Om Parkash Gupta & Ors. vs Yogesh Sharoha & Ors.
2013 Latest Caselaw 5745 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 12th December, 2013

+      CMs No.12098/2013 (of the LRs of appellant No.2 u/O 22 R-3),
       12099/2013 (for condonation of 1372 days delay), 12418/2013
       (for restoration / readmission) & 13354/2013 (of the legal
       representative of the appellant No.2 for setting aside of
       abatement) in RFA No.364-67/2005.

       OM PARKASH GUPTA & ORS.               ..... Appellants
                   Through: Mr. Rupesh Kumar & Mr. Aditya
                            Kumar, Advs. for Legal Heirs of
                            Appellant no.2.
                            Mr. S.P. Jha & Mr. Vikrant
                            Bhardwaj, Advs. for Appellant
                            No.4.

                                    Versus

    YOGESH SHAROHA & ORS.                 ..... Respondents
                  Through: Mr. B.S. Mor with Mr. Neeraj
                           Mor, Advs. for R-1 &2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal in which these applications have been filed, was filed

impugning the judgment and decree dated 15.02.2005 of the Court of the

Additional District Judge (ADJ), Delhi of dismissal of suit No.34/2000 filed

by the four original appellants.

2. The said suit was filed, for the reliefs of:

(i) declaration of the decree dated 20.09.1997 of the Court of the

ADJ in suit No.469/1993 filed by the respondents No.1&2 viz.

Sh. Yogesh Saroha and Sh. Shyam Sunder Kaushik against the

respondent No.8 Smt. Shanti Devi daughter of Late Sh. Badlu

Ram for specific performance of an Agreement of Sale of

immovable property being 2 bighas 3 biswas of agricultural

land out of Khasra No.34 in village Neb Sarai, Mehrauli, New

Delhi as null and void;

(ii) declaration of the sale deed dated 07.01.1999 executed in

favour of the respondents No.1&2 in pursuance of the aforesaid

decree as null and void and for cancellation thereof;

(iii) for cancellation of mutation order dated 26.03.1999 with

respect to the said land in favour of the respondents No.1&2;

and,

(iv) for mandatory injunction directing the respondents No.1&2 to

hand over possession of the said land to the four plaintiffs.

3. The appeal was admitted for hearing and the Trial Court record

requisitioned and the respondents in the appeal restrained from creating third

party interest in the subject land.

4. CM No.6804/2011 was filed by the appellant No.1 Sh. Om Parkash

Gupta for permission to withdraw the appeal insofar as on his behalf. The

said application was, vide order dated 18.04.2010 allowed and the appellant

No.1 deleted from the array of parties.

5. CM No.7366/2013 was filed by the appellant No.3 Smt. Pratibha

Chaudhary also for withdrawal of the appeal insofar as qua her and the said

application was also allowed on 15.05.2013 and the appellant No.3 also

deleted from the array of parties. On the same date, the earlier interim order

was made absolute till the decision of the appeal.

6. None appeared for the appellant No.4 Smt. Durga Devi Srivastava

when the appeal was listed for hearing on 22.07.2013 (actual date) and

accordingly the appeal qua her was dismissed on that date.

7. On 22.07.2013, the Advocate on behalf of the daughter of the

appellant No.2 M. Koteshwar Rao appeared and stated that the appellant

No.2 had also died and sought time for substitution of his legal

representatives. However the name of the daughter on whose behalf he was

appearing or the date of demise of the appellant No.2 was not disclosed.

The respondent No.2 appearing in person on that date stated that the

appellant No.2 had died about three or four years ago. In the circumstances,

the appeal was on 22.07.2013 dismissed as abated qua the appellant No.2 but

with liberty to the legal representatives of the appellant No.2 to, if entitled,

apply for setting aside of the abatement and / or for substitution.

8. It is thereafter that these applications have been filed for restoration of

the appeal on behalf of the appellant No.4 Smt. Durga Devi Srivastava and

on behalf of the legal representatives of the appellant No.2 Sh. M.

Koteshwar Rao for setting aside of the abatement, for substitution and for

condonation of 1372 days delay in applying therefor.

9. Notice of the said applications was issued and in response thereto the

counsel for the contesting respondents No.1&2 appeared. However when

the said applications were listed on 19.11.2013, the counsel for the legal

heirs of the appellant No.2 was not prepared and sought adjournment and

which was granted subject to payment of costs of Rs.10,000/-.

