Ramesh Chander Gupta vs Rajbir Singh
2011 Latest Caselaw 8 Del

 *           IN THE HIGH COURT OF DELHI AT NEW DELHI


 +                           RFA 2/2000


 %                                                  3rd January, 2011



RAMESH CHANDER GUPTA                           ...... Appellant
                                   Through:    Mr. Hemant Malhotra,
                                               Advocate.
             VERSUS

 RAJBIR SINGH                                         ...... Respondent
                                   Through:    None


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

VALMIKI J. MEHTA, J (ORAL)


1.    By the present first appeal under Section 96 of the Code of Civil

Procedure, 1908 (CPC), the plaintiff/appellant challenges the impugned

judgment and decree dated 01.09.1999. The appellant/plaintiff had

filed the suit praying for specific performance of an agreement to sell

(Ex. PW-1/1) dated 13.4.1988 with respect to land measuring about 5


RFA 2/2000                                                     Page 1 of 4
 bighas 15 biswas bearing Khasra No. 496 situated in village Neb Sarai,

Tehsil Mehrauli, New Delhi for a total consideration of Rs. 3,00,000/- of

which Rs. 10,000/- was received at the time of entering into the

agreement and the balance of Rs. 2,90,000/- was receivable at the

time registration of sale deed. The trial court has dismissed the suit of

the plaintiff/appellant.

2.    The first reason for dismissal of suit was that the suit was barred

by the limitation. The second reason for dismissal of the suit was that

the respondent/defendant was not a Bhumidhar but an Assami under

the Delhi Land Reforms Act, 1954 (hereafter "the said Act") and thus

did not have title to sell the land to the appellant. It was held that the

agreement was barred by virtue of Sections 32 and 45 of the said Act.

3.    On the issue of limitation, the trial court has observed that the

sale deed was to be executed within four months of the entering into

of the agreement to sell dated 13.4.1988. This period of four months

is stated in the legal notice dated 20.6.1991, which is Ex. PW-1/2,

issued on behalf of the appellant wherein in para 2 it is specifically

mentioned that the sale deed had to be executed and registered within

four months of the date of agreement to sell dated 13.4.1988. Clearly,

no fault can therefore be found with the judgment of the trial court

because the suit in this case ought to have been filed by 13.4.1991 but

the suit was filed on 16.12.1991. No argument of much substance to


RFA 2/2000                                                       Page 2 of 4
 challenge this finding and conclusion by the trial court has been raised

before me by the counsel for the appellant so as to enable this Court to

interfere in this finding on the issue of limitation.

4.    The second issue for dismissing the suit was that the respondent

was not a Bhumidhar but only an Assami and hence had no title which

could be sold. A Bhumidhar is in effect a perpetual tenant under the

Government whereas an Assami is only a tenant of the perpetual

tenant i.e. a sub-tenant. The rights of an Assami are not transferable

by virtue of Section 38 of the said Act and Section 45 of the said Act

specifically lays down that transfer made in contravention of the said

Act shall be void. It is an undisputed fact that the respondent is an

Assami and till the date of passing of the impugned judgment and

decree his rights have not crystallized as that of a Bhumidhar. There is

no clarity even today as to the status of the respondent as a

Bhumidhar of the the subject land. Accordingly, no fault can therefore

be found with respect to the conclusion of the trial court holding that

neither the respondent had title to the land being transferred and also

that the agreement was barred by the provisions of the Delhi Land

Reforms Act.     Paras 24 and 25 of the judgment of the trial court

dealing with the second issue reads as under :

            "24. Now reverting back to the second aspect
         viz the effect of defendant being „Assami‟.
         Reference to section 32 of the Delhi Land Reforms
         Act 1954 would suffice. The said section 32 of the

RFA 2/2000                                                     Page 3 of 4
          Act provides that the interest of a „Assami‟ shall
         not be transferable except as expressly permitted
         by the Act. I have not been able to find any
         provision in the Act permitting the transfer of
         rights by „Assami‟ except section 91 which permits
         hypothecation of produce by „Assami‟ towards
         payment of rent. It is needless to mention that
         hypothecation involves transfer of interest.

            25. Apart from the above section 45 of the
         Act specifically lays down that any transfer made
         by or on behalf of the „Assami‟ in contravention of
         the provisions of the Act shall be void. The effect
         of such transfer being void is that transfer is non-
         est. The court cannot enforce such contract."

5.    Since the respondent is admittedly an Assami and the provisions

of the said Act clearly prohibits an agreement of transfer of land by an

Assami therefore the trial court was justified in its findings and

conclusions as arrived in paras 24 and 25 above.      Nothing much of

substance to the contrary could be argued by the counsel for the

appellant in view of the direct provisions of the law and the facts

emerging from the record that the appellant is only an Assami.

6.    In view of the above, the appeal is devoid of merits and the same

is dismissed, leaving the parties to bear their own costs. Trial court

record be sent back. Interim orders stand vacated.



JANUARY 03, 2011                                VALMIKI J. MEHTA, J.

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