Smt. Pushpa Saroh vs Shri Mohinder Kumar & Ors
2009 Latest Caselaw 125 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  CS(OS) 427/2006

%16.01.2009                Date of decision:16th January, 2009

SMT. PUSHPA SAROHA                 ..................           Plaintiff
                        Through: Mr. Ashim Vachher, Advocate

                               Versus

SHRI MOHINDER KUMAR & ORS                           ....... Defendants
                        Through:   Mr. Kuldeep Balhara & Mr. Charanjit,
                                   Advocates for the defendants No. 1to3
                                   Mr. Naresh Kumar Beniwal, Advocate
                                   for the defendant No.4


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may
      be allowed to see the judgment?   Yes

2.    To be referred to the reporter or not? Yes

3.    Whether the judgment should be reported
      in the Digest?                        Yes


RAJIV SAHAI ENDLAW, J.

1. The defendants have challenged the very maintainability owing

to the bar of Section 185 of Delhi Land Reforms Act, and which is for

consideration.

2. The suit was originally filed by the plaintiff herein along with

the defendant No.4 herein as plaintiff No.1 for the relief of partition

of agricultural land ad-measuring 6.75 acres in Village Auchandi,

Delhi and for permanent injunction restraining the defendants from

dealing with the said land. In the plaint as original filed it was the

case that Shri Nand Ram Verma being the father of the plaintiff and

the defendants 1,2&4 (who was then the plaintiff No.1) and the

grandfather of the defendant No.3 was the owner of the said land;

that after the demise of the said Shri Nand Ram Verma, in or about

1996 there was a settlement amongst the plaintiff, defendants

No.1,2,4 and the father of the defendant No.3 as well as the widow

of the said Shri Nand Ram Verma whereby all the family members

agreed that the present plaintiff being the only daughter of Shri

Nand Ram Verma shall be entitled to a equal share in the aforesaid

land in terms of the last wishes of Shri Nand Ram Verma; that in

accordance with the said family settlement the plaintiff, defendants

No.1,2&4 and the father of the defendant No.3 became the owner of

1/5 equal share in the aforesaid land; that however it was discovered

in 2006 that the land had been mutated in the names of the

defendants only and the name of plaintiff was not mentioned in the

revenue records in contravention of the family settlement. The suit

was thus filed for partition and injunction aforesaid.

3. The defendant No.4 (who was then the plaintiff No.1) however

appeared before this court on 3rd April, 2006 and stated that he

would not like to pursue the case any further. The suit being for

partition, he was transposed as the defendant No.4 as the plaintiff

herein wanted to continue with the proceedings.

4. The defendants No.1,2,&3 filed a common written statement.

The defendant No.4 also filed a written statement. It was inter-alia

contended that the suit was barred by Section 185 of the Delhi Land

Reforms Act, 1954.

5. On 14th February, 2007 the following preliminary issue was

framed:-

"1. Whether the suit filed by the plaintiff is barred under Section 185 of Delhi Land Reforms Act, 1954? OPD"

6. On 16th May 2007 arguments were heard on the aforesaid

preliminary issue. It is recorded in the order of that date that it was

clear from Section 185 r/w Section 50 and Schedule 1 of the said Act

that the suit for partition of agricultural land cannot be entertained

by the Civil Court and the Revenue Assistant is the original court of

jurisdiction in respect of such suits. It is further recorded that faced

with this dilemma the counsel for the plaintiff sought permission to

amend the plaint which permission was granted.

7. I.A. No.12756/2007 was thereafter filed by the plaintiff for

amendment of the plaint. The plaintiff by the said application sought

to delete the relief of partition from the plaint and sought to confine

the relief claimed in the plaint to that of declaration and injunction.

The defendants filed their reply to the said application in which they

inter alia contended that the suit even after amendment would be

barred by the aforesaid provisions of law.

8. On 1st October, 2008 the counsel for the defendants reiterated

the aforesaid argument. However, since the arguments on

maintainability could not be heard without first allowing the

amendment, the application for amendment was allowed and

arguments were also heard on the maintainability of the suit as per

the amended plaint.

