Subash Chand vs Gaini Ram And Ors.
2012 Latest Caselaw 3468 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No.167/2008

                                                  Reserved on: 17th May, 2012
%                                            Pronounced on: 24th May, 2012

SUBASH CHAND                                   ..... Appellant
            Through:               Mr. S.S. Dahiya, Advocate with Mr. L.K.
                                   Dahiya, Advocate.


                      versus

GAINI RAM AND ORS.                              ..... Respondents

Through: Mr. V.P. Rana, Advocate for respondent Nos.5, 7 to 11 for LRs of deceased respondent No.6.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal filed under Section 96 of the Code

of Civil Procedure, 1908 (CPC) impugns the judgment and decree of the

trial Court dated 6.2.2008, and by which judgment the trial Court held that

the Civil Courts had no jurisdiction to try the suit in view of the bar of

Section 185 of the Delhi Land Reforms Act, 1954 (hereinafter referred to

as „the Act‟).

2. The sole question for consideration is whether the suit was not

maintainable before the Civil Court inasmuch as the same ought to have

been filed before the concerned Court of the Revenue Assistant as specified

in Schedule I of the Act. In order to determine the issue of bar of

jurisdiction of the Civil Court it is first necessary to see what is the cause of

action pleaded in the suit and what are the reliefs claimed in the suit. When

we read the plaint we find that the cause of action which is alleged is that

the appellant/plaintiff purchased the suit land measuring 2 bighas 16 biswas

from defendant Nos.1 to 4, which has been illegally encroached upon by

the defendant Nos.5 to 11, and who are successors-in-interest of the

defendant Nos.1 to 4 and consequently the reliefs of declaration of

ownership of the appellant/plaintiff, possession, mesne profits and

injunction against the defendants from constructing on suit property and

alienating the suit property were claimed.

3. I have had an occasion to consider the issue of when the bar

under Section 185 of the Act applies, in the judgment in RFA No.621/2003

titled as Ashok Kumar & Ors. Vs. Smt. Munni Devi & Ors. decided on

5.3.2012. I have held in the judgment in the case of Ashok Kumar (supra)

that bar of Section 185 of the Act cannot come into play unless the suit is

one which is covered under one or more entries of the Schedule I of the

Act. Paras 5 to 11 of the judgment in the case of Ashok Kumar & Ors.

(supra) are relevant and the same read as under:-

"5. In my opinion, the trial Court has fallen into a grave error in holding that the Civil Courts did not have jurisdiction in view of Section 185 of the Act. Section 185 has already been reproduced above and which Section shows that the Revenue Courts have jurisdiction to try such suits which are mentioned in columns 2 and 3 of the Schedule I of the Act, and it is only with respect to such suits that the jurisdiction of the Civil Courts will be barred. The sections and type of the suits which are mentioned in columns 2 & 3 of the Schedule I of the Act, do not cover suits such as the subject suit for declaration, injunction and for cancellation of a sale deed/power of attorney on the ground of the same having been forged and fabricated. Such causes of action/reliefs of declaration and injunction which pertain to invalidity of the title documents which are said to have been got executed on the basis of a forged and fabricated General Power of Attorney are not covered under any of the Sections under columns 2 & 3 of Schedule I and they can be thus decided by a Civil Court. A reference to columns 2 and 3 of Schedule I of the Act shows that in none of the sections or the description of suits, mentioned in columns 2 and 3 of the Schedule I respectively, the subject suit would be covered. The only sections which can be said to be somewhat related to the issues/causes of action/reliefs in the suit are Sections 13 and 104. Section 13 pertains to an application to regain possession after bhumidhari rights are got declared and for which period of limitation is one year from the commencement of the Act. The Act commenced in the year 1954 and the subject suit for declaration and injunction cannot be said to be pertaining to Section 13 of the Act, and also because no declaration of bhumidhari rights envisaged under Section 13 is in issue in the subject suit. Therefore, the subject legal proceedings are not covered under serial No.3 of the Schedule I which pertains to Section 13, being an application to regain possession. So far as the Section 104 is concerned which is the subject matter of serial No.28 of the Schedule I, the said section pertains to a declaratory suit which is filed on behalf of Gaon Sabha against a person claiming entitlement to any right to the land which is the subject matter of the Act.

Obviously, the subject suit filed by the private persons is not a suit for declaration, covered by Section 104.

