Shyam Lal & Ors. vs The Financial Commissioner & Ors.
2014 Latest Caselaw 6600 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                   Date of decision: 9th December, 2014
+                                 LPA No.775/2014
       SHYAM LAL & ORS.                                      ..... Appellants
                   Through:            Mr. Ashish Aggarwal with Mr. Ashish
                                       Virmani & Ms. Kritika Khanijo, Adv.
                                  Versus
    THE FINANCIAL COMMISSIONER & ORS.           ..... Respondents

Through: Ms. Ferida Satarawala, Adv. for R-1 & 2/GNCTD.

CORAM:-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

CM Nos. 19942/2014 & 19943/2014 (both for exemptions)

1. Allowed, subject to just exceptions.

2. The applications are disposed of.

LPA 775/2014 & CM Nos.19940/2014 (for filing additional documents) & 19941/2014 (for stay)

3. This intra-court appeal impugns the judgment dated 25th September,

2014 of the learned Single Judge of this Court, allowing W.P.(C) No.13695-

13706/2005 filed by the respondents No.3 to 14, by remanding the matter to

the Court of Revenue Assistant.

4. We have heard the counsel for the appellants no.1 and 2 and the four

legal heirs of the deceased appellant No.3 and are unable to find any merit in

the appeal to entertain and issue notice of the same.

5. The writ petition from which this appeal arises was filed impugning

the order dated 13th May, 2003 of the Financial Commissioner, Delhi of

dismissal of revision petitions (being Case Nos.159/2001-CA,160/2001-CA

and 161/2001-CA) under Section 187 of the Delhi Land Reforms Act, 1954

(Reforms Act) preferred by the respondents No.3 to 14.

6. The said revision petitions were preferred against the order dated 12th

April, 2001 of the Sub-Divisional Magistrate-cum-Revenue Assistant, Hauz

Khas by which he disallowed the application moved by the respondents

No.3 to 14 to set aside the ex parte order dated 28th May, 1992 allowing the

application of the appellants / their predecessor under Section 85 of the

Reforms Act and thereby declaring the appellants / their predecessor as

bhumidhars of land measuring 4 bighas 6 biswas in khasras no.123, 128 and

part of khasra no.124 and land measuring 1 bigha 10 biswas in khasra

no.124, of village Kishangarh,Tehsil Mehrauli, New Delhi.

7. The undisputed facts are that:

(i) The respondents No.3 to 14 / their predecessors had in or about

March-May, 1989 entered into Agreements to Sell qua the said

land to the appellants / their predecessors.

(ii) However, the sale remained to be completed.

(iii) The appellants / their predecessors in or about 1991 filed

CS(OS) No.2888/1991 in this court claiming to be in

possession of the land in pursuance to the Agreements to Sell

and, seeking to restrain the respondents No.3 to 14 / their

predecessors from dispossessing the appellants from the said

land, and for declaration that the appellants are the purchasers

of the said land.

(iv) The respondents No.3 to 14 / their predecessors filed an

application inter alia under Order VII Rule 11 of the CPC in

the said suit contending that the remedy if any of the appellants

was of specific performance.

(v) Upon the aforesaid objection being taken by the respondents

No.3 to 14, though the appellants contended that they will

amend the plaint but did not do so and the suit continued to

languish.

(vi) In the meanwhile, the appellants filed the application aforesaid

under Section 85 of the Reforms Act before the Revenue

Assistant claiming themselves to be in adverse cultivatory

possession of the land and contending that the respondents No.3

to 14 being recorded bhumidhars of the said land having not

taken any action for their ejectment, the appellants had become

entitled to be declared as bhumidhars of the said land.

(vii) The respondents No.3 to 14 were proceeded against ex parte in

the said proceeding under Section 85 of the Reforms Act and

vide ex parte orders dated 28th May, 1992 (supra), the said

application of the appellants under Section 85 of the Reforms

Act was allowed and the appellants were declared as the

bhumidhars of the said land.

(viii) The appellants in or about the year 2000, for the first time in

CS(OS) No.2888/1991 aforesaid, took a stand that they had

vide order dated 28th May, 1992 been declared as the

bhumidhars of the subject land and were thus not required to

sue for specific performance.

(ix) The respondents No.3 to 14 thereafter filed the application

before the Revenue Assistant for setting aside of the ex parte

order dated 28th May, 1992 contending that they had never been

served with the notice of the said proceedings under Section 85

of the Reforms Act and the appellants had manipulated to show

that the notices have been served upon them and had thereby

obtained an ex parte order dated 28th May, 1992.

