Bhagwati & Ors vs Sher Singh & Ors
2014 Latest Caselaw 2994 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of Decision: 8th July 2014

+      IA Nos.15854/2013 & 11113/2013 in CS(OS) 1032/2013

       BHAGWATI & ORS                               ..... Plaintiffs
                   Through              Mr.L.M.Asthana, Mr.Siddhant
                                        Asthana and Mr.P.R.Singh,
                                        Advocates

                     versus

       SHER SINGH & ORS                             ..... Defendants
                     Through            Mr.Arun Kumar Gupta, Advocate for
                                        D-1
                                        Mr.B.S.Maan and Mr.Vishal Maan,
                                        Advocates for D-2 and D-3

       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.

IA No.11113/2013(under Order VII Rule 11 CPC)

1. The present application is filed by defendants No.2 and 3 under Order 7 Rule 11 CPC read with Section 185 of the Delhi Land Reforms Act, 1954 for rejection of the plaint.

2. The plaintiffs have filed the present suit seeking a decree of permanent injunction against the defendants to restrain them from alienating, transferring, dealing or negotiating for sale or parting with possession or creating third party interest in respect of the property i.e. 1/6th share in agricultural land bearing Khasra No.507 & 521, comprised in Khasra No.49/7/1(2-14), 8(2-12), 9(2-0), 12(2-8), 13(4-16), 14(4-11),

17/1(1-12), 19/1(1-18), East 26(1-7), 169(13-15), total area measuring 55 Bighas 5 Biswas situated at village Bijwasan, Tehsil-Kapasera, New Delhi and for a decree of mandatory injunction directing the defendants for joint mutation of the property in favour of the plaintiffs as per the settlement executed between the parties.

3. As per the plaint the parties are the real brothers and sisters/legal heirs of late Sh.Ram Prasad who died on 23.12.1997. The said late Sh. Ram Prasad was the recorded owner and in possession of 1/6th share in agricultural land bearing Khasra No.507 & 521, comprised in Khasra No.49/7/1(2-14), 8(2-12), 9(2-0), 12(2-8), 13(4-16), 14(4-11), 17/1(1-12), 19/1(1-18), East 26(1-7), 169(13-15), total area measuring 55 Bighas 5 Biswas situated at village Bijwasan, Tehsil-Kapasera, New Delhi. It is urged that the plaintiffs are the daughters (plaintiffs No.4 and 5 being LRs of deceased daughter, namely, Smt.Rita) of late Sh.Ram Prasad. Defendants are the three sons of late Sh.Ram Prasad. It is averred that under the Hindu Successions Act, 1956, the siblings are entitled to 1/7th share in the said property. Reliance is placed on the Hindu Succession (Amendment) Act, 2005. It is further averred that the plaintiffs approached SDM, Tehsil Vasant Vihar, New Delhi for joint mutation. The SDM vide order dated 20.04.2013 mutated the property in the name of the defendants. It is urged that an appeal is pending against the said order of the SDM. It is further urged that during the pendency of the appeal, a family settlement took place and a memorandum-cum-family settlement deed dated 10.05.2013 was executed settling the issues whereby it was decided that the said land would be mutated in the revenue record jointly in the name of the parties. Despite the settlement the defendants have not joined in carrying out the mutation. Hence, the present suit has been filed.

4. Defendants No.2 and 3 have filed the present application. It is denied that the Hindu Succession (Amendment) Act, 2005 would apply to the facts of the present case inasmuch as Sh.Ram Prasad died on 23.12.1997. It is further urged that in the present facts the Delhi Land Reforms Act, 1954 would be applicable and under Section 50 of the said Act, the defendants being the male lineal descendants would succeed to the bhumidari rights and the plaintiffs have no right, title or interest. It is further urged that the present suit is barred under Section 185 of the Delhi Land Reforms Act inasmuch as it is urged that the plaintiffs are neither bhumidars nor asamis qua the suit land and that a person who is not a bhumidar or an asami cannot directly approach the civil court seeking injunction. Reliance is placed on Section 83 on the said Delhi Land Reforms Act read with Sections 185 and Entry 18 of Schedule-I of the said Act. The plaintiffs filed their reply to the said application denying the allegations of the defendants.

5. Learned counsel appearing for defendants No.2 and 3 has strenuously urged that the plaintiffs were obliged to first seek a declaration that they are bhumidars before the revenue court and then only they can approach the civil court and in view thereof, the suit is barred under Section 185 of the Delhi Land Reforms Act. Learned counsel also relies upon the judgment of this Court in the case of Smt. Mukesh & Ors. vs. Shri Bharat Singh & Ors., 149 (2008) DLT 114.

6. Learned Counsel appearing for the plaintiffs has on the other hand pointed out that a suit for injunction is not covered by Section 185 of the Delhi Land Reforms Act. He has relied upon the judgments of this Court reported in Ashok Kumar & Ors. vs. Munni Devi & Ors.,188 (2012) DLT 589, Anand Prakash & Ors. vs. Ram Kala & Anr., 167 (2010) DLT 225 and Mansa Ram vs. Tilak and Anr.,195 (2012) DLT 182.

