Delhi High Court
Khubi Ram Gupta S/O Late Lala Ram ... vs Shri Hoshiar Singh Singhal ... on 5 November, 2004
Author: M B Lokur
Bench: M B Lokour
JUDGMENT
Madan B. Lokur, J.
1. Although numerous questions of law were framed on 23rd March, 1982 while admitting this second appeal, learned counsel for the Appellant took advantage of the proviso to Section 100(5) of the Code of Civil Procedure (CPC) to contend that the maintainability of the suit filed by the Respondents raised a substantial question of law. Without deciding on the correctness of this submission, I have examined the issue of maintainability of the suit. Unfortunately, I am not in agreement with the contentions urged and would, therefore, reject this appeal by holding that the suit filed by the Respondents was maintainable.
2. The Respondents had filed a suit before the learned Commercial Sub Judge praying for a permanent injunction restraining the Appellant from disturbing or interfering in the enjoyment and possession of the Respondents on a plot of land marked as TQRS in Khasra No. 736/215, Khata Khatoni 16/34 situated in village Pipal Thala on the main G.T. Road, Delhi admeasuring 7 bighas 2 biswas.
3. According to the Respondents the land was owned by Jai Lal, Ram Chander (father of the Appellant), Kanhiya Lal, Daya Kishan and Hoshiar Singh (predecessor in interest of the Respondents). The parties entered into a partition agreement, which was followed by a suit for declaration and permanent injunction filed before the Sub-Judge 1st Class, Delhi.
4. By a judgment and decree dated 20th August, 1968, the learned Judge declared Hoshiar Singh to be the owner and in possession of the land in question. On this basis, the Respondents averred that the Appellant cannot interfere in their enjoyment and possession of the suit land.
5. The Appellant filed his written statement and contested the suit and claimed to be in possession of the suit property with the right to use the same.
6. On the basis of the pleadings, the learned Trial Judge framed the following issues: -
1. Whether the plaintiff is in possession of the suit property, or was in possession on the date of suit?
2. If issue No. 1 is not proved, is the suit maintainable in the present form?
3.Is the suit not properly valued for the purpose of court fee and jurisdiction?
4.Relief
7. Two additional issues were framed but they are not relevant for the merits of the case.
8.With regard to the first issue, it was held that Hoshiar Singh was and is in possession of the suit property. In view of this finding of fact, the second issue did not arise. The issue with regard to Court fee and jurisdiction was answered in favor of the Respondents.
9. Feeling aggrieved, the Appellant filed an appeal being RCA No. 35/75 which was heard by the learned Additional Senior Sub Judge. By a judgment and decree dated 28th February, 1977, the first appellate Court did not find any merit in the appeal, which was rejected with costs. The finding of the learned Trial Judge that the Respondents were in possession of the suit property was confirmed by the first appellate Court.
10. Although no contentions were urged by learned counsel for the Appellant with regard to the finding of fact relating to possession of the suit property, it may be mentioned that the first appellate Court considered a large number of documents and conclusively held that the Respondents were in possession of the suit property. It was also noted that the Appellant did not care to examine any other co-sharer of the land or even his own father to deny the factum of partition or that the Respondents were in possession of the suit property.
11. The submission of learned counsel for the Appellant was that the suit is not maintainable in view of the provisions of Section 185 of the Delhi Land Reforms Act, 1954. This provision reads as follows:-
"185. 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 (5 of 1908), take cognizance of any suit, application, or proceedings mentioned in the column 3 thereof.
(2) Except as hereinafter provided no appeal shall lie from an order passed under any of the proceedings mentioned in column 3 of the Schedule aforesaid.
(3) An appeal shall lie from the final order passed by a court mentioned in column 3 to the court or authority mentioned in column 8 thereof.
(4) A second appeal shall lie from the final order passed in an appeal under sub-section (3) to the authority, if any, mentioned against it in column 9 of the Schedule aforesaid."
12. Reference was made to item 28 of Schedule I which pertains to a declaratory suit filed under Section 104 of the Act to submit that the Revenue Assistant was the Court of original jurisdiction.
13.I am afraid the contention of learned counsel for the Appellant is not tenable because the suit filed by Hoshiar Singh/the Respondents was for an injunction and not a declaration. However, learned counsel for the Appellant also contended that the decree of declaration passed by the learned Commercial Sub Judge in 1968 was itself void. I think it is too late in the day for him to raise such a contention.
14. Even after giving credence to the contention, it needs to be stated that Section 104 of the Act relates to a declaratory suit being instituted by the Gaon Sabha. This provision reads as follows:-
"104 Declaratory suit.- Notwithstanding anything to the contrary in Section 42 of the Specific Relief Act, 1877, the Gaon Sabha may institute a suit against any person claiming to be entitled to any right in any land for the declaration of the right of such person in such land, and court in its discretion may make a declaration of the right of such persons.
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."
15. The suit that was filed before the learned Commercial Sub Judge (decided in 1968) was not a declaratory suit filed by the Gaon Sabha and this is also not anybody's case. Consequently it must be held that the suit decreed in 1968 was maintainable.
16. Reference may be made to Abdul Waheed Khan vs. Bhawani, , which considered the bar to the jurisdiction of a civil Court under the Bhopal State Land Revenue Act. The Supreme Court in this context held as follows:-
"Under Section 9 of the Code of Civil Procedure, a Civil Court can entertain a suit of a civil nature except a suit of which its cognizance is either expressly or impliedly barred. It is settled principle that it is for the party who seeks to oust the jurisdiction of a Civil Court to establish its contention. It is also equally well settled that a statute ousting the jurisdiction of the Civil Court must be strictly construed."
17. The suit filed by the Hoshiar Singh/the Respondents does not come within the purview of Section 185 of the Act, nor has the Appellant been able to discharge the burden of showing that the jurisdiction of the Civil Court is ousted. The findings of the Courts below being those of fact, there is no merit in this appeal.
