Shera & Others vs Financial Commissioner & Others
2010 Latest Caselaw 2697 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+           WRIT PETITION (CIVIL) NOS. 3205 OF 1982
            AND 4088 OF 1995


                          Reserved on : 23rd February, 2010.
%                         Date of Decision 20th May, 2010.


SHERA & OTHERS                              .... Petitioners
            Through Mr. Nalin Jain, advocate.

                                 VERSUS


FINANCIAL COMMISSIONER & OTHERS             .....Respondents.

Through Ms. Reeta Kaul, advocate for R-1.

Ms.Zubeda Begum, Ms.Sana Ansari, advocates for GNCT of Delhi.

Mr. Anil Kr. Gupta, Mr.V.K.Tandon, advocates for respondents.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ? YES

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

SANJIV KHANNA, J.:

In Writ Petition (Civil) No.3205/1982, Shera, Sherdin and

Ulfat widow of Shamsher, (now represented by their legal

representatives and hereinafter referred to as the petitioners, for

WPC Nos. 3205/1982 & 4088/1995 Page 1 short), have challenged the Order dated 15th April, 1982 passed by

the Financial Commissioner dismissing their appeal under Section

72 of the Delhi Land Revenue Act, 1954 (hereinafter referred to as

the Revenue Act, for short) upholding and confirming the Order

passed by the Tehsildar that no correction in khasra-Girdwari in

respect of the land bearing khasra nos. 121, 122, 350, 351,

415/154 and 416/154, Vill. Babarpur, ilaqa Shahdara (hereinafter

referred to as the Property, for short) for the subsequent period

after kharif 1968-69 till 1981 was directed vide earlier orders

confirmed by the Financial Commissioner in his order dated 5th

January,1981.Only correction in khasra girdwari for kharif 1968-69

was directed by the order of the Financial Commissioner dated 5th

January,1981.

2. Shera and Sherdin, (now represented by their legal

representatives and for the sake of convenience also referred to

as the petitioners), in the Writ Petition (Civil) No.4088/1995 have

challenged the Order dated 12th September, 1995 passed by the

Financial Commissioner dismissing their second appeal under the

Delhi Land Reforms Act, 1954 (hereinafter referred to as the

Reforms Act, for short) and upholding and confirming the Orders of

the Additional Collector and the Revenue Assistant declaring that

WPC Nos. 3205/1982 & 4088/1995 Page 2 Mala Devi, Kartar Singh, Ram Pal, Chattar Singh, Abdul Islam

and Mohd. Ibrahim, (now represented by their legal

representatives and for the sake of convenience referred to as the

private respondents) are the bhumidars of the Property measuring

9 bigha and 6 biswa since they have been cultivating on the

property for a period of more than three years prior to the date of

their application i.e. 27th January, 1978.

3. The Writ Petition (Civil) No. 4088/1995 pertains to recording

and transferring of the bhumidari rights in respect of the Property

in favour of the private respondents and Writ Petition (Civil) No.

3205/1982 pertains to recording of entries in the revenue record

and whether or not the entries in the revenue record for the period

after Kharif-1968-69 till 1981 were required to be

modified/corrected.

4. On 14th January, 1969, the petitioners had filed an

application before the Revenue Assistant for correction of Khasra-

Girdawari entries for Kharif-1968-69 insisting that the Property was

in their cultivatory possession and was wrongly shown in the name

of the private respondents. This application was allowed by the

Revenue Assistant by the Order dated 4th June, 1971 relying upon

WPC Nos. 3205/1982 & 4088/1995 Page 3 certain orders passed in the civil litigation and it was directed as

under:-

―I am, therefore, inclined to believe in the continuity of the possession of the applicant and his brothers for the year 1968- 69 on the probabilities as weighing hoursily(sic) on their side, and I accordingly, order that the khasra entries for the Kharif 1968-69 may be corrected in the name of Shera the applicant and his two brothers, as per Bhoomidari column, as applied for. The case recorded be forwarded to the Tehsildar, Delhi for necessary action further.‖ (emphasis supplied)

5. This Order was upheld in the first appeal and thereafter by

the Financial Commissioner in his Order dated 5th January,1981.

Learned Financial Commissioner in the operative portion of his

Order has observed as under :-

―I find the case of the appellants has been that they came in possession of the suit land as a result of purchase from one Hussain Bux in the year 1966. It has been held by the courts below that during the falsi year 1967-68 the respondents No.1 and 2 have been recorded in possession of the land in dispute and that the appellants did not take steps to get those entries corrected. It has been decided by the lower courts that had the appellants come in possession after purchase of the suit land in the year 1966. (sic) , it does not stand to

