Sh. Sukhbir Singh vs Smt. Bhagyawanti & Others
2011 Latest Caselaw 327 Del

 *             IN THE HIGH COURT OF DELHI AT NEW DELHI

 +                      RFA No. 158/2000

 %                                                20th January, 2011



SH. SUKHBIR SINGH                                        ...... Appellant
                                   Through:    Mr. Som Dutt Sharma,
                                               Advocate.

                        VERSUS


SMT. BHAGYAWANTI & OTHERS                            ...... Respondents

                                   Through:    Mr. V.K. Tandon, Advocate
                                               for the respondent Nos.1
                                               to 5 and 7 to 14.
                                               Mr. Madan Lal Sharma,
                                               Advocate         for     the
                                               respondent Nos.6 and 15.

 CORAM:
 HON'BLE MR. JUSTICE VALMIKI J.MEHTA


 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

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of the regular first appeal under Section 96

of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment

and decree dated 29.1.2000 whereby the suit of the appellant/plaintiff

has been dismissed as not maintainable by treating certain issues as

preliminary issues. It has been held by the impugned judgment that the

suit is barred both under Section 34 of the Specific Relief Act, 1963 and

Section 185 of the Delhi Land Reforms Act, 1954.

2. At the outset, I must note that it is conceded by the counsel

appearing on behalf of the respondents that the dismissal of the suit as

not maintainable on the basis of Section 185 of the Delhi Land Reforms

Act, 1954 is not correct because the lands in question are governed by the

Punjab Land Revenue Act, 1887 and as per Section 45 of the Punjab Land

Revenue Act, 1887 a suit lies in a civil Court challenging the mutation of

the record of rights. The only issue, therefore, to be considered by me, in

this appeal, is whether the suit is not maintainable as per proviso to

Section 34 of the Specific Relief Act, 1963.

3. The appellant and the respondents are legal heirs of late Sh.

Udai Singh. They are either the sons or the daughters or the widow of

pre-deceased son or the legal heirs of pre-deceased son. The daughter-in-

law of Udai Singh was defendant No.15 in the trial Court and respondent

No.15 in the present appeal. Respondent No.15 is the wife of respondent

No.6/defendant No.6. Sh. Darshan Singh.

4. Late Sh. Udai Singh had properties being agricultural land in

village Barwala, Delhi as also residential house therein, and agricultural

land in village Alipur, Delhi. Sh. Udai Singh is said to have died leaving

behind his registered Will dated 6.11.1996. On the basis of this registered

Will, the appellant/plaintiff got a lesser share in the properties of Udai

Singh as compared to his other brothers and therefore the subject suit

was filed in which the appellant has claimed the following reliefs:-

"i. That a decree of declaration to the effect that the will dated 6.11.96 executed by the deceased Shri Uday Singh in

favour of the defendants be declared as null and void and be cancelled and the consequential order of mutation dated 13.1.98 based on the above will sanctioned by the Tehsildar vide Mutation order no.3025 in favour of the defendants and plaintiffs be also declared void.

b) a decree of declaration to the effect that the sale deed dated 9.11.95 executed by the defendant no.15 in favour of the defendant no.6 purported to have been sold land situated in vill. Alipur as mentioned in para 2 of the plaint measuring 21 bigha 9 biswas being document no.17175 Vol. no.1 Addl. Vol.no.8184 pages 134 to 137 dated 9.11.95 and the unregistered general power of attorney dated 31.3.93 be declared null and void and be cancelled and the consequence order of mutation dt. 11.1.96 bearing Mutation no.1709 based on the above mentioned sale deed sanctioned by the Tehsildar Delhi in favour of the defendant no.6 be also declared void and without jurisdiction.

c) a decree of partition be also passed pertaining to the suit property situated in vill. Barwala and Vill. Alipur as mentioned in para no.2.

d) as a consequential relief the defendants and their agents, servants and representatives be restrained by means of a decree of permanent injunction from selling, alienating, transferring or disposing or creating any third party interest on the suit land in any manner whatsoever pertaining to the suit land as mentioned in para no.2 of the plaint situated in Vill. Barwala and Vill. Alipur, Delhi.

e) The costs of the suit and or any other order or direction or relief be also passed in favour of the plaintiff and against the defendants."

5. The cause of action in the suit is for declaration of the Will

dated 6.11.1996 of late Sh. Udai Singh to be null and void for the reason

that Udai Singh was not the sole owner of the land and the lands were in

fact ancestral and thus were of the Hindu Undivided Family. One of the

reliefs as prayed in the plaint is for cancellation of the mutation order of

the authorities dated 13.1.1998 on the basis of which lands in village

Barwala have been mutated in different shares as per the Will dated

6.11.1996 of late Sh. Udai Singh. Another part of cause of action in the

plaint was that it was alleged that respondent No.15/defendant No.15

(who is the wife of one of the son namely Sh. Darshan Singh/respondent

No.6/defendant No.6) forged a power of attorney of late Sh. Udai Singh in

her favour dated 13.3.1993 and acting on the said power of attorney

respondent No.15/defendant No.15 is alleged to have transferred the

lands in village Alipur to her husband respondent No.6/defendant No.6

under a sale deed dated 1.11.1995 and pursuant to the sale deed, these

lands of village Alipur being 21 Bigha and 2 Biswas have been mutated in

the name of respondent No.6/defendant No.6.

I may note that during the pendency of the suit the

appellant/plaintiff gave up his relief of partition on 18.1.2000 and which

has been so noted in the impugned order.