(x) The Revenue Assistant vide order dated 12th April, 2001 supra

dismissed the said application of the respondents No.3 to 14 for

setting aside of the ex parte order dated 28th May, 1992, solely

on the ground that the application had not been filed within the

prescribed period of limitation.

(xi) The respondents No.3 to 14 preferred the revision petitions

(supra) to the Financial Commissioner which were also

dismissed vide order dated 13th May, 2003 (supra) also on the

ground of the application for setting aside of the ex parte order

dated 28th May, 1992 being barred by time and also observing

that considering the long history of litigation, it was difficult to

believe that the respondents No.3 to 14 were unaware of the

order dated 28th May, 1992.

(xii) Aggrieved thereform, as aforesaid, the respondents No.3 to 14

preferred the writ petition from which this appeal arises.

8. The learned Single Judge has allowed the writ petition and set aside

the order of the Revenue Assistant and the Financial Commissioner

dismissing the application of the respondents No.3 to 14 for setting aside of

the ex parte order dated 28th May, 1992 and has set aside the said order

dated 28th May, 1992 and remanded / ordered the Revenue Assistant to

decide the application of the appellants under Section 85 of the Reforms Act

after giving both the parties sufficient opportunity for adducing evidence and

on merits.

9. The learned Single Judge has reasoned that the appellants had played

fraud in obtaining the ex parte order dated 28th May, 1992 inasmuch as

while in the proceedings under Section 85 of the Reforms Act, they

contended that they were in adverse cultivatory possession of the land and

did not disclose the Agreement to Sell in their favour, in the CS(OS)

No.2888/1991 pending before this Court, their stand was of being in

possession of the land under the Agreement to Sell. It was held that the

claim of being in unauthorized / adverse possession was diametrically

inconsistent to the claim of being an agreement purchaser. It was yet further

held that the appellants did not disclose about the pendency of CS(OS)

No.2888/1991 in this Court to the Revenue Assistant.

10. The counsel for the appellants has challenged the order of the learned

Single Judge contending that:

(a) The appellants have now been in possession of the land for the

last nearly 25 years and have been regularly getting their

possession recorded in the revenue records and it will be unfair

to unsettle the settled state of affairs by directing the application

under Section 85 of the Reforms Act to be now re-adjudicated.

(b) The respondents No.3 to 14 had themselves, in or about the

year 2001, filed a suit in the Court of the Additional District

Judge, Delhi for declaration that they are the bhumidhars in

actual possession of the said land and for declaration of the ex

parte order dated 28th May, 1992 of the Revenue Assistant as

non est and for permanent injunction restraining the appellants

from interfering with the respondents no.3 to 14‟s possession

of the said land and which suit also has since been dismissed

and in view thereof, no purpose would be served in directing

the Revenue Assistant to now re-decide the proceedings under

Section 85 of the Reforms Act.

(c) The application filed by the respondents No.3 to 14 for setting

aside of the ex parte order dated 28th May, 1992 had been filed

after a long delay of eight years and the learned Single Judge

has erred in condoning the delay without considering that there

was no ground therefor .

11. We however, from a reading of the plaint in the suit supra filed by the

respondents No.3 to 14 / writ petitioners in the year 2001 find that the said

respondents in the plaint therein also were claiming to be in actual

possession of the land and controverting that the appellants were in

possession even on that date. We have thus enquired from the counsel for

the appellants, whether not the respondents No.3 to 14 / writ petitioners till

date are controverting / disputing the possession of the appellants of the said

land, and claiming themselves to be in possession.

12. Though the counsel for the appellants is not able to controvert but

contends that it is the appellants who have been getting their possession of

the subject land recorded in the revenue records for the last 25 years and on

the basis thereof contends that there is no dispute today that it is the

appellants who are in possession of the said land.

13. This Court in this proceeding is not to decide as to who is in actual

possession or the effect if any of the entries in the revenue record of

possession as claimed by the appellants. The scope of the writ petition from

which this appeal arises was confined to the correctness of the decision of

the Financial Commissioner in refusing to entertain the application of the

respondents No.3 to 14 / writ petitioners for setting aside of the ex-parte

order dated 28th May, 1992. We have thus refused to look into the revenue

entries as the counsel for the appellants want us to. However from the fact

that the respondents no.3 to 14 till date are controverting that the appellants

are in possession, it is evident that there is no merit in the first of the

aforesaid contentions of the counsel for the appellants that the matter should

not be allowed to be re-opened after this long time. Moreover it cannot also

be lost sight of that the parties have throughout been litigating. It is thus not

as if the matter had attained quietus at any stage.

