Sh. Prem Prakash Chaudhary & Ors. vs Sh. Rajinder Mohan Rana & Ors
2011 Latest Caselaw 732 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 8th February, 2011.

+                           W.P.(C) No.101/2008

%        SH. PREM PRAKASH CHAUDHARY & ORS. ..... Petitioners
                      Through: Dr. Anurag Kumar Agarwal & Mr.
                               Vibhav     Kumar     Srivastava,
                               Advocates.

                                   Versus

    SH. RAJINDER MOHAN RANA & ORS            ..... Respondents
                 Through: Mr. N.S. Dalal & Mr. Devesh Pratap
                           Singh, Advocates for R-1 & 2.
                           Mr. Anshuman Srivastava, Adv. for
                           Mr. V.K. Tandon, Adv. for R-3 to 5.
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 writ petition impugns the order dated 20th November, 2007 of

the Financial Commissioner, Delhi allowing the second appeal preferred

by the respondents no.1 & 2 herein under Section 66 of the Delhi Land

Revenue Act, 1954 (Revenue Act) against the order dated 20 th November,

1995 of the Additional Collector, Delhi dismissing the appeal of the

respondents no.1 & 2 against the order dated 9 th June, 1995 of Tehsildar,

Najafgarh, Delhi.

2. The factual matrix is not in dispute. The petitioners no.1 & 2 and

the respondents no.1 & 2 are brothers; their father Sh. Siri Lal was

Bhumidhar of agricultural land measuring 33 Bighas and 3 Biswas situated

at Village Ghewra, Delhi; the said Sh. Siri Lal died on 8 th October, 1984

leaving the petitioners no.1 & 2 and the respondents no.1 & 2 as his only

four male descendants; the said land was on 20 th March, 1985 accordingly

mutated from the name of Sh. Siri Lal to the names of the petitioners no.1

& 2 and respondents no.1 & 2.

3. It is the case of the petitioners no.1 & 2 that there was in fact a

family settlement on 26 th December, 1984 between the petitioners no.1 & 2

and respondents no.1 & 2 under which the land aforesaid was agreed to be

divided into four parts with each of the four brothers taking possession of

their respective portions of land and continuing so till the end of the year

1988 when the respondent no.2 tried to grab the share of the petitioners

no.1 & 2; a suit for permanent injunction was filed in the Civil Court by

the petitioners no.1 & 2 against the respondents no.1 & 2 pleading the

family settlement of 26 th December, 1984 and seeking to restrain the

respondents no.1 & 2 from selling, dispossessing or otherwise interfering

in the land which had fallen to the share of the petitioners no.1 & 2. The

said suit remained pending. It is not in dispute that the parties appointed

Panchas to arrive at an amicable settlement and an award dated 14th May,

1989 signed by all the four brothers was made by the said Panchas;

thereafter the four brothers filed an application under Order 23 Rule 3 of

the CPC in the civil suit aforesaid in which they admitted that the

agricultural land aforesaid had been divided by them between themselves.

The Civil Court where the suit was pending, on 3rd August, 1989 recorded

the statements of the parties in support of the compromise and dismissed

the suit as compromised.

4. The petitioners no.1 & 2 thereafter approached the Tehsildar,

Najafgarh for mutation of the portion of the land which had as per the

compromise aforesaid fallen to their share in their exclusive names. The

Tehsildar called for the report from the Patwari and thereafter vide order

dated 9th June, 1995 mutated the Khasra Numbers which under the

compromise application aforesaid had fallen to the share of the petitioners

no.1 & 2 in the names of the petitioners no.1 & 2.

5. While doing so, the Tehsildar observed that since the Civil Court

had passed a decree on the basis of the compromise, the Revenue Officer is

not supposed to go into the intricacies of the order and it is the duty of the

Revenue Officer to implement the judgment and decree of the Court.

6. Aggrieved therefrom the respondents no.1 & 2 preferred an appeal

to the Additional Collector, Delhi. It was the contention of the respondents

no.1 & 2 in the appeal that the suit was dismissed as withdrawn and as

such there was no decree with which the Tehsildar could consider himself

bound. It was further argued that without giving an opportunity of being

heard to the respondents no.1 & 2, the land had been partitioned illegally.

It was yet further contended that even if there was a decree, the Civil Court

had no jurisdiction to pass a decree for partition of agricultural land. It was

also argued that the agricultural land could be partitioned only under

Section 55 of the Delhi Land Reforms Act, 1954 (Reforms Act) with which

the land was governed and not by the parties themselves. It was yet further

argued that the partition was in contravention of Section 33 of the Reforms

Act.