10. The applications were thereafter listed on 03.12.2013 when though

finding no cause, least sufficient cause for the default/delay aforesaid on the

part of the appellants No.2 and 4, the counsels appearing for them were

quizzed about the merits of the appeal to ensure that no injustice is done to

the said appellants on technical grounds. However it transpired that the

counsels had only prepared and filed the applications without any

knowledge of the merits of the appeal. Observing, that in old appeals such

applications cannot be mechanically entertained without the counsels being

prepared with the merits, an opportunity was given to the counsels to address

this Court on merits of the appeal today, to satisfy the judicial conscience of

this Court that the appellants have a semblance of a case.

11. The four appellants had filed the suit from which this appeal arises,

pleading:

(a) that they were the owners in possession of their respective plots

i.e. plots No.D-137, D-151, D-152 and D-153 each ad-

measuring 200 sq. yds. in Freedom Fighters Cultural Centre

situated at village Neb Sarai, Mehrauli, New Delhi in Khasra

No.34;

(b) that the respondent / defendant No.3 Freedom Fighters Cultural

Centre is a society registered under the Societies Registration

Act, 1860 and the appellants / plaintiffs No.1 and 2 were the

members thereof, the appellant / plaintiff No.3 Smt. Pratibha

Chaudhary is the subsequent purchaser from the original

member and the appellant / plaintiff No.4 is the legal heir of the

original member thereof;

(c) that one Sh. Badlu Ram was the owner of land comprised in

Khasra No.34 , Khata Khatauni 136, ad-measuring 4 bighas 6

biswas situated in revenue estate of Neb Sarai, Mehrauli, New

Delhi;

(d) that the respondents / defendants No.4 to 7 viz. Sh. Bishamber

Dayal, Sh. Shobha Ram, Sh. Prema Nand and Sh. Darshan

Singh are the sons of Sh. Badlu Ram, the respondent No.8 is the

daughter of Sh. Badlu Ram and the respondent No.9 also

named Smt. Shanti Devi is the widow of the said Sh. Badlu

Ram;

(e) that the respondents / defendants No.4 to 7 being the sons of

Sh. Badlu Ram had vide Agreement to Sell, Power of Attorney,

Will etc. all of the year 1987 sold the said 4 bighas 6 biswas of

land to the respondent No.3 Society and the respondent No.3

Society had allotted the plots aforesaid on the said land to the

four appellants / plaintiffs;

(f) the appellants / plaintiffs were in possession of their respective

plots from the year 1986;

(g) however the respondent No.8 being the daughter of Sh. Badlu

Ram on the basis of a Will of the year 1984 of Sh. Badlu Ram,

bequeathing half share out of the aforesaid 4 bighas 6 biswas of

land to her and other half to the respondents No.4 to 7 and the

respondent No.9, got the mutation of half of the land being the

land on which the plots allotted to the appellants / plaintiff were

situated in her name on 28.11.1988; and,

(h) that the said respondent No.8 had purportedly agreed to sell her

said 2 bighas 3 biswas of land to the respondents No.1&2 who

had filed a suit for specific performance of the said Agreement

to Sell being Suit No.469/1993 supra and which was decreed as

aforesaid on 20th September, 1997 and whereafter the

respondents No.1&2 had dispossessed the appellants / plaintiffs

from their plots on 06.11.1999.

Accordingly, relief aforesaid were claimed in the suit.

12. Though the counsels for the appellant No.4 as well as the legal heirs

of the appellant No.2 are still not prepared and do not have the entire record

and are unable to answer the various questions raised during the hearing but

the Trial Court record has been gone through and the counsel for the

respondents No.1&2 has also been heard.

13. The learned ADJ dismissed the suit noticing the various contentions

of the contesting respondents No.1&2 but holding that the appellants /

plaintiffs had failed to explain as to how the respective plots were allotted to

them in December, 1986 when the Agreement to Sell by the sons of Sh.

Badlu Ram in favour of the respondent No.3 Society itself was of

21.04.1987. It was thus held that the plea of the appellants / plaintiffs of the

allotment of plots to them was not acceptable as the appellants / plaintiffs

had failed to prove that the respondent No.3 Society through which they

claimed title was itself the owner or had any right over the land in

December, 1986 at the time of allotment thereof to the appellants /plaintiffs.

14. It is mentioned in para No.3 of the impugned judgment that each of

the four appellants / plaintiffs prior to institution of the suit from which this

appeal arises had instituted separate suits in the High Court of Delhi under

Section 6 of the Specific Relief Act, 1963 and which on the date of the

impugned judgment i.e. 15.02.2005 were still pending adjudication.

