Hukmi (Deceased) Through Lrs vs Nathu & Otheres
2011 Latest Caselaw 813 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Judgment: 10.02.2011

+     RSA No.54/2010 & CM Nos. 4970/2010 & 263/2011
      RSA No. 98/2010 & CM Nos.8921/2010 & 264/2011

HUKMI (DECEASED) THROUGH LRS         ...........Appellant
                  Through: Mr. Maneshwar Dayal, Sr.
                           Advocate with Mr. Om Prakash
                           Sharma, Advocate.

                    Versus

NATHU & OTHERES                                   ..........Respondents
                            Through:   Mr. N.S. Vashisht, Advocate for
                                       respondent No. 2.
                                       Mr. L.K. Garg, Advocate for
                                       respondents No. 3 to 7.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the 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

INDERMEET KAUR, J. (Oral)

1 These two appeals have impugned the judgment and decree

dated 17.11.2009 which had endorsed the findings of the trial

Judge dated 04.10.1993 whereby the two suits filed by the plaintiff

seeking permanent injunction and declaration to the effect that he

is the owner of the suit land (1 bigha 10 biswas comprised in

Khasra No. 994, Village Karala, Delhi) as also that the

Consolidation Proceedings rendered in the year 1975-76 are

inoperative and not binding upon the plaintiff had been dismissed.

2 Two suits i.e. Suit No. 391/1980 and Suit No. 90/1981 had

been filed by the plaintiff. The first suit was a suit for permanent

injunction. Contention of the plaintiff was that the plaintiff and

defendants No. 1 & 2 had entered into a partnership for carrying

on the business of grinding in the suit premises. Machinery worth

Rs. 18,000/- had been purchased for the said purpose. It was

agreed between the parties that this business would be carried out

from the suit premises. The plaintiff had constructed a factory on

this suit land at his own cost. The business continued for three

years; since it was not profitable; partnership was dissolved in

1975. A sum of Rs.10,000/- each was paid to defendants No. 1 & 2

in full and final settlement of the shares of the said defendants; it

was agreed that the suit land would fall to the share of the plaintiff

and it was thereupon relinquished in favour of the plaintiff who is

the owner and in possession of the land since then. The defendants

under the agency of Consolidation Officer had made efforts to grab

the land of the plaintiff which is illegal. The suit land does not fall

within the definition of „land‟ as defined in Section 2 (d) of the East

Punjab Holding (Consolidation and Prevention of Fragmentation)

Act, 1948 (hereinafter referred to as the „said Act‟). The plaintiff is

in continuous and uninterrupted possession of the suit land since

last 30 years and his title has matured. The orders of Consolidation

Officer dated 12.12.1979 affirmed by the Settlement Officer on

06.08.1980; thereafter by the Additional Collector on 29.12.1980

are illegal and ultravires. A decree of permanent injunction had

been prayed restraining the defendants from interfering the

peaceful possession of the plaintiff. These were averments in the

first suit. Suit No. 391/1980 was filed against the defendants

seeking a declaration to the effect that the order of the

Consolidation Officer, the Settlement Officer and the Additional

Collector (as aforenoted) be declared null and void.

3 The contention of the defendants was that in terms of the

Consolidation Proceedings which were carried out in Khasra No.

994, the land has fallen to the share of defendant No. 1 and the

plaintiff has seized to have any title or right on any part over the

aforenoted Khasra; it was never developed by the plaintiff; the

partnership and the alleged business carried out by the parties was

specifically denied. The contention was that the suit land is covered

by the Delhi Land Reforms Act, 1054 and in terms of the said Act,

defendant No. 1 has already been delivered possession of the suit

land by the Field Kanugo in terms of the orders of the

Consolidation Officer which have been upheld; jurisdiction of the

Civil Court is barred.

4 The following issues were framed in the first suit:-

1. Whether the suit is not maintainable in view of Sections 44 and 16 of the East Punjab Consolidation Act? OPP

2. Whether the land in dispute fell into the share of the plaintiff? if so what are its right and interest thereto? OPP

3. Whether the plaintiff has perfected his titled over the land in dispute by adverse possession? OPP

4. Whether the order of Consolidation Officers is inoperative and not binding for the grounds stated in para 12 of the plaint? OPP

5. Whether the plaintiff has lost his possession and so the suit has become infructuous? OPD

6. Whether the suit is not maintainable because of the pendency of another suit for declaration and injunction? OPD

7. Whether the plaintiff is entitled to the injunction prayed for?

5 The following issues were framed in the second suit:-

1. Whether the orders dated 29.09.1980 of No. 5, 6 & 7 are illegal, void, without jurisdiction? OPP

2. Whether the Ptr. is entitled for injunction prayed for? OPP

3. Whether the suit is within limitation? OPD

4. Whether the suit is barred u/o 2 rule 2 CPC? OPD

5. Whether the suit bad for misjoinder of parties? OPD

6. Whether the suit is bad for want of notice under Section 80 CPC? OPD

7. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD

8. Whether the jurisdiction of the civil Court is barred under Section 44 of the Consolidation Act? OPD.

9. Relief.

6 Oral and documentary evidence had been led by the

respective parties. In the first suit, issues No. 1, 2 & 4 were the

crucial issues. In the second suit, issues No. 1 & 8 were relevant.

