Mr.Anand J. Datwani vs Ms.Geeti Bhagat Datwani & Ors.
2013 Latest Caselaw 1957 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CS(OS) 758/2008 & IAs 5042/08, 14395-96/08, 11774/12

                                       Date of Decision: 30.04.2013

MR.ANAND J. DATWANI                              ...... Plaintiff
             Through:           Mr. A.Vashisht, Sr. Advocate with
                                Mr. Rajat Navet, Adv.

                     Versus

MS.GEETI BHAGAT DATWANI & ORS.          ...... Defendants
            Through: Mr. V.P.Singh, Sr. Advocate with
                     Mr. Vinay Sharma, Adv.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is a suit for partition filed by the plaintiff in respect of Farm

Land bearing no. 32, Shivji Marg, Western Greens, Rangpuri,

New Delhi (hereinafter referred to as „suit property‟) by metes and

bounds in equal shares between the plaintiff and defendant no.1.

A decree of declaration declaring the alleged undertaking dated

29.4.2004 given by the plaintiff as null and void ab initio is also

prayed for. It is also prayed that a decree of permanent injunction

restraining the defendants jointly and severally from alienating,

transferring, selling, conferring or creating any third party interest

in the suit property may also be passed.

2. Briefly stated the facts of the case are that the plaintiff & the

defendant no.1 are husband and wife and defendants no.2 & 3 are

father and mother of the defendant no.1 respectively. The plaintiff

and defendant no.1 got married on 13th October 1994, in Delhi. The

case of the plaintiff is that sometime in the year 1995-1996

defendant no.1 along with defendant nos.2 and 3 expressed her

desire to develop the Suit Property, which they were unable to do

on account of paucity of funds.

3. Thereafter, a development agreement was entered into in the year

1996, between the parties to the effect that the plaintiff agreed to

incur the cost and expenses for construction and development of

the Farm Land and the defendant no.1 agreed that the plaintiff in

turn would be vested with an equal undivided share in the suit

property.

4. It is further alleged by the plaintiff that in pursuance to the

development agreement two independent residential units were

constructed on the land in question. Thereafter in the year 2001

plaintiff along with defendant no.1 and their two children moved

into one of the residential units and second residential unit was

rented out. However, subsequently the relations between plaintiff

and defendant no.1 deteriorated on account of temperamental

differences. The relations went sour to the extent that the defendant

no.1 filed a petition under section 12 of the Protection of women

from Domestic Violence Act, 2005 on 10.10.2007.

5. It is further alleged by the plaintiff that on 12.10.2007, while the

plaintiff was in Bali, defendants along with several other persons

forcibly entered the suit property and took illegal possession of

important documents including the said development agreement &

several other things belonging to the plaintiff.

6. On the other hand the defendants have denied all the allegations of

the plaintiff and it is alleged by the defendant no.1 that the suit

property was purchased by her from her own funds in the year

1989 that is 5 years before solemnization of her marriage with the

plaintiff in the year 1994 and the suit property is duly registered in

her own name. It is further alleged by her that the plaintiff had no

role in the acquisition and construction of the suit property.

7. With regard to the plaint, this court vide order dated 20.3.2009

raised a question as to „whether the present suit for relief of

partition and possession thereof, in view of the provisions of the

Delhi Land Reforms Act, 1954 is maintainable before this court?"

The question was addressed by the parties at length.

8. The contention of the learned counsel for the plaintiff is that

though the land/suit property in question was an agricultural land

but having regard to the fact that no agricultural activity was ever

carried on it and the fact that two independent residential units

have been built on it out of which one was used by the plaintiff and

the defendant no.1 as their residence and the other was rented out,

the suit property has ceased to be an agricultural land therefore it

no longer comes within the purview of the provisions of the Delhi

Land Reforms Act, 1954.

9. However the learned counsel for the defendants has contended that

merely because the land has been constructed upon and is being

used for residential purposes, it would not cease to fall within the

definition of "land" under the provisions of the Delhi Land

Reforms Act. It is further contended by the learned counsel for the

defendants that by virtue of section 185 of the Delhi Land Reforms

Act, the jurisdiction of Civil courts is barred. It is also contended

that once the provisions of the Land Reforms Act are applicable,

the land in question would continue to be governed by the said Act

and would not be taken out of the purview of the said Act by any

subsequent act. The learned counsel for the defendants has also

contended that the plaintiff himself has described the land as

"Farmland" and therefore it amounts to an admission by the

plaintiff. Another contention of the learned counsel is that an

agricultural land ceased to be one when a notification is issued

under Section 507 of the Delhi Municipal Corporation Act by the

Central Government, while as, in the instant case no such

notification has been issued.

