Delhi District Court
Master Azad (Minor) S/O Sh. Kali Ram vs Smt. Risalo on 11 July, 2013
IN THE COURT OF MS. SHILPI JAIN:
CIVIL JUDGE-7 (CENTRAL) : DELHI
Civil Suit No. : 791/10/83
Unique Case ID No : N.A.
In the matter of:
1. Master Azad (minor) S/o Sh. Kali Ram
through Smt.Indrawati
2. Master Krishan (minor) their next friend and
natural guardian
Both residents of Village, Mitrao, Delhi ............. Plaintiffs
Versus
1. Smt. Risalo, W/o Sh. Anant Ram
R/o Mitrao, Delhi
2. Sh. Mange (since decased)
2(a) Smt. Sona, W/o Sh. Mange
2 (b) Master Ram
2 (c) Master Shyam through their mother Smt. Sona
2 (d) Miss Sunita
All residents of V. Mitrao, Delhi
3. Sh. Chotto, S/o Sh. Anant Ram
R/o V.Mitrao, Delhi
4. Bank of India
Vikram Tower
Rajendra Place
New Delhi
5. Central Bank of India
East Patel Nagar
New Delhi- 8 .............. Defendants
Date of institution of the Suit : 19.03.1983
Date on which order was reserved : 11.07.2013
Date of decision : 11.07.2013
SUIT FOR DECLARATION WITH CONSEQUENTIAL RELIEF OF
INJUNCTION
Master Azad Vs. Smt. Risalo 1/24
JUDGMENT :-
1. Vide this Judgment this court shall decide suit for declaration with consequential relief of injunction filed by the plaintiff against the defendant on the averments that Sh. Anant Ram was owner of some agricultural land at village Hatsal, Delhi which he had inherited from his father. It was ancestral land and later on he was given the status of a 'Bhumidar' of that land on the enforcement of DLR Act 1954. He died in the year 1965 and was survived by his widow Smt. Khazani, his three sons, Sh. Mange, Chottu, Kali Ram and a daughter Smt. Risalo.
2. The Delhi Land Reform Act, 1954 came in to force w.e.f. 20.07.1954 wherein the right of inheritance for agricultural land has been restricted only to male descendants as provided U/s 50 of the said Act and in view of that Act, the married daughters and widow do not get any right of inheritance in the agricultural land in Delhi, if there is any male descendant alive. Smt. Risalo was married some times in 1954-1955 sambat 2011 in village Banthalo, U.P. before the death of Sh. Anant Ram and she has got a daughter out of that wedlock, as such his (Anant Ram's) agricultural land was to devolve upon all the three sons in equal share of 1/3 each. His widow Smt. Khazani and his married daughter Smt. Risalo had not inherited any right in agricultural land of Sh. Anant Ram. The agricultural land left by Sh. Anant Ram was illegally got mutated in favour of Smt. Khazani his wife and Smt. Risalo his daughter, alongwith his three sons, Kali Ram, Mange and Chottu. It was got done in connivance with the revenue officials by Smt. Risalo. The said land was later on acquired by the Government of India for the plan development of Delhi vide award No. 1959 of Village Hastal, Delhi. Smt. Risalo has no right to claim any compensation of the said agricultural land but in conspiracy with respondents No. 2 and 3, her mother together with Revenue officials, the defendant No. 1 got the compensation for land after getting the mutation done. Out of the amount of compensation, so paid to Master Azad Vs. Smt. Risalo 2/24 defendant No. 1 with Smt. Khazani and her brother, Sh. Kali Ram, Mange, Chottu, they collected proportionately, some amount after withdrawing from the Banks where the said amount of compensation was deposited and formed a joint fund and purchased certain agricultural land in village Mitraon, Delhi comprising of Khasra Nos. 3/2, 6, 7, 8/1, 5/2 of 92 and 14, 15, 28 of 100, 11,19,20 of 101; 24/2, 25/1 of 76; 4/2 of 94 measuring 50 bigha and 9 biswas of land, as shown in the copy of Khasra Girdawari Annexure 'A'. The consideration of the sale- deed was paid out of the amount of compensation shared by the defendants, their mother and Sh. Kali Ram father of the plaintiffs.
3. The land is still joint and there has been no partition as some of the defendants have been living in Shadipur, Delhi. Formerly the land was cultivated by the plaintiff, wife of the defendant No. 2. Smt. Khazani has now died on 14.11.1982.
4. Smt. Risalo has no any right to inherit any share in the agricultural land of Sh. Anant Ram as such she was not entitled to claim any compensations.
5. Smt. Risalo is claiming share in the land and so much so she has also got a forged will registered in her favour, alleged to have been executed by Smt. Khazani, illegally and fraudulently and claiming the alleged share of Smt. Khazani's in that land. The said will is illegal as Smt. Khazani had no right to inherit any share in the land and compensation of the agricultural land of Sh. Anant Ram and she could not transfer the same in favour of Smt. Risalo. The said will is forged and has not been executed of signed by her free will and consent.
6. She has neither understood the Will nor it was explained to her. She had also not consented to it. She had not even acknowledged the attestations made by the witnesses. She was not in sound condition of mind at the time of execution of the alleged Will.
