Delhi District Court
Sh. Bhagwana (Now Deceased) vs Sh. Ram Pat (Now Deceased) on 30 November, 2011
IN THE COURT OF MS. MANISHA KHURANA, CIVIL JUDGE, DELHI
Suit No. 605/06
Case ID No. C0225822002
1. Sh. Bhagwana (now deceased),
S/o Late Sh. Hazari.
LRs of Bhagwana.
a. Sh. Jagram,
b. Sh. Sheesh Ram,
Both sons of Late Sh. Bhagwana,
Both R/o Village Paprawat, Delhi. Plaintiffs.
Versus
1. Sh. Ram Pat (now deceased)
S/o Late Sh. Hazari,
R/o Village Paprawat, Delhi.
2. Smt. Singharo,
W/o Sh. Mamraj,
R/o Village Surana, U.P.
3. Smt. Phool Wati (now deceased),
W/o Sh. Ram Singh.
LRs. of Smt. Phoolwati.
a. Sh. Jasmat (now deceased),
S/o Late Sh. Ram Singh.
LRs of Sh. Jasmat.
i. Smt. Maya Devi.
W/o Late Sh. Jasmat.
Suit No. 605/06 Page 1 of 20
ii. Sh. Tara Vhand,
S/o Late Sh. Jasmat.
iii. Sh. Sunder,
S/o Late Sh. Jasmat.
iv. Ms. Babli.
v. Ms. Beena.
vi. Ms. Rekha.
vii. Ms. Bholi @ Sunita
All daughters of
Late Sh. Jasmat,
All residents of Village & P.O.
Dundahera, District Gurgaon,
Haryana.
b. Ms. Mallhi,
c. Ms. Lakshmi,
d. Ms. Kamla,
e. Ms. Rishalo.
All b to e are daughters of
Late Smt. Phoolwati,
All residents of Village
Dundahera, District Gurgaon,
Haryana.
4. Sh. Molar.
5. Sh. Jai Ram,
Both sons of Late Sh. Rampat,
Both residents of Village Paprawat,
Delhi. Defendants.
SUIT FOR PERMANENT INJUNCTION.
Suit No. 605/06 Page 2 of 20
Date of Institution : 08.12.1987
Date of reserving judgment : 15.10.2011
Date of pronouncement : 30.11.2011
JUDGMENT
This judgment shall dispose off a suit for permanent injunction filed by the plaintiffs against the defendants.
2. The brief facts of the case as stated in the plaint are as follows: The present suit had been filed by two plaintiffs i.e. Sh. Nihal Singh, plaintiff No. 1 and Sh. Bhagwana, plaintiff No. 2. Sh. Hazari was Bhumidhar and in possession of agricultural land measuring 35 bigha and 17 biswas bearing Khasra Nos. 20/2 (26) of Rectangle No. 36, 5 (413), 6 (416), 7 (412), 15 (416), 16 (416), 26 (03) of Rectangle No. 37, Khasra No. 191/24 (619) and Khasra No. 364 (216) situated in the revenue estate of village Paprawat, Delhi. Sh. Hazari died in 1965 leaving behind the said plaintiff Nos. 1 and 2 as well as defendant No. 3 as his male lineal descendants and defendants Nos. 2 and 3 as his daughters.
rd
3. It is stated that the said plaintiffs had been cultivating 2/3 share of the suit land since the death of Sh. Hazari. Daughters of Sh. Hazari i.e. defendant Nos. 2 and 3 are married and have been residing Suit No. 605/06 Page 3 of 20 in UP and Haryana respectively after their marriage. Plaintiffs state that as per the provisions of Delhi Land Reforms Act only the male lineal descendants are entitled to inherit the assets of the deceased. However, the Revenue Authorities mutated the agricultural land in favour of three male descendants of Sh. Hazari i.e. plaintiff Nos. 1 and 2, defendant No. 1 along with his female descendants i.e. defendant Nos. 2 and 3. It is alleged that the defendant No.1 took advantage of the incorrect entry in the revenue records in favor of the daughters i.e. defendant Nos. 2 and 3 and got executed two sale deed in favor of his two sons i.e. defendant Nos. 4 and 5. The Plaintiff alleges that the mutation in favor of the daughters of Sh. Hazari i.e. defendant Nos. 2 and 3 is illegal and void and that the sale deeds executed in favor of defendants Nos. 4 and 5 are sham, illegal & void. The plaintiffs have also alleged that the defendants are interfering in peaceful cultivatory possession of the rd plaintiffs in 2/3 share of suit land. Hence, the present suit.
