Sis Ram And Ors. vs Lallu And Ors.
2006 Latest Caselaw 1698 Del

JUDGMENT

Reva Khetrapal, J.

1. The plaintiffs have preferred the present suit for partition as legal heirs of late Shri Mam Raj, son of Shri Chet Ram, who is stated to be co-sharer to the extent of 1/3rd share in respect of Abadi land forming part of Khasra No. 429, measuring 18 Biswa (900 sq.yards) situate in Village Maujpur, Delhi and recorded as such in the revenue records. Another 1/3rd share in the said land is stated to have originally belonged to Shri Khem Chand, son of Shri Ram Prasad, as co-sharer/bhumidar, and after his death about 25 years ago, his rights in 1/3rd share devolved upon his two sons, Revti and Ram Swaroop. Shri Revti also died about 12 years back leaving behind the defendants 16 to 18 as his legal heirs, and the rights of Shri Ram Swaroop, who also expired about 10 years back, devolved upon the defendants 19 & 20. The rights in the remaining 1/3rd share of the aforesaid land vested with the defendants 1 to 15, who are the legal heirs of Shri Ram Chander, Shri Sohan Lal, Shri Raghuvir and Smt. Chandra, the three sons and daughter of late Shri Chet Ram and late Smt. Chameli.

2. The aforesaid land, as per the site plan, is partly built up and partly vacant. The plaintiffs assert that they are in possession of the land which is lying vacant.

3. The plaintiffs further contend that Village Maujpur where the suit property is situate was urbanized by a notification dated 28th May, 1966 under Section 507 of the Delhi Municipal Corporation Act, published in the Delhi Gazette, Extraordinary Part IV on 3rd June, 1966. By another notification bearing No. SO. 1236 dated 27th March, 1979, in exercise of powers under sub-Section 2 of Section 1 of Delhi Rent Control Act, 1958, all the provisions of the Delhi Rent Control Act were extended to Village Maujpur.

4. The present suit was initially contested by the defendants 1 to 15 through their counsel by filing written statement. Subsequently, however, if the defendants choose to absent themselves from the proceedings and were accordingly proceeded ex-parte.

5. Apart from the aforesaid defendants, defendant No. 18 had also filed a separate written statement through his counsel, though admitting the claim of the plaintiffs for partition and seeking separation of his share in the land in question.

6. The present suit was contested by defendants 1 to 15 mainly on two grounds. Firstly, that since the provisions of Delhi Land Reform Act, 1954 are applicable to the suit property, the suit is barred under Section 55 of the said Act and secondly, that since late Shri Mam Raj was son of Shri Ramji Lal and not of Chet Ram, the plaintiffs being his legal representatives have no right in the suit property.

7. On the basis of the pleadings of the parties, the following issues were framed for consideration:

(1) Whether the plaintiffs are entitled for partition of property forming portion of Khasra No. 429 situate at Village Maujpur, Delhi? If so, what is the share of the plaintiffs? OPP

(2) Whether the suit of the plaintiffs is barred under Section 55 of Delhi Land Reforms Act, 1954 as contended by the defendants? OPD

(3) Whether the suit is barred by the principles of res judicata on account of decision of Revenue Court in Suit No. 162/RA/82 dated 27.09.1985? OPD

(4) Whether the defendants have become bhumidar of the land by adverse possession? OPD

(5) Whether the suit of the plaintiffs is bad for mis-joinder of necessary parties? OPD

(6) Whether the suit has been properly valued for the purpose of court fees and jurisdiction? OPP

(7) Whether Mam Raj and Ramji Lal are different persons and they do not have any right in the property left behind by Shri Chet Ram? OPD

(8) Relief

8. Issue No. 2 was ordered to be treated as preliminary issue and has since been decided in favor of the plaintiffs vide order dated 9th May, 2006 passed by Hon'ble Mr. Justice Anil Kumar. On the same date, i.e., 9th May, 2006, all the defendants were also proceeded ex-parte and the suit was posted for ex-parte evidence of the plaintiffs on 14th July, 2006 and thereafter for final hearing on 22nd August, 2006.

9. The plaintiffs in their ex-parte evidence have filed by way of evidence affidavit of Shri Sis Ram, plaintiff No. 1, who has proved on record the site plan of the suit property Ex.PW-1/1, copy of the order of the Revenue Assistant Ex.PW-1/2, copy of the Khatoni for the year 1986-87 Ex.PW-1/3 along with its English translation Ex.PW-1/4, copy of Khasra Girdhawari for the year 2001-2002 Ex.PW-1/5 and its English translation Ex.PW-1/6.