Master Azad Vs. Smt. Risalo 3/24
7. Following relief prayed that :-
1. It be declared the agricultural land show in Annexure 'A' is of plaintiffs and defendant No. 2 and 3 accordingly to the shares was purchased out of the amount of compensation awarded and paid for the land of Late Sh. Anant Ram and the defendant No. 1 and her mother had no right to claim and receive any compensation which they got illegally so the land purchased out of the said amount belonged to the plaintiffs and defendant No. 2 and 3 jointly, as per their shares (i.e. 1/3 out of it of both the plaintiffs while 1/3 each of defendant No. 2 and 3, and the defendant No. 1 has no right, title or claim over the said land.
2. A decree for declaration be also passed that the mutation for the alleged share of Smt. Khazani in the land shown in Annexure 'A' on the basis of forged Will of Smt. Khazani is also illegal, null and void.
3. A decree for perpetual injunction be passed restraining the defendant No. 1 from withdrawing any amount lying deposited in her name in Bank of India, Rajendra Place, New Delhi and Central Bank of India, East Patel Nagar, New Delhi- 8 in her accounts or in any other bank or post office at her credit out of the compensation amount so received by her.
4. A decree for mandatory injunction directing the Bank of India, Rajendra Place, New Delhi be issued to pay the entire amount with interest in the S.B. Accounts, of defendant No. 1 to the plaintiffs and defendant No. 2 and 3 in accordance with their shares i.e. of one share both the plaintiffs be paid equally, while one share each to defendant No. 2 and 3.
5. A decree for perpetual injunction be passed against the defendant No. 1 restraining her from interfering or in any manner transfer the said land marked in Annexure 'A'.
Master Azad Vs. Smt. Risalo 4/24
8. In Written Statement filed on behalf of the defendant No. 1 and 3 following preliminary objections were taken:-
1. The present suit in this form is not maintainable as it seeks the relief which is outside the scope of the civil court because the land which was acquired and which belonged to Sh. Anant Ram was assessed to compensation and any dispute as to the apportionment can only be decided by the Land Acquisition Court.
2. The present suit is bad for non- joinder of necessary party, namely, Smt. Santosh daughter of defendant No. 1. The Savings Bank Account N. 1333 in the Bank of India is in the joint names of defendant No. 1 and Smt. Santosh, and in the absence of Smt. Santosh being joined as a party to the suit, the present suit is liable to be dismissed.
3. The suit has not been properly valued for the purposes for court fees and jurisdiction.
4. The suit is time barred.
5. The plaintiffs are estopped from filing the present suit inasmuch as their father Sh. Kali Ram was a party to all the transaction which are now sought tobe challenged. The plaintiffs having stepped in the shoes of Sh. Kali Ram are bound by all his actions and can not challenge the same now.
9. On merits defendant No. 1 and 3 vehemently denied all the contentions of the plaintiff and submitted that at present there is no question regrading the inheritance of any land left behind by Sh. Anant Ram as a Bhumidhar as the land was acquired long back.
10. The mutation inheritance to the lands left by Sh. Anant Ram was legally sanctioned and become final as it was never questioned at that time and cannot be questioned now. In any case those lands were acquired by the Government, and are no longer available to the parties. The right of defendant No. 1 and her mother to receive any share in the compensation Master Azad Vs. Smt. Risalo 5/24 for the acquired lands could only be challenged in the acquisition proceedings either under Section 18 or under Sections 30 & 31 of the Land Acquisition Act, and cannot be challenged in the present suit.
11. It has not been stated as to what was the amount of compensation paid to the defendant No. 1 and her mother and to the three sons of Sh Anant Ram. It has also not been stated as to when was the land in village Mitraon, District Delhi was purchased. It is specifically denied that the lands in the village Mitraon were purchased from the self acquired funds of each of the purchasers and in the proportionate ration, the land was purchased by them.
12. It is submitted that the Will executed by Smt. Khazani in favour of the defendant No. 1 is valid in all respects. It is submitted that Smt. Khazani was the bhumidar of the said land situated in village Mitraon which was purchased to the extent of ½ share from her own funds and was, thus, legally entitled to bequeath her share in the land in faovur of defendant No.1. Even if Smt. Khazani had not executed any Will, the defendant No. 1 was entitled to succeed the bhumidari rights of Smt. Khazani in preference to all other persons.
13. The mutation was sanctioned in favour of the defendant No. 1 after the death of her mother by revenue officials in accordance with land and it has not been challenged by way of appeal as provided under Delhi Land Revenue Act. The mutation has, thus, become final and cannot be challenged now.
14. The plaintiffs have not stated as to what are the amounts alleged to be at the credit of defendant No. 1 in the two banks. Defendant No. 1 and 3 pray that the present suit be dismissed with costs.
15. In Written Statement filed on behalf of the defendant No. 5 i.e. Central Master Azad Vs. Smt. Risalo 6/24 Bank of India it is submitted that all the allegations contained in plaint are inter-se between the plaintiffs and defendant No. 1 to 3. It is submitted that the suit is beyond the pecuniary jurisdiction of this learned court. No proper court fee has been paid as required in law.
16. It is prayed that suit of the plaintiffs against defendant No. 5 be dismissed.
17. In Written Statement filed on behalf of the defendant No. 2 (a), 2 (b), 2(c), 2(d), they supported the case of plaintiff and prayed that it be decreed.
18. In replication to the Written Statement of defendant No. 5 i.e. Central Bank of India plaintiff reiterated and reaffirmed the contents of his plaint.