WPC Nos. 3205/1982 & 4088/1995 Page 4 reason as to why names were not recorded in possession for the year 1967-68. I find considerable force in the aforesaid view held by the lower courts in deciding the issue in hand. The contention sought to be raised by the counsel for the appellants that since during the subsequent years the appellants are being recorded in possession, it ought to have been held that they (appellants) were also in possession during kharif 1969 (sic) does not have any force. As I have already noted hereinbefore that the two lower courts on the basis of the appreciation of evidence have arrived at a concurrent finding effect (sic) (of fact) that it were the respondents No.1 and 2 who were in possession of the suit land during kharif 1969(sic), this finding of fact cannot legally be disturbed by me in second appeal. I am, therefore, led to hold that the orders of the courts below do not suffer from any legal infirmity.‖ (emphasis supplied)

6. It is clear from the operative portions of the Orders passed

by the Revenue Assistant and the Financial Commissioner which

have been quoted above that the same pertain to correction in the

revenue record for the entry made in Kharif-1968-69 and not for

the subsequent period. In fact, the Financial Commissioner in his

Order dated 5th January, 1981 has referred to the contention of the

private respondents who were the appellants before the Financial

Commissioner that for subsequent years they had been recorded

as the actual cultivators but the said contention was not accepted

for kharif 1968-69 as the two lower authorities had given

WPC Nos. 3205/1982 & 4088/1995 Page 5 concurrent findings that the petitioners were in possession of the

property in Kharif 1968-69. Contention of the petitioners that vide

order dated 5th January,1981 corrections had been directed in the

Khasra-Girdawari for the entire period after Kharif 1968-69 upto

1981 is not correct.

7. The petitioners after passing of the Order dated 5th January,

1981 moved an application for correction of Khasra-Girdawari after

Kharif-1968-69 till 1981. Reliance was placed upon the three

orders culminating in the Order dated 5th January, 1981 passed by

the Financial Commissioner. Tehsildar in his order dated 16th

November, 1981 rejected the said application, inter alia, holding

that the Orders passed and relied upon related to Kharif-1968-69

and cannot be applied to subsequent years as cultivation of the

two crops is required to be separately recorded under Section

67(3) of the Delhi Land Revenue Rules, 1962 (hereinafter referred

to as the Revenue Rules, for short) and this question was not

raised before the Financial Commissioner. This Order was

challenged by way of a revision petition before the Financial

Commissioner under Section 72 of the Revenue Act and was

confirmed vide Order dated 15th April, 1982. It was observed by

the Financial Commissioner that the Order dated 5th January, 1981

WPC Nos. 3205/1982 & 4088/1995 Page 6 was confined to correction of entries in Kharif-1968-69 and in case

the petitioners were aggrieved by subsequent entries the remedy

was available under Rule 67(3) of the Revenue Rules. The

petitioners did not challenge and question the said entries. I am

not examining the question whether the Tehsildar was competent

to pass the order dated 16th November, 1981 in view of the finding

on merit that the earlier order for correction of the entry were only

for correction of entry for Kharif 1968-69 and not the subsequent

years.

8. The private respondents on 27th January, 1978 filed an

application under Section 85 of the Reforms Act for being

recorded as Bhumidars on the ground that they had been in actual

physical possession continuous and uninterrupted for a period of

three years since Kharif-1968 without the consent of the

petitioners and as such they should be declared as Bhumidars in

the records. This application was allowed by the Revenue

Assistant vide Order dated 2nd September, 1992. The Revenue

Assistant noted that one of the private respondents Mr. Om Singh

had entered the witness box and had stated that he was cultivating

the land/Property without consent of the recorded bhumidars and

he had filed documentary proof in the form of Khasra-Girdwari.

WPC Nos. 3205/1982 & 4088/1995 Page 7 Shera, one of the petitioners had also entered the witness box and

stated that he was in cultivation of the land along with his brother.

The Revenue Assistant relied upon the entries in the revenue

record that the private respondents were in possession of the

Property for more than three years and the petitioners had not filed

any suit for ejectment under Section 85 of the Reforms Act. The

first appellate Order dated 30th November, 1994 passed by the

Additional Collector is more detailed. He observed that the

petitioners herein had not bothered to get the revenue entries

corrected after Kharif-1968-69. The earlier Order passed by the

Financial Commissioner pertained only to correction of entries in

Kharif-1968-69 and not thereafter. This Order has been upheld by

the Financial Commissioner in his Order dated 9th January, 1995

recording, inter alia, that repeated entries in the revenue record

after Kharif-1968-69 till the application was filed, showed that the

private respondents were in possession of the Property for more

than three years on the date of filing of the application under

Section 85 of the Reforms Act and they had been rightly declared

to be the Bhumidars. In this Order, reference was made to the

earlier Order dated 15th April, 1982 passed by the Financial

Commissioner holding that in the earlier proceedings correction

WPC Nos. 3205/1982 & 4088/1995 Page 8 was directed to be made in the entries in Khasra-Girdwari for

Kharif-1968-69 and not for subsequent years.

9. As per the provisions of the Revenue Act and the Revenue

Rules, the revenue authorities are required to make entry twice a

year in the revenue records and the name of the cultivator in

possession is required to be specified and stated. These entries

are required to be made after actual physical verification at the

spot, i.e. the land. Reference in this regard can be made to Rule

63(3) of the Revenue Rules which reads as follows:

―(3) If a person other than the one recorded in columns 4 and 5 of Form P-4 is found to be in actual cultivatory occupation of any land at the time of partal, his name and the crop shall be shown in case of land vested in Gaon Sabha in Form P-5A and in Form P-5 for lands other than vested in Gaon Sabha.

Provided that no entry in Forms P-5 and P-5A shall be made if-

(a) the field was not sown, or

(b) the crop failed and the field was not re-sown in the same season.

Explanation-- For removal of doubts it is hereby clarified that the entries made in Form P-5 and P- 5A aforesaid shall not be construed to be conferring any title or right on recognition of cultivator possession or evidence of such possession.

(4) If a tenure holder or sub tenure holder recorded on column 4 or 5, ceases to be in possession, for

WPC Nos. 3205/1982 & 4088/1995 Page 9 any reason and no one else is found to be in possession, the entry in the remarks column shall show the reason for the plot remaining uncultivated by entering therein, the fact of decease of the tenure-holder or sub-holder or surrender or abandonment or his becoming untraceable etc., as the case may be. Even in these cases the entry in column 18 of the Khasra shall show the class or sub class of uncultivated land.‖

10. During the course of argument, it was submitted on behalf of

the learned counsel for the petitioners that the entries made in the

revenue records were contrary to the Rules 66 to 70 and 104 of

the Revenue Rules and were unverified entries. This contention

has not been raised in the Writ Petition or in the supplementary

affidavits filed in Writ Petition (Civil) No. 4088/1995. This

contention was also not raised before the revenue Authorities or

the Financial Commissioner. The petitioners cannot be now

permitted to raise this contention for the first time. It is also a

disputed question of fact whether Rules 66 to 70 and 104 of the

Revenue Rules were complied with, when entries were made in

the revenue record as to the person in actual cultivation. It will not

be correct for this Court while exercising Writ jurisdiction to go into

this question for the first time and that too after a lapse of so many

years when this factual contention was not raised before the

revenue Authorities and the Financial Commissioner.

WPC Nos. 3205/1982 & 4088/1995 Page 10

11. Learned counsel for the petitioners had submitted that there

is discrepancy between the English translations and the

photocopies of the certified copies of the khasra-girdwari which

have been placed on record by the private respondents along with

the counter affidavit. In this connection learned counsel had drawn

my attention to the English translations of the Khasra-Girdwaris

which are available in Writ Petition (Civil) No. 3205/1982. Khasra-

Girdwari show that the first entry in favour of the private

respondents was made in Kharif-1968 and it was recorded in

column 5 of the Khasra-Girdwari that the petitioners had equal

shares without payment of rent on account of being the

purchaser. In column 7 it is recorded that ―I certify that the

cultivation of these persons shown in the fard badar is correct. The

crop inspection was carried out in my presence. Received one

copy of P-5. Sd/- : Ram Saran (urdu), Pardhan Gramsabha,

Babarpur. (stamped) Sd/-Girwar Singh, Sd/-Abdullah, Sd/- Om

Singh, Sd/-Beg Ram, Sd/-Chander Bhan.‖ Entries in column no.5

in favour of the private respondents have been repeated in

subsequent years till Kharif-1982. It is not possible to accept at

this belated stage the plea of the petitioners that these entries

were not on account of actual physical possession or cultivation

WPC Nos. 3205/1982 & 4088/1995 Page 11 but merely on account of the fact that the private respondents

were purchasers under the Sale Deeds dated 1st April, 1966 and

13th April, 1966.

12. Actual physical possession of the property, whether it was

the petitioners or the private respondents who were in actual

physical possession and cultivating the Property; is essentially a

question of fact. The revenue Authorities and the Financial

Commissioner have relied upon Khasra-Girdwaris and accepted

the plea and the stand of the private respondents after dealing

with the contention raised by the petitioners. Revenue entries are

relevant material. The orders passed are based on evidence and

relevant material. As a Writ Court, exercising power of judicial

review, I am not required to examine merits of the said decision or

act as an appellate court re-appreciating evidence but can only

examine whether there is an error in the decision making process.

Learned counsel for the petitioners in this regard submitted that

the Financial Commissioner and the Revenue Authorities have not

taken into consideration the orders and decisions passed and

made in civil and revenue proceedings. My attention was drawn to

(i) the judgment and decree dated 4th August, 1963 passed in Civil

Suit No. 761/1962 between Shera,Sherdin and Gulsher Versus

WPC Nos. 3205/1982 & 4088/1995 Page 12 Dillo and Bhurey S/o Ihasan. (ii) Judgment dated 23rd November,

1968 passed by Mr. Shamsher Singh Kanwar, the Order dated 7th

February, 1974 passed by the Senior Sub-Judge remanding the

matter and the Judgment dated 21st February,1990 passed by Ms.

