Shri Ram vs Jai Prakash And Ors.
1991 Latest Caselaw 278 Del

JUDGMENT

P.N. Nag, J.

(1) This revision petition has been filed against the order dated 8th January, 1990 passed by Shri HP. Sharma, Senior Sub Judge, Delhi whereby the order of the learned Sub Judge dated 12th September, 1989 directing maintenance of status quo of the property in dispute has been reversed.

(2) The relevant facts necessary for determining the point in controversy between the parties are these. The petitioner filed a suit for declaration and permanent injunction against the respondents claiming a decree for declaration to the effect that the petitioner is the sole heir and successor of Shri Om Prakash, son of late Shri Ram Sarup Saini of village Bijwasan, Delhi, having succeeded to his rights, title and interests in the land in dispute. He also claimed a decree turn permanent injunction restraining the respondents from interfering in the petitioner's right, title and interest therein at any time.

(3) The suit of the plaintiff-petitioner is founded on the claim that he is the male lineal descendant of late Shri Gurdayal. He is his surviving son and Shri Om Parkash was the son of the real brother of the petitioner. Accordingly, the petitioner was a nearest natural successor of his lands and estate in comparison to the other respondents. Shri Om Parkash, who admittedly has been declared as a Bhoomidar of the land in dispute has not been heard for the last more than seven years since the year 1980 and, therefore, he is presumed to have died. Respondents 2 to 4 have not opposed the case of the petitioner. Respondent No. I has, however, contested the suit and has claimed succession to the land in dispute by virtue of an adoption deed dated 18.1.1980-which has been disputed by the petitioner.

(4) In an application under Order 39 Rules 1 & 2 filed by the plaintiff. the learned Sub Judge vide judgment dated 12th September, 1989 allowed the application and directed maintenance of status quo of the land in dispute. Being aggrieved of this order of the learned Sub Judge allowing the application for injunction, the respondent No 1-Jai Prakash-filed an appeal before the learned Senior Sub Judge. The appeal filed by respondent No. 1 was allowed and the injunction passed by the trial court was vacated on the ground that the jurisdiction of the civil court is barred by provisions of Section 185 of the Delhi Land Reforms Act, 1954 (hereinafter referred to as 'the Act') and, therefore there is no prima facie case in favor of the petitioner-plaintiff.

(5) Aggrieved against the order of the appellate court., the plaintiff- petitioner filed this revision petition.

(6) Learned counsel for the petitioner submitted that the jurisdiction of the civil court in the facts and circumstances of the present case was not barred whereas learned counsel for the respondent No. 1, on the other hand. contended that the jurisdiction of the civil court was clearly barred in view of the law laid down by the Supreme Court.

(7) There is no dispute that in the present case the controversy revolves on the question of succession to the land in dispute left by Shri Om Parkash. Declaration of bhoomidari rights of Shri Om Parkash is not the question in dispute. In these circumstances the question that arises for consideration is whether the jurisdiction of civil court is barred or not. Section 185(1) of the Act which bars the jurisdiction of the civil court in the matter of declaration of bhoomidari rights may be reported below :- "185(1) Except as provided by or under this Act no court other than a court mentioned in column 7 of Schedule 1 shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, take cognizance of any suit, application, or proceedings mentioned in column 3 thereof."

(8) From the perusal of the above section it is clear that this saves only those cases which are mentioned in column 7 of Schedule 1 of the Delhi Land Reforms Act. Thus, the scope of Section 185 is confined to the specific matters enumerated in Schedule .1 of that Act and to none other. The present suit of the petitioner-plaintiff for declaration and permanent injunction seeking that he is sole heir and successor of Shri Om Parkash is not covered under specific matters enumerated in Schedule 1 of the Act and, therefore, the civil court has every jurisdiction to try the suit. Reliance was placed by the learned. counsel for the respondent No. 1 on Entry 28 of Schedule 1 and. according to him, the jurisdiction of civil court is barred. Mere perusal of Entry 28 of Schedule I relates to the declaratory suit under Section 104 of the Act. Such a suit is permissible to be filed by the Gaon Sabha only against any person claiming to be entitled to any right in any land or his right therein. Here it is not a suit by the Gaon Sabha. Therefore, this argument is of no help to respondent No. 1.

(9) Strong reliance placed by counsel for respondent No. 1 in a case reported as Haiti v. Sunder Singh was also conceived. A close scrutiny of that judgment reveals that the case centres round substantially on the relief for declaration that the grant of bhoomidari rights to one Hatti was wrong and illegal and such a declaration should have been granted in favor of Sunder Singh and that Sunder Singh was entitled to claim possession from Hatti whom he called a trespasser. The Supreme Court has held that all these reliefs can be granted by revenue courts. The disputes regarding declaration of bhoomidari rights is, inter alia, provided in Sections 11 and 13 of the Act and remedy for the disputes about it are included at item No. 4 of Schedule I of the Act. The question of seeking possession from a person without authority is provided for under Section 84 of the Act and the same is entered at serial No. 19 of Schedule 1 of the said Act Having thus found that all the three reliefs claimed in that suit were provided for in Schedule of the Act, therefore, the jurisdiction of the civil court to grant the same did not arise. It is thus clear that in the present suit no declaration whether Shri 0m Parkash has acquired bhoomidari rights has been prayed for by the petitioner. But the only question which has been raised is as to who is the rightful successor of his title theein. The Act does not make any provision for cognizance of such questions under it. Counsel for the respondents next argued that the petitioner was seeking succession to the land in question under Section 50 of the Act. Section 50 only lay down the order of succession to the land of a bhoomidar. It nowhere provides the forum which is to decide if disputes arise regarding succession. There is no corresponding entry for cognizance of disputes arising to the succession under Section 50 in Schedule 1 of the Act. Therefore, the main question involved in the present case does not fall under any entry of Schedule 1 or the Act. Therefore, Section 185 of the Act does not affect the jurisdiction of civil court to try the present. The argument of counsel for respondent No. 5, therefore, has to fail.

(10) Almost similar question arose before this court in Mam Raj v. Ram Chander and others where permanent injunction was claimed by the plaintiff on the basis of succession of bhoomidari rights by virtue of a will and it was held that Section 185 ousted the jurisdiction of the civil courts in certain matters and not in all matters. The matters in respect of which the jurisdiction of the civil courts is ousted are only those matters which are mentioned in Schedule I to the Act, and various types of suits. applications and other proceedings are mentioned in column 3 of the said Schedule read with entries mentioned in column 2 and the courts in which the proceedings have to be filed arc mentioned in column 7 thereof.

(11) In fact in Mam Raj's case the decision of the Supreme Court in Hatti v. Sunder Singh (supra) has also been noticed.

(12) It may also be appropriate to refer another similar case reported as Jai Bhagwan v. Lachhmi Devi etc. (1972 RLR-NOTE 25) wherein this court again held that in such matters as in the present case, the jurisdiction of the civil court is not barred.

(13) In view of what is discussed above, the finding of the appellate court that the petitioner-plaintiff has no prima fade case for the grant of injunction and the jurisdiction of civil court to try such suit is barred, is wholly unsustainable in the eyes of law.

(14) The impugned order is, therefore, set aside and the learned appellate court is directed to decide the appeal afresh on merits in accordance with law. In the circumstances make no order as to costs.

(15) Parties are directed to appear before the appellate court on 11th July, 1991.