19. On the basis of the pleadings of the parties following issues were framed by Ld. predecessor on 13.03.1985:-
1. Whether the suit is not maintainable as framed as alleged in Written Statement filed by defendant No. 4&5? OPD.
2. Whether this court has no jurisdiction to try this case in view of the preliminary objections No. 1 of Written Statement of defendant No. 1 & 3? OPD.
3. Whether the suit is bad for non- joinder of Smt. Santosh as party to the suit? OPD.
4. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD.
5. Whether the suit is barred by time?
6. Whether the plaintiffs are estopped from filing the present suit in view of preliminary objection No. 8 of the Written Statement of defendant No. 1 & 3 ? OPP.
7. Whether the mutation of the disputed land in favour of Smt. Khazani and Risalo is bad in law and they are not entitled to any compensation with respect to said land? OPP.
8. Whether the land mentioned in para No. 5 of the plaint is joint Master Azad Vs. Smt. Risalo 7/24 Khewat of the father of the plaintiffs and the defendants No. 1 to 3? OPP.
9. Whether the plaintiffs are entitled to the reliefs claimed on the grounds given in the plaint? OPP.
10. Relief.
20. The plaintiff and defendant No. 1 led their evidence. However, no evidence was given by defendants No. 2, 3, 4 and 5.
21. The plaintiff examined 8 witnesses as PW1 to PW8 in order to establish his case. All the witnesses were duly cross examined by Ld. Counsel for the defendant.
22. The defendant No. 1 led her evidence and examined 6 witnesses including herself as DW-1 to DW-6 in order to establish her case. All the witnesses were duly cross examined by Ld. Counsel for the plaintiff.
23. PW-1 Smt. Indrawati deposed that the land was purchased by Late Sh. Anant Ram at Village Hastal and the compensation was paid one year later of the death of Sh. Anant Ram, to his sons and daughter and widow. The land was purchased by his sons, daughter and widow at Village Mitraou out of compensation received by them. She further deposed that she served her mother-in-law in old age. Smt. Khazani Devi was not of sound mind for last about two years prior to her death. The land at Village- Mitraou is joined land and there is no partition. The land was purchased out of the ancestral funds hence we are entitled to inherit the land and Smt. Risalo Devi has no right at all in the land at Village Mitraou, Delhi.
24. In cross- examination, she deposed that she is not aware about the date of birth of the plaintiff. Land at Village- Shadipur was acquired before her marriage and the land at Village Hastal was acquired after six months of the death of Sh. Anant Ram. The compensation was paid to his widow, three sons. However, she denied the payment of compensation to Smt. Risalo Devi. She further deposed I only know that land was purchased by Master Azad Vs. Smt. Risalo 8/24 only four persons i.e. three sons and widow of Late Sh. Anant Ram. She denied the payment of compensation to Smt. Risalo Devi and also denied the suggestion of purchasing the land by Smt. Risalo Devi at Village Mitraou. Further, she deposed she is not aware about any objection raised by her husband against the payment of compensation to Smt. Khazani Devi and Smt. Risalo Devi by Land Acquisition Collector or Ld. ADJ. She also admitted that her husband, Late Sh. Kali Ram remained alive for about 14 years after the death of Late Sh. Anant Ram. She has not placed any documents on record showing the unsoundness of Smt. Khazani Devi.
25. PW-2 Sh. Suraj Bhan deposed that Smt. Khazani Devi was suffering from mental disorder and the land at Village Mitraou was purchased out of the compensation of ancestral land at Village Hastal. This witness also deposed the purchase of the land separately by sons, widow and daughter of Late Sh. Anant Ram as per their share in compensation which they received from the LAC and from the court. In cross- examination he denied each and every question put to him or showed his ignorance. He further denied that the payment of compensation to Smt. Risalo Devi. Further he admitted that Smt. Risalo Devi purchased the land at village Mitraou. He further denied the suggestion of soundness of mind of Smt. Khazani Devi. However, this witness failed to place on court record any documents proving unsoundness of mind of Smt. Khazani Devi.
26. PW-3 Sh. Chhelu Ram deposed that Sh. Anant Ram was having the land at Village Shadipur and thereafter he purchased the land at village Hastal. The compensation was received by the children and wife of Sh. Anant Ram who was suffering with some deceased. In cross- examination he admitted the payment of compensation by the LAC and the ADJ to Smt. Risalo Devi and also admitted that the land at village Mitraou was purchased by three sons, daughter and widow of Late Sh. Anant Ram. This witness denied the suggestion that no treatment was got done by Master Azad Vs. Smt. Risalo 9/24 Smt. Risalo Devi of her mother Smt. Khazani Devi.
27. PW-4, Sh. Bhiru Singh real maternal uncle of the plaintiff's and real brother of their mother Smt. Indrawati deposed that Sh. Anant Ram sold his land at village Shadipur and then purchased the land at Village Hastal and after its acquisition purchased the land at Village Mitraou. No will was executed by Smt. Khazani Devi, W/o Sh. Anant Ram and further deposed that she was ill before her death. In cross- examination, he said compensation was received by sons, widow and daughter of Late Sh. Anant Ram. All the three sons were alive and they raised objections but their objections were not considered (heard). Smt. Khazai Devi was forcibly taken by Smt. Risalo Devi and got executed the Will.