Kamlesh Sabarwal, Sub-Judge, 1st Class in the Civil Suit which

was initially numbered as 856/1966 and re-numbered as

466/1985. (iii) Order dated 21st January, 1969 passed by

Mr.V.S.Aggarwal on an interim application moved under Order

XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908 in Civil

Suit no. 19/1969; the Order dated 19th March, 1969 passed by the

Senior Subordinate Judge dismissing the appeal; and the Order

dated 28th January, 1972 passed by the Delhi High Court

dismissing the revision petition. (iv) Reference is also made to two

Orders passed by the Revenue Assistant-Mr.S.L. Malhotra dated

21st July, 1967 and 4th August, 1967 (v) my attention was drawn to

the recent judgment dated 5th May, 2009 passed in civil suit

between Hussain Bux and Shera and Sherdin in suit no. 688/2006

(originally numbered 251/1990), (vi) Lastly, on merits it was

submitted that the private respondents are rank tress-passers and

usurpers who have no right in the property.

WPC Nos. 3205/1982 & 4088/1995 Page 13

13. The long history of litigation between the petitioners and the

private respondents since 1966 has its genesis and beginning in

1930's. The factual aspects have been recapitulated in the Order

dated 28th January, 1972 passed in Civil Rev. Petition No.

159/1969 ( iii in para 12 above). The said Order records that the

land/Property subject matter of suit no.19/1969 which was filed by

the petitioners herein, was declared as an evacuee property and

possession was taken over by the Custodian of Evacuee Property.

Shamsher, father of the petitioners, appeared as next friend of

Hussain Bux s/o. Risal and stated he, Hussain Bux and Dillo

widow of Bundu, each had 1/3 share and that the suit property

was a non evacuee land. The land was released by the Custodian

in 1954. By that time, Reforms Act was enacted and was in force.

Hussain Bux was declared a bhumidar in respect of 1/3rd share of

the joint land by the Revenue Assistant. Shamsher, father of the

petitioners died. In 1962, Shera, Sherdin and Gulsher, sons of

Shamsher filed civil suit no. 761/1962 before the Subordinate

Judge First Class, Delhi against Dillo and one Bhurey s/o. Ihasan.

It was alleged that Dillo had made an oral gift of her 1/3rd share in

favour of their father Shamsher and Bhurey had falsely

impersonated and claimed himself to be Hussain Bux s/o. Risal

WPC Nos. 3205/1982 & 4088/1995 Page 14 and that they were wrongly recorded as a bhumidars. It was

alleged that Risal had died long time back, issue-less. An ex-parte

decree against Bhurey dated 8th March, 1963 was passed. By

sale deeds dated 1st April, 1966 and 13th April 1966, Hussain Bux

sold his 1/3rd share to the private respondents herein.

14. After these sale deeds were executed, the private

respondents filed suit no. 355/1966 which was later on re-

numbered as 856/1966 before Subordinate Judge First Class

claiming they were owners in possession and prayer for

permanent injunction was made against Shera, Sherdin, Gulsher

and Dillo from interfering with their possession. By a detailed

judgment dated 23rd November, 1968 Mr. Shamsher Singh

Kanwar, Subordinate Judge held that Hussain Bux s/o. Risal was

not a fictitious person and in fact Bhurey was a fictitious person.

Hussain Bux was not bound by the ex-parte decree passed

against Bhurey. Learned Judge had relied upon the statement of

Hussain Bux s/o.Risal who appeared as the witness (PW-1). He

also relied upon the statement of his mother Kanezan, who also

appeared as a witness (PW-2) and some other witnesses. He also

referred to the Order passed by the Custodian on 21st July, 1954

declaring the Property to be non-evacuee, entries in Khasra-

WPC Nos. 3205/1982 & 4088/1995 Page 15 Girdwari relating to mutation of the Property in favour of Hussain

Bux and noticed that the mutation entries had continued for very

long time and till the sale deeds were executed Hussain Bux s/o.

Risal was shown as one of the Bhumidars. He referred to

application filed by Shamsher s/o. Jahangir, before the court of Sri

Behari Lal Goswami, Competent Officer, Delhi, as next friend of

Hussain Bux s/o. Risal (as stated above, Shamsher is father of the

petitioners). He accordingly held that Hussain Bux was owner of

1/3rd share of the suit land. It was observed;-

―10. The plaintiffs have also tendered in evidence documents Ex. P.3 to P.12.The contention of the defendant that Risal who was the owner of the suit land died issueless and that Hussain Bux son of Risal is infact, Bhurey and is a fictitious person. This contention of the defendant carries no conviction in view of the statement of Hussain Bux and his mother Kanezan and in view of the copy of Jamabandi Ex.P.3, copy of the survey report Ex. P.6, copy of the order passed by the Custodian on 21/7/54, Ex. P./7, copy of the mutation Ex. P.9, copy of the Khasra Girdwari Ex. P. 10 and the documents Ex. P.11 & P.12. Ex. P.9 is the mutations sanctioned with respect to the property left by Risal. This mutation was sanctioned on 19.3.30 (sic-1939?). It has been clearly mentioned that Risal died leaving behind the only son Hussain Bux.