4. During the pendency of the suit, the plaintiff No. 2 expired and his legal heirs Sh. Jagram and Sh. Sisram were brought on record vide order of the Ld. Predecessor dated 25.5.2000. During the appellate proceedings, defendant No. 3 had also expired and her legal heirs were also brought on record vide the said order passed by the Ld. Suit No. 605/06 Page 4 of 20 Predecessor. Plaintiff No. 1 vide separate statement recorded before the Ld. Predecessor dated 20.8.2001, withdrew his suit qua the defendants and thereafter, the suit was pursued only by legal heirs of the deceased plaintiff No. 2.
5. In the written statement filed by defendant Nos. 2 and 3, the said defendants have taken the preliminary objection that the plaintiff has no locus standi to file the present suit as the defendant Nos. 2 and 3 are the recorded Bhumidhars and in actual, physical and cultivating th possession of their 1/5 share each and that the said defendants are at liberty to sell their respective shares. The said defendants have also taken the preliminary objection that the suit of the plaintiff is barred by limitation as the Bhumidhar rights of the defendant Nos. 2 and 3 in th respect of their 1/5 shares each in the suit land have come only existence vide order dated 3.6.1965 passed by a Court of competent jurisdiction. The said defendants also state that the suit of the plaintiff has not been properly valued for the purpose of Court fee and jurisdiction.
6. In the reply on merits, it is denied that the plaintiff and defendant No. 1 have been cultivating their equal shares in the land Suit No. 605/06 Page 5 of 20 after the demise of their father, i.e. Sh. Hazari. It is alleged that after the death of Sh. Hazari, the said land was inherited by his three sons and two daughters as per the wishes of their deceased father and further, the respective shares were mutated in the names of the said legal heirs of Sh. Hazari. It is stated that the plaintiffs did not raise any objections to the mutation of their respective shares of land in favour of defendant Nos. 2 and 3 even during the consolidation proceedings at the time of passing of the mutation order. The defendant Nos. 2 and 3 state that they have been residing with their respective husbands at U.P. and Haryana, however, the said defendants used to come from their matrimonial homes and look after the suit land. Defendant Nos. 2 and 3 further state that they have sold their respective shares in favour of defendant Nos. 4 and 5 as they have a right to dispose off the same. It is therefore, prayed that the suit of the plaintiff be dismissed.
7. During the pendency of the suit, defendant No. 1 had also expired and vide order dated 31.10.2000 passed by the Ld. Predecessor, the LRs of defendant No. 1 i.e. Sh. Molhar and Sh. Jai Ram had been brought on record. The said LRs were already arrayed as party to the suit being defendant No. 4 and 5 respectively. In the written statement filed by defendant Nos. 4 and 5, defendant Nos. 4 and Suit No. 605/06 Page 6 of 20 5 have taken the preliminary objections that the present suit has been filed in collusion and in connivance of defendant No. 1. The said defendants have also taken the preliminary objection that the plaintiff has no locus standi to file the present suit as defendant Nos. 2 and 3 were the recorded Bhumidhars and in possession of the land to the th extent of their 1/5 share each. It is further stated that defendant Nos. 4 and 5 have purchased the shares of defendant Nos. 2 and 3 for valuable consideration and are in actual, physical and cultivatory possession of the said shares. Defendant Nos. 4 and 5 further state that the entries in the mutation record in favour of defendant Nos. 2 and 3 are legal, valid and cannot be challenged at this stage as the remedy for challenging the same lies under the Delhi Land Revenue Act and therefore, Civil Court has no jurisdiction to adjudicate upon the same. It is therefore, prayed that the suit of the plaintiff be dismissed.