28. PW-5, Sh. Vijay Singh Patwari brought the record Ex. PW-5/1. Ex. PW-5/1 is the order of mutation and the mutation was effected in the names of three sons, daughter and widow of Late Sh. Anant Ram. Ex. PW-5/1 was made after recording the statement of Late Sh. Kali Ram father of the plaintiff and PW-3 Sh. Chhelu Ram and the said mutation order was not challenged by the father of the plaintiff who remained alive for about 14 years after the death of Late Sh. Anant Ram. The mutation was not challenged by the other two living sons of Late Sh. Anant Ram.
29. PW-6, Sh. Samunder Singh Halqa Patwari Mitraou brought the original Khatoni for Khasra Nos. 93/3/2, 4, 5/2/1, 6, 7, 8/1, 76/2/2, 25/1, 94/4/2, 100/14, 15, 18, 101/11, 19, 20, 21/2, 328, total measuring 52 bigha 15 biswa in the revenue Estate of Village Mitraou, Delhi owned by Smt. Risalo to the extent of ½ share, plaintiff is owner of ¼ th share and Sh. Ram and Sh. Shyam, S/o Sh. Mange Ram owner of 1/8 th share and Sh. Chhotu Ram owner of 1/8th share in the revenue record as per Khatoni.
30. PW-7, Halqa Patwari Ashok Kumar Hastal also brought the revenue record joint Khevat in the name of Sh. Rishal Singh and other which Master Azad Vs. Smt. Risalo 10/24 includes the name of Sh. Kali Ram, father of the plaintiffs, Sh. Mange Ram, defendant No. 3, Sh. Chhotu Ram defendant No. 2, Smt. Risalo defendant No. 1 and Smt. Khazai Devi widow of Late Sh. Anant Ram as joint owners in the joint khevat of Sh. Rishal Singh and others.
31. PW-8 Sushil Kumar brought the record in respect of the birth of Sh. Azad Singh, plaintiff No. 1 proving his date of birth.
32. DW-1 Smt. Risalo in her examination-in-chief proved that after the death of her father, the mutation was sanctioned in the year 1965 in the name of Sh. Kali Ram, Sh. Mange Ram, Sh. Chhotu Ram, Smt. Khazani and Smt. Risalo. The land was already notified for acquisition during the life time of Late Sh. Anant Ram and after its acquisition, compensation in respect of the land at Village Hastal was received by Sh. Kali Ram, father of the plaintiffs, defendant No. 1, 2 and 3 and Late Smt. Khazani, W/o Late Sh. Anant Ram in equal share. She further proved that joint reference was filed by all legal heirs of Late Sh. Anant Ram and the compensation was enhanced by Ld. ADJ on the joint reference. The regular first appeal was filed in the Hon'ble High Court and the compensation was also received by all the legal heirs of Late Sh. Anant Ram in equal share. The compensation received by defendant No. 1 and other legal heirs including father of the plaintiffs from the office of LAC from the court of ADJ, Delhi and from the Hon'ble High Court was never challenged by the plaintiff's or their father Late Sh. Kali Ram who died in the year 1979 and remained alive about 14 years after the death Smt. Anant Ram when the cause of action if any arose for first time upto death of Sh. Kali Ram. Smt. Risalo Devi, Smt. Khazani Devi, father of the plaintiffs and defendants No. 2 and 3 purchased the land at Village Mitraou, Delhi after paying sale consideration amount for their respective shares. Defendant No. 1 and Smt. Khazai Devi purchased ½ share and paid the amount of their share Master Azad Vs. Smt. Risalo 11/24 to the seller. Similarly the father of the plaintiffs and defendant No. 2 and 3 purchased the remaining ½ share in joint khevat and paid the amount to the seller as per their respective shares. She further alleged that the mutation in respect of the land at village Hastal was sanctioned in the name of three sons and daughters and widow of Late Sh. Anant Ram and statement for sanction of the mutation were made by the father of the plaintiffs, Sh. Kali Ram and Sh. Chhelu Ram who appeared as PW-3 in the present case. The witnesses were identified by Sh. Mohan Lal Numberdar. Smt. Risalo further proved that her mother was living with her and she served her mother in her old age and as such her mother executed a Regd. Will in her favour. DW-1 Smt. Risalo particularly stated that she never received any amount out of the income of the share plaintiff's father or out of the income of the share of defendant No. 2 and
3. This witness was cross- examined by the counsel of the plaintiff's at length and the counsel of the plaintiff's failed to bring any thing material in her cross- examination. Rather the witness proved sanction of the mutation on the basis of the Will in her favour as she appeared before the Tehsildar alongwith other witnesses of the regd. Will and the mutation was sanctioned in her favour on the basis of the Regd. Will. She dispose that she has paid the amount of her share for purchasing the land at Village Mitraou at her own and the mutation was sanctioned in her name and in the name of father of the plaintiffs and defendants N0. 2 and 3 and Late Smt. Khazani Devi in the year 1972 on the basis of Regd. Sale deed in their favour and the statements to this effect was also made by the father of the plaintiffs. She denied fabrication of the Will executed by her mother in her favour and also denied the unsoundness of her mother.