10. In order to canvass the point urged by him, the learned counsel for

the plaintiff has placed reliance on following judgments:

N B Singh (HUF) vs Perfexa Solutions Private Ltd. 159 (2009) DLT 729 Nilima Gupta vs Yogesh Saroha 2009 (156) DLT

Ram Lubbaya Kapoor vs Dr. J.R. Chawla 1986 RLR 432

11. The learned counsel for the Defendant has placed reliance on:

Hatti vs Sunder Singh AIR 1971 SC 2320 Ram Karan & Ors vs Jagdeep Rai & Sons & Ors. 79 (1999) DLT 305

12. I have heard the learned counsel for the parties and also gone

through the judgments. In the light of the aforesaid submissions,

the real issue before the court for consideration is whether the

provisions of Delhi Land Reforms Act would apply to a land which

was initially an agricultural land but is no longer being used for the

agricultural purposes.

13. In order to decide the aforesaid issue it would be pertinent to

reproduce the relevant provisions of the Delhi Land Reforms Act.

14. Section 3 (13) of Delhi Land Reforms Act, 1954 defines "land" and

reads as under:-

(13) "land" except in Sections 23 and 24, means land held or occupied for purpose connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming and includes:

      (a)    buildings appurtenant thereto,
      (b)    village abadis,
      (c)    grovelands,

(d) lands for village pasture or land covered by water and used for growing singharas and other produce or land in the bed of a river and used for casual or occasional cultivation, but does not include:

land occupied by building in belts or areas adjacent to Delhi town, which the Chief Commissioner may be a notification in the Official Gazette declare as an acquisition thereto;

15. From the aforesaid definition of the word „land„, it is evident that

the term "land" within the Delhi Land Reforms Act necessarily

means the land occupied for the purpose of agriculture,

horticulture, animal husbandry, pisciculture and poultry farming.

Further, several provisions of Delhi Land Reforms Act makes it

abundantly clear that the said Act was primarily enacted for the

purpose of governing agricultural land.

16. Section 185 of Delhi Land Reforms Act reads as under:

"185. Cognizance of suits, etc., under this Act - (1) Except as provided by or under this Act no court other than a court mentioned in column 7 of Schedule I shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), take cognizance of any suit, application, or proceedings mentioned in column 3 thereof. (2) Except as hereinafter provided no appeal shall lie from an order passed under any of the

proceedings mentioned in column 3 of the Schedule aforesaid.

(3) An appeal shall lie from the final order passed by a court mentioned in column 3 to the court or authority mentioned in column 8 thereof. (4) A second appeal shall lie from the final order passed in an appeal under sub-section (3) to the authority, if any, mentioned against it in column 9 of the Schedule aforesaid."

Entry 11 in schedule 1 to the Delhi Land Reforms Act provides that a suit for partition of holding of a Bhumidar shall lie before the court of the Revenue Assistant.

17. Thus, section 185 clearly bars the jurisdiction of Civil courts to

entertain a suit for partition of holding of a Bhumidar in respect of

a land governed by the provisions of the Delhi Land Reforms Act.

18. In Ram Lubbaya Kapoor‟s case (supra) this court has held that any

land before it can be termed "land" for the purpose of the Delhi

Land Reforms Act,1954 must be held or occupied for purposes

connected with agriculture, horticulture or animal husbandry etc.

and if it is not used for the said purposes, it ceased to be a land for

the purposes of the Act and the provisions thereof will no longer

apply and the remedy of the aggrieved party, if any, would be

under the general law of the land. Similar view was taken by this

Court in Narain Singh & Anr. vs. Financial Commissioner, 152

(2008) DLT 167.

19. In Nilima Gupta‟s case (supra), it was held by the learned single

judge of this court that:

"The Delhi Land Reforms Act was not meant to decide the Civil Disputes of unauthorized colonies, which emerged on agricultural land. The hard realty of today is that though large chunks of land stand in the revenue record as 'khasra numbers' but in fact the land has been converted into unauthorized/authorized colonies, where people have either built houses or have plots and civil disputes are arising day in and day out in respect of these plots. Sometimes, plots are sold twice, sometimes there are disputes regarding possession of plots, sometimes there are disputes regarding encroachment, sometimes there are disputes regarding invalid/valid sale of the plots. The Legislature while framing the Delhi Land Reforms Act had not envisaged these kinds of disputes to be referred to the Revenue Authorities. A perusal of chart given in Schedule I pertaining to Section 185 itself shows that all disputes which are envisaged by the Delhi Land Reforms Act to be decided by the Revenue Assistant or Deputy Commissioner are those, which pertain to agricultural land and they are not those disputes which arise when agricultural land is converted into unauthorized colonies or authorized colonies. The Courts cannot be divorced from the ground realities and live in an imaginary world of jurisdiction. Once the agricultural land loses its basic character of 'agricultural land' and changes

hands several times and gets converted into an authorized/unauthorized colony by dividing it into plots, the disputes of plot-holders are not those, which can be decided by the Revenue Authorities and these disputes have to be decided by the Civil Courts."

20. In N.B. Singh‟s case (Supra), the defendant-company had taken the

premises on lease for the residence of its managing director at

monthly rent of `1,60,000. The learned single judge held that a

property ceases to be an agricultural property if it is not used for

agricultural purposes and the defendant is estopped from

contending that the suit property is an agricultural land covered by

the Delhi Land Reforms Act. It was further contended that the

description of the plaintiff as Bhumidar in revenue records is of no

consequence.

