Ram Dutt & Ors. vs Dev Dutt & Ors.
2010 Latest Caselaw 5467 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 1st December, 2010

+                           W.P.(C) No.1847/1988
%
         RAM DUTT & ORS.                                             ..... Petitioners

                            Through:      Mr. C.B. Verma & Mr. A.K. Dubey, Advocates.

                                       versus
         DEV DUTT & ORS.                                          ..... Respondents
                            Through:      Mr. Hari & Mr. Sanjeev Tyagi, Advocates for
                                          R-1 to 5.
                                          Mr. Sumit Bansal, Mr. Ajay Monga , Advocates
                                          for the proposed respondent Mr. Sanjay Kumar.



CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                 No

2.       To be referred to the reporter or not?                 No

3.       Whether the judgment should be reported                 No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The three petitioners and the private respondents 1 to 27 are members

of a family. They/their predecessors owned land in the revenue estate of

Burari, Delhi since prior to the enactment of the Delhi Land Reforms Act,

1954. It appears that after the coming into force of the said Act, a part of the

said land was recorded in the Bhumidari of the petitioners only. The

respondents 1 to 27/their predecessors filed a proceeding under Section 11

of the Act for declaration that they also were Bhumidars of the said land

exclusively entered in the name of the petitioners. The petitioners claimed

the said land to have exclusively vested in them subsequent to oral partition

and repartition during consolidation proceedings in the year 1975-76. The

said proceedings initiated by the respondents 1 to 27/their predecessors were

dismissed by the Court of the Revenue Assistant and the First Appeal

preferred thereagainst was also dismissed on 20th March, 1978. The

respondents 1 to 27/their predecessors preferred a Second Appeal to the

Financial Commissioner (impleaded as respondent no.28 in these

proceedings) which was accepted vide order dated 8 th February, 1979 and

the respondents 1-27/their predecessors were declared as Bhumidars (in

accordance with their shares) alongwith the petitioners in respect of those

land contained in Khewat Nos. 73 and 85 in the Revenue Estate of village

Burari. The said order was directed to be given effect to in the revenue

records.

2. In pursuance and in implementation of the order dated 8th February,

1979 (supra) of the Financial Commissioner, the Consolidation Officer vide

order dated 31st December, 1982 ordered modification in the allotment

pursuant to repartition.

3. The petitioners preferred a Revision Petition to the Financial

Commissioner against the order dated 31st December, 1982 of the

Consolidation Officer. It was the case of the petitioners that the

Consolidation Officer could not have ordered modification in the allotment,

having become functus officio. The Financial Commissioner vide order

dated 14th June, 1983 held that since at the time of the order dated 8 th

February, 1979 (supra) holding the respondents 1 to 27/their predecessors as

Bhumidars together with the petitioners, consolidation proceedings in the

village were in progress, the respondents 1 to 27/their predecessors were

entitled to approach the Consolidation Officer for allotment of land to them

in lieu of their share in the Bhumidari rights out of Khewat Nos 73 and 85.

The contentions of the petitioners that the Consolidation Officer had become

functus officio and could not effect partition were negatived and the

Consolidation Officer was held to be entitled to allot land to the respondents

1 to 27/their predecessors as per their joint Khewats with the petitioners.

4. The petitioners preferred CWP 2462/1984 in this Court against the

order dated 14th June, 1983 aforesaid of the Financial Commissioner. The

said Writ Petition was dismissed vide order dated 11th February, 1985.

5. The petitioners then preferred SLP 9594/1985 which was also

dismissed vide order dated 27th January, 1986. However it appears that it

was argued by the petitioners before the Supreme Court that the petitioners

in their separate allotment against joint shares with the respondents in the

Khewat Nos.73 and 85, been not allotted their entire 1/5th share. The

Supreme Court thus, while dismissing the SLP observed that "if the

petitioners have not been allotted 1/5th of the total holding as determined in

the order dated 8th February, 1979 it will be open to the petitioners to resort

to any other remedy available in law including a suit if it is permissible."

6. The petitioners thereafter filed a suit in the Court of the Revenue

Assistant for allocation of their 1/5th share in the Bhumidari in Khewat Nos.

73 and 85. The said suit was however subsequently withdrawn by the

petitioners.

7. The respondent No. 26 being aggrieved by the distribution by the

Consolidation Officer of Bhumidari on repartition/allotment in

implementation of order dated 8th February, 1979 (supra) had also preferred

a Revision Petition thereagainst before the Financial Commissioner and

which was being opposed by the respondents 1 to 25. The Financial

Commissioner vide order dated 13th April, 1987 in the said Revision Petition

of the respondent no. 26, remanded the matter to the Consolidation Officer

for correct implementation of the order dated 8 th February, 1979 (supra).

The Writ Petition filed by the respondents 1 to 25 in this Court against the

said order of the Financial Commissioner was dismissed.