33. DW-2 Sh. Sher Singh proved on record that he sold the land to the father of the plaintiffs, defendant No. 1, 2 and 3 and Late Smt. Khazani Devi and received the amount separately from Smt. Khazani Devi of her share from Smt Risalo Devi of her share from defendants No. 2 and 3 of their share and from the father of the plaintiffs of his share. He particularly stated that Master Azad Vs. Smt. Risalo 12/24 half of the land was purchased by Smt. Risalo Devi and Smt. Khazani Devi jointly and the remaining half of the land was purchased by Sh. Kali Ram, Chhotu Ram and Sh. Mange Ram jointly. He further proved that the respective parties are cultivating their respective share in land without any interference from each other. This witness was also duly cross- examined by the Ld. counsel of the plaintiffs but nothing material came out it in his cross- examination.
34. DW-3, Sh. Surat Singh was examined by defendant No. 1. He stated in his examination-in-chief that he know Smt. Khazani Devi since last about 15 years who executed the Will in respect of her share in agricultural land at village Mitraou Delhi. I identify the thumb impression of Smt. Khazani Devi and also identified his own signatures and signatures of Sh. Charan Singh as attesting witness of Regd. Will. He further stated that Smt. Khazani Devi was of sound mind at the time of execution of the Will and she executed the Will without any pressure and coercion. This witness was also cross- examined by the counsel of the plaintiffs but nothing material came out from this witness and thus DW-3 proved the registered Will on record executed by Late Smt. Khazani Devi in favour of defendant No. 1.
35. DW-4 Sh. Charan Singh who is also the attesting witness of the Will proved the Will executed by Smt. Khazani Devi in favour of defendant No. 1 and he identified the thumb impression and the signatures of Sh. Surat Singh and his own signatures on the Regd. Will Ex. D-1W-4/1. Thus both the attesting witnesses of the Will proved the Will on record. He further deposed that he disclosed the Will to defendant No. 1 at the time of Kirya Ceremony of Smt. Khazani Devi. He denied the suggestion that the Will was not read over or explained to Smt. Khazani Devi in vernacular. He further denied the other suggestion put to him by the counsel of the plaintiffs.
Master Azad Vs. Smt. Risalo 13/24
36. DW-5 Sh. Deep Chand deposed that he know Late Sh. Kali Ram, Late Sh. Mange Ram and Sh. Chhotu Ram, Late Smt. Khazani Devi and Smt. Risalo Devi, who purchased the land at Village Mitraou in the year 1972 and paid the sale consideration amount for purchasing the land as per their respective shares. He further clarified that ½ share of the consideration amount was paid by Late Sh. Kali Ram, Sh. Mange Ram, She. Chhotu Ram jointly as per their share in land. He further stated that the parties are now cultivating their land separately as per their share. He further stated that Smt. Khazani Devi executed a Will in favour of Smt. Risalo Devi and the mutation was sanction in the name of Smt. Risalo Devi in respect of the share of Late Smt. Risalo Devi in respect of the share of Late Khazani Devi on the basis of the Regd. Will executed by Smt. Khazani Devi in favour of Smt. Risalo Devi. In cross- examination, he stated that he took sale consideration amount himself which was to be paid to the seller of land and further stated that 50% payment was made by one party and the remaining 50% payment was made by the another party.
37. DW-6 , Sh. Daya Nand Kangoogo brought the record of mutation order No. 22/ ACO/82 dated 03.01.1983 and also brought the record of file No. 45/NG/72-73 decided on 13.10.1972 by Tehsildar Najafgarh and proved the record of both the mutations as DW-6/ 1 (OSR) and Ex. DW-6/2 (OSR) (Colly).
38. I have heard the final arguments of Ld. Counsel for both the parties and perused the record.
39. Issue wise findings of this court is given below:-
40. ISSUE NO. 1.
"Whether the suit is not maintainable as framed as alleged in Written Statement filed by defendant No. 4&5? OPD."
Master Azad Vs. Smt. Risalo 14/24 The onus to prove this issue was on the defendant No. 4 and 5. However, they have not lead any evidence in order to discharge their burden of proof with respect to this issue. As such, this issue is decided in favour of the plaintiff and against the defendants.
41. ISSUE NO. 2.
"Whether this court has no jurisdiction to try this case in view of the preliminary objections No. 1 of Written Statement of defendant No.1 & 3? OPD."
The burden to proof this issue was on the defendant No. 1 and 3. The defendant No. 3 expired during the pendency of the suit and no application for impleadment of his legal heirs was moved and the suit against the defendant No. 3 abated. Perusal of the plaint reveals that suit land is an agricultural land as per plaintiff's own averment and plaintiffs are seeking relief of declaration in respect of the bhumidhari land of defendant No. 1 and in respect of the land of deceased Smt. Khazani Devi. The declaratory decree cannot be passed in respect of the agricultural land by the Civil Court which is governed by the provisions of Delhi Land Reforms Act, as held by the Hon'ble Supreme Court In re:
Sunder Singh Vs. Hatti AIR 1971 Supreme Court page No. 2320 wherein it is held that a suit for declaration and possession cannot be entertained by the Civil Court and the jurisdiction lies solely with the revenue court. Therefore, the suit of the plaintiffs seeking relief of declaration is not maintainable as Civil Court has no jurisdiction to pass the declaratory decree in respect of the agricultural land which is governed by provisions of DLR Act.
42. As such, issue No. 2 is decided in favour of the defendant No. 1 and against the plaintiffs.
43. ISSUE NO. 3.
"Whether the suit is bad for non- joinder of Smt. Santosh as party to Master Azad Vs. Smt. Risalo 15/24 the suit? OPD."
