhari rights was outside the purview of the Revenue Court because of the acquisition of the land.
The Hon'ble High Court in the writ petition filed by the petitioner challenging the order passed by the Financial Commissioner, held that when all decisions regarding payment of compensation have to be gone into by collector and other Govt. functionaries a suit for the purpose of establishing bhumidhari rights over the land for the purpose of claiming compensation is barred by implication, the Land Acquisition Act being a self contained code. Hon'ble Court further observed that in case the petitioner was to seek to establish bhumidhari rights over the land for the purpose other than seeking compensation, the remedy by way of civil suit would be available to him.
14. In view of the above referred to case law, this Court finds merit in the contention of learned counsel for appellants that the Trial Court, even after having noticed the decision in Anand Parkash's case (Supra) and Sri Ram's case (Supra) that suit filed to seek right to succession to the title was held to be maintainable, erred in observing in the judgment that the decision in the said case was not applicable to the facts of this case. Section 185 of Delhi Land Reforms Act does not provide for any such relief to a person whose legal character or title is disputed. RCA No.02/11 Page14/16
But learned counsel for the appellants has not been able to satisfy this Court on the maintainability of the suit for decree of declaration, beyond the prescribed period of limitation of three years, when Sh. Sahi Ram and Sh. Chhotey Lal did not challenge legal character of defendants no. 1 to 4.
Herein, as noticed above, the suit was instituted in December 2004. Sh. Sahi Ram, who is sought to be declared as one of the legal heirs had already left this world. In the course of arguments, learned counsel for the parties has submitted that Sh. Chhotey Lal defendant no. 5 left this world on 04.09.2007 and that Sh. Sahi Ram left this world in the year 2004 even prior to the institution of this suit. Admittedly, during their life time, Sh. Sahi Ram or Sh. Chhotey Lal neither challenged the mutation order of November 1996 nor filed any such suit seeking declaration in respect of the suit property on the basis of succession, consequent upon death of Smt. Khazani Devi in the year 1995. Sh. Sahi Ram could sue four married daughters of Sh. Chattar Singh and Smt. Khazani Devi for such a declaration within a period of three years from November 1996, when the mutation order is said to have been passed by the Revenue Authority. Learned counsel for the appellants submits that the present suit having been filed even after the period of three years is maintainable as the mutation order passed in the year 1996 is null and void.
There is no merit in this contention raised by learned counsel for the appellants, firstly because to challenge the mutation order, appropriate RCA No.02/11 Page15/16 remedy was not availed of by Sh. Sahi Ram or by the present plaintiffs within the stipulated period as prescribed under Delhi Land Revenue Act and secondly, because the period of limitation, for suits relating to declarations, under Article 58 of Limitation Act, 1963 is three years and the time commenced from when the right to sue first accrued. But the present suit came to be filed in the year 2004 when the right to sue during the life time of Sh. Sahi Ram and Sh. Chhotey Lal but they did not file any such suit, the suit for declaration filed by plaintiffs is barred by limitation and not maintainable.
As regards share of claim in compensation on acquisition of the suit land, there is no doubt that in view of decision in Hira Singh's case (Supra) a suit for recovery of share by a person, whose claim has not been determined or adjudicated upon under Land Acquisition Act, from the person who has actually received the amount of compensation awarded under the Act, is maintainable, but herein learned counsel for the appellants has candidly admitted that the plaintiffs withdrew their objections filed before the Land Acquisition Collector. Furthermore, present suit is not to claim any such share from the defendants. This is a simple suit for declaration. Therefore, decision in Hira Singh's case (Supra) does not come to the aid of the plaintiffs appellants.
15. In view of the above discussion, finding no merit in this appeal, same is hereby dismissed. Decree sheet be prepared. Trial Court record be returned.
Appeal file be consigned to record room.
Announced in the open Court
on 09.09.2011 (Narinder Kumar )
Additional District Judge01(West)
Delhi.
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