8. In the replication filed by the plaintiff to the written statement of the defendants, the plaintiff has mostly reiterated the averments made in the plaint and denied the averments made in the written statement.
9. On the basis of the pleadings of the parties following issues were framed by the Ld. Predecessor on 30.11.1989 : Suit No. 605/06 Page 7 of 20
1. Whether the transfer of suit land through registered sale deed by defendant Nos. 2 and 3 in favour of defendant Nos. 4 and 5 was illegal and liable to be quashed for the reasons that defendant Nos. 2 and 3 did not inherit any right in the suit land after the death of their father, Sh. Hazari? OPP.
2. Whether the plaintiffs are in cultivatory possession of suit rd land to the extent of their 2/3 share and defendants want to interfere in this cultivatory possession illegally? OPP.
3. Whether the suit is collusive with defendant No. 1? If so, its effect? OPD4 & 5.
4. Whether the defendant Nos. 2 and 3 had become th Bhumidhar in the suit land to the extent of 1/5 share each and the transfer of their share in favour of defendant Nos. 4 and 5 was valid and lawful? OPD2 to 5.
5. Whether the suit is barred by time? OPD.
6. Whether the jurisdiction of this Court barred? OPD.
7. Relief.
10. Thereafter, the matter was listed for plaintiff evidence. In the plaintiff evidence, Sh. Jagram, LR (A) of plaintiff was produced as PW1. Thereafter, PW1 was cross examined by the counsel for the defendant. Suit No. 605/06 Page 8 of 20 Thereafter, Sh. Sheesh Ram, LR (B) of plaintiff was produced as PW2 and was cross examined by the counsel for the defendant. Thereafter, counsel for the plaintiff closed the plaintiff evidence and the matter was listed for defendant evidence.
11. In defendant evidence, Sh. Jai Ram, legal heir (A) of the deceased defendant No. 1 was produced as DW1. DW1 placed on record following documents :
1. Copy of the mutation dated 4.6.1965 as Ex. PW1/D1.
2. Suit for declaration filed by the defendant against the plaintiff herein as Ex. PW1/D2.
3. Judgment dated 31.8.1999 as PW1/D3.
4. Khatauni for the year, 198081 as Ex. DW1/1.
5. Shajra Aksh as Ex. DW1/2.
6. Khasra Girdawari for the year 197980 as Ex. DW1/3.
7. Khasra Girdawaries for the years, 198384 to 198687 as Ex. DW1/4 to Ex. DW1/7.
8. Photocopies of the sale deeds dated 5.6.1987 as Ex. DW1/8 and Ex. DW1/9.
9. Khatauni for the year, 198081 showing the mutation in the name of defendant Nos. 4 and 5 as Ex. DW1/10.
Suit No. 605/06 Page 9 of 20
10.Khasra Girdawaries for the years, 1987 88 to 199192 as Ex. DW1/11 to Ex. DW1/15.
Thereafter, the DW1 was cross examined by the counsel for the plaintiff.
12. Thereafter, Sh. Maha Ram was examined as DW2 and was cross examined by the counsel for the plaintiff. Thereafter, Sh. Om Bir, Patwari posted in Villge Paprawat, Tehsil Palam was produced as DW3. DW3 placed on record following documents :
1. True photocopy of the Khatauni Paimaish for the year 197677 as Ex. DW3/1.
2. True photocopy of the register of mutation dated 4.6.1965 as Ex. DW3/2.
3. True photocopy of Khatauni for the year 198081 as Ex. DW3/2.
Thereafter, Sh. Dayanand, Office Kanungo, Tehsil Najafgarh was produced as DW4. DW4 had produced the record of the Khasra Girdawries already placed on record as Ex. DW1/3 to Ex. DW1/7 and Ex. DW1/11 to Ex. DW1/15. DW4 was thereafter, cross examined by the counsel for the plaintiff. Thereafter, counsel for the defendant closed the defendant evidence and the matter was listed for final arguments.