7. The only ground on which rejection of the plaint is sought is that on a conjoint reading of Section 83 read with Section 185 of the Delhi Land Reforms Act read with Entry 18 of Schedule-I to the Delhi Land Reforms Act, the present suit is not maintainable. Section 185 (1) of the said Act reads as follows:-

"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."

8. Similarly Entry 18 to Schedule I of the Delhi Land Reforms Act reads as follows:-

Schedule I

Sl. Section Description of suit Period of Time Proper Court of Court of No. of the application and Limitation from Court Original 1st 2nd Act other proceedings which Fees Jurisdicti Appeal Appeal period on begins

18. 83 Suit for injunction Three From the [As in Revenue Deputy ..

                or for the repair of     years or   date the    the       Assistant    Commis
                the     waste     or     one year   damage is   Court                  sioner
                damage caused to         from the   done   or   Fees
                the holding.              date of   the waste   Act,
                                       passing of   begins      1870.]
                                        the Delhi
                                           Land
                                        Reforms
                                       (Amendm
                                         ent Act,
                                           1965,
                                       whichever
                                          period
                                          expires
                                           later

9. Hence suits as provided in the said Act are to be tried in courts as mentioned in Schedule I and are not to be tried by a civil court. Entry 18 of

Schedule I refers to Section 83 of the Act. For appreciation of Section 83 of the Act it is also necessary to read Section 81 of the Act. Section 81(1) and Section 83 of the said Act reads as follows:-

"81. Ejectment for use of land in contravention of the provisions of this Act.- (1) A Bhumidhar or an Asami shall be liable to ejectment on the suit of the Gaon Sabha or the landholder, as the case may be, for using land for any purpose other than a purpose connected with agriculture, horticulture or animal husbandry, which includes pisciculture and poultry farming, and also pay [damages] equivalent to the cost of works which may be required to render the land capable of use for the said purposes.

....

83. Suit for compensation and repair of the waste or damages.-Notwithstanding anything in Section 81, the Gaon Sabha or the land-holder may, in lieu of suing for ejectment, sue-

(a) for injunction with or without compensation, or

(b) for the repair of the waste or damage caused to the holding."

10. Hence a conjoint reading of Sections 185, 81 and 83 would show that these provisions cover a suit where a bhumidhar or an asami is using a land for any purpose other than a purpose connected with agriculture, horticulture or animal husbandry. In such circumstances, the Goan Sabha and land holder may sue for ejectment or sue for injunction or repair of the waste or damages caused to the holdings.

11. The facts of the present suit as narrated above do not show that it is covered by the situation envisaged under Sections 81 and 83 of the Delhi Land Reforms Act. Merely because Section 83 talks about a suit for injunction, this Section cannot mean to imply that it covers every suit for injunction. Section 83 deals with a situation where the bhumidhar or asami

is using the land for purpose other than agriculture, horticulture or animal husbandry. The Section has to be read as a whole.

12. In the above context a reference may be had to the judgment of this

High Court in the case of Anand Prakash vs. Ram Kala, (supra) whereby

this court in para 17 held as follows:-

"17. In Mam Raj vs. Ram Chander etc. reported in 1974 Rajdhani Law Reporter 428, permanent injunction was claimed by the plaintiff on the basis of succession to bhumidhari rights by virtue of a will. A learned Single Judge of this Court [Hon'ble Mr. Justice Yogeshwar Dayal (as His Lorship then was)] held that a suit in which permanent injunction is claimed on the basis of succession to bhumidhari rights is not covered by any entry in column 3 of the First Schedule and thereby is not either expressly or impliedly barred by the Delhi Land Reforms Act. In paragraph 9, it was observed as follows:

xxx

9. ..... It is thus clear that in the suit of the present type in which permanent injunction is claimed on the basis of succession to bhoomidari rights by virtue of a will, such a suit is not covered by any entry in column 3 of First Schedule and thus the Delhi Land Reforms Act does not either expressly or impliedly bar the present suit."

13. Similarly this High Court in the case of Tara Chand & Anr. vs. Kumari Rajni Jain & Ors., 150 (2008) DLT 101 in para 15 observed as follows:-

"15. Pertaining to agricultural land no remedy is available to a party before a revenue authority to seek a relief of injunction."

14. Similarly reference may be had to the observations of this Court in the case of Bimla Chaudhary vs. Union of India & Ors.,

MANU/DE/1213/2009 wherein in para 12 this Court held as follows:-

"12. The question which arises is whether a suit for injunction like the one filed by plaintiff is barred under any law or the Civil Court has no jurisdiction to entertain such a suit. Learned senior counsel for the appellant-plaintiff did not dispute the fact that the Delhi Land Reforms Act, 1954 applies to the suit land. However, he submitted that there is no bar against the entertainment of a suit for injunction only by a Civil Court under any of the provisions of the said Act of 1954. I fully agree with this submission and even the learned counsel for the DDA did not raise a plea that a suit for injunction simpliciter is barred under the said Act."

15. The reