Delhi High Court

Jai Karan & Ors. vs Union Of India & Ors. on 5 September, 2008

Author: V.K.Shali

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CM No. 16221/2007 in LA APP 366/2007

                                   Reserved on : 19th May 2008
                                   Date of Decision : 5th September, 2008

      JAI KARAN & ORS.                               .....Appellants
                                   Through Mr. Sunil Chauhan, Advocate.

                          versus

    UNION OF INDIA & ORS.                .....Respondents
                       Through Mr. Ramesh Chandra, Sr.
                       Advocate with Mr. S.S. Guha,
                       Advocate.
CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE V. K.SHALI

1. Whether the Reporters of local papers
   may be allowed to see the judgment?               No
2. To be referred to the Reporter or not?            Yes
3. Whether the judgment should be
   reported in the Digest?                            Yes

%                          JUDGMENT
V.K. SHALI, J.

1. This application for stay has been filed in respect of the above LA

Appeal which was admitted on 28th November, 2007 and an ex-parte

order in so far as private respondents are concerned was passed staying

the disbursement of the amount of compensation in terms of the

impugned judgment and the order. The reference Court in the impugned

order while construing the inheritance in favour of Smt. Bharto sister of

the appellants (appellant No.2 is since deceased and represented by LR)

has taken recourse to the judgment of the learned Single Judge of this

Court in WP(C) No. 5620/1998. In paragraph 7 of the impugned

judgment, the learned Additional District Judge has observed as

follows:-

"7. All the four issues go to the root of the dispute i.e. Inheritance of land in dispute in favour of Smt. Bharto. The identical issues were involved in Writ Petition No. 5620/1998. It is crystal clear from the paragraph 10 of the judgment dated 11-06-2007 wherein the counsel for IP no. 2, 3-A and 3-B made submissions and challenged the mutation in the name of Smt. Bharto contrary to Section 50 of Delhi Land Reforms Act. In paragraph nos. 12 and 13 of the judgment, the mutation in favour of IP no. 2, 3-A and 3-B dealt in detail. The plea of fraud taken by IP no. 2, 3A and 3-B dealt in detail reflecting the statement of Satpal Singh (now deceased) and Devender Singh in the said paragraphs. In paragraph 19, the Hon'ble Justice Dr. S. Muralidhar, J. High Court observed as follows:-

"19. The Court is required to examine if substantial justice has been done or, to put it conversely, whether the denial of the reliefs prayed for by the petitioners would result in substantial injustice being caused to them. In the circumstances, given the developments that have taken place since 1968 the question whether the mutation made way back in 1968-69 in favour of Smt. Bharto was valid or not, need not be examined at this late a stage. The fact that the mutation in favour of Smt. Bharto remained unchallenged

for nearly three decades, the fact that the petitioners have not been deprived of their respective shares of land acquisition compensation and the fact that son of the petitioner No.1 himself was a witness of the mutation in favour of Respondent No. 6 to 9 are all factors that weigh against the grant of relief to the petitioners here. The neat legal question that may have merited consideration in some other appropriate case, therefore, need not be examined in the present case. The impugned orders do not call for interference."

2. The learned Additional District Judge also noted that this order

was challenged before the Division Bench of this Court in LPA No.

1191/2007 and the said appeal was dismissed by a speaking order in

limine on 1st October, 2007. It has also noticed the impact of the

dismissal in paragraph 8 of the judgment. The learned Additional

District Judge also relied on the order in LPA No. 1191/2007 dismissing

the appeal filed by the appellants against the judgment dated 11th June,

2007 in Writ Petition (Civil) No. 5620/1998 as follows:-

"5. Moreover, the facts stated above reveal that Ms. Bharto was recorded as owner of the joint bhumidari land in 1966 after the death of her father Mr. Harphool Singh along with Mr. Subh Ram and Mr. Jai Karan. No objection or challenge to the same was ever made at any time, from 1966 onwards till she expired in 1986. Thereafter mutation was carried out

in the name of the sons of Ms. Bharto with the knowledge of the appellants.

5A. Challenge for the first time was made only by filing of an application before the Tehsildar in May, 1998. In the said application, challenge was made to the order dated 11th August, 1995 by which mutation was done in the name of four sons of Ms. Bharto and no challenge was made to the mutation in the name of Ms. Bharto in 1966. Mutation made in the names of sons of Ms. Bharto, was merely a logical consequence and the same was necessary only to give effect to the mutation made in the name of Ms. Bharto in 1966. The appellants could not have asked for cancellation and setting aside of mutation made in name of Ms. Bharto in 1966 by questioning mutation made in favour of her sons in the year 1995. It is apparent from the conduct of the parties that after the death of Mr. Harphool Singh, Ms. Bharto was recorded as one of his inheritors having equal right as her two brothers viz. Mr. Subh Ram and Mr. Jai Karan. She continued to enjoy full rights during her life time. After her death on 14th August, 1986, her sons as inheritors continued to enjoy the said rights with the consent and knowledge of the appellants as is apparent from the statement made by Mr. Devender Singh before mutation order dated 11th August, 1995 was passed by the Tehsildar. It is, therefore, clear that there was implied understanding between the aforesaid parties and the parties agreed and accepted Ms. Bharto and her legal heirs as joint bhumidars, who had inherited the property from Mr. Harphool Singh, after his death in

1964 resulting in mutation entry in 1966, which continued. What the appellants seek and had sought before the Tehsildar and the Financial Commissioner is to unsettle the accepted position, which had continued from 1964/1966 onwards till 1998. In view of the said position, Tehsildar and Financial Commissioner rejected the application of Mr. Subh Ram. It is also apparent that the said change in stand has taken place because part of the said bhumidari land, as stated in the impugned judgment, was acquired in 1997 by Award No. 17/97-98 under the Land Acquisition Act, 1894. Admittedly the appellants have already received their share of compensation for the said acquisition. The idea appears to be to grab the other part of the compensation which is going to the legal heirs of Ms. Bharto."