This mutation has been acted upon and entires in the revenue record after the death of Risal continued in favour of

WPC Nos. 3205/1982 & 4088/1995 Page 16 Hussain Bux. Ex. P.3 is the copy of the jamabandi for the year 1950-51 Shamsher Singh sons of Jahagir that is the father of defendants No. 1 to 3 and Mst. Dillo, defendant No. 4 have been shown as joint owners of the land along with Hussain Bux.‖

14A. In paragraph 14 of the judgment with reference to the decree dated 8.4.1963 in Civil Suit No.761/1962 it was observed:-

―...From the perusal of Ex.D1 and D.11 it appears that a suit was filed by defendants No.1 to 3 against Bhurey and Mst.Dillo. These defendants did not appear and ex-parte proceeding was taken against them. Vide this decree, it has been held that Bhurey s/o Ashan is not Hussain Bux s/o Risal and that entries in the revenue records are wrong. The present plaintiffs are not bound by the decree dated 8/4/1963 Ex.D.11. They were not party to the suit. The entries in the revenue record stood in the name of Hussain Bux son of Bhurey (sic Risal) with respect to the suit land when they purchased the land. The plaintiffs are the bonafide purchaser for value....‖

15. The suit for permanent injunction, however, was dismissed as

the plaintiffs were not in possession. It was stated that the private

respondents- plaintiffs therein had tendered in evidence Khasra-

Girdwari for 1965-66 and entries in this khasra-Girdwari was

corrected by the Revenue Assistant vide Order 4th August, 1967

WPC Nos. 3205/1982 & 4088/1995 Page 17 and the name of Hussain Bux was directed to be deleted. It was

observed:-

―...The plaintiff tendered in evidence Khasra girdwari Ex.P.10 for 1965-66. The entries in this Khasra girdwari have been corrected vide Ex.D.14 dt.4.8.67. Thus Hussain Bux was not in possession nor he could deliver possession. The plaintiffs have not tendered in evidence copies of the Khasra Girdwari for the previous year. The copy of Jamabandi nil Ex.P.3 for the year 1950-51 shows that Hussain Bux was one of the owners of the suit land but he is not in actual possession of any portion of the suit land. The suit land was being cultivated by Shamsher or by Ms.Dhillo in the year 1950-51. However, when Hussain Bux came in possession of the suit land has not been made clear and from the evidence on this file, it has not been conclusively proved that Hussain Bux was in actual possession of the suit land at the time of the sale nor it has been proved that he delivered the possession of the same to the plaintiff.‖

16. Two cross appeals were filed by the petitioners and the

private respondents. During pendency of the cross appeals, the

private respondents moved an application for amendment of the

plaint which was allowed. By amending the plaint, the private

respondents had also made a prayer for possession. By Order

dated 7th February, 1974, the Senior Civil Judge remanded the

matter back to the Trial Court to deal with the amended plaint,

written statement and replication and frame additional issues, etc.

WPC Nos. 3205/1982 & 4088/1995 Page 18

17. The Trial Court framed an additional issue, whether the

Civil Court had jurisdiction. The Civil Suit was disposed of vide

judgment dated 21st February, 1990 by Ms. Kamlesh Sabharwal,

Sub-Judge First Class. On the basis of the same evidence, in this

judgment, learned Civil Judge gave completely contradictory

findings on the question whether Hussain Bux s/o Risal was a

fictitious person and held that the earlier judgment dated 8th April,

1963 was binding. In this judgment it was, however, noticed that

mutation was made in the name of Hussain Bux on 19th March,

1939. Reference was also made to the birth certificate of Hussain

Bux which was dated 19th January, 1938. Hussain Bux was 1 year

and 3 months old when his father expired at the age of 18 years.

His mother- Kanzen later on got remarried. She held that the ex

parte decree dated 8.4.1963 carried weight and entries in the

revenue records prior to passing of the decree were automatically

declared null and void.

18. Even as per Ms. Kamlesh Sabbarwal's judgment revenue

entries in the name of Hussain Bux were made in 1939 and

continued till 1965-66. After enactment of Reforms Act, Hussain

Bux was recorded as a bhumidar. Father of the petitioners had

also pleaded and appeared as the next friend of Hussain Bux

WPC Nos. 3205/1982 & 4088/1995 Page 19 before the Custodian of Evacuee Properties. Prima facie it is