9. The counsel for the plaintiff does not dispute that the

provisions of the Delhi Land Reforms Act apply to the land. It is also

not disputed that under Section 50 thereof the Bhumidari rights of

Shri Nand Ram Verma aforesaid do not devolve upon the plaintiff as

the daughter and devolve only upon the male descendants i.e. the

defendants only. It is also not in dispute that Shri Nand Ram Verma

did not leave any will with respect to the aforesaid land in favour of

the plaintiff. The counsel for the plaintiff however urged that even

though under the law, being Section 50 of the Delhi Land Reforms

Act the plaintiff had no right in the land but in a family settlement in

1996 the defendants (including predecessor defendant No.3) had

agreed to give a share in the land to the plaintiff and the plaintiff

was in the present suit claiming a declaration with respect to the

said family settlement. Relying upon Mam Raj Vs. Ram Chander

1974 DLT 227, Shri Ram Vs. Jai Prakash 1991(21)DRJ 48:1991

RLR 275 & Cdr. Bhupinder Singh Rekhi Vs. C.S. Rekhi

1998(VII)AD Delhi 200, it was urged that the jurisdiction of this

court is not barred by Section 185 (Supra) to grant relief of

declaration claimed and it was further argued that such a

declaration was outside the domain of the revenue courts.

10. At this stage, it would be apposite to set out the reliefs claimed

in the amended plaint.

"In the premises stated herein above it is the most respectful prayer of the plaintiff that this Hon'ble court may be pleased to:-

a. pass a decree for declaration in favour of the plaintiff and against the defendants thereby directing and holding that the said family settlement dated 28th September, 1996 entered into between the plaintiff and the defendants was

valid with respect to the suit property situated at Khewat No.73/67, Khasra Nos.7/3, 7/6, 7/7, 7/8, 7/13, 7/14, 15/1, 15/2 measuring 6.75 acres in Village Auchandi, Delhi - 110 039; and

b. pass a decree of declaration in favour of the plaintiff and against the defendants thereby directing and holding that the plaintiff and defendants are entitled to equal share of 1/5th each in the said suit property situated at Khewat No.73/67, Khasra Nos. 7/3, 7/6, 7/7, 7/8, 7/13, 7/14, 15/1, 15/2 measuring 6.75 acres in Village Auchandi, Delhi - 110 039, the share of each plaintiff and defendants being detailed herein-below:

S.No.               Name                  Relation      Share in the
                                                          property
1        Shri Jagdish Singh Lochab      Son            1/5th
2        Shri Mohinder Kumar            Son            1/5th
3        Shri Sunder Singh              Son            1/5th
4        Shri Mukesh Kumar through      Grandson       1/5th
         his father Late Sh. Virender
         Singh
5        Smt. Pushpa Saroha             Daughter       1/5th

c. pass a final decree in terms of prayer clause (a) and (b) above in favour of the plaintiff and against the defendants.

d. pass a decree of the permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants, their agents, assigns, servants, employees, representatives etc. from selling, alienating, transferring or parting with or creating any third party interests in the said suit property situated at Khewat No.73/67, Khasra Nos. 7/3, 7/6, 7/7, 7/8, 7/13, 7/14, 15/1, 15/2 measuring 6.75 acres in Village Auchandi, Delhi - 110 039 till the disposal of the present suit; and

e. award the costs of the present suit to the plaintiff; and

f. in that behalf, pass such other orders and directions as may be deemed fit, proper and necessary."

11. Per contra the counsels for the defendants urged that the

jurisdiction of the Civil courts was barred. It was argued that the

division bench of this court in Ram Mehar Vs. Mst. Dakhan 1973

DLT 44 has held that the rule of succession governing Bhumidars is

to be found in section 50of the Act and not in Hindu Succession Act.

Reliance was, of course also placed on Hatti Vs. Sunder Singh AIR

1971 SC 2320 where it was held that the Civil Court has no

jurisdiction in view of Section 185 (1) of the Act to entertain a suit in

which the plaintiff alleging that he is the proprietor of the suit land

asks for declaration that he is entitled to Bhumidari rights in respect

of that land; that any person who is aggrieved by a declaration of

Bhumidari rights issued in favour of another person, can move an

application before the Revenue Assistant under item 4 of the First

schedule to that Act, whereupon if he succeeds, he will obtain a

declaration that he is the Bhumidar.

