Balbir Singh vs Pehlad
1987 Latest Caselaw 148 Del

JUDGMENT

Leila Seth, J.

(1) This civil revision is directed against the order passed by Mr. R.L. Chugh, Senior Sub-Judge, Delhi on 17/12/1984.

(2) The facts are briefly set out. The respondent, Pt. Pehiad and his brother, Mr. Narain Singh were co-bhumidars of 22 bighas 8 biswas of land in village Holambi Khurd. On 15/9/1984, Mr. Narain Singh is alleged to have sold his half share consisting of 11 bighas 4 biswas to Mr. Balbir Singh, the petitioner, by a registered sale deed. The sale-deed indicates that the consideration of Rs. 20,000.00 "had been received previously from the vendee, and nothing remain due out of the sale price". In the sale deed the khasra numbers of the entire land of 22 bighas 8 biswas are mentioned. Though no specific khasra numbers are mentioned, it is asserted therein that Mr. Narain Singh is "the exclusive owner and in absolute possession and Bhumidar of Agricultural land measuring 11 bighas 4 biswas out of land measuring 22 bighas 8 biswas" and "possession of the above-mentioned land under sale has been given to the Vendee who had occupied the same." It is also asserted in the said sale-deed that the vendor has "complied with Section 33 of the Land Reforms Act Delhi, and hold Do other area in Delhi state."

(3) Thereafter, on 14/11/1984, Mr. Balbir Singh filed a suit for permanent injunction against Pt. Pehiad restraining him from interfering with his possession in specific khasra numbers of the land, mentioning that it was Mr. Narain Singh's mutually partitioned share which had been sold to him and he had taken peaceful possession of it on the date of sale. However, Mr. Narain Singh was not made a party to the suit. An application for an interim injunction was also filed, along with the plaint.

(4) On 23/11/1984, Pt. Pehiad filed his written statement. On the same day, the petitioner filed an affidavit in court, allegedly sworn by Mr. Narain Singh, indicating that he had sold his share of land as per the numbers mentioned in the plaint and put the petitioner in possession.

(5) Mr. G.P. Mittal, Sub-Judge Ii Class, after hearing counsel, rejected the prayer for interim injunction on 23/11/1984. In his order he noticed that the latest khasra girdwari, placed on record by Pt. Pehiad, dated 19/11/1984, which pertained to 5/10/1984, showed Mr. Narain Singh and Pt. Pehiad in joint possession, even after the date of alleged sale. He opined that the alleged sale is prima facie void under the provisions of Section 45 of Delhi Land Reforms Act (hereinafter referred to as the "Act"), as admittedly the entire land is less than 8 standard acres. He held that the averment in paragraph 12 of the plaint, pertaining to the land having been mutually partitioned between Pt. Pehiad and Mr. Narain Singh, could not be accepted, as this was not permissible in view of the provisions of Section 57 of the Act. He observed that he was "unable to agree that simply because the sale-deed had been effected in favor of the plaintiff he should be deemed to be in possession." Consequently, he was of the view that no prima facie case in favor of the petitioner had been made out and he dismissed the application.

(6) On 25/11/1984, the petitioner filed an appeal against this order. On 28/11/1984, the appellate court granted him ex-parte interim injunction. However, on 17/12/1984, the said appeal was heard and dismissed and the interim order vacated Mr. R.L. Chugh, Senior Sub-Judge, who heard the matter, was of the view, that "the Civil Court has no jurisdiction to grant the injunction,"at this stage. According to him "a mere suit for an injunction simpliciter is not maintainable at the instance" of the petitioner. He opined that the petitioner had "to necessarily seek a declaration about his bhumidari rights in the land in dispute and then ask for an injunction." He observed that the concept of ownership had been abolished in view of the authority of the Supreme Court in Haiti v. Sunder Singh, .

(7) He opined that since no declaration had been made by the Revenue Authority in favor of the petitioner with regard to his bhumidari rights, which were under a cloud, a civil court could not grant an injunction. According to him, as far as a suit for possession is concerned, it is clear from a reading of Section 84 with item 19 of the First Schedule that this jurisdiction rests exclusively with the Revenue Assistant, since a suit for possession in respect of agricultural land can be instituted only by a bhumidar, Asami or Gaon Sabha and not by a person claiming to be a proprietor.