The onus to prove this issue was on defendant. Admittedly Smt. Saroj is not the party to the present suit and the amount is lying deposit with defendants No. 4 and 5 in the joint names of defendant No. 1 and Smt. Saroj and hence the suit of the plaintiffs is bad for non- joinder of Smt. Saroj who has not been impleaded as defendant in the present suit. Therefore suit is bad for non-joinder of Smt. Santosh. As such this issue is decided in favour of the defendant No. 1 and against the plaintiffs .
44. ISSUE NO. 4.
"Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD."
The onus to prove this issue was on defendants. Perusal of the record reveal that admittedly plaintiffs are not in possession of the land in dispute and it is owned and possessed by defendant No. 1 as per sale deed and registered Will and mutation orders .As plaintiffs are not in possession of land in dispute they are liable to affix advalorem court fee on the market value of the land. The plaintiff also claimed the relief of the recovery of the amount of compensation received by defendant No. 1 in the year 1965 from the office of LAC and twice from the court of ADJ, Delhi. The plaintiffs are also claiming the right in the amount of defendant No. 1 which is lying deposit with defendant No. 4 and 5 without payment of any court fee. Therefore suit is not properly valued for the purpose of court fee and jurisdiction. As such this issue is also decided in favour of defendant No. 1 and against the plaintiffs.
45. ISSUE NO. 5 & 6.
"Whether the suit is barred by time?"OPD "Whether the plaintiffs are estopped from filing the present suit in view of preliminary objection No. 8 of the Written Statement of Master Azad Vs. Smt. Risalo 16/24 defendant No. 1 & 3 ? OPD."
The onus to prove these issues was on defendant. The cause of action for filing the present suit arose in the year 1965 when Sh. Anant Ram died and mutation was effected in the names of his legal heirs and thereafter the land was acquired by the Govt. and the amount of compensation was paid to the legal heirs of deceased Sh. Anant Ram. The father of the plaintiff made the statement before the Tehsildar Mehrauli for sanction of the mutation in respect of the land of Late Sh. Anant Ram in favour of the plaintiffs. He died in the year 1979 and he remained alive for about 14 years. This fact has been admitted by PW-1 his widow. The plaintiffs have stepped into shoes of their father Late Sh. Kali Ram and have inherited his estate and later on received the compensation in respect of his share in land. The sanction of the mutation in the year 1965 and the receipt of the compensation amount in the year 1965-66 and purchase of the land in the year 1972 by defendant No. 1 was never challenged by Late Sh. Kali Ram during his life time. The plaintiffs being his legal heirs are estopped to take any action or to file any suit against the defendant No. 1 as their father failed to take any action continuously for 14 years. The plaintiffs are estopped to claim any right in the land of defendant No. 1 or to seek any declaratory decree in respect of the land of defendant No. 1 after a period of more than 13 years and hence the suit of the plaintiff is barred by limitation as their father failed to take any action for 14 years during his life time. Therefore, the suit of plaintiff is barred by time having been filed after a period of more than 14 years. As such, both the issues are decided in favour for the defendant and against the plaintiffs.
46. ISSUE NO. 7.
"Whether the mutation of the disputed land in favour of Smt. Khazani and Risalo is bad in law and they are not entitled to any compensation with respect to said land? OPP."
Master Azad Vs. Smt. Risalo 17/24
47. The onus to prove this issue was on plaintiff and plaintiff own witness PW-5, Sh. Vijay Singh Patwari brought the record Ex. PW-5/1. Ex. PW-5/1 is the order of mutation and the mutation was effected in the names of three sons, daughter and widow of Late Sh. Anant Ram. Ex. PW-5/1 was made after recording the statement of Late Sh. Kali Ram father of the plaintiff and PW-3 Sh. Chhelu Ram and the said mutation order was not challenged by the father of the plaintiff who remained alive for about 14 years after the death of Late Sh. Anant Ram. The mutation was not challenged by the other two living sons of Late Sh. Anant Ram. The defendant No. 1 in her evidence has proved on record the mutation in the names of Sh. Kali Ram, Sh. Mange Ram, Sh. Chhotu Ram, Smt. Khazani and Smt. Risalo at the statement made by Sh. Kali Ram father of the plaintiffs. Mutation order is already on court record as Ex. PW-5/1 which is corroborated by the statement of DW-1 Smt. Risalo. Smt. Risalo proved on court record that the land was notified for acquisition during the life time of Late Sh. Anant Ram and after the acquisition of the land, the amount of compensation was paid to the defendant No. 1 alongwith her three brothers and her mother by the LAC and the said payment of the compensation was not challenged by the plaintiffs or their father up to 1979. The plaintiffs also have not filed the suit for recovery of the amount which was paid to defendant No. 1 by the LAC or by the court of ADJ, Delhi or by the Hon'ble High Court. Further the reference under Section 18 of LA Act was filed and the amount of compensation was enhanced. Regular 1st Appeal was also filed jointly and the compensation was received by all the respective parties as per their share and this payment of compensation by various courts was also not challenged by the plaintiffs or their father during his life time when he died in the year 1979. The land was purchased by defendant No. 1 and Smt. Khazani Devi at village, Mitraou, Delhi by paying the sale consideration amount of their share themselves and the mutation was sanctioned in their name after the registration of the sale deed in their favour. The mutation order effected in the name of defendant No. 1 Sh. Kali Ram, Sh. Mange Ram and Sh.