12. De hors the aforesaid controversy, in the light of the admission

that the plaintiff did not acquire any rights in the land under any will

of Shir Nand Ram Verma or under Section 50 of the Act, I find the

plaintiff even otherwise is not entitled to the declaration claimed

with respect to a oral family settlement. Undoubtedly, the apex

court in Kale Vs. Dy. Director of Consolidation AIR 1976 SC 807

has laid that a very liberal and broad view of the validity of the

family settlements ought to be taken and an attempt should always

be made to uphold and maintain a family settlement. However, for a

family settlement to take place, there has to be a pre-existing right

in the property subject matter of settlement in favour of the family

members or all the family members part of the settlement. By a

family settlement such rights can be restricted or given up or rights

of others can be expanded to the extent of making them the absolute

owners of a property which but for the settlement would have

belonged to all. However, by a family settlement no fresh or new

rights can be created in favour of a family member who otherwise

had no rights to the property.

13. The plaintiff in the present case did not have any right in the

property subject matter of the present suit. Thus, under the family

settlement alleged, no rights in the said property could be created

for the first time in favour of the plaintiff. It is also not the case of

the plaintiff that there were some other properties also which were

settled together with this property and the plaintiff under the

settlement gave up right in other property for share in this property.

In my view, the suit is not maintainable for this reason alone.

14. The question which arises is, whether when the plaintiff having

no pre-existing rights in the property could not acquire a share in the

property under a family settlement, should the plaintiff be permitted

to lead evidence to show such a settlement. The apex court in T.

Arvindam Vs. T.V. Satyapal AIR 1977 SC 2421 has held that if on a

meaningful-not formal-reading, claim is manifestly vexatious and

meritless in the sense of not disclosing a clear right to sue, the trial

court should ensure that bogus litigation is shot down at the earliest

stage. Again, in Liverpool & London S.P. & I Association Ltd.

Vs. M.V. Sea Success I & Another (2004) 9 SCC 512 it was held

that when no cause of action is disclosed, the courts will not

unnecessarily protract the hearing of suit; the court should interpret

the provisions in such a manner so as to save expenses, achieve

expedition and avoid the courts resources being used up in cases

which will serve no useful purpose. It was further held that a

litigation which in the opinion of the court is doomed to fail should

not further be allowed to be used as a device to harass.

15. In my considered opinion, applying the aforesaid principles,

the plaint in the present case does not disclose any cause of action or

right to sue for the relief and is vexatious, meritless and trial thereof

will serve no useful purpose.

16. There is yet another aspect of the matter. The plaintiff has

claimed the relief of declaration alone. Section 34 of the Specific

Relief Act bars the court from making a declaration, where the

plaintiff being able to seek further relief than a mere declaration of

title, omits to do so. The plaintiff in the plaint as originally filed had,

consequent to the relief of declaration, claimed the relief of partition.

The plaintiff, however, faced with a situation of the jurisdiction of

this court being barred to grant relief of partition, has sought to

confine the relief claimed to that of declaration. The conduct of the

plaintiff unequivocally establishes the plaintiff being able to seek

further relief and having omitted to do so. Though, the plaintiff has

in the plaint claimed to be in possession along with the defendants of

the land but a meaningful reading of the plaint does not disclose the

plaintiff to be in possession of the property. The plaintiff, claiming a

family settlement of 1996, pleads that it is in 2006 only that she

learnt of the mutation in the name of the defendants only. The

plaintiff does not state that after the alleged family settlement any

application for mutation was made by her. The plaintiff after

remaining quiet for over nearly ten years instituted the suit first

along with the defendant No.4 but upon the defendant No.4 refusing

to toe the line of the plaintiff, is now wanting to seek a declaration of

a family settlement, which as aforesaid cannot create any right or

share which earlier did not exist in favour of the plaintiff. In any

case the plaintiff is able to seek relief further to a mere declaration

and the suit for declaration is thus not maintainable.

17. The relief of declaration is even otherwise a discretionary

relief. The court under Section 34 of the Specific Relief Act is not

obliged to make such a declaration. In the facts aforesaid, I also find

that the plaintiff is not entitled to exercise of discretion by this court.