Suit No. 605/06 Page 10 of 20
13. I have heard the arguments on behalf of both the parties and have carefully gone through the case file. My issue wise findings are as follows:
14. ISSUE NOS. 1 & 2.
For the sake of convenience, issue Nos. 1 and 2 are being decided together. The onus of proof of the present issues had been placed on the plaintiff. After the death of Sh. Hazari, who was the Bhumidhar of the suit land, the suit land had devolved upon his lineal descendants i.e. the plaintiff herein as well as his two brother, Sh. Nihal Singh and defendant No. 1. It is stated that since the suit property is governed by the Delhi Land Reforms Act, therefore, only the male lineal descendants are entitled to inherit the estate of the deceased Bhumidhar and the female legal heirs have no right, title or interest in the said Bhumidhari land. It is therefore, alleged that the married daughters of Sh. Hazari i.e. defendant Nos. 2 and 3 had no interest in the suit land, therefore, they could not have sold their alleged share in the suit property to defendant Nos. 4 and 5.
15. Section 50 of Delhi Land Reforms Act provides that, "General order of succession from males Subject to the provisions of Section 48 and 52, when a Bhumidhar Suit No. 605/06 Page 11 of 20 or Asami being a male dies, his interest in his holding shall devolve in accordance with the order of succession given below :
(a) male lineal descendants in the male line or descent :
Provided that no member of this class shall in herit it any male descendant between him and, the deceased is alive. Provided further that the son or sons of a predeceased on how lowsoever shall inherit the share which would have devolved upon the deceased if he had been then alive;
(b) widow;
(c) father;
(d) mother, being a widow;
(e) step mother, being a widow;
(f) father's father;
(g) father's mother, being a widow;
(h) widow of a male lineal descendant in the male line of descent;
(i) unmarried daughter;
(j) brother, being the son of the same father as the deceased;
(k) unmarried sister;
(l) brother's son, the brother having been a son of the same father as the deceased;
(m) father's father's son;
(n) brother's son's son;
(o) father's father's son's son;
(p) daughter's son".Suit No. 605/06 Page 12 of 20
Thus, as per the said provision, only the male descendants have right to inherit the suit property and married daughters do not have any right to inherit the same. In the written statement filed by defendant Nos. 2 and 3, it is alleged that the plaintiff has no locus standi to file the present suit as the said defendants are the recorded Bhumidhars and in actual, physical cultivatory possession of the said suit land to the th extent of 2/5 share each. It is therefore, alleged that the said defendants were entitled to dispose off the property in favour of defendant Nos. 4 and 5.
16. It the admitted case that the mutation in respect of all the legal heirs of deceased Sh. Hazari namely the plaintiff, Sh. Nihal Singh, defendant No. 1 and his two daughters i.e. defendant No. 2 and 3 ahd taken place in the year, 1965. PW1 i.e. Sh. Jagram who was impleaded as the legal heir of late plaintiff Sh. Nihal Singh has deposed in his cross examination about the said mutation. The defendant has also placed on record the Khatauni for the year 195455 wherein the suit land is shown to be mutated in favour of the said legal heirs of Sh. Hazari. The said Khatauni is Ex. DW1/3. Now the plaintiff has filed the present suit on the ground that the said mutation is incorrect as the defendant Nos. 3 and 4 being the female heirs of Sh. Hazari were not entitled to any share in the suit land. It is further alleged that the plaintiff Suit No. 605/06 Page 13 of 20 as well as defendant No. 1 are in cultivatory possession of their respective shares in the suit land. Admittedly, as per the testimony of PW1, no suit had been filed by Sh. Hazari for setting aside the mutation dated 4.6.1965. Thus, the said mutation still forms a part of the revenue records.