6. The aforesaid facts make it clear that the appellant claims

ownership rights with respect to the lands in village Barwala and village

Alipur, New Delhi. It is prayed in the plaint that the Will of late Sh. Udai

Singh be declared as null and void as also the general power of attorney

and the consequential sale deed executed by respondent No.15 in favour

of respondent No.6 with respect to the lands in village Alipur. Challenge is

also laid to the two mutation orders, one on the basis of will of Sh. Udai

Singh and other on the basis of the sale deed executed by respondent

No.15 in favour of respondent No.6. In sum and substance, the plaintiff

seeks ownership rights in the subject lands. The declaration is therefore

for ownership rights in the subject land by seeking quashing of the Will as

also the mutation orders based on the sale deed and the Will.

7. The proviso to Section 34 of the Specific Relief Act, 1963

provides that the Court will not grant a decree of declaration if the plaintiff

is entitled to a further relief as arising from the relief claimed of

declaration but does not claim the same. In the present case, any relief of

declaration with respect to either the Will of late Sh. Udai Singh or the sale

deed in favour of respondent No.6 or the two mutation orders will not

grant effective relief to the appellant/plaintiff because if the plaintiff

claims ownership rights, surely, he is bound to ask for possession of the

properties of which he claims ownership because admittedly possession of

the lands is not with the plaintiff/appellant. Possession is a further relief in

terms of proviso to Section 34 of the Specific Relief Act, 1963 to the relief

of declaration which has been prayed for by the plaintiff and which relief

of declaration would not lead to any effective benefit unless possession is

also claimed by the plaintiff. I may also, at this stage, note that in terms

of Order 2 Rule 1 of the CPC every suit shall suffer so far as possible be

framed so as to grant final decision upon the subject and disputes and to

prevent further litigation concerning them. The proviso to Order 2 Rule 1

CPC is also in the same spirit as the proviso to Section 34 of the Specific

Relief Act, 1963.

8. Though it is not disputed on behalf of the appellant/plaintiff

that the appellant/plaintiff is not in actual physical possession of the lands

in village Barwala and village Alipur, what is contended by the learned

counsel for the appellant is that once the properties are proved by him to

be HUF properties, the other family members who are in possession of the

properties are holding the same for and on behalf of the appellant/plaintiff

and therefore he need not ask for the relief of possession. I am afraid the

argument of the learned counsel for the appellant is misconceived

because a coparcener and a co-owner will remain in possession for and on

behalf of the other co-owners only till ouster is pleaded and proved. Here

the ouster is admitted by the appellant/plaintiff himself because ouster

means that the ownership rights of coparcener and co-owner are denied

by the other coparceners/co-owners. The very fact that the

appellant/plaintiff in his plaint has stated that the mutation of the lands in

village Barwala have taken place in different shares in favour of the

different family members pursuant to the Will dated 6.11.1996, therefore,

admittedly ouster is complete as against the appellant/plaintiff with

respect to those lands which have been mutated in the name of other

family members. So far as the lands in village Alipur are concerned, once

again, the ouster against the appellant/plaintiff is complete because the

appellant/plaintiff admits that pursuant to the alleged illegal sale deed

executed in favour of the respondent No.6/defendant No.6 on the basis of

a forged power of attorney in favour of respondent No.15/defendant

No.15, there is in fact taken place mutation order mutating these lands in

village Alipur in the name of respondent No.6./defendant No.6. Once

again therefore qua the land in village Alipur, the ouster of the

appellant/plaintiff is an admitted fact.

9. It has been held by a learned Single Judge of this Court in the

judgment reported as C. Lal & Sons Vs. Wasudhir Foundation & Ors.

66 (1997) DLT 766 that where a suit is barred under certain provisions

of the Specific Relief Act, 1963, and which were Sections 38(1) and 41(J) in

the said case, this issue could be decided as a preliminary issue under

Order 14 Rule 2 CPC because a bar to the maintainability of a suit on the

basis of the said provisions of the Specific Relief Act, 1963 is a legal bar as

envisaged under Order 14 Rule 2 CPC.

In the present case also the bar to the suit is pleaded on the

basis of proviso to Section 34 of the Specific Relief Act, 1963 and it is

therefore a legal/statutory bar to the maintainability of the suit. There is

no evidence required in the present case because the contents of the

plaint are being taken as correct and there are no disputed questions of

fact requiring trial. The impugned judgment as also the present judgment

is therefore proceeding by taking contents of the plaint to be correct.

In another case reported as Virender Gopal Vs. Municipal

Corporation of Delhi AIR 2007 Delhi 183 a Division Bench of this

Court has held that a preliminary issue was rightly decided by holding the

suit as barred under the proviso to Section 34 of the Specific Relief Act,

1963 because possession of the suit land in the said case was found to be

with the defendant and the plaintiff has merely sued for declaration and

injunction without claiming the relief of possession.

10. The aforesaid judgments of C.Lal & Sons(supra) and

Virender Gopal(supra) squarely apply in the facts of the present case

on the basis of the admitted possession which emerges in the plaint. The

suit is therefore clearly barred by virtue of the proviso to Section 34 of the

Specific Relief Act, 1963 and therefore by the impugned judgment and

decree the preliminary issue has been rightly decided by dismissing the

suit as not maintainable.

9. The appeal is therefore misconceived and is therefore

dismissed, leaving the parties to bear their own costs. Interim orders are

vacated. Trial Court record be sent back.

JANUARY 20, 2011                               VALMIKI J. MEHTA, J.
Ne