10. I have heard learned Counsel for the plaintiffs and scrutinized the record. My findings on the issues are as follows:

ISSUE No. 1: Whether the plaintiffs are entitled for partition of property forming portion of Khasra No. 429 situate at Village Maujpur, Delhi? If so, what is the share of the plaintiffs? OPP

11. On this issue, the plaintiffs have proved on record and relied upon copy of Khatoni Ex.PW-1/3 and copy of Khasra Girdhawari Ex.PW-1/5. In both these documents, Mam Raj has been shown as co-sharer to the extent of 1/3rd . However, incorrectly his parentage has been shown as that of Ramji Lal instead of Chet Ram. Significantly, however, in the aforesaid revenue documents the name of Mam Raj has been shown along with his brothers Ram Chander, Sohan Lal and Raghubir as one of the sons of late Mst. Chameli, wife of Chet Ram. Significantly also, even before the Revenue Assistant, in the suit filed by Shri Mam Raj, being case No. 162/RA/82 Village Maujpur under Section 55 of the Delhi Land Reforms Act, 1954, an identical objection had been raised regarding the parentage of late Shri Mam Raj, but vide order of Shri B.K. Sehgal, Revenue Assistant, Delhi dated 27th September, 1985 (Ex.PW-1/2), it was categorically held on the basis of the revenue entries and on the basis of the fact that no evidence in rebuttal had been adduced by the defendants to establish the fact that Mam Raj was not the son of Chet Ram, but of Shri Ramji Lal, that Mam Raj was son of Chet Ram and not of Ramji Lal. Additionally, the said Revenue Assistant took into account the fact that this Court in RSA No. 97/97 between the same parties (though pertaining to different land), had held that Mam Raj was son of Chet Ram and not of Ramji Lal, his taya (paternal uncle).

12. PW-1 Shri Sis Ram has stated on oath that Mam Raj was the son of Chet Ram. No evidence in rebuttal has been adduced by the defendants and the aforesaid plea of the plaintiffs is uncontroverter on record.

13. Accordingly, issue No. 1 is decided in favor of the plaintiffs and against the defendants.

ISSUE No. 2: Whether the suit of the plaintiffs is barred under Section 55 of Delhi Land Reforms Act, 1954 as contended by the defendants? OPD

14. As already stated hereinbefore, this issue was treated as a preliminary issue and decided in favor of the plaintiffs vide order of this Court dated 9th May, 2006.

ISSUE No. 3: Whether the suit is barred by the principles of res judicata on account of decision of Revenue Court in Suit No. 162/RA/82 dated 27.09.1985? OPD

15. The land of Village Maujpur had been urbanized under Section 507 of the Delhi Municipal Corporation Act vide notification dated 28th May, 1966. The jurisdiction of the Revenue Assistant by way of a suit under Section 55 of the Delhi Land Reforms Act had been invoked by late Shri Mam Raj in the year 1982 vide Case No. 162/RA/82 Village Maujpur. The order of the Revenue Assistant is thus a nullity being without jurisdiction and as such cannot operate as res judicata against the plaintiffs. In the above context, reference may be made to paragraphs 12 to 16 of the order of this Court(Hon'ble Mr. Justice Anil Kumar) dated May 9, 2006, which read as follows:

12. The point for determination in the circumstances is whether the provision of Delhi Land Reforms Act would be applicable even though the land stands urbanized and the land falling within Section 3(13)((b) of the Act ceased to be "village abadi". The definition of land in Section 3(13) of Land Reforms Act, is as under:

Land" except in Sections 23 and 24, means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming and includes-

(a) building appurtenant thereto,

(b) village Abadis,

(c) grovelands,

(d) land for village pasture or land covered by water and used for growing Singharas and other produce or land in the bed of a river and used for casual or Occasional cultivation, but does not include--land occupied by buildings in belts of areas adjacent to Delhi town and New Delhi town, which the Chief Commissioner may by a notification in the official Gazette declare as an acquisition thereto.