21. After having heard both the parties and perusing the judgments

being relied upon by them, I am of the view that the provisions of

the Delhi Land Reforms Act, 1954 shall not apply to a land which

at the outset was an agricultural land but is no longer being used

for the agricultural purposes.

22. Section 13(3) of the Act specifically lays down that the term "land"

means land held or occupied for purpose connected with

agriculture, horticulture or animal husbandry including pisciculture

and poultry farming. The definition of land is inclusive but is not

wide enough to include the land which has ceased to be an

agricultural land by reason of its no longer being used for the

agricultural purposes. In cases titled Ram Lubbaya, Narain Singh,

N.B. Singh and Nilima Gupta (Supra), this court has clearly and

consistently held that the provisions of Delhi Land Reforms Act

ceases to apply as soon as the land ceases to be an agricultural land.

23. A perusal of Section 22 of the Act shows that a Bhumidar has the

right to exclusive possession of the land in his holding and to use it

for any purpose connected with agriculture, horticulture or animal

husbandry which includes pisciculture and poultry farming and

Section 23 prevents a Bhumidar from using the land in his

possession for purposes other than agriculture except with the

consent of the Chief Commissioner. Under Section 35 of the Act a

Bhumidar is debarred from affecting any lease of his land unless he

is a disabled person within the meaning of Section 36, of the Act.

24. It is further provided in Section 76 of the Act that a Bhumidar will

not be ejected except under Section 33, 42, 81, 86 and 87 of the

Act. Sections 33, 42 and 46 deal with transfers of a Bhumidar's

interest made contrary to the Act and Sections 81, 86 and 87 deal

with the ejectment of a Bhumidar in certain circumstances. Under

Section 81, a Bhumidar is liable to be ejected if he uses the land for

any purpose other than a purpose connected with agriculture.

25. It is quite clear from the various provisions of the Act detailed

above that a Bhumidar do not have an unrestricted interest in his

land. He is given the right to use the land in a particular manner.

He cannot' lease out the land, he cannot transfer possession of it

and he has to use it only for the agricultural purposes. Further as

per the preamble of the Act, the purpose of the Act is as under:-

"to provide for modification of zamindari system so as to create uniform body of peasant proprietors without intermediaries and for the unification of existing tenancy laws".

26. Above discussion makes it amply clear that an agricultural land

must be used for the agricultural purposes only if the Land

Reforms Laws are to be made applicable and if it is not so used, it

will cease to be an agricultural land. In the instant case, admittedly,

the land in question has not been used for any purposes

contemplated therein under the Land Reforms Act, instead, the

land has been built upon. Admittedly, two residential units have

been constructed on the land in question out of which one is used

by the parties as their residence and the other one was rented out

and so far, the land has not been, in fact had never been used for

the agricultural purposes. It is not the case of the defendants that

they are carrying out any agricultural activity or any other allied

permissible activity on the land in question. Therefore, as per the

aforesaid reasoning and the view taken consistently by this court in

number of judgments, the land in my considered view, has ceased

to be an agricultural land and will no longer be governed by the

provisions of the Delhi Land Reforms Act. Thus, the jurisdiction of

civil court cannot be said to be barred by virtue of the provisions of

section 185 of the Act.

27. So far as the judgment in cases titled Hatti vs Sunder Singh and

Ram Karan & Ors vs Jagdeep Rai & Sons & Ors ( supra) are

concerned, I am of the view that it does not apply to the facts of the

present case. As in the present case the issue involved is not

whether the jurisdiction of the civil courts in respect of agricultural

land is barred under section 185 of the Act or not, as in these two

cases but is whether an agricultural land has ceased to be an

agricultural land by reason of its not being used for the agricultural

purposes and thereby, out of the purview of the provisions of the

Delhi Land Reforms Act. Hence, these two judgments do not help

either the defendants or the court in deciding the question of

maintainability of the present suit.

28. So far as the contention of the learned counsel for the defendants,

that the plaintiff himself has admitted in the plaint that the land is

Farm land, is concerned, I am of the view that mere mention of the

land in question as Farmland by the plaintiff does not amount to an

admission on the part of the plaintiff that it is an agricultural land

being used for agricultural purposes. The plaint is to be read as a

whole and not in piecemeal. Even if it is assumed for the sake of

the arguments that it amounts to an admission, such an admission

cannot override the law. There can be no estoppel against the law/

statute. (Refer to Faqir Chand vs. Ram Rattan Bhanot; AIR

1973 SC 921)

29. Having regard to the aforesaid reasons, I am of the view that the

present suit is maintainable and the provisions of the Delhi Land

Reforms Act, 1954 do not apply to the suit property as the same

has ceased to be an agricultural land. However, expression of any

opinion hereinabove is only a tentative view and shall not be

treated as an expression on the merits of the case and the court, if it

feels proper, shall be free to frame an issue in this regard and

decide the same after the parties have adduced their evidence.

30. List before the Roster Bench on 15th May, 2013.

V.K. SHALI, J.

APRIL 30, 2013