7. The petitioners no.1 & 2 during the pendency of the appeal before

the Additional Collector, by sale deeds executed between 9th August, 1995

and 1st May, 1996, transferred the land, which under the compromise had

fallen to their exclusive share in favour of the petitioners no.3 to 7.

However, the petitioners no.3 to 7 were not impleaded as parties in the

appeal before the Additional Collector.

8. The Additional Collector vide order dated 20 th November, 1995

agreed with the order of the Tehsildar and dismissed the appeal.

9. Aggrieved therefrom the respondents no.1 & 2 preferred the second

appeal to the Financial Commissioner. The Financial Commissioner vide

order dated 27th August, 1996 allowed the said appeal and set aside the

order of the Tehsildar and the Additional Collector.

10. The petitioners no.1 & 2 did not challenge the said order of

Financial Commissioner. The petitioners no.3 to 7 however filed Civil

Writ Petition No.4813/2000 in this Court and in which the petitioners no.1

& 2 as well as the respondents no.1 & 2 were impleaded as respondents.

The said writ petition was, with consent of the parties, allowed on 18th

October, 2001. The order dated 27th August, 1996 (supra) of the Financial

Commissioner was set aside and the matter remanded to the Financial

Commissioner for decision afresh after also hearing the petitioners no.3 to

7. The respondents no.1 & 2 applied for review of the said order but which

application was dismissed on 16 th September, 2003 for the reason of the

order being a consent order.

11. It is thereafter that the order dated 20 th November, 2007 impugned in

this writ petition has been made by the Financial Commissioner allowing

the appeal of the respondents no.1 & 2.

12. Notice of the writ petition was issued. The counsel for the

petitioners and the counsel for the respondents no.1 & 2 have been heard.

The counsel for the respondents no.3 to 5 has not made any submissions.

13. The counsel for the petitioners has contended that the Tehsildar has

effected mutation in terms of the compromise recorded in the suit for

permanent injunction aforesaid. It is contended that the Financial

Commissioner has erred in holding that a notice of hearing was required to

be given to the respondents no.1 & 2 in mutation proceedings. Attention is

invited to Sections 22 & 23 of the Revenue Act to contend that where there

is no dispute, no notice is required to be given or enquiry required to be

made. Attention is specially invited to the Explanation to Section 22 where

family settlement, by which the holding or part of the holding recorded in

the record of rights in the name of one or more members of that family is

declared to belong to another or other members, is included in the word

"transfer" under Section 22. It is also argued that though the Financial

Commissioner has held the order of Tehsildar to be bad for the reason of

having been made without hearing the respondents no.1 & 2 but has not

remanded the matter to the Tehsildar, leaving the petitioners in lurch. It is

also contended that the respondents no.1 & 2 have not disputed the factum

of the appointment of Panchas or the award dated 14th May, 1989 or the

filing of the compromise application and/or separate possession and hence

are not entitled to challenge mutation on the basis thereof. It is yet further

contended that the respondents no.1 & 2 themselves have been enjoying

the portion which fell to their share and are with mala fide intention

coming in the way of mutation of the portion which has fallen to the share

of the petitioners no.1 & 2. Reliance is placed upon M.S.

Madhusoodhanan Vs. Kerala Kaumudi (P) Ltd. (2004) 9 SCC 204, Hari

Shankar Singhania Vs. Gaur Hari Singhania (2006) 4 SCC 658 and K.K.

Modi, Vs. K.N. Modi AIR 1998 SC 1297 in support of the contention that

the Courts have placed the family settlement at a high pedestal and have

always attempted to enforce the family settlement and not allowed

technicalities to come in the way thereof. Lastly, it is argued that mutation

is not adjudicatory and the title is not on the basis of mutation but on the

basis of family settlement and the Tehsildar has merely given effect to the

family settlement. It is argued that the Financial Commissioner has

erroneously considered the proceedings before the Tehsildar to be of

partition and which the Tehsildar in any case has no jurisdiction to

entertain, the jurisdiction with respect thereto under the Reforms Act

having been vested in the Revenue Assistant.

14. The counsel for the respondents no.1 & 2 has contended that the

partition of agricultural holding is in contravention of Section 33 of the

Reforms Act read with Rules 33 & 36 of the Delhi Land Reforms Rules,

1954; that the Reforms Act does not recognize family settlement and the

Bhumidhars of a joint holding even though agreeable to amicable partition

of their holding, are not entitled to partition the holding themselves and are

necessarily required to approach the Revenue Assistant under Section 55 of

the Reforms Act for the same and partition can only be effected in the

manner provided in Section 57 and in no other manner; it is thus contended

that there being no partition between petitioners no.1 & 2 and respondents

no.1 & 2, there could be no question of mutation in the exclusive name of

the petitioners. Reference is also made to the judgment in Hatti Vs.