14. As far as the second contention aforesaid of the counsel for the

appellants is concerned, we find that the suit aforesaid filed by the

respondents No.3 to 14 / writ petitioners in the year 2001 was dismissed by

the learned Additional District Judge on 3rd March, 2012 on the ground of

being not maintainable before the Civil Court. Rather, the plaint was

rejected on the said ground. The said judgment thus does not come in the

way of the respondents No.3 to 14 / writ petitioners seeking reopening of the

ex-parte order dated 28th May, 1992 supra.

15. We have enquired from the counsel for the appellants, whether the

appellants during the pendency of CS(OS) No.2888/1991 in this Court, at

any time informed that they had after the institution of the said suit, applied

to the Revenue Assistant under Section 85 of the Reforms Act or whether

they had after the ex-parte order dated 28th May, 1992 in their favour ever

informed in the said suit of the same.

16. The counsel for the appellants admits that the appellants had never so

informed till the year 2000 as aforesaid and immediately whereafter the

respondents No.3 to 14 / writ petitioners had filed the suit aforesaid before

the learned Addl. District Judge and applied for setting aside of the ex-parte

order. No reason has been forthcoming, for not so informing during the

proceedings in CS(OS) No.2888/1991 which the respondents No.3 to 14 /

writ petitioners were contesting.

17. In the face of the aforesaid, we do not find any reason to interfere with

the conclusion arrived at by the learned Single Judge, of the appellants

having acted fraudulently in the matter of obtaining ex-parte order dated 28th

May, 1992 and in taking contradictory stand in the said proceeding before

the Revenue Assistant and in CS(OS) No.2888/1991, pending at the same

time and which they were not entitled to do and which contradictory stand

they concealed from both the proceedings. We may add that a person is

entitled to apply under Section 85 of the Reforms Act for being declared as a

bhumidhar, only when he has taken or retained possession of land in

bhumidari of another, otherwise than in accordance with the provisions of

the law in force and the bhumidar has not taken action for ejectment of such

person within the time prescribed therefor, under Section 84 of the Reforms

Act. A claim under Section 85 thus has an element of adverse possession i.e.

of entry by force. Such a claim is contradictory to the claim made by the

appellants in CS(OS) No.2888/1991 of being in possession of land under an

Agreement to Sell and which is lawful possession. Reference in this regard

can be made to Mohan Lal Vs. Mirza Abdul Gaffar (1996) 1 SCC 639,

Karnataka Board of Wakf Vs. Government of India (2004) 10 SCC 779,

Anna Saheb Babusaheb Patil Vs. Balwant @ Bala Saheb Babu Saheb

Patel (1995) 2 SCC 543 and L.N. Aswathama Vs. P. Prakash (2009) 13

SCC 229 laying down that the person claiming lawful title to the property

cannot simultaneously take the plea of adverse possession

18. The counsel for the appellants at this stage states that the learned

Single Judge, while remanding the proceedings vide para 39 of the

impugned judgment has referred to the proceedings before the Revenue

Assistant as under Section 84 of the Reforms Act; it is stated that they were

not proceedings under Section 84 and the proceedings were under Section

85. It is further stated that though the learned Single Judge in para 1 of the

impugned judgment has noticed that the writ petition initially had been filed

by 12 petitioners i.e. respondents No.3 to 14 herein but except the petitioner

No.8 (stated to be respondent No.10 Sh. Sanjeev Jain herein) all other

petitioners had compromised with the appellants and stopped appearing in

the Court but has while remanding the proceedings, not clarified that the said

remand is qua the said Sh. Sanjeev Jain only. He thus contends that at least

the said aspects be clarified.

19. The counsel for the respondents No.1 & 2 i.e. the Financial

Commissioner and the Revenue Assistant, appearing on advance notice

states that the reference in para 39 of the impugned judgment to the

"application under Section 84 of the Delhi Land Reforms Act, 1954" is a

typographical error, as the proceedings were under Section 85. She thus has

no objection to the said clarification.

20. For the said purpose, we do not deem it necessary to issue notice to

the respondents No.3 to 14. Accordingly, while dismissing the appeal, we

clarify that the proceedings which have been remanded by the learned Single

Judge for fresh adjudication before the Revenue Assistant are the

proceedings which culminated in the ex-parte order dated 28th May, 1992;

we further clarify that the decision by the Revenue Assistant in the said

remanded proceedings would be qua such of the respondents No.3 to 14 who

contest the said proceedings and axiomatically would govern the share of the

said contesting respondents only.

The appeal having been dismissed at the initial stage, no costs.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE

DECEMBER 9, 2014 „gsr/bs‟