Master Azad Vs. Smt. Risalo 18/24 Chhotu Ram, Smt. Khazani Devi in the year 1965and in the year 1972 and in 1983 were never challenged in revenue courts by the plaintiffs or their father during his life time up to 1979. Similarly the plaintiffs did not challenged the mutation in favour of defendant No. 1 effected in her favour in 1983 on the basis of the Regd. Will executed by Late Smt. Khazani Devi in favour of the defendant No. 1. Thus all the three mutation orders have attained finality.
So far as sanction of mutation in the name of Late Smt. Khazani Devi and in the name of defendant No. 1 on the basis of the registered sale deed and regd. Will executed by Late Smt. Khazani Devi are concerned, these are the admitted facts of the case that Smt. Khazani Devi and Smt. Risalo Devi purchased the land at Village Mitraou, Delhi by way of Regd. Sale deed and the mutation was sanctioned in their name in the Revenue record. Smt. Khazani Devi was the bhumidhar in possession of her share in agricultural land at Village Mitraou, Delhi and being bhumidhar was competent to execute the Will in respect of her share as per Section 48 of Delhi Land Reforms Act being bhumidhar. After the death of Smt. Khazani Devi, the mutation was applied by Smt. Risalo Devi on the basis of the regd. Will in her favour and thereafter mutation was sanctioned in the name of defendant No. 1 after recording the statement of the attesting witness of the Will. The plaintiffs, their mother or any of the legal heir of deceased Smt. Khazani Devi did not raise any objection against the sanction of mutation in favour of the defendant No. 1 and till date the said mutation order has not been challenged by the plaintiffs or any other legal heirs in the revenue court and hence the said mutation order has become final in favour of the defendant No. 1. DW-6 who brought the record of mutation order No. 22/ ACO/82 dated 03.01.1983 and also brought the record of file No. 45/NG/72-73 decided on 13.10.1972 by Tehsildar Najafgarh and proved the record of both the mutations as DW-6/ 1 (OSR) and Ex. DW-6/2 (OSR) (Colly). The defendant No. 1 has proved the mutation order in her own name and in the name of Smt. Khazani Devi in the year 1972 on the basis of the sale deed and the mutation order in the Master Azad Vs. Smt. Risalo 19/24 name of defendant No. 1 in the year 1983 on the basis of the Will executed by Smt. Khazani Devi, DW-2 to DW-6 also corroborated the case of defendant no.1. As such this issue is decided in favour of the defendant No. 1 and against the plaintiffs.
48. ISSUE NO. 8.
"Whether the land mentioned in para No. 5 of the plaint is joint Khewat of the father of the plaintiffs and the defendants NO. 1 to 3? OPP."
PW-6 and PW-7 brought the record of khewat and categorically deposed that land in question is the joint Khewat with specific shares of plaintiff and defendant mentioned there. As such, this issue is decided in favour of the plaintiff and against the defendant.
49. ISSUE NO. 9.
"Whether the plaintiffs are entitled to the reliefs claimed on the grounds given in the plaint? OPP."
The plaintiff have claimed the relief that it be declared that defendant has no right over the suit land and mutation of suit land in the name of defendant is null and void. Plaintiff has also claimed relief of permanent injunction for restraining defendant no.1 from withdrawing any amount deposited in her name in the Bank and mandatory injunction directing bank to pay the entire amount in the account of defendant no.1 to plaintiff and defendant no.2 and 3.
The onus to prove this issue was on the plaintiff and plaintiff has examined 8 witnesses in order to discharge his burden of proof.
PW-1, Indrawati deposed in examination-in-chief that "Sh. Anant Ram deceased was my father-in-law. He died about 20 years ago. He owned Master Azad Vs. Smt. Risalo 20/24 agricultural land at village Shadipur, which was acquired. Thereafter he purchased land in village Hastsal. Compensation regarding the agricultural land located at Village Hastal was given after about 1 years of his death. Anant Ram had three sons, widow and a daughter, wife of Anant Ram died about 3 years back. With the compensation money received regarding the land at Hastsal, all the heirs purchased land in village Mitraun." PW-1, categorically deposed in his cross- examination that "the compensation for that land was not paid to Anat Ram as he had already died. Compensation regarding the land in Village Hastsal was paid to all the three sons and widow of Anant Ram. I do nto know about Risalo. I only know that the land at village Mitrau was purchased by all the four aforesaid heirs of Anant Ram, viz. the three sons and his widow. I do not know if Smt. Risalo had also received the compensation of the land acquired in village Hastsal. It is incorrect to suggest that the land at Mitrau was also purchased by Smt. Risalo. During his lifetime, Kali Ram had not instituted any such suit like the present one against Smt. Risalo. Land at Village Mitraun was mutated in name of Khazani. The mental unsoundness of deceased Smt. Khazani was got treated by us at Mitrau also at Najafgargh. I do not remember the names of the doctors from whom she got the treatment. I do not know if Smt. Risalo had opened any bank account with central Bank of India, East Patel Nagar branch, New Delhi. By aforesaid deposition, PW-1 has miserably failed to substantiate her averments in the plaint and she has not produced even a single document to show the Smt. Khazani was of unsound mind.