A reference to all other Sections which are the subject matter of column 2 of the Schedule I and the description of such suits under those sections as stated in column 3 of Schedule I shows that there is no section for filing of a suit of the nature of the suit in question. A reference to the column 2 and the description of the Sections in column 3 shows that the proceedings which are the subject matter of the Revenue Courts are those proceedings, which are with respect to either declaration of Bhumidhari rights (as distinguished from inter se dispute of claim of ownership/bhumidhari rights on account of transfer by title deeds/sale deeds including by forging a power of attorney), suits which are with respect to exchange of bhumidhari land or for partition of a bhumidhari land or suit for ejectment filed by an Asami or a suit for injunction or damage caused to a holding of a person etc etc. These suits which the Civil Courts are barred from taking cognizance of are basically suits of a bhumidhar or Asami or Gaon Sabha and that too provided they are first of all the subject matter of the Sections which are stated in column 2 of the Schedule I.

6. Unless the suits are in substance, the suits which fall within the Sections as stated in column 2, the jurisdiction of the Civil Courts is not barred by virtue of Section 185 of the Act. No doubt Section 186 states that where a question of title is raised in any proceeding falling under column 3 of the Schedule I of the Act then such a proceeding has to be referred by the Revenue Court to a Civil Court to determine the question of title, however, it does not mean that suits where title is in question, and which suits are not the subject matter of columns 2 and 3 of the Schedule I, such suits have to be filed in the Revenue Courts. In fact, it is other way round that firstly the suits must in substance be the suits essentially covered under columns 2 and 3 of the Schedule I of the Act, and only thereafter if title of the land is in question then the Revenue Court will refer the issue of title to Civil Court, however, if the suits itself are not falling under columns 2 and 3 of Schedule I, for such suits jurisdiction of the Civil Court is not barred.

7. In view of the above, the impugned judgment wrongly dismissed the suit by holding that the Civil Courts had no jurisdiction and the jurisdiction was of the Revenue Courts. I must hasten to add that I have not expressed any opinion on the merits of the matter, for or against either of the parties, and the trial Court will decide the suit in accordance with law as per the cases urged and proved by the parties.

8. In view of the above, appeal is allowed. Impugned judgment and decree dated 17.5.2003 is set aside. It is held that the Civil Court had jurisdiction to decide the subject suit filed by the appellants/plaintiffs. Parties are left to bear their own costs. Parties to appear before the District & Sessions Judge, Delhi on 10th April, 2012 and on which date the District & Sessions Judge will mark the suit for disposal to a competent Court in accordance with law. Since the respondents/defendants have not been represented in this appeal, the trial Court will serve the respondents/defendants before proceeding ahead with the suit.

RFA No.14/2004

9. By the impugned judgment, the suit filed by the appellants/plaintiffs for declaration, injunction and possession was dismissed by holding that the Civil Courts do not have jurisdiction. The reliefs of declaration, injunction and possession were claimed on the ground that original owner-Sh. Inder Singh never executed a General Power of Attorney in favour of wife of Sh. Ruliya Singh, and on the basis of which Power of Attorney, the wife of Sh. Ruliya Singh is stated to have executed a sale deed in favour of Sh. Ruliya Singh. Sh. Ruliya Singh is the father of defendant Nos.2 to 4.

10. I have given detailed reasoning while disposing of RFA No.621/2003 and have held that unless the suit falls within the columns 2 and 3 of the Schedule I of the Act, the jurisdiction of the Civil Court is not barred. The suit such as the present claiming injunction, declaration of illegality of the sale deed executed allegedly on the basis of a fabricated General Power of Attorney and for repossession of the land, is not covered under any of the Sections mentioned in column 2 of

the Schedule I. The jurisdiction of the Civil Court therefore will not be barred under Section 185 of the Act. I must once again reiterate that nothing contained in today‟s judgment is a reflection on the merits of the case of either of the parties, and I am not touching upon the merits of the matter. The present judgment only decides the issue that there is no bar to the jurisdiction of the Civil Courts by virtue of Section 185 of the Act.

11. Accordingly, the impugned judgment dated 25.7.2003 is set aside. Parties are left to bear their own costs. Parties to appear before the District & Sessions Judge, Delhi on 17th April, 2012 and on which date the District & Sessions Judge will mark the suit for disposal to a competent Court in accordance with law. Trial Court record be sent back so as to be available to the District & Sessions Judge on 17.4.2012."

4. The plaint in the present suit contains the following prayer

clauses:-

"(i) Declare the plaintiff owner/Bhumidar of the land Khasra No.10/22/1 (1-22), 22/2 (0-12), 15/2/2 (0-12).

(ii) Directs the defendants to vacate the land in question and handover the peaceful possession of the said land.

(iii) Restore the land to its original position and remove the encroachment.

(iv) Pay the pendite lite mesne profits.

(v) Restrain the defendant from alienating/construction in the property in question.