17. Although, it is well settled principle of law that the mutation in the revenue records does not per se give any right, title or interest to a person in the suit property. However, mutation of inheritence, as in the present case does give the right to cultivatory possession to the recorded Bhumidhar. Once, the mutation has been effected, the same can be rectified through the mechanism provided under the Delhi Land Reforms Act. Thus, the proper forum for challenging a mutation is before the Revenue Authorities. The plaintiff admittedly, has not resorted to the said remedy.
18. PW1 in cross examination has himself deposed that his sisters i.e. defendant Nos. 2 and 3 had been coming to the suit property at the time of sowing and riping of the crops. PW1 has further deposed that it cannot be said, which part of the suit land was in possession of his father i.e. Sh. Bhagwana and his other brothers i.e. Sh. Nihal Singh and Sh. Rampat. Thus, from the testimony of PW1, it appears that the suit Suit No. 605/06 Page 14 of 20 property has been jointly cultivated by deceased Bhagwana as well as other brothers i.e. Sh. Nihal Singh, Sh. Rampat and his sisters. Even though, the suit property has been jointly cultivated by the legal heirs of Sh. Hazari, however, as per the revenue records, each of the legal heir th of Sh. Hazari is the Bhumidhar and in joint possession of his 1/5 share each. Consequently, each of the joint Bhumidhar is entitled to transfer th his interest in the suit property to the extent of his 1/5 share. In the absence of any order setting aside the mutation order dated 3.6.1965, the plaintiffs herein cannot challenge any subsequent creation of interest in the suit property by any of coowners to the extent of their shares. Therefore, the transfer of the suit land through registered sale deed by defendant Nos. 2 and 3 in favour of defendant Nos. 4 and 5 cannot be held to be illegal. Issue No. 1 is therefore, decided in favour of the defendants and against the plaintiff.
19. As already stated, defendant Nos. 2 and 3 appear to be in joint cultivated possession of the suit property, although they have th Bhumidhari right in respect of only 1/5 share of the suit property as per revenue records, thus, there is no merit in the contention of the plaintiffs that the defendants are interfering in cultivatory possession of the suit property. Issue No. 2 is also decided in favour of the defendants and against the plaintiffs.
Suit No. 605/06 Page 15 of 20
20. ISSUE NO. 3.
It is alleged by defendant Nos. 4 and 5 that the present suit has been filed in collusion with defendant No. 1, however, mere bald assertions are not suffice. No evidence has been led by defendant Nos. 4 and 5 to prove that the present suit is a collusive suit. The defendants have themselves placed on record the pleading in respect of earlier suit filed before the Court of Sh. S.K. Aggarwal, Civil Judge, between the same parties, Ex. PW1/D2. Thus, it appears that the parties have been in continuous litigation with each other for quite some while. Therefore, it does not appeal to reason that the present suit would have been filed by defendant No. 1 in collusion with the plaintiff. Moreso, in light of the fact that the alleged sale deed is executed in favour of defendant Nos. 4 and 5 who are the sons of defendant No. 1 This issue is therefore, decided in favour of the plaintiff and against the defendants.
21. ISSUE NO. 4.
As aforestated in issue No. 1, all the legal heirs of Sh. Hazari have been in joint cultivatory possession of the suit property, although the suit property is mutated in favour of each of the legal heirs th to the extent of their 1/5 share each. As already stated, till the mutation th order is set aside, the transfer of the suit property to the extent of 1/5 Suit No. 605/06 Page 16 of 20 share by defendant Nos. 2 and 3 in favour of defendant Nos. 4 and 5 cannot be nullified. The plaintiff in fact, should have filed the suit for declaration before the competent revenue authorities for the declaration rd of his Bhumidhari rights in respect of 1/3 share instead of the recorded th 1/5 share. Till then, the finding of the revenue authorities regarding Bhumidhari rights of the parties are valid and subsisting. The plaintiff in the form of the present suit cannot be allowed to pray for the relief of rd declaration of Bhumidhari rights in respect of 1/3 share before this court as this court lacks the jurisdiction to grant such a relief. In view of the above fact, the transfer of share in favour of defendant Nos. 4 and 5 is valid and lawful. Therefore, this issue is decided in favour of the defendants and against the plaintiff.