Sunder Singh (1970) 2 SCC 841 that the Reforms Act is a complete Code

in itself and Civil Court is incompetent to pass a decree for partition. It is

also contended that the petitioners no.1 & 2 having not challenged the

earlier order of the Financial Commissioner, are now not entitled to any

relief on this ground also. On query, it is informed that the respondents

no.1 & 2 have sold only 100 sq. yrds. of land out of the portion falling to

their share in the family settlement aforesaid and which transaction has

also been nullified in view of the present writ petition. It is yet further

stated that out of the entire land inherited by petitioners no.1 & 2 and

respondents no.1 & 2, nine Bighas of land has since been acquired and

compensation with respect thereto been received by the petitioners no.1 &

2 and the respondents no.1 & 2 in equal share. In response to the argument

of the petitioners no.1 & 2 of the petitioners being left in a lurch, it is stated

that since the question of mutation did not arise, there was no need to

remand the matter and the petitioners are free to sue the respondents for

partition before the Revenue Assistant, if so desire.

15. As far as the contention of the respondents no.1 & 2 of the

petitioners being not entitled to challenge the order owing to the petitioners

no.1 & 2 having not challenged the same earlier is concerned, as aforesaid,

the order in the earlier writ petition setting aside the earlier order of the

Financial Commissioner is a consent order made in the presence not only

of the petitioners no.3 to 7 and respondents no.1 & 2 but also of the

petitioners no.1 & 2. Once the respondents no.1 & 2 agreed to setting

aside of the order and to remand for consideration afresh by the Financial

Commissioner, it does not lie in the mouth of the respondents no.1 & 2 to

contend that the petitioners are bound by the earlier order which in any

case has ceased to exist.

16. I find the proposition that the agricultural holding cannot be

partitioned amicably by the parties themselves and the parties have to

necessarily sue therefor to be preposterous. The Reforms Act was not

intended to bring about a change in the normal rights of a person or of the

co-owners to effect partition amicably without being required to approach

the Courts therefor. The attempt of the Courts must always be to minimize

litigation and not multiply it. An established maxim boni judicis est lites

dirimere, ne lis ex lite oritur; et interest reipublicae ut sit finis litium casts

a duty upon the Court to bring litigation to an end and to ensure that no

further litigation arises from its decisions. Judicial resources are valuable

and scarce. The resources of the Court are not infinite especially in terms

of judicial time. Therefore, administration of justice, in interest of equity

and fair play, demands that a view which discourages rather than

encourages litigation be taken. The procedure prescribed even when the

Courts are approached with a claim for partition is distinct from that qua

other cases. In a partition suit the preliminary decree decides only a part of

the suit i.e. the share of the parties and thereafter gives the parties an

opportunity to divide / partition mutually as per the share so adjudicated

and the Court proceeds to partition by passing a final decree only if the

parties are unable to themselves divide as per their shares. Amicable

resolution of disputes and negotiated settlements is public policy in India.

Section 89 of the Code of Civil Procedure, Arbitration & Conciliation Act,

1996 as well as Legal Services Authority Act, 1995 call upon the Courts to

encourage settlements of legal disputes through negotiations between the

parties. If amicable settlements are discarded and rejected on flimsy pleas,

the parties would be wary of entering into negotiated settlements. This

tendency has to be checked and such litigants discouraged by the Court. It

would be in consonance with public policy of India (see Double Dot

Finance Ltd. Vs. Goyal MG Gases Ltd. 117 (2005) DLT 330).

17. The Supreme Court recently in Ranganayakamma Vs. K.S. Prakash

(2008) 15 SCC 673 reiterated that only where a settlement is contrary to

any statutory provision or opposed to public policy as envisaged under

Section 23 of the Indian Contract Act, can the Courts refuse to enforce the

same. Neither of the counsels are able to show any provision in the

Reforms Act prohibiting the amicable partition; nor any precedent for the

same. On the contrary, the language of Section 55 providing for the

holding to be partible, uses the expression "may sue", enabling the

Bhumidhar to approach the Court of Revenue Assistant for partition.

Section 55 does not indicate that a holding can be partitioned only in the

manner provided therein. The Legislature has not opted to make the same

"notwithstanding anything to the contrary contained in any other law or

contract". Once it is held that the right to partition is inherent in the right

to property, in the absence of the said right having been shown to have

been taken away, it cannot be held that partition of property governed by

the Reforms Act could only be under Section 55 and not otherwise.

