Delhi High Court

Madan Mohan vs Antro Devi & Ors. on 8 February, 2013

Author: V.K.Shali

*                    HIGH COURT OF DELHI AT NEW DELHI

+                            R.S.A. NO.355 OF 2006

                                         Decided on : 8th February, 2013

MADAN MOHAN                                         ...... Appellant
           Through:               Mr. R.S. Nirmal, Advocate.

                         Versus

ANTRO DEVI & ORS.                                  ...... Respondents
              Through:            Mr. R.K. Sharma, Advocate for R-2 & 3.
                                  Mr. R.S. Rana, Advocate for R-5.

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

V.K. SHALI, J. (ORAL)

1. This is an appeal under Section 100 CPC against the order dated

21.8.2006 passed by the learned Additional District Judge dismissing the

appeal of the appellant bearing R.C.A. No.10/2006 titled Madan Mohan

vs. Antro Devi & Ors.

2. Briefly stated the facts of the case are that the appellant filed a suit

bearing No.29/2005 against the respondents claiming that one Chotu

Ram, maternal grandfather of the appellant, was residing in Akbarpur

Majra, Delhi and was bhumidhar of land bearing Khasra No.13/18/3 (3-

12), 23 (3-10), 34/9 (4-16), 11 (4-16), 44/5/2 (3-4), 45/10 (4-4) measuring

24 bighas 2 biswa in the Revenue Estate of Village Akbarpur Majra,

Delhi. It was alleged that Chotu Ram died on 14.8.1966 and the property

was inherited by his widow, namely, Bhoori Devi and thereafter, the

property was devolved in favour of Antro Devi (respondent No.1 herein

through LRs) on the basis of the Will. It was further alleged that the land

has been mutated in the name of Antro Devi after demise of Bhoori Devi

on 8.2.1982. Reliance was placed on Section 50 (a) of the Delhi Land

Reforms Act to aver that the mutation/transfer of the property in favour of

Antro Devi was illegal and unlawful because as per Section 50 sub-clause

(a) read with Clause (p) of the aforesaid provision, only the male

descendent could inherit the property. It is pertinent here to reproduce

Section 50 of the Delhi Land Reforms Act, which reads as under:-

"50. General order of succession from males - Subject to the provisions of section 48 and 52, when a Bhumidhar or Asami being a male dies, his interest in his holding shall devolve in accordance with the order of the succession given below :

(a) male lineal descendants in the male line of the descent:

Provided that no member of this class shall inherit if any male descendant between him and the deceased is alive:

Provided further that the son or sons of a predeceased son howsoever low shall inherit the share which would have devolved upon the deceased if he had been then alive;

(b) widow;

(c) father;

(d) mother, being a widow;

(e) step mother, being a widow;

(f) father's father;

(g) father's mother, being a widow;

(h) widow of a male lineal descendant in the male line of descent;

(i) unmarried daughter;

(j) brother being the son of same father as the deceased;

(k) unmarried sister;

(l) brother's son, the brother having been son of the same father as the deceased;

(m) father's father's son;

(n) brother's son's, son;

(o) father's father's son's son;

(p) daughter's son."

3. It was further alleged in the plaint that Antro Devi, w/o Laxman

Singh, had executed four sale deeds in respect of the aforesaid suit

property in favour of her sons, namely, Krishan Kumar, Jai Bhagwan,

Harish Chander and one Chandro Devi, w/o Jai Bhagwan, who were

impleaded as defendants in the suit and are respondents in the present

appeal also. On the basis of the aforesaid fact, a declaration and

permanent injunction was sought to the effect that the appellant has

inherited the bhumidhari rights in respect of the suit land. The

cancellation of sale deeds purported to have been executed by Antro Devi

was also sought. The defendants appeared and filed their written

statement and reply to the application. Various pleas were taken

including that the suit is barred under Order II Rule 2 CPC as the

previous suit bearing No.233/2001 had been filed by the appellant with

various reliefs but the present reliefs were not claimed in the said suit. It

was also alleged that the present suit is barred under Section 185 of the

Delhi Land Reforms Act as only the Revenue Court has the jurisdiction to

entertain the suit for declaration and relief of cancellation of the sale deed

was an incidental relief to the relief of declaration. The learned Judge,

after hearing the arguments of the parties, dismissed the application under

Order 39 Rules 1 & 2 CPC on the ground that the appellant has not been

able to make out a prima facie case. The learned judge further rejected

the suit on the ground of jurisdiction holding that a suit for declaration

under Section 185 of the Delhi Land Reforms Act in respect of an

agricultural land could be filed only before the Revenue Authorities. This

was de hors the fact that the appellant would be entitled to inherit the

bhumidhari rights in terms of Section 50 of the Delhi Land Reforms Act.

4. Feeling aggrieved by the aforesaid order dated 5.12.2005, the

appellant preferred an appeal which was also dismissed on 21.8.2006 by

the learned Additional District Judge upholding the point of the trial court

that Section 185 of the Delhi Land Reforms Act bars the jurisdiction of

the civil court to grant any declaration and since the grant of declaration

was essential for seeking cancellation of sale deeds, therefore, the

Revenue Authorities would be the proper forum which could grant the

said declaration.

5. Still feeling dissatisfied, the appellant has now filed the present

regular second appeal.

6. I have heard the learned counsel for the appellant and have gone

through the record. I have given my careful consideration to the entire

record and the judgments passed by the courts below. There is a

concurrent finding by the courts below that the relief which is claimed by

the appellant is essentially a relief of declaration to the effect that he

should be declared to have inherited bhumidhari rights in respect of the

suit land. So far as the prayer for cancelation of sale deeds in respect of

the suit land is concerned, this is only a consequential relief. According

to Section 185 of the Delhi Land Reforms Act, the jurisdiction of the civil

court is barred to entertain any petition in respect of which Schedule I of

the Delhi Land Reforms Act provides the forum where the suit can be

filed. The exact language of Section 185 of the Delhi Land Reforms Act

is 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."

7. Serial No.28 of Schedule I and Section 104 of the Delhi Land

Reforms Act clearly lays down that a declaratory suit can be filed only

before the Revenue Assistant. By virtue of the aforesaid provision, the

entertainment of the suit by a civil court with regard to the grant of

declaration is barred, therefore, the suit has been rightly rejected in terms

of Order VII Rule 11 sub-clause (d) of the CPC. The present second

appeal does not raise any substantial question of law. The questions of

law which the learned counsel for the appellant has formulated in the

appeal are essentially questions of fact except question Nos.(b) and (c)

which is to the effect whether cancellation of the sale deed is barred

under Section 185 of the Delhi Land Reforms Act. So far as this question

is concerned, I have already observed hereinabove that the main relief