13. The definition of land as given above is an inclusive definition. It would be seen from the definition of 'land' that apart from the land occupied for various purposes connected with agricultural, horticultural, animal husbandry, poultry etc. or buildings appurtenant being treated as land for purposes of Land Reforms Act, the inclusive definition of land describes the various other kinds of land viz. groveland, village Abadi etc.

14. Perusal of the Section 3(13)(b) and Section 3(13)(d), it is apparent that the land in dispute would be covered by Section 3(13)(b) and not under Section 3(13)(d) and once by virtue of notification under Section 507(a) of Delhi Municipal Corporation Act, the land is delineated to be urban land and it should no longer be classified as "village abadi" land within the definition of "land" under the Delhi Land Reforms Act.

15. Reliance for these can be placed on Trikah Ram (supra) where a Single Judge in similar circumstances had held that the land in village abadi in respect of which a notification was issued under Section 507(a) of Delhi Municipal Corporation Act would no longer be classified as village abadi land on its declaration as an urban land. It was held:

12....A meaningful reading of Section 3(13) of the Act would show that in the instant case to begin the property in suit fell within "village Abadi". The question that we have to consider is once the provisions of the Delhi Land Reforms Act are applicable on account of the same falling within Section 3(13)(b), whether the same would continue even if it is ceased to be "village Abadi". In my view this would be a case falling within 3(13)(b) and not under 3(13)(d), where the requirement for notification by the Chief Commissioner arises for exclusion of the provisions of the Delhi Land Reforms Act. It appears to me that once by virtue of notification issued under Section 507(a) of the Delhi Municipal Corporation Act, the land is declared to be urban land it could no longer be classified as "village Abadi land" within the definition of 'land' under the Delhi Land Reforms Act. The provisions of Land Reforms Act would not be applicable.

16. The inevitable inference in the facts and circumstances of the case will be that on urbanization of land in dispute for which the partition has been sought by the plaintiff, it will not be governed by the provisions of Delhi Land Reforms Act. Filing of petition earlier for the division of the property before the Revenue Assistant which was declined as the portion of the land was becoming less than eight standard acres, will not make the property of the parties `Village Abadi' and will not be governed by the provisions of Delhi Land Reforms Act, 1954. On urbanization of the property, it will no longer be `village abadi' and consequently it can not be inferred that for partition of the property, the petition has to be filed before the Revenue Assistant under the provisions of Delhi Land Reforms Act, 1954.

16. In view of the above, I have no hesitation in holding that Issue No. 3 must be decided in favor of the plaintiffs and against the defendants.

ISSUES No. 4 : Whether the defendants have become bhumidar of the land by adverse possession? OPD

ISSUES No. 5 : Whether the suit of the plaintiffs is bad for mis-joinder of necessary parties? OPD

17. Onus of proving these both issues was upon the defendants, who have been proceeded ex-parte and have led no evidence to discharge the burden placed upon them of proving the same. The said issues are, therefore, liable to be determined in favor of the plaintiffs and against the defendants. Issues No. 4 and 5 are accordingly decided against the defendants.

ISSUE No. 6: Whether the suit has been properly valued for the purpose of court fees and jurisdiction? OPP

18. The plaintiffs claim to be in joint possession of the suit land and as such a fixed court fees as per the provisions of the Article 17(6) Schedule II of the Court Fees Act is affixed. In paragraph-7 of the plaint, the plaintiffs have categorically stated that for the purposes of jurisdiction the value of the suit is Rs. 45 lacs, however, since the plaintiffs are in joint possession of the same along with other co-sharers, a fixed court fees of Rs. 20/- is paid after valuing the suit for that purpose at Rs. 200/-. The defendants No. 1 to 15, on the other hand, have categorically denied that the plaintiffs are in possession of any portion of the suit property. This Court in the case of Sudershan K. Seth v. Pawan K. Seth 2006 Rajdhani Law Reporter 7 relying upon its decisions in Jamila Khatoon v. Saidul Nisa 1977 Rajdhani Law Reporter, 54 held as follows:

14. It is settled law that in order to decide as to what relief has been claimed by the plaintiff the whole of the plaint has to be read. From the perusal of the plaint if it can be inferred that the plaintiff is in possession of any part of the properties to be partitioned, then the Court fees shall be payable under Article 17(6) of Schedule II of the Court fees Act i.e. fixed Court Fees at the time of institution of the suit, but if the conclusion is that the plaintiff is not in possession of any part of the property then the plaintiff has to pay court fees under Section 7(iv)(b) of the Court fees Act i.e. on the value of the share of the plaintiff Jamila Khatoon (supra), Parkah Wati (supra), Ranjana Arora (supra), Harjit Kaur (supra) and Rajiv Oberoi (supra) can be referred to.