PW-2, Sh. Suraj Bhan, deposed in his cross- examination that I cannot say if Anant Ram received the first compensation of Hastsal land. I cannot say if Anant Ram died in 1965. Nor can I say if the land at Hatsal was acquired in 1966. I also cannot say if the compensation regarding the land at Hastsal was received by Kali Ram Mange Ram, Chootu, Smt. Khazani and Smt. Risalo in equal proportion. I think the compensation was received by only four of the said persons excluding Smt. Risalo. It is Master Azad Vs. Smt. Risalo 21/24 however correct that all the five aforesaid have purchased the land at village Mitraun out of the funds received by them of Hastsal land." PW-2 also failed to prove anything on record as he merely denied the suggestions and showed his ignorance about the averments in the plaint.
PW-3, Sh. Chellu Ram, deposed in his examination-in-chief that "I knew Anant Ram. He owned agricultural land at village Shadipur and thereafter he purchased land out of the compensation received by him of the land acquired in Shadipur. Land of Shadipur was ancestral and hereitory. Land at Village Hastal was also acquired. Out of the funds received from the land at Hastsal, land at Mitrau was purchased by the Lrs of Anant Ram. Sh. Anant Ram died many years back." PW-3 categorically deposed in cross- examination that "It is correct that after death of Anant Ram, compensation of agricultural land at Hastsal was received by his children/ heirs. This compensation was received by his widow, 3 sons and 1 daughter and they all had purchased the land at village Mitrau as per their share in the land at Hastsal. Khazani lived at Mitrau at the time of her death, with Risalo."
PW-4, Sh. Bhiru Singh real maternal uncle of the plaintiff's and real brother of their mother Smt. Indrawati deposed that Sh. Anant Ram sold his land at village Shadipur and then purchased the land at Village Hastal and after its acquisition purchased the land at Village Mitraou. No will was executed by Smt. Khazani Devi, W/o Sh. Anant Ram and further deposed that she was ill before her death. In cross- examination, he said compensation was received by sons, widow and daughter of Late Sh. Anant Ram. All the three sons were alive and they raised objections but their objections were not considered (heard). Smt. Khazai Devi was forcibly taken by Smt. Risalo Devi and got executed the Will. He also failed to prove unsoundness of Smt. Khazani Devi.
PW-5, Sh. Vijay Singh Patwari brought the record Ex. PW-5/1. Ex. PW-5/1 Master Azad Vs. Smt. Risalo 22/24 is the order of mutation and the mutation was effected in the names of three sons, daughter and widow of Late Sh. Anant Ram. Ex. PW-5/1 was made after recording the statement of Late Sh. Kali Ram father of the plaintiff and PW-3 Sh. Chhelu Ram and the said mutation order was not challenged by the father of the plaintiff who remained alive for about 14 years after the death of Late Sh. Anant Ram. The mutation was not challenged by the other two living sons of Late Sh. Anant Ram. The plaintiff have stepped into the shoes of their deceased father who did not challenge the mutation order or the decree of enhancement of compensation passed by Ld. ADJ or by Ld. Hon'ble High Court. Thus, the plaintiffs are estopped to challenge the mutation orders, receipt of the amount of compensation or claiming any right in the land at village Mitraou, Delhi.
PW-6, Sh. Samunder Singh Halqa Patwari Mitraou brought the original Khatoni for Khasra Nos. 92/3/2, 4, 5/2/1, 6, 7, 8/1, 76/2/2, 25/1, 94/4/2, 100/14, 15, 18, 101/11, 19, 20, 21/2, 328 (plot), measuring 52 bigha 15 biswa owned by Smt. Risalo D/o Anant Ram, ½ share, Azad Singh & Krishan sons of Kali Ram having their share ¼ th share Sh. Ram and Sh. Shyam having their share 1/8th share, Mange Ram and Chhotu Ram having their share 1/8th.
PW-7, brought the summoned record. Khasra No. 35/18/19/22/23/1, 20, 21/1,21/2,36/24,25/2,45/4/1,4/2,5,48/3/1,48/25/22,54/4/2/1,4/2/2,5,6/1,7/2/ 1/2,7/2/2, 14 and 18, 17/2, 75/1, 10, 76/5/2 are in the joint Khewat of Risal Singh and others which also includes Kali Ram, Mange Ram, Chhotu Ram Risalo Devi, Khazani Devi, W/o Anat Ram. They are share holders of 4/11th share in the above mentioned joint khata.
PW-8 Sushil Kumar brought the record in respect of the birth of Sh. Azad Singh, plaintiff No. 1 proving his date of birth.
Master Azad Vs. Smt. Risalo 23/24 All the aforesaid witness failed to prove the case of plaintiff and in view of decision in issue no.7 plaintiff has failed to prove that mutation of suit property in the name of defendant no.1 is illegal and in view of decision on issue no.2 plaintiff is not entitled to declaratory decree.
In view of decision on aforesaid issues , appreciations of evidence and refusal of relief of declaration, plaintiff is not entitled to consequential relief of permanent injunction also.
The plaintiffs have miserably failed to prove their case by raising preponderance of probabilities and therefore not entitled to any of the reliefs claimed. As such this issue is decided in favour of defendants and against the plaintiffs.
50. ISSUE NO. 10.
"Relief"
In view of decision on aforesaid issues, this suit of plaintiff is dismissed. Parties to bear their own cost. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN COURT
ON 11th July, 2013 (SHILPI JAIN)
CJ-07 (CENTRAL):DELHI
Master Azad Vs. Smt. Risalo 24/24