3. The learned Additional District Judge has disposed of the

adjudication under Sections 30-31 of the Land Acquisition Act on the

basis of the findings of the learned Single Judge and in any event the

Division Bench of this Court, directing the release of the 1/3rd

compensation of Late Sh. Harphool Singh to the successors in interest of

Late Smt.Bharto, who are the respondent Nos. 2 to 5 in the instant

appeal.

4. The facts briefly stated are as follows:-

(a) Union of India had acquired 502 bighas and 6 biswas of land

situated in Village Tikri Kalan vide award bearing No.17/1997-98 dated

27th December, 1995. One Sh.Harphool Singh, grandfather of the

appellants and respondent Nos.2 to 5 was the predecessor in interest

who was the joint recorded Bhumidar/owner in respect of 55 Bighas and

6 Biswas of agricultural land in the said Village which was forming a

part of the aforesaid larger chunk of the acquired land. Sh. Harphool

had died intestate in the year 1964. He was survived by two sons

namely Sh.Jai Karan and Sh. Subh Ram and one daughter Smt.

Bharto. So far as Sh. Jai Karan is concerned, he is appellant No.1 in the

present appeal and Sh.Subh Ram, Appellant No.2 is represented by his

LRs, since has also died.

(b) In the year 1968-69, mutation was carried out in the names of

two sons Sh. Jai Karan and Sh. Subh Ram and one daughter Smt. Bharto

as the successor in interest of Sh. Harphool Singh. Thus Smt. Bharto

was shown to be the recorded owner of 1/3rd share of Sh. Harphool

Singh. On 14th August, 1986 Smt. Bharto also died and thereafter her

four sons namely Sh.Raj Singh, Sh.Satyawan, Sh.Vinay Kumar and

Sh.Satpal, respondent Nos. 2 to 5 applied for mutation which was

granted by Tehsildar in their favour vide order dated 11th August, 1995.

filed challenging the mutation of the name of Smt. Bharto as one of the

LRs of Sh.Harphool Singh as being contrary to Section 50 of the Delhi

Land Reforms Act. On the basis of that challenge, it was contended

that the mutation in the name of the sons of Smt. Bharto could not have

been carried out on 11th August, 1995. For inexplicable reasons,

although the mutation in the name of the sons of late Smt. Bharto which

was done vide order of the Tehsildar dated 11th August, 1995 was

challenged but the mutation in the name of Smt.Bharto which was done

almost three decades earlier in 1968-69 was not challenged. The

learned Single Judge dismissed the writ petition bearing WP(C) No.

5620/1998 by a detailed speaking order by observing that though a legal

question may have merited consideration in some other appropriate case

but it could not be examined in the said writ petition as the mutation in

the name of the sons of Smt. Bharto was a necessary consequence of the

mutation of the name of Smt.Bharto which had taken place in 1968-69

and which was not challenged. Therefore, the writ petition of the

appellants herein, against the sons of Smt.Bharto was dismissed. The

appellants who are the successors in interest of the two sons of

Sh.Harphool Singh filed an LPA bearing No.1191/2007 against the

judgment of the learned Single Judge dated 11 th June, 2007. Letter

Patent Appeal was also dismissed by the division Bench in limine by a

speaking order on 1st October, 2007 and, therefore, the question of

Bhumidari/the ownership rights of Smt. Bharto or her successors to the

extent of having 1/3rd share of the land measuring 55 Bighas and 6

Biswas belonging to Sh.Harpool Singh were not in dispute. Since the

appellants herein did not succeed in the writ petition or the LPA, they

had also sought a reference regarding the apportionment of the

compensation granted to Sh.Harphool Singh on account of his

Bhumidari rights, which was acquired, before the Land Acquisition

Collector. Accordingly, the Land Acquisition Collector had made a

reference under Section 31 of the Land Acquisition Act to the

Additional District Judge who had framed the following four issues

arising out of the reference.

"1. Whether Smt. Bharto Devi inherited any right, title and interest from her father late Sh.Harphool Singh on his death being his married daughter out of agricultural land including subject matter of this reference petition left behind by him?

2. Whether the mutation entries in the name of Smt. Bharto from late Sh. Harphool Singh created bhumidari rights in her favour?

3. Whether the mutation entries dated 10.8.1995 in the name of IP No.1-A to 1-D from Smt. Bharto created any bhumidari rights in their favour?

4. Whether IP No.2 to 3 inherited entire land subject matter of this reference petition from late Sh. Harphool Singh being his sons immediately upon his death?"

5. With regard to all the issues, no evidence was sought to be

adduced by any of the parties, as is apparent from the record because the

issues were covered by the two aforesaid judgments of the High Court.

Accordingly, the learned Additional District Judge by his impugned

order dated 22nd October, 2007 decided the issues bearing Nos.1, 2 and 3

in favour of the respondents 2 to 5 herein and issue No.4 against the

appellants herein in the appeal. The net result of this decision was that

1/3rd compensation deposited by the Union of India had to be disbursed

to the respondent Nos.2 to 5 by virtue of the impugned judgment dated

22nd October, 2007. Since the disbursement of the said compensation

was stayed on the basis of CM No.16221/2007 by the ex parte order of

the Division Bench and in view of the legal position as narrated above