This is for the reason that it is felt that the grant of declaration, if

any, would not serve any purpose. The plaintiff even after such a

declaration would still have no rights in the property unless gets

herself recorded as a Bhumidar thereof. The plaintiff will have to

still approach the court of the Revenue Assistant. In the

circumstance, the time of this court ought not to be taken in

adjudicating the relief claimed which as aforesaid would be

infructuous. The provisions of Section 186 of the Act are relevant in

this regard. The Revenue courts are empowered to, if they consider

a question regarding title to any land put in issue in a proceedings

before them, to frame an issue on the said question of title and to

submit the record to the competent Civil court for the decision of

that issue only.

18. The reliefs in the plaint claimed by the plaintiff, are even

otherwise directly in the teeth of the bar contained in the Section

185 (Supra). Merely by claver drafting, the provisions of law cannot

be defeated. Schedule 1 to the Act in entry 4 thereof provides for an

application for declaration of Bhumidari rights under Sections

10,11,12,13,73,74,79 & 85 to lie before the court of the Revenue

Assistant. The relief which the plaintiff is seeking in the present suit

is nothing but a declaration of her rights and which in the context of

the property subject matter of the suit are Bhumidari rights.

19. In Hatti also the relief claimed was of declaration of Sunder

Singh being entitled to Bhumidari rights. The grievance of the

plaintiff in the present case is of declaration of Bhumidari rights

issued in favour of defendants. In this context the apex court in

Hatti held that the scheme of the Act is to approach the Revenue

Assistant with such grievance and if the party succeeds, it will

automatically obtain a declaration that he is the Bhumidar and that

declaration will automatically supersede the declaration issued by

the authorities in accordance with the Delhi Land Reform Rules,

1954. In spite of the pronouncement of the Apex court in Hatti, this

court in the judgments (Supra) cited by the counsel for the plaintiff

held the suits to be maintainable. However, a perusal of those

judgments show that in Mam Raj the validity of a will was in

question, in Shri Ram, who is the original successor was in question

and in Cdr. Bhupinder Singh Rekhi the sale was in issue. This

court held that the said issues did not fall for adjudication by the

Revenue courts but fall for adjudication by this court even though

the outcome thereof may have a bearing on who was entitled to the

Bhumidari rights. The present case does not fall in the aforesaid

class of classes. The present case as aforesaid is directly in the teeth

of the bar contained in Section 185 of the Act.

20. Reference in this regard may also be made to Kamla Prasad

Vs. K.K. Pathak 2007 (2) SCALE 607, though concerned with the

U.P. Zamindari Abolition and Land Reforms Act. There plaintiff sued

in the Civil court for settling aside of sale deeds executed by him

under intoxication, of his rights as an asami of land, in favour of

defendants who were also jointly with him, asamis of said land.

Under the U.P. Act, any person claiming to be an asami either

exclusively or jointly with other was required to sue the land holder

for declaration of his rights as an asami in such holding, in the

Revenue Court. The mutation on the basis of impugned sale deed

had been effected in the names of defendants. The Apex court held

that the jurisdiction of the Civil court was barred and that the

legality of mutation could only be decided by the Revenue Court,

since the names of the purchaser had already been mutated and only

a Revenue Court could decide whether such an action was in

accordance with law or not.

21. In the present case also, it is the case in the plaint itself that

the land stands mutated into the names of the defendants for long.

The law laid down in Kamla Prasad (Supra) by Apex court squarely

applies to the present case and the jurisdiction of this court is barred

by Section 185 (Supra).

22. The preliminary issue framed is thus decided in favour of the

defendants and against the plaintiff. The suit as framed is held to be

not maintainable and barred by the provisions of the Delhi Land

Reforms Act and is as such dismissed. The plaintiff shall however

be at liberty to take remedies available to her in accordance with

law. The plaintiff, after admitting that the suit for the relief of

partition originally claimed did not lie before this court is found to

have vexatiously perused the present suit and is burdened with costs

of Rs.35,000/- payable to the defendants No.1,2&3.

RAJIV SAHAI ENDLAW (JUDGE) January 16, 2009 PP