Delhi High Court
Suresh Bala & Ors vs Rampal on 15 January, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 252/2013
% 15th January, 2014
SURESH BALA & ORS ......Appellants
Through: Mr. B.S.Mann, Advocate.
VERSUS
RAMPAL ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. This regular second appeal impugns the judgment of the appellate
court dated 20.7.2013 by which the appellate court set aside the judgment of
the trial court dismissing the suit as being not maintainable in the civil court
in view of Section 185 of the Delhi Land Reforms Act, 1954. The case of
the appellants before this court, and who were the defendants in the suit, is
that Section 185 of the Delhi Land Reforms Act is a complete bar to the
maintainability of the suit. Reliance is placed on behalf of the appellants
upon a judgment of a Division Bench of this Court in the case of Om
Prakash & Ors. Vs. Govt. of NCT of Delhi & Ors. LPA No.81/2012
decided on 11.9.2012.
RSA No.252/2013 Page 1 of 14
2. At the outset, it must be stated that the civil courts' jurisdiction is
barred by virtue of Section 185 of the Delhi Land Reforms Act only if the
proceedings before the civil court are either in form or in substance
such/those proceedings which are found in any of the entries in Schedule-I
to the Delhi Land Reforms Act. Schedule-I of the Delhi Land Reforms Act
contains a total of 9 columns for each of the entries. The third column is the
description of the proceedings, however, what is more important is column-2
because description of the proceedings are only those as are relatable to the
specific sections which are mentioned in column-2 of Schedule-I. Putting it
in other words description of the nature of the proceedings in column-3 does
not have independent existence which is to be conclusive of the nature of the
proceedings and the nature of the proceedings in column-3 have also to be
the proceedings which are subject of the specific sections in column-2 of the
same entry. I have had an occasion to extensively examine this aspect in the
judgment in the case of Ashok Kumar & Ors. Vs. Smt. Munni Devi & Ors.
RFA 621/2003 decided on 5.3.2012 wherein I have held that by virtue of
Section 185 only those proceedings cannot be tried by civil court if such
proceedings necessarily fall within any of the entries read with sections as
contained in Schedule-I of the Delhi Land Reforms Act. The relevant
RSA No.252/2013 Page 2 of 14
observations as contained in the said judgment are in paras 5 to 7 and which
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
RSA No.252/2013 Page 3 of 14
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,
RSA No.252/2013 Page 4 of 14
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."
3. Another judgment on this aspect delivered by me is in the case of
Subash Chand Vs. Gaini Ram & Ors. RFA 167/2008 decided on 24.5.2012
wherein I have held that reliefs claimed in the suit fall into two types of
classes. One type of reliefs which in form and substance with its cause of
action, are those falling within any one or more of the entries in schedule-I
of the Delhi Land Reforms Act i.e nature of the proceedings are those as per
both the description and the sections, then, qua such reliefs and causes of
action civil courts cannot try the suit. However, second type of proceedings
are those which to the extent of causes of action and reliefs are such that
they do not fall in form and substance under the description of the
proceedings and the sections as contained in the entries to Schedule-I of the
Delhi Land Reforms Act and in such cases qua those reliefs and causes of
action the suit is maintainable in civil courts. In the said judgment I have
RSA No.252/2013 Page 5 of 14
referred to the relevant paras of Ashok Kumar's case (supra) in para-3.
Paras 4 to 7 of the judgment in the case of Subash Chand (supra) read as
under:-
"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
No. of the of suit Limitation which Court original Appeal of 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,
RSA No.252/2013 Page 6 of 14
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
possession 151
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.
4. The facts of the present case show that the respondent-plaintiff in the
plaint pleaded that he was the adopted son of Sh. Badle. Sh. Badle was
admittedly the owner/bhumidhar of the suit land. Respondent-plaintiff
claimed that the defendants had wrongly got executed documents being
registered sale deed dated 25.7.96 and the power of attorney dated 21.4.1995
from his adopted father Sh. Badle, and therefore, relief of declaration was
prayed for these documents as being null, void and inoperative. Mandatory
injunction has also been sought for direction to the defendant nos. 1 and 2 in
the suit, appellants no.1 and 2 herein, for getting the General Power of
Attorney and the sale deed cancelled from the office of the sub-Registrar.
Perpetual injunction was/is also sought to restrain the defendants from
dispossessing the plaintiffs. The following are the prayer clauses in the suit
plaint:-
"(a) Pass a decree of declaration in favour of the plaintiff and
against the defendants thereby declaring the GPA dated 21.4.1995 and
sale deed dated 25.07.1996 executed qua suit land as null and void,
inoperative and ineffective.
(b) Pass a decree of mandatory injunction in favour of the plaintiff
and against the defendants no.1 and 2 thereby directing them to get the
GPA dated 21.04.1995 and sale deed dated 25.07.1996 and other
related documents qua suit land, if any, cancelled from the office of
Sub-Registrar concerned.
(c) pass a decree of perpetual injunction in favour of the plaintiff
and against the defendants above named thereby restraining the
defendants, their legal heirs, successors, assigns, agents employees,
representatives etc. from forcibly dispossessing the plaintiff from suit
land i.e land comprised in Rectangle No. 69, Killa No.12,
admeasuring 4 Bighas and 16 Biswas i.e one Acre situated in the
revenue estate of village Jonapur, Tewhsil Mehrauli, New Delhi (as
depicted in Aks Sizra attached with the plaint) without due process of
law."