7 Section 2(d) of the said Act defines land. It reads as under:-

"‟Land‟ means land which is not occupied as the site of any building in a town of village and is occupied or let for agricultural purposes or for purposes subservient to agriculture, or for pasture and include the sites of building and other structures on such land.‟

8 Khasra Girdawari of the year 1953-54 produced by the

plaintiff had been examined wherein the land was shown as

„Banjar‟; One biswas was referred to as „Ghair Mumkin Makan‟;

testimony of PW-1, PW-2, PW-4, PW-5 & PW-7 had been adverted

to coupled with the Khasra Girdawari (as noted hereinabove) to

hold that it could not be stated that there was any factory at the

said land. The Consolidation Proceedings in the aforenoted Khasra

had admittedly been taken place in the year 1975-76 whereby the

land including the suit property was distributed amongst various

occupants. This scheme had stood confirmed by the order of the

Consolidation Officer on 12.12.1979 which had been affirmed in

appeal by the Settlement Officer on 06.08.1980; thereafter

reaffirmed by the Additional Collector on 29.12.1980.

9 Section 16 (2) of the said Act reads as under:-

"When the scheme is (confirmed) under section 20 of the land so allotted to the occupancy tenant and the landlord shall notwithstanding anything to the contrary contained in the Tenancy Act in force in the Estate or Mahal concerned or in any other law for the time being in force, be held by each of them respectively in full right of ownership and the right of occupancy in the land allotted to the landlord shall be deemed to be extinguished."

10 Section 44 of the said Act which is also relevant reads as

follows:-

"No civil Court shall entertain any suit instituted or application made, to obtain a decision or order in respect of any matter which the Chief Commissioner or any officer is, by this Act, empowered to determine decide or dispose of."

11 A coupled reading of Section 16(2) and Section 33 clearly

shows that the jurisdiction of the civil Court in respect of any

matter which the Chief Commissioner or any officer is, by this Act,

empowered to determine is barred. It was these statutory

provisions which had weighed in the minds of the trial court as also

the first appellate court to draw a conclusion that the suit filed by

the plaintiff is barred; the civil court has no jurisdiction to

entertain the suit.

12 Learned counsel for the appellant has submitted that on

22.12.2007, the High Court had remanded the matter back to the

trial court to dispose of the appeal on merits. It is submitted that

the impugned judgment dated 17.11.2009 had addressed itself only

the issue of jurisdiction; it was incumbent upon the Court to have

decided each and every issue which had been framed by this Court.

This by itself amounts to perversity and calls for an interference.

For this proposition, reliance has been placed upon AIR 2007

Himachal Pradesh 11 Prithvi Raj Jhingta & Anr Vs. Gopal Singh &

Anr. This judgment has no application to the factual scenario in the

instant case. Order XIV Rule 2 (2) in fact gives powers to the Court

to deal with an issue of law and to try it first if it relates either to

(a) jurisdiction of the Court or (b) a bar to the suit created by any

law for the time being in force; settlement on other issues may be

postponed.

13 The impugned judgment had held that the jurisdiction of the

Court is barred under Section 44 of the said Act; thereafter it was

no longer incumbent upon the Court to have tried the case on

merits and to go into the details of the matter; jurisdictional issue

is an issue which goes to the root of the matter and when the root

itself having become uprooted; further scrutiny of the evidence was

not required.

14 Reliance placed upon by the learned counsel for the

appellant (2002) 6 SCC 416 Dhruv Green Field Ltd. Vs Hukam

Singh & Ors. for the proposition that the jurisdiction of a civil

Court would be retained despite an express or implied bar if the

order or action complained of is a nullity is misplaced. In the

instant case, it is not in dispute that the proceedings of the

Consolidation Officers are dated 21.12.1979 which was affirmed by

the Settlement Officer on 06.08.1980 and thereafter reaffirmed by

Additional Collector on 29.12.1980. Remedy available to the

plaintiff under the said Act had stood exhausted. Thereafter, he

had also filed a writ petition under Article 227 of the Constitution

of India which had been withdrawn on the same day with

permission to take appropriate legal remedy. The impugned

judgment has correctly recorded that the forum of a civil

proceedings was not the correct forum. Jurisdiction of the civil

court to deal with the contentions raised by the plaintiff that he

had become owner of the land because of his uninterrupted

possession since last 30 years and the orders of the Consolidation

Officer, Settlement Officer and Additional Collector are null and

void could not have been gone into or scrutinized by a Civil Court

in view of the express bar of Section 44 of the said Act.

15 There is no merit in these appeals. No substantial question of

law has arisen

Appeals as also pending applications are dismissed.

INDERMEET KAUR, J.

FEBRUARY 10, 2011 A