19. The plaintiffs in the instant case in para 2 of the plaint assert that the suit land is partly built up and partly lying vacant as shown in detail in the site plan enclosed therewith. Plaintiffs further assert that they are in possession of the land aforesaid which is lying vacant. In paragraph 5 of the plaint, the plaintiffs submit that they had requested the defendants to partition the suit property by separating their one-third share by mutual consent without the intervention of the court, but the defendants who are having an evil eye even with regard to the one-third share of the plaintiffs in the suit land, refused the said request of the plaintiffs when approached by them. Hence, the plaintiffs have been constrained to file the present suit for partition against the defendants before this Court. The plaintiffs have also sought partition of properties by metes and bounds. The whole tenor of the plaint leads to the inference that the plaintiffs are not in possession of the property of late Sh. Mam Raj and are merely claiming possession being co-sharers.

20. For the aforesaid reasons, it is held that the plaintiffs are liable to pay court fees under Section 7(iv)(b) of the Court Fees Act on the value of their one-third share of Rs. 45,000/-, which is the jurisdiction value averred by the plaintiff and not under Article 17(vi) of Schedule II of the Court Fees Act. Since the plaintiffs have paid a fixed court fees of Rs. 20/-, they are directed to make up the deficiency in the court fees within a period of four weeks failing which the plaint will be liable to be rejected.

ISSUE No. 7: Whether Mam Raj and Ramji Lal are different persons and they do not have any right in the property left behind by Shri Chet Ram? OPD

21. The said issue has been incorrectly framed, therefore, does not arise for consideration. Even otherwise, as held in RSA 97/97 by this Court, Mam Raj was the son of Chet Ram and Ramji Lal was his paternal uncle (taya). The onus of disproving this fact was upon the defendants who have led no evidence in this regard. This issue is accordingly decided in favor of the plaintiff.

ISSUE No. 8: Relief:

22. In view of the fact that the plaintiffs have adduced evidence, including documentary evidence, to prove their case and the same has not been controverter by the defendants by leading any evidence in rebuttal, the plaintiffs on the basis of being co-sharers to the extent of 1/3rd share have become entitled to a preliminary decree of partition in respect of the piece of land forming part of Khasra No. 429, measuring 18 biswas (900 sq.yds.) situate in Village Maujpur as shown in red in the site plan attached to the plaint (Ex.PW-1/1). The remaining two-thirds share in respect of the said land shall be partitioned between the defendants - one-third to the defendants No. 1 to 15 and the remaining one-third to the defendants No. 16 to 20.

23. In the result, a preliminary decree for partition in respect of the suit property is passed in favor of the plaintiffs in terms of prayer (a) made in the plaint. Shri S.P. Tara, Deputy Registrar of this Court is appointed as Local Commissioner to partition the suit property by metes and bounds in accordance with the respective shares of the parties as determined herinabove. The fee of the Local Commissioner is fixed at Rs. 45,000/-, which shall be borne by the plaintiffs in the first instance, who shall be entitled to recover 2/3rds of the same from both sets of defendants viz., 1/3rd from defendants 1 to 15 and 1/3rd from defendants 16 to 20. The Local Commissioner shall submit his report as expeditiously as possible and latest within four months from today. There will be no order as to costs.

24. Needless to state that the status quo order passed on February 14, 2003 by this Court will remain in operation till the date of passing of a final decree. I.A. No. 1872/2003 stands disposed of accordingly.

25. The plaintiffs by another application being IA No. 1873/2003 have prayed for appointment of defendant No. 4 Smt. Barfo Devi as guardian of the minor defendants 6,7 & 12. No reply to this application has been filed by the defendants. Smt. Barfo Devi is stated to be the mother and guardian of the minor defendants 6,7 & 12 being widow of late Shri Jaimal Singh and to have no interest adverse to that of the minors. This being so, the application of the plaintiffs in this regard being I.A. No. 1873/2003 is allowed. Defendant No. 4 Smt. Barfo Devi shall henceforth represent the defendants 6,7 and 12 as their guardian.

26. A copy of this order be sent to the Local Commissioner for compliance.