15. It has as such been asked from the counsel for the appellant No.4 and

the counsel for the legal heirs of the appellant No.2 as to what has been the

fate of the said suits.

16. The counsel for the appellant No.4 has invited attention to the reply

filed by the respondents No.1&2 to this appeal in which it is inter alia

mentioned that the plaints in the four suits were returned for want of

jurisdiction of Civil Courts over agricultural land governed by the Delhi

Land Reforms Act, 1954.

17. It has as such been enquired from the counsels for the appearing

appellants / plaintiffs that when once the Court has adjudicated in an inter-

party suit that the relief of possession of the land, as sought in this suit also,

cannot be granted by the Civil Court, how the said question can be revisited

in this appeal.

18. The counsel the for appellant No.4 contends that the order of return of

plaint would not constitute res judicata as no finding of a Court which has

no jurisdiction can be res judicata.

19. No merit is found in the aforesaid contention. The said principle

applies to findings on merits returned by the Court also holding that it did

not have jurisdiction and cannot apply to a finding on the aspect of

jurisdiction itself.

20. The counsel for the appellant No.4 has next contended that the said

reasoning returning the plaint is erroneous as the bar to jurisdiction of the

Civil Court under Section 185 of the Delhi Land Reforms Act, 1954 is only

for declaration of bhumidhari rights and not for claim for possession.

21. It was for the appellants / plaintiffs to agitate the said aspect against

the order returning the plaints. It is the bounden duty of the Court to

maintain discipline and once it is found that a question has been decided

against a party and which question is not a pure question of law but a mixed

question of law and fact, this Court would be failing in its duty if were to

allow the said question to be agitated again. The same would be contrary to

principle of finality of litigations. Once it has been held that the relief of

possession, even though in that case on the basis of prior possession, cannot

be granted to the appellants / plaintiffs in the Civil Courts, another suit for

the same relief of possession, though this time on the basis of title, would be

governed by the same principle.

22. I may notice that though in the suit from which this appeal arises, the

appellants / plaintiffs have also claimed the reliefs of impugning the decree

in another litigation between the respondent No.8 on the one hand and the

respondents No.1&2 on the other hand and have also sought cancellation of

the sale deed and mutation but the relief consequential to the said three

reliefs is the relief of possession and once it is held that the relief of

possession cannot be granted by the Civil Court, no purpose would be served

in entertaining the suit for the other three reliefs. It is also not as if the

Revenue Courts to whom the appellants / plaintiffs have been directed are

totally denuded from deciding the said questions. Once in a proceeding

before the Revenue Court, a question of title arises, the Revenue Court under

Section 186 of the Reforms Act is entitled to make the reference to the Civil

Court.

23. The counsel for the legal heirs of the appellant No.2 has not made any

submission on this aspect.

24. I am therefore of the view that the appeal for the said reason alone is

not maintainable.

25. The impugned judgment also refers to a suit No.11/1990 filed by the

respondent No.3 Society.

26. The counsel for the legal heirs of the appellant No.2 has argued that

the respondent No.3 Society by the said suit is challenging the Will aforesaid

of Sh. Badlu Ram and his star argument is that suit is still pending and the

appellants / plaintiffs should not be deprived of their reliefs as it is in that

suit that the validity of the Will shall be decided and if it is held that the Will

is invalid, the appellants/plaintiffs shall be axiomatically entitled to the

reliefs claimed.

27. The counsel for the appellant No.4 also supports the said argument.

28. However the counsel for the respondents No.1&2 informs that the

subject Suit No.11/1990 which was later numbered as Suit No.461/2010 of

the Court of Civil Judge-05 (West), Tis Hazari Courts, Delhi also has been

dismissed on 23.04.2013. He has in Court handed over a copy of the said

order. He has further informed that the said suit was not challenging the

Will but was challenging the mutation dated 28.11.1988 of half share in the

land aforesaid in favour of the respondent No.8 through whom the

respondents No.1&2 claim and half share in favour of the respondents No.4

to 7 and respondent No.9.

29. The counsels for the appellant No.4 and legal heirs of appellant No.2

state that they are not aware of the dismissal of that suit.

30. The counsel for the respondents No.1&2 points out that the counsel

for the respondent No.4 has filed an appeal against the said dismissal which

is pending before the Court of Senior Civil Judge, Delhi.