somewhat difficult to accept and believe that Hussain Bux was a

fictious person and did not exist. It appears that the petitioners

wanted to usurp and claim the property recorded in the revenue

records in the name of Hussain Bux, who was/is nephew of the

petitioners and had lost his father when he was one year old and

was a minor even in 1954. However, what is most material and

relevant are the findings on the issue pertaining to the jurisdiction

of the Civil Court. This issue was decided in favour of the

petitioners and who were the defendants and it was held that the

suit was barred in view of Section 185, Schedule I of the Reforms

Act. Thus the contention of the petitioners herein who were the

defendants that the suit was bad for want of jurisdiction of the civil

court was accepted. In view of the aforesaid finding in the

judgement, I do not think the findings on merit in the judgment

dated 21st February, 1990 can be relied upon. The findings on

merit are by a court which did not have jurisdiction to

decide/entertain the suit. It is not for the Writ Court now to re-

examine the said findings on issue no.5 and hold that the suit was

partly maintainable and not hit by Section 185, Schedule I of the

Reforms Act. As a Writ Court, I cannot re-appreciate and re-

WPC Nos. 3205/1982 & 4088/1995 Page 20 examine the decision on issue no.5 once again and partly set

aside the said judgment/decree. Judgement dated 23rd November,

1968 passed by Mr. Shamsher Singh Kanwar is also to be

disregarded for the same reason and also for the reason that it

was set aside in the appeal, though not on merits. In view of the

aforesaid position, the judgments relied upon by the petitioners,

namely, Mam Raj versus Ram Chander and others 1974 (10)

DLT 227, Siri Ram versus Jai Parkash and others 1991 RLR

275, Ram Kishan versus Deputy Commissioner, Delhi and

others 1959 Vol. XV (1) ILR 365 and Siri Ram versus Jai

Parkash 1991 (2) Recent Revenue Reports (Delhi) 412 are not

relevant. Similarly, reliance placed by the petitioners on Smt.

Sonawati and others versus Sri Ram and another AIR 1968

SC 466 and Smt. Hiramani Kundu and others versus

Additional District Magistrate (Land Reforms) Balasore and

others AIR 1982 Orissa 427 on the question that a party should

not be permitted to re-agitate the same issue before a forum after

it has lost the case on merits before another forum have no

application. If the Civil Court did not have jurisdiction, it could not

have gone into and decided the case on merits. Adjudication on

merits by a court without jurisdiction cannot be binding in

WPC Nos. 3205/1982 & 4088/1995 Page 21 subsequent proceedings before a court/ forum that has

jurisdiction. Further as noticed above, the application under

Section 85 of the Revenue Act was filed on 28th January, 1978

which is before the decision of the Civil Court in Suit No 466/1985

dated 21st February, 1990.

19. Suit No. 761/62 was filed by Shera and others against Dillo

and Bhurey s/o Ihasan. Paragraph 2 of the judgement dated 8th

April 1963 reads:-

―It is a suit for declaration and injunction. The facts stated in the plaint are that Shamsher, Bundu and Risal sons of Jahangir were joint khewatdar of the land in suit; that about 20 years back Risal died issueless where as about 18 years back Bundu also died leaving behind defendant as his widow;that defendant no. 1 had also made an oral gift of her own share in the land in favour of Shamsher the father of the Plaintiffs in 1948; that the revenue authorities have wrongly declared Mist Dillo and one Hussain Bux s/o Risal as Bhumidars jointly with the fathers of the Plaintiff; that the defendant No. 2 wrongfully claims himself Hussain Bux s/o Risal where as the said Risal died as issueless; that the declaration of Bhumidari in favour of Mst. Dillo and Hussain Bux is wrong and illegal.‖

19A. The decree sheet reads:-

―This suit coming on this day for final disposal before me in the presence of Shri Daulat Ram Gupta, Advocate, for the plaintiff and - for the defendants it is ordered that a

WPC Nos. 3205/1982 & 4088/1995 Page 22 exparte decree for declaration is passed in favour of the plaintiffs against xxxx the defts. to the effect that the declaration of Bhumidari rights in respect of land as detailed in para No. 1 of the plaint xxxx in village Babarpur, Illaqa Shahdara Delhi in favour of Defts is wrong, illegal, ultra vires, without jurisdiction and is not binding on the plaintiffs, and it is further ordered that - also pay Rs - the costs of the suit.‖

20. It is clear from the decree sheet that the main prayer in the

suit was that Hussain Bux has been wrongly recorded as a

Bhumidar in the revenue records. It is not possible to accept the

contention of the petitioners that the said decree is not hit by Sec

185(1) of the Reforms Act. When we examine the question of bar

under Section 185(1) read with Schedule I of the Reforms Act we

examine the cause of action and the substance of the suit.

Jurisdiction of a Court depends upon the allegations made in a

plaint but a draftsman cannot get over the bar by clever drafting as

the real and true cause of action should not be allowed to be

camouflaged. While reading a plaint it is the substance and not the

form that matters. The nature of the claim made in the suit and the

underlying object has to be kept in mind. The purpose of

examining the plaint is to understand the real relief that the plaintiff

wants. (See, Gaon Sabha of Lado Sarai versus Jagi Ram ILR

WPC Nos. 3205/1982 & 4088/1995 Page 23 (1973) 1 Delhi 984 and Sopan Sukhdeo Sable versus Asstt.