(vi) And/or pass any other orders as the Hon‟ble court deem fit and proper."

5. So far as the entitlement to possession is concerned, the reliefs

claimed would be governed by Serial No. 19 (iii) of the Schedule I of the

Act which provides for filing of a suit by a bhumidar against a person

occupying the land without title and for damages. This entry reads as

under:-

Sl.   Section   Description     Period of    Time from      Proper   Court of       Court of Ist   Court of
No.   of the    of       suit   Limitation   which          Court    original       Appeal         2nd
      Act       application                  period         fees     jurisdiction                  Appeal
                and other                    begins
                proceedings
--    --        --              --           --             --       --             --             --
19.   84        Suit      for   Three        From the       As in    Do             Do             .....
                ejectment       years        date      of   the
                of a person                  issue of the   Court
                occupying                    prescribed     Fee
                land                         declaration    Act,
                without                      form to the    1870
                title    and                 tenure
                damages                      holder or
                (i) by a                     the     sub-
                Bhumidhar                    tenure
                declared                     holder
                under                        concerned
                Chapter III
                of the Act
                or by an
                Asami
                falling
                under
                Section 6 of
                the      Act
                where such
                unlawful
                occupant
                was        in
                possession
                of the land
                before the
                issue of the
                prescribed
                declaration
                form
                (ii) by a       Do           From the       As in    Revenue        Deputy         ......
                Gaon                         date      of   the      Assistant      Commissioner
                Sabha                        constitution   Court
                where the                    of     Gaon    Fee
                unlawful                     Panchayat      Act,
                occupant                     under          1870
                was        in                Section



            of the land
           before the
           constitution
           of     Gaon
           Panchayat
                                                                        ......
           (iii) by a     Do    From the      Do   Do      Do
           Bhumidhar,           Ist of July
           Asami or             following
           Gaon                 the date of
           Sabha     in         occupation
           any other

When in the present suit, the appellant/plaintiff claims the

reliefs of possession and damages, qua these reliefs the suit will not be

maintainable in the Civil Court as the same are covered by Serial No.19 in

the Schedule I read with Section 84 of the Act.

6. So far as the other reliefs which are claimed in the suit for

declaration of ownership of the appellant/plaintiff by having purchased the

bhumidhari rights from defendant Nos.1 to 4 and injunction to restrain the

defendants from making any construction on the property in question and

further alienating the same, learned counsel for the respondents could not

point out any entry in Schedule I of the Act which covers such reliefs for

the suit to be filed in the Court of the concerned Revenue Assistant and the

consequent bar of the Civil Court under Section 185 of the Act. Since there

is no provision in Schedule I of the Act with respect to the suit for

declaration of ownership on account of having purchased the bhumidhari

rights by means of a sale deed, and for injunction restraining the person in

possession from making any construction in the suit property or alienating

the same, I hold that qua these reliefs there would be no bar of the Civil

Court under Section 185 of the Act, and the suit will have to continue so far

as the cause of action and the reliefs with respect to declaration of

ownership of the appellant/plaintiff alongwith reliefs of injunctions against

making any construction on the property in question or alienating the same.

Any doubt that the Court of Revenue Assistant does not have jurisdiction to

determine the question of title/ownership of land is made clear from

Section 186 of the Act which provides that even in a suit which has to be

filed before the Court of Revenue Assistant in terms of Schedule I of the

Act, if such a proceeding involves question of title, then, the Court of

Revenue Assistant will refer the issue/question of title of the suit land to a

competent Civil Court for decision unless the issue/question of title has

already been decided earlier by a competent Civil Court. As already

repeatedly stated above in the suit, one of the aspects pertains to the title of

the suit land.

7. In view of the above, appeal is partially allowed. Impugned

judgment of the trial Court to the extent it holds that the Civil Courts are

barred from entertaining the subject suit is set aside to the extent that the

Civil Court will have jurisdiction with respect to the cause of action and

reliefs claimed with respect to declaration of ownership and injunction

against alienation and construction on the suit property, and which are

subject matter of prayer clauses (i) and (v) in the suit. So far as the reliefs

of possession and mesne profits are concerned, the Civil Courts will not

have jurisdiction and the suit to that extent will not be maintainable before

the Civil Court.

8. Appeal is therefore partially allowed and disposed of as stated

above. Parties are left to bear their own costs. Parties to appear before the

District & Sessions Judge, Delhi on 23rd July, 2012, and on which date the

District & Sessions Judge will mark the suit for disposal to a competent

Court in accordance with law. Trial Court record be sent back so as to be

available to the District & Sessions Judge on the date fixed.

VALMIKI J. MEHTA, J MAY 24, 2012 Ne