8. Encouraged by the success of the Revision Petition of the respondent

no. 26, the petitioners filed another Revision Petition before the Financial

Commissioner contending that their grievances were the same as of the

respondent no. 26 and that the Supreme Court had also permitted them to

claim their rightful share. The Financial Commissioner vide order dated 11 th

November, 1987 though dismissed the Revision Petition but held that since

the Tehsildar/Consolidation Officer pursuant to the order in the Revision

Petition of the respondent no. 26 was verifying the shares of the family

members in Khewat Nos. 73 and 85, if the petitioners had any grievance,

they could also approach the Tehsildar/Consolidation Officer. The

petitioners thereafter joined the proceedings before the

Tehsildar/Consolidation Officer who vide order dated 12th July, 1988

divided the land in Khewat Nos. 73 and 85 between the petitioners and the

respondents 1 to 27. The said order contains the particulars of the land

allotted to each of the groups. However after so dividing /apportioning the

land, the Tehsildar/Consolidation Officer at the foot of the order mentioned

"the details of Khasra Nos. of two Khewats i.e. 73 and 85 which have been

left out for distribution amongst the co-sharers" and thereafter gave the

Khasra Nos. of 94 bighas 15 biswas of land so left out. The said order of the

Tehsildar/Consolidation Officer records that the same was agreed to by all

the parties.

9. The petitioners contending that the Tehsildar / Consolidation Officer

had failed to divide / apportion the aforesaid 94 bighas 15 biswas of land

again preferred a Revision Petition to the Financial Commissioner.

10. The Financial Commissioner vide order dated 9th August, 1988

(impugned in this petition) dismissed the said Revision Petition as not

maintainable. It was held that if the petitioners were claiming Bhumidari

rights in the said 94 bigha 15 biswas of land, their remedy was by way of an

application under Section 11 of the Act for declaration of their Bhumidari

rights and that the petitioners had already been given their share in

accordance with order dated 8th February, 1979 (supra).

11. The petitioners impugn the aforesaid order dated 9th August, 1988 of

the Financial Commissioner inter alia on the ground that once the

petitioners and the respondents 1 to 27 had vide order dated 8 th February,

1979 been held to be having a share in the land in Khewat Nos. 73 and 85

and further once the Tehsildar/Consolidation Officer in his order dated 12th

July, 1988 had held 94 bigha 15 biswas of land to have been left out from

distribution amongst the co-sharers, the Financial Commissioner ought to

have directed distribution of the said 94 bigha 15 biswas of land also and not

relegated the petitioners to institute a proceeding under Section 11 of the

Act with respect to their share in the said 94 bigha 15 biswas of land.

12. Rule was issued in this Writ Petition on 26th August, 1988. Vide

order dated 22nd August, 1989 the respondents were restrained from

transferring, selling or alienating the property in dispute. However, the

same order notices that the respondent no. 17 had already transferred part of

the land. The said interim order was continued and was made absolute only

with respect to Khasra bearing nos. 21/1/2, 21/2, 21/3/1, 21/22/2 , 35/2/2,

35/9/1, 35/3 and 35/8 admeasuring 25 bighas 10 biswas vide order dated 3rd

November, 1993.

13. CM.No. 7514/2010 was filed by the petitioners under Order 22 Rule

10 of the CPC for impleadment of one Mr. Sanjay Kumar as the respondent

on the plea that the respondent Mr. Ramphal had sold a portion of the

property bearing khasra Nos. 21/1/2 and 21/2 to the said Mr. Sanjay Kumar

notwithstanding the interim order aforesaid and taking advantage of the

dismissal of the Writ Petition in between (in the year 2005) for non

prosecution. This Court on 28th May, 2010 while issuing notice of the said

application to Mr. Sanjay Kumar directed maintenance of status quo and

which order has also continued since then. Though no formal order

allowing impleadment of Mr. Sanjay Kumar as respondent has been made

till now but the said application is now allowed and the counsel for Mr.

Sanjay Kumar has also been heard in opposition to the Writ Petition.

14. Though the contention of the petitioners that 94 bighas 15 biswas of

land left out and not distributed should also be distributed and the petitioners

should not be relegated to having their rights as Bhumidars with respect to

the said land adjudicated by instituting a separate proceeding under Section

11 of the Act looks attractive but on deeper probing as to what is the said

left out 94 bighas 15 biswas of land, it is found that the petitioners are not

entitled to any relief in this Writ Petition with respect to their rights, if any,