22. ISSUE NO. 5.
It is alleged by the defendants that the suit of the plaintiff is barred by limitation. Admittedly, the mutation of the present land was effected in the year, 1965. Sale deeds in respect of defendant Nos. 4 and 5 have been executed in the year, 1987, therefore, it is argued by the counsel for the plaintiff that the suit of the plaintiff is within the period of limitation. The plaintiff had knowledge about the mutation being affected in the year, 1965 however, the plaintiffs slept over their Suit No. 605/06 Page 17 of 20 rights till 1987 and have filed the suit only in the year, 1987 when the sale deeds have been executed. The plaintiff, if aggrieved of the order passed by the Tehsildar regarding the mutation of the suit property in favour of defendant Nos. 2 and 3 should have resorted to the reliefs provided under the Delhi Land Reforms Act immediately after mutation was effected in the year, 1965. The plaintiff however, chose to sleep over his rights till 1987 for more than about 20 years. The plaintiff therefore, now can not be allowed to dispute the said mutation after a lapse of about 20 years in the garb of seeking the relief of declaration for declaring the sale deeds executed in 1987 as null and void. Therefore, the plaintiff is guilty of latches and delay. Be that as may, the plaintiff can avail his remedy before the revenue authorities for setting aside the mutation as per law. Thus, the cause of action in favour of the plaintiff can be said to have arisen only when the mutation was effected on 3.6.1965 and not from the date of execution of the sale deeds. In view of the above fact, the suit of the plaintiff is barred by limitation. This issue is also decided in favour of the defendants and against the plaintiff.
23. ISSUE NO. 6.
It is alleged by the defendants that the jurisdiction of this Suit No. 605/06 Page 18 of 20 court to try the present suit is barred as the suit land is governed by the Delhi Land Reforms Act. As already stated, the plaintiff in the garb of the present suit is seeking the relief of declaration that the mutation effected in favour of defendant Nos. 2 and 3 be declared as null and void and that the plaintiff be declared as the Bhumidhar in respect of rd th 1/3 share of suit land instead of 1/5 share.
24. Section 185 of The Delhi Land Reforms Act provides that, "Cognizance of suits, etc. under this Act (1) Except as provided by or under this Act no court other than a court mentioned in column 7 of Schedule I shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, take cognizance of any suit, application or proceedings mentioned in column 3 thereof". Thus, the suit of the declaration squarely falls under Section 104 of the Delhi Land Reforms Act which provides for declaration of Bhumidhari rights and is to be tried before the revenue authorities. Before the mutation order dated 3.6.1965 is set aside, the present Court lacks the jurisdiction to give the consequential relief of setting aside the sale deeds. The plaintiff in the garb of the present suit has in fact created smoke screen wherein the plaintiff has filed the present suit praying for a relief which can be granted only by the Suit No. 605/06 Page 19 of 20 revenue court under The Delhi Land Reforms Act and therefore, this Court lacks the jurisdiction to try the present suit. This issue is also decided in favour of the defendants and against the plaintiff.
25. RELIEF.
In view of the findings in the aforesaid issues, the plaintiff has failed to prove his case against the defendants. The suit of the plaintiff is therefore, dismissed. File be consigned to record room.
Announced in the open court (Manisha Khurana)
on 30.11.2011 Civil Judge, North (IV)
Tis Hazari Courts, Delhi
30.11.2011
This judgment consists of 20 pages and all the pages are duly signed by me.
Suit No. 605/06 Page 20 of 20 Suit No. 605/06 30.11.2011 Present: None.
Vide separate order of even date suit of the plaintiff is dismissed. File be consigned to record room.
(MANISHA KHURANA) CJ/N/DELHI/30.11.2011 Suit No. 605/06 Page 21 of 20