(8) Before me Mr. Ramesh Chandra, learned counsel for the petitioner urges that the sale-deed is a registered document and must be acted upon unit set aside. He contends that this is prima facie evidence of his being a bhumidar and he is entitled to an injunction restraining the respondent from interfering with his possession. He also submits that the civil courts have jurisdiction to decide this case, as according to him, an injunction suit does not come within the ambit of Section 185 and Schedule I of the Act. He relies on the decisions in Umrao Singh v. Man Singh and others, and Mam Raj v. Ram Chander etc., 1974 R.L.R. 428.

(9) Mr. Vats, learned counsel for the respondent, however, contends that a sale-deed is per se not sufficient to make the petitioner a bhumidar and further the civil courts have no jurisdiction to deal with this matter. He submits that it is only the Revenue Court that can grant recognition to the petitioner, and examine the question whether the alleged sale deed dated 15/9/1984 has infringed or violated any of the provisions of the Act. He urges that if the petitioner were to get an injunction from the civil court, then he would be getting indirectly what he cannot get directly i e. possession and recognition as a Bhumidar.

(10) Before dealing with the rival contentions, it is necessary to notice two things, the first is that the petitioner filed the suit only against Pt. Pehlad. Mr. Narain Singh was made a party only on 2/5/1985, after he moved an application under Order I Rule 10, Civil Procedure Code. In the said application, which is supported by an affidavit, he asserted that the sale deed dated 15/9/1984, was executed by him as a result of illegal inducements, misrepresentation and coercion by the petitioner, and under undue influence. According to him, he did not receive any consideration and it has been wrongly recorded in the sale-deed that consideration had already been paid. He has also asserted that he is a co-bhumidar of the entire agricultural land along with his brother Pt. Pehiad and the land was never partitioned nor could have been partitioned under the Act. He further assets that he never agreed nor could have agreed to sell specific khasra numbers to the petitioner. He also asserts that he does not know English and was totally misled by the petitioner. The land in question was worth not less than Rs. 205 lakhs and only Rs. 20,000.00 has been mentioned in the sale-deed. He denies that he ev gave or the petitioner ever got possession of the land on 15/9/1984. He also asserts that he has come to know that an affidavit, alleged to have been deposed to by him, has been filed, indicating that possession of the agricultural land had been handed over to the petitioner on 15/9/1984. He categorically asserts that he does not know English and did not swear any affidavit to this effect. In the affidavit attached to the application under Order I Rule 10, Civil Procedure Code, he says that the averments "have been explained in my language and I have understood the same," which "are correct and true to my knowledge."

(11) The affidavit filed by the petitioner in court on 23/11/1984, as the affidavit of Mr. Narain Singh, is as follows :-

"1.That the deponent has sold his portion of land as given in detail by the plaintiff in the above mentioned suit vide regd. sale-deed dated 15/9/1984 and on the same date the deponent handed over the peaceful possession of the said land of his share to the plaintiff Sh. Balbir Singh and the plaintiff Sh. Balbir Singh took over the said possession on same date, i.e. 15/9/1984 and since then he is in continuous and uninterrupted possession of the suit land.

2.That the defendant Sh. Pehiad has no right, title or interest in the land in my share, sold to the plaintiff by me against valid sale consideration." The verification of this affidavit stated that "the contents of the above affidavit are true to my knowledge and nothing has been concealed there from." There is nothing to indicate that what has been stated in the affidavit has been read over and explained to the deponent in Hindi; nor does the said affidavit indicate that the plaint was shown to the deponent and/or it was explained to him in Hindi.

(12) The second thing to be noted is that no specific khasra numbers have been mentioned in the sale-deed, in fact, the khasra numbers of the entire land mentioned therein. However, the suit has been filed praying that an injunction be passed in favor of the petitioner against Pt. Pehiad restraining him from interfering or dispossessing the petitioner from the suit land, and the suit land has been mentioned as khasra numbers 7(2-18), 6(4-7), 10(2-19) and 279(0-10). There is nothing in the plaint to indicate as to why these particular khasra numbers have been mentioned and how possession of these particular khasra numbers was given to the plaintiff, except that, it is stated that "Narain Sigh sold his mutually partitioned share" and "gave possession to the plaintiff on the same day and the plaintiff also took peaceful possession of the said land (copy of the sale deed is attached herewith)". However, as above noticed, the sale-deed is totally silent with regard to the specific khasra numbers sold, and the khasra numbers of the entire holding of 22 bighas of 8 biswas are mentioned, as being 57/1/1(2-7), 10(3-6), 58/4/2 (3-4), 5(4-16), 6(4-17), 7(2-18), 279(0-10) and 280(0-10) situated in the area of village Holambi Khurd, P.O. Holambi Kalan, Delhi-82. Though it is mentioned in the sale-deed that possession of the land under sale has been given to the vendee who has occupied the same, it is clearly not apparent from the sale-deed which khasra numbers and what area in each have been occupied. It is not even mentioned in the sale-deed that Mr. Narain Singh sought a partition from Pt. Pehiad and/or any such partition even took place. Nor is it even asserted that the said Mr. Narain Singh was cultivating certain specific khasra numbers.