18. The counsel for the respondents no.1 & 2 in an attempt to show as to

what prevents the parties from so partitioning, has referred to Section 33

and to Section 57 (1)(b). Section 33 prohibits transfer where the transferor

will be left with less than 8 standard acres. It is argued that since the total

holding of 33 Bighas and 8 Biswas was itself less than 8 standard acres

(approx equal to 40 Bighas), the same could not be divided by the

petitioners no.1 & 2 and the respondents no.1 & 2 between themselves.

19. Section 33 deals with a situation where as a result of transfer, the

transferor shall be left with less than 8 standard acres of land. However, in

partition there is no transfer or transferor or transferee. Each of the co-

owners is the owner of each and every parcel of the property and it cannot

be said that any part of the property is transferred by one co-owner to the

other. If any precedent is needed for the said proposition, reference may be

made to Ram Charan Das Vs. Girja Nandini Devi AIR 1966 SC 323. I

therefore do not see as to how Section 33 would apply. The purport of

Section 33 is to prevent fragmentation of holdings to uneconomical sizes.

There is nothing preventing continuance of holdings less than minimum

prescribed or transfer where holding is in any case less than that

prescribed. Practical experience shows that transfers resulting in transferor

being left with less than that prescribed, are also effected by

simultaneously transferring the balance to a nominee/family member of the

transferor. Here, the joint holding of the parties itself was less than

minimum 8 standard acres prescribed. I do not see as to how the amicable

partition effected by the parties themselves would prejudice anyone.

20. As far as Section 57(1)(b) is concerned, the same provides that

where the partition will result in a holding less than 8 standard acres, the

Court instead of dividing the holding may either direct the sale of the same

and distribution of the sale proceeds or proceed to divide the holding in

accordance with such principles as may be prescribed or in the alternative

dismiss the suit. It is thus not as if Section 57(1)(b) prohibits partition

resulting in a holding of less than 8 standard acres. The counsel for the

respondents no.1 & 2 also fairly admits that while applying the principles,

the holding can be divided but contends that the same has to be done only

in the presence of the Gram Sabha and by the Revenue Assistant and

cannot be done amicably by the parties themselves or by way of family

settlement and with which proposition, I do not concur.

21. I find that the Division Bench of this Court in Sahib Singh Vs. Lt.

Governor of Delhi 137 (2007) DLT 111 was faced with a similar

objection, of the Consolidation Officer in the course of the consolidation

proceedings being not entitled to entertain an application for separation of

Khatas on the basis of a partition of pre-consolidation holding in a family

settlement and that such an application could be entertained only if the

holding had been partitioned under the Reforms Act. It was further

contended that the Consolidation Officer by entertaining the said

application had partitioned the holding and for which he had no jurisdiction

in the face of the bar of Section 185 of the Reforms Act. The Division

Bench did not accept the said contention and held that a family settlement

dividing the holding and which family settlement was part of a judicial

record and had not been denied could form the basis of not only mutation

but also application for separation of Khata. The said judgment applies to

the present case on all fours.

22. The counsel for the respondents no.1 & 2 has also argued that the

nature of the order of the Financial Commissioner is not such requiring

interference by this Court in exercise of jurisdiction under Article 226 of

the Constitution of India. I am unable to agree. The Financial

Commissioner has not returned any categorical finding on the pleas of the

respondents under Sections 33 and Section 55, though it has been generally

observed that the mode of partition and manner of joint Khata having been

specifically provided for in the Reforms Act, but the same does not

tantamount to holding that the parties are prohibited from partitioning the

land themselves, if the same does not contravene the provision of the

Reforms Act.

23. The petitioners no1. & 2 had applied to the Tehsildar for mutation

on the basis of the compromise as recorded in the suit for permanent

injunction. The Tehsildar felt that the Civil Court had decreed the

partition. The Additional Collector affirmed the said finding. The

Financial Commissioner in the order impugned has primarily disagreed

with the same.

24. However, what cannot be lost sight of is that the petitioners had

claimed mutation on the basis of the compromise recorded in the Civil

Court and not on the basis of a decree of the Civil Court. The Civil Court

did not pass a decree in accordance with the compromise. The Civil Court

by putting its imprimatur on the compromise did nothing but to ensure that

the parties remained bound with the same. Nothing having been brought

before this Court that the said contract is in violation of the provisions of

the Reforms Act, I see no reason why the order of the Financial

Commissioner should not be interfered with. Once it is held that it is not

necessary to approach a Revenue Assistant for partition and the parties are

free to partition the holding themselves, the order of the Financial

Commissioner cannot stand.

25. The writ petition therefore succeeds, the order of the Financial

Commissioner is set aside and it is declared that the mutation effected by

the Tehsildar on the basis of the partition mutually effected by the parties

amongst themselves is valid.

The writ petition is disposed of. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) FEBRUARY 08, 2011 bs (Corrected and released on 22 nd February, 2011)