5. When we read the prayer clauses alongwith columns 2 and 3 as
contained in Schedule-I of the Delhi Land Reforms Act, it is clear that
neither in form nor in substance any of the reliefs which are claimed fall in
columns 2 and 3 of Schedule-I of the Delhi Land Reforms Act, 1954. There
is no entry in Schedule-I with any related section for passing of any decrees
as claimed in the suit for declaration or mandatory injunction for
cancellation of title documents executed by a bhumidar in favour of another
person on the ground that such title documents are hit by fraud. Of course,
at this stage, I hasten to add that I am not commenting in any manner on the
merits of the matter as to whether the case of the plaintiff is correct or it is a
false case set up, and this aspect has to be necessarily decided in the suit. For
the present I am only examining the suit plaint on the face of it because the
suit plaint was rejected by the trial court under Order 7 Rule 11 CPC because
the civil court was said to have lacked jurisdiction in view of Sections 185
and 186 of the Delhi Land Reforms Act.
6. Once none of the prayer clauses alongwith the relevant causes of
action with respect to validity or otherwise of the transfer of title in the suit
land by means of sale deed and power of attorney are the subject matter of
any of the sections contained in column-2 of Schedule-I then merely because
there is some similarity of description in column-3 for the prayers in the suit,
the same will not make the suit as a suit for falling within any of the relevant
entries and the sections in column-2 of Schedule-I of the Delhi Land
Reforms Act as observed in the cases of Ashok Kumar (supra) and Subash
Chand (supra). It is necessary that the suits have to be suits which fall
within the specific sections mentioned in column-2 and general description
contained in column-3 cannot be allowed to be determinative of the issue
because the nature of proceedings in column-3 is only and only relatable to
the sections which are specified in column-2 of Schedule-I of Delhi Land
Reforms Act.
7. Therefore, it is clear that none of the reliefs which are prayed for in
the present suit alongwith the causes of action fall in any of the sections
contained in column-2 of Schedule-1 of the Delhi Land Reforms Act.
Though in entry-4 there is a description of declaration of bhumidhari rights,
however, I refuse to agree to the arguments urged on behalf of the appellants
that the suit in the present case is in fact for declaration of bhumidhari rights
and would therefore fall in that entry-4 because the description of the suit
contained in column-3 of entry-4 of declaration of bhumidhari rights is
necessarily relatable to the sections which are specified with respect to
entry-4 in related column-2 of entry-4 and in column-2 of the entry no
section has been pointed out to me which deals with the causes of action and
reliefs which are claimed in the present suit. Therefore, it is a misconceived
argument which is urged on behalf of the appellants that the suit in question
falls in entry-4 of Schedule-I of the Delhi Land Reforms Act.
8. Reliance placed on behalf of the appellants on the judgment of a
Division Bench in the case of Om Prakash (supra) is not applicable because
the facts in the case show that original proceedings themselves were initiated
with respect to challenge to mutation before the revenue authorities.
Disputes as to mutation were between the legal heirs of the original
owner/bhumidar and with respect to devolution of title by means of will of
the deceased owner/bhumidhar of the lands. On account of the disputes
existing between the legal heirs of the original owner, there were disputes as
to mutation and with respect to such issues ultimately the matter reached the
Division Bench of this Court in LPA No.81/2012 and it is in such
circumstances, the Division Bench has made observations in para 18 as
under:-
"18. Though the Schedule 1 to the Reforms Act does not refer
to disputes as to mutation which, as aforesaid, are within the
domain of the Revenue Act but refers to dispute as to
declaration of bhumidhari rights. Where mutation is claimed on
the basis of title and such claim is disputed, it would tantamount
to declaration of bhumidhari rights and would be within the
domain of the proceedings mentioned in the Schedule 1 to the
Reforms Act."
9. The aforesaid observations are therefore limited to the aspect of
disputes inter se legal heirs in revenue proceedings with respect to the
mutation by devolution on account of death of the original
owner/bhumidhari. In the present case, however, the issue in question has
nothing to do with mutation and with respect to which no reliefs are asked
for in the suit and the disputes are as to validity or otherwise of the
documents being the sale deed dated 25.7.1996 and General Power of
Attorney dated 21.4.1995. Such disputes in my opinion do not fall in the
disputes with respect to mutation. With all humility I would also say that in
the judgment of Om Prakash (supra) though there is reference to Schedule-I
of the Delhi Land Reforms Act there is no discussion as has been given by
me in the judgments in the cases of Ashok Kumar (supra) and Subash
Chand (supra) by co-relating the description of the proceedings in column-3
with sections as specified in column-2 of the Schedule-I, and only in
which/such circumstances, the jurisdiction of the civil court is barred, and
not otherwise.
10. In view of the above no substantial question of law arises in this
appeal to be entertained inasmuch as the issues are no longer res integra in
view of the judgments in the cases of Ashok Kumar (supra) and Subash
Chand (supra) as stated above.
11. The appeal is therefore dismissed, leaving the parties to bear their own
costs.
JANUARY 15, 2014 VALMIKI J. MEHTA, J.
ib