in the said 94 bighas 15 biswas of left out land. The claim of the petitioners

with respect to their share in 94 bighas 15 biswas of land can be better

appreciated from their written arguments dated 26th November, 2010. Their

claim is that the petitioners and the respondents 1 to 27/their respective

predecessors had a joint holding in the land in Khewat Nos. 73 and 85 as per

the jamabandi of the year 1948; that as per the oral settlement amongst the

family members, separate Bhumidari were recorded in the revenue records

prepared in the year 1954-55 upon coming into force of the DLR Act; that

some of the respondents had mortgaged their separate lands pursuant to the

oral settlement aforesaid and failed to take it back upon the coming into

force of the DLR Act and mortgage being prohibited under the DLR Act,

lost their rights in the said land; that the respondents inspite of having lost

their separated land, thereafter claimed share in the separated lands of the

petitioners by filing the proceedings under Section 11 of the DLR Act in

which the Financial Commissioner finally vide order dated 8th February,

1979 held against the petitioners and in favour of the respondents 1 to 27 by

holding the respondents 1 to 27 to be having Bhumidari rights / share in land

which the petitioners claimed to be exclusively theirs. It thus appears that

94 bighas 15 biswas of the left out land referred to in the order dated 12th

July, 1988 of the Tehsildar / Consolidation Officer is the balance land as per

the Jamabandi of the year 1948. The land which the Consolidation Officer

vide order dated 12th July, 1988 distributed/apportioned between the

petitioners and the respondents was the land of which the petitioners and the

respondents were Bhumidars and of which they were in possession of and

which land was the subject matter of the order dated 8 th February, 1979

(supra). It thus transpires that the entire land of which the petitioners and

the respondents were the Bhumidars and in possession of and in which the

rights of the respondents 1 to 27 were upheld by the order dated 8 th

February, 1979 which has attained finality has already been distributed. The

left out land admeasuring 94 bighas 15 biswas in which the petitioners are

now claiming share is the land which, according to the petitioners, had in the

settlement fallen to the share of the respondents and in which the

respondents had lost their rights by not taking back the mortgage upon

coming into force of the DLR Act. The counsel for the petitioners during

the hearing argued that the said 94 bighas 15 biswas of land is in possession

of respondent no.1 and also recorded in the name of respondent no.1. The

counsel for the respondent no.1denies. There is no finding of any of the

authorities below on this aspect. This Court in writ jurisdiction cannot

enquire into this factual aspect.

15. In consonance with the aforesaid position, the counsel for the

respondents also on inquiry stated that they had no objection to the

petitioners instituting proceedings if entitled to in law for claiming share in

the said 94 bighas 15 biswas of land which stands vested in others.

16. Seen in this light, there is no error in the order dated 9th August, 1988

of the Financial Commissioner impugned in this petition.

17. There is another important aspect of the matter. The petitioners after

the liberty given by the Supreme Court instituted a proceeding for claiming

their 1/5th entitlement in the entire land. I have inquired from the counsel

for the petitioners whether in that proceedings the said 94 bighas 15 biswas

of land was also included. The counsel for the petitioners replies in the

affirmative. The same is also borne out from the copy of the said

proceedings on record. The petitioners however chose not to pursue that

proceeding and withdrew the same. The petitioners cannot now be

permitted to re-agitate the claim.

18. The petitioners for the reason of the said 94 bighas 15 biswas of land

cannot hold up the distribution/partition of the remaining land vide order

dated 12th July, 1988 of the Tehsildar/Consolidation Officer and which in

fact was an agreed/consent order, and as has been done by the pendency of

the present Writ Petition and the interim orders herein.

19. No error can be found in the order of the Financial Commissioner

dismissing the Revision Petition of the petitioners against the said order of

the Tehsildar/Consolidation Officer and giving liberty to the petitioners to

institute separate proceedings with respect to the share, if any, claimed in 94

bighas 15 biswas of land.

20. The petitioners have not pleaded that the said 94 bighas 15 biswas of

land or any part thereof was part of the holding in Khewat Nos. 73 and 85 of

which the petitioners and the respondents were Bhumidars and in

possession. Thus it cannot be said that the partition/distribution of land of

which the petitioners and the respondents were Bhumidars and in possession

of is bad for the reason of non inclusion of 94 bighas 15 biswas of land of

which the petitioners are not shown to be Bhumidars and in possession. The

petitioners in fact by way of these proceedings are found to be seeking to

reopen the matters which stand concluded in the earlier round of litigation

till the Supreme Court. The petitioners were then seeking to deny the share

of the respondents in the land which has now been partitioned / distributed,

on the ground that the respondents had in oral settlement been given the

other land which they had lost. The said claim of the petitioners was not

upheld. The plea of oral settlement was not accepted. Thus the loss of the

land was out of the joint holding of the petitioners and the respondents and if

the petitioners now desire to assert any right in that lost land, their remedy is

by way of separate proceeding for which liberty has been granted to them by

the Financial Commissioner also, and not by way of impugning the

distribution/partition of the land in which the share of all has been upheld till

the Supreme Court.

21. There is no merit in this Writ Petition. The same is dismissed. All

interim orders are vacated. I refrain from imposing any cost in the hope that

these proceedings which have remained pending for the last over 30 years

will attain finality.

RAJIV SAHAI ENDLAW (JUDGE) December 1st, 2010 M.