Charity Commissioner, (2004) 3 SCC 137). Decree dated 8th

April,1963 is a nullity and not binding on the revenue authorities in

view of Section 185(1) of the Reforms Act and as held by the

Supreme Court in Hatti Versus Sunder Singh AIR 1971 SC

2320.

21. Suit no. 19/1969 was filed by the petitioners against the

private respondents for injunction restraining them from interfering

with their possession. The Orders dated 29th January, 1969 and

19th March, 1969 passed in the said suit and by Delhi High Court

in Revision Petition dated 28th January, 1972 and relied upon by

the petitioners were without recording any evidence and do not

finally and conclusively dispose of the suit. In the said three

Orders, prima facie findings have been recorded. These are not

final adjudications. In fact this suit has been stayed and no final

adjudication or judgment has been passed.

22. Order dated 21st September, 1969, passed by the

subordinate court squarely relies upon the judgment dated 23rd

November, 1968 passed by Mr. Shamsher Singh Kanwar holding,

inter alia, that the private respondents had not been able to show

that they were in possession and therefore, prima facie, the

WPC Nos. 3205/1982 & 4088/1995 Page 24 petitioners herein appeared to be in possession. The said findings

have been confirmed by the Senior Subordinate Judge who in his

Order dated 19th March, 1969 observed that the finding of Mr.

Shamsher Singh Kanwar in his judgment dated 23rd November,

1968 shows that the private respondents were not in possession

of the land by the end of the year 1966 and this means that the

private respondents did not get possession of the suit property

after purchase and possession continued to be with the

petitioners. In the Revision Petition, the Delhi High Court referred

to the full facts of the case but refused to interfere stating that in

view of the concurrent prima facie findings with regard to

possession, there was no infirmity. Further as observed above, the

judgment dated 23rd November, 1968 passed by Mr. Shamsher

Singh Kanwar was set aside in appeal and thereafter in the

judgment dated 21st February, 1990 Sub-Judge First Class has

held that the Civil Court did not have jurisdiction to try the suit.

Thus the findings with regard to possession, etc. have been struck

off and are not findings on merit which can be relied upon.

23. As noticed above,what had weighed and was highlighted in

the judgment dated 23rd November,1968 was that entries in

Khasra Girdwari for 1965-66 in the name of Hussain Bux, had

WPC Nos. 3205/1982 & 4088/1995 Page 25 been subsequently undone and corrected vide order of the

Revenue Assistant dated 4th August, 1967. This Order dated 4th

August, 1967 passed by the Revenue Assistant has been placed

on record by the petitioners and records as under:-

―The applicants are relying upon the civil court decree obtained in Suit No. 761 of 1962 by which they have been held to be entitled to be declared bhumidar to the exclusion of Mst. Dillow. Bhurey alleging himself to be Hussain Bux. One person representing himself to be Hussain Bux appeared with his counsel and has stated that he is in exclusive possession of the land in dispute for the last 9-10 years. The counsel for the respondent has also contended that they have moved the civil court for setting aside the decree because it has been passed exparte and proceedings are afoot. The question before me for determining in this case is as to who is in physical possession of the land in dispute. The decree obtained by the applicant against both the respondents has been implemented by the order of the Revenue Assistant. Since the land belong to the joint bhumidari of the co-sharers as mentioned in column No. 4 of the Khasra Girdawari Register the patwari seems to have colluded with a person alleging himself to be Hussain Bus son of Risal and made entries in his name against the provisions of rule 3 of the D.L.R.Act, 1963.

The action of the patwari is condemnable. He seems to have sided with one of the parties and has given the applicants cause of litigation. I agree with the report of the Tehsildar and order that the name of Hussain Bux be expunged from the remarks column of Khasra Girdwari Register.‖ (emphasis supplied)

WPC Nos. 3205/1982 & 4088/1995 Page 26

24. There is an error apparent in the set aside judgment dated

23rd November, 1968 in relying upon the Order dated 4th August,

1967 passed by the Revenue Assistant relying upon the decree in

the Suit No. 761/1962 holding that Hussain Bux s/o. Risal was a

fictitious person and Bhumidari rights in his name were illegal. In

fact as stated above, in the judgment dated 23rd November, 1968,

it was held that the earlier ex parte judgment/decree dated 8th

April, 1963 was not relevant and binding on Hussain Bux and

Hussain Bux was not a fictitious person.

25. As held above, the judgment and decree dated 8th April,1963

are a nullity and without jurisdiction in view of Section 185(1) of the

Reforms Act that bars jurisdiction of the Civil Courts.

26. Findings recorded in the Order dated 4th August, 1967 by the

Revenue Assistant are after execution of the Sale Deeds dated 1st

April, 1966 and 13th April, 1966 by Hussain Bux in favour of the

private respondents. After the sale deeds had been executed, the

petitioners herein by their application dated 5th August, 1966

wanted rectification of the entries made in Khasra-Girdwari in the

year 1965-66. The application was filed long after the ex parte

decree dated 8th April, 1963 was passed in Suit no. 761/62.