31. A perusal of the order dated 23.04.2013 in Suit No.461/2010 (Old

No.11/1990) shows that the respondent No.3 Society which had preferred

the said suit had stopped appearing in the same; that the defendant No.12 in

that suit viz. Smt. Neelima Gupta had applied for transposition as the

plaintiff in that suit and which application was dismissed vide order dated

27.03.2013 and review thereof was dismissed vide order dated 23.04.2013

and consequently the suit was also dismissed. However the appeal

thereagainst is stated to be still pending. On further enquiry it is informed

that the appellants No.2 & 4 were not parties to that suit.

32. While going through the Trial Court file, I also find the certified copy

of the order dated 04.09.2000 of the Additional Collector in case

No.22/ADM(S)/99 being an appeal under Section 64 of the Delhi Land

Revenue Act filed by the respondent No.3 Society against the mutation order

dated 26.03.1999 of the Naib Tehsildar, Mehrauli mutating the land from the

name of the respondent No.8 to the name of the respondents No.1&2. The

said appeal was dismissed holding that though the respondent No.3 Society /

appellant therein claimed to be engaged in the work of developing the

residential colony and having developed the Freedom Fighters Colony where

the said plots are situated but the Memorandum of Association of the

respondent No.3 Society filed on record nowhere showed that it was

engaged in developing a colony or that the same was one of its objectives

and on the ground that the appeal was not filed by a duly authorized person

on behalf of the respondent No.3 Society.

33. The counsel for the respondents No.1&2 on enquiry states that no

remedy has been taken by any person against the said order.

34. There is also on the Trial Court record a copy of the petition dated

15.05.1991 filed by the respondent No.3 Society before the Revenue

Assistant under Section 85 of the Delhi Land Reforms Act for declaration of

itself as bhumidhar of the said land.

35. On enquiry, it is informed by the counsel for the respondents No.1&2

that the said petition was also dismissed on 28.01.1993 and that order has

also attained finality and no remedy has been taken thereagainst also. The

counsels for either of the appellants have no knowledge of the said

proceedings.

36. A reading of the impugned judgment also shows it to be a defence of

the respondents No.1&2 that on 21.04.1987 when according to the

appellants / plaintiffs the respondent No.3 Society acquired the said land

vide Agreement to Sell etc., a notification under Sections 4 and 6 of the

Land Acquisition Act, 1894 was in force with respect to the said land and

the transfer thereof was prohibited and the said notification was quashed by

the judgment dated 14.10.1988 of this Court in B.R. Gupta Vs. U.O.I. 38

(1989) DLT 243, upheld by the Supreme Court on 20.09.1991.

37. For all the aforesaid reasons, it is quite evident that the title to the said

land which is governed by the Land Reforms Act has attained finality before

the Revenue Courts enforcing the said Act and the suit from which this

appeal arises has been rightly dismissed.

38. The counsel for the appellant No.4 has invited attention to the

evidence led of the appellants / plaintiffs of being in possession of their

respective plots, in the nature of having incurred the expenses towards

construction of boundary wall. He has thus contended that the appellants /

plaintiffs were the owners and the respondents No.1&2 in the suit for

specific performance have set up a false case of having been delivered

possession of the land by the respondent No.8 at the time of Agreement to

Sell dated 26.08.1990.

39. Though in this regard an ancillary question also arises as to whether at

all an independent suit challenging the taking over of possession by the

respondents No.1&2 of the land as claimed by the appellants / plaintiffs on

06.11.1999 in pursuance of the decree in their favour is at all maintainable or

whether the remedy of the appellants / plaintiffs was under Order 21 Rules

97 to 99 of the CPC as per the own pleadings of the appellants / plaintiffs,

but it is not deemed necessary to consider the said aspect.

40. As far as the argument of the counsel for appellant No.4 is concerned,

once it is held that the respondent No.3 Society through whom the

appellants/plaintiffs claim, had no title to the land and/or once it is found

that the challenge by the respondent No.3 Society, through whom the

appellants/plaintiffs claim, has given up challenge to the title of the

respondents No.1 & 2 and their predecessor respondent No.8 and it is further

found that it has already been held that Civil Court has no jurisdiction to

give the relief of possession, the said evidence even if cogent of the

appellants/plaintiffs being in possession earlier, is of no avail.

41. I am therefore satisfied that besides there being no cause for the non

appearance of the appellants / plaintiffs and for delays on the part of the

legal heirs of the respondent No.2 in applying for substitution, there is no

merit in the appeal.

42. The applications as well as the appeal are therefore dismissed.

Decree sheet be prepared.

RAJIV SAHAI ENDLAW, J.

DECEMBER 12, 2013 'gsr'..