(13) In fact, it is pertinent to note that though the joint holding in khasra No. 10 measured 3 bighas 6 biswas, according to the plaint possession was given of 2 bighas 19 biswas. This has obviously been asserted with a view to arrive at a total of 11 bighas 4 biswas only.

(14) Counsel are agreed that, the point in issue, for grant of an injunction at this stage, is whether possession was, in fact, given to the petitioner on 15/9/1984. As above noticed, the sale deed is vague on this aspect as no specific khasra numbers or areas therein are indicated and there is not even a mention of mutual partition. Even in the plaint, apart from the bare assertion of "mutual partition", there is no indication as to when this partition took place nor do the revenue records show that the land was mutually partitioned. Further, there is no averment in the plaint as to how possession was given and by whom nor as to. how these particular plots or specific khasra numbers and area were decided upon.

(15) It would, therefore, appear to me that even without going into the other contentions, regarding exclusive jurisdiction of the Revenue Courts. etc., no prima facie case has been made out for grant of an injunction.

(16) In any case, in Haiti v. Sunder Singh, (supra), it has been opined that the jurisdiction of the civil court is clearly barred by Section 185 of the Act read with the various items of the First Schedule. If a bhumidar seeks a declaration of his right, he has to approach the Revenue Assistant by an application under item 4 and the Revenue Assistant can make a declaration with regards to the rights of such a person. So far as a suit for possession is concerned, jurisdiction has been given to the Revenue Assistant to grant a decree of possession in respect of agricultural land, after the commencement of the Act, only on the institution of a suit by a bhumidar, Asami or Gaon Sabha. A suit by a person claiming to be a proprietor is not envisaged after the commencement of the Act. Section 84 read with item 19 of the First Schedule of the Act provides a full remedy to persons who file a suit for possession holding rights in agricultural land under the Act. The declaration made by the revenue authorities without going through the judicial procedure are subject to due adjudication of rights, but such adjudication must be by an application under item 4 of First Schedule of the Act and not by approach to civil courts.

(17) The decision in Umrao Singh v. Mem Singh and others (supra), relied upon by the petitioner is not relevant as it pertains to ownership rights in land which was evacuee property. Nor is the decision in Mam Raj v. Ram Chander etc., (supra),ofsucliassistance, which turned on particular facts, that the claim was based on succession to bhumidar rights by virtue of a will.

(18) So looking at the matter, from either aspect, it would appear to me that this is not a case where an injunction restraining interference from possession should be granted in these proceedings. However, the fact remains that an ex-parte injunction was granted on 23/11/1984 by the trial court. Though this order was vacated on 17/12/1984, when the appeal was dismissed; an ex-parte interim order was again obtained on 28/3/1985 from this court restraining the respondent from interfering with the possession of the petitioner with respect to khasra numbers 7, 6, 279 and 10 measuring 11 bighas 4 biswas. Thus, the petitioner has both filled this land and sown the seeds and the crops presently standing on this land belong to him. Counsel inform me that this is the "Rabi" crop and will be ready for harvesting by the end of April, 1987. Consequently, the petitioner will be entitled to harvest this crop as he has sown the seeds by virtue of the restraint order of the court. However, it is clarified that the petitioner will not be entitled to till and use the land after the present "Rabi" crop has been harvested.

(19) Both counsel state the khasra No. 279 is part of the extended Lal Dora and is not being used for agriculture and there is no crop on it. As such, I direct that the interim order pertaining to this plot is vacated forthwith.

(20) For the reasons outlined above, I find no merit in this civil revision and it is accordingly dismissed subject to the observations about the "Rabi" crop. There will be no order as to costs.

(21) The record of the trial court should be sent back forthwith.