Similarly, the second order passed by the Revenue Assistant

WPC Nos. 3205/1982 & 4088/1995 Page 27 dated 21st July, 1967 was for correction of the Bhumidari rights on

the basis of the same ex parte decree dated 8th April, 1963 in Suit

No. 761/62. In the Order dated 21st July, 1967, specific reference

was made to the ex-parte decree and it was noticed that there was

no stay and further recorded that the alleged Hussain Bux had

filed an objection on record that his real name was Bhurey and he

had no objection against the said decree. In these circumstances,

reliance placed by the learned counsel for the petitioners on these

two Orders dated 4th August, 1967 and 21st July, 1967 is of no

relevance. In any case, it appears that these orders were not

placed before the Financial Commissioner at the time of hearing of

the appeals. The contention of the petitioners that Mr. S.L.

Malhotra, who was earlier the Revenue Assistant should not have

appeared as advocate for the private respondents after retirement

has merit but this cannot be a ground to allow the present Writ

Petitions.

27. Lastly and most important is the finding of the revenue

authorities as upheld by the Financial Commissioner that the

private respondents were in occupation/possession of the Property

for a period of three years. The private respondents are entitled to

Bhumidari rights by operation of law in view of Section 85 of the

WPC Nos. 3205/1982 & 4088/1995 Page 28 Reforms Act. The said right depends upon actual possession and

cultivation and is not affected by the aforesaid adjudications or

decisions of the civil court or by the two orders dated 4th August,

1967 or 21st July, 1967.

28. At this stage I may refer to the contention of the petitioners

that the private respondents have claimed adverse possession

and this right should not be accepted unless there is ample

evidence beyond doubt to establish hostile title and claim.

Reference was made to the decision of the Supreme Court in Pt.

Munichikkana Reddy & others versus Revamma and others

(2007) 6 SCC 59. The aforesaid judgment is not relevant in the

present case in view of the specific provisions under the Reforms

Act. The Reforms Act does not recognise ownership but only

recognises Bhumidari and Asami rights. The rights are conferred

by the Statute i.e. the Reforms Act. As noticed above, in the

present case, the private respondents are claiming Bhumidari

rights not only on the basis of possession but their right to

possession is based upon the two Sale Deeds executed by

Hussain Bux. Learned counsel for the private respondents, on the

other hand, had relied upon the decisions of the Supreme Court in

Kalika Parshad versus Chattarpal Singh AIR 1967 SC 1699 and

WPC Nos. 3205/1982 & 4088/1995 Page 29 Balkishan versus Satya Prakash AIR 2001 SC 700 in which

claim for adverse possession was accepted.

29. Judgement dated 5th May, 2009 passed in civil suit no.

688/2006 titled Hussain Bux versus Shera and Sherdin decides

two preliminary issues with regard to jurisdiction of the Civil Court

to entertain and decide the suit and whether the suit is barred by

limitation. Both the preliminary issues have been decided against

Hussain Bux. Thus, as per the findings recorded by the Senior

Civil Judge, the Civil Court did not have jurisdiction to entertain

and decide in the said suit for declaration filed in 1990, that the

judgment and decree dated 8th April, 1963 passed in suit no.

761/62 titled Shera and another versus Ms. Dhillon and another is

illegal and void ab initio. Reasoning and ratio of this judgment

would show that the ex parte decree dated 8th April, 1963 was also

hit and barred by Section 185(1) of the Reforms Act.

30. In view of the aforesaid findings, there is no merit in the

present Writ Petitions and the same are accordingly dismissed. In

the facts of the case, there will be no order as to costs.

                                                 (SANJIV KHANNA)
                                                       JUDGE
MAY      , 2010.
P




WPC Nos. 3205/1982 & 4088/1995                                Page 30
 *           IN THE HIGH COURT OF DELHI AT NEW DELHI

+           WRIT PETITION (CIVIL) NOS. 3205 OF 1982

                          Reserved on : 23rd February, 2010.
%                         Date of Decision     May, 2010.


SHERA & OTHERS                              .... Petitioners
            Through Mr. Nalin Jain, advocate.

                                 VERSUS


FINANCIAL COMMISSIONER & OTHERS             .....Respondents.
             Through Ms. Reeta Kaul, advocate for R-1.

Ms.Zubeda Begum, Ms.Sana Ansari, advocates for GNCT of Delhi.

Mr. Anil Kr. Gupta, Mr.V.K.Tandon, advocates for respondents.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

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

SANJIV KHANNA, J.:

For detailed order see Writ Petition (Civil) No. 4088/1995 pronounced today.

                                              (SANJIV KHANNA)
                                                    JUDGE
MAY      20, 2010.
P




WPC Nos. 3205/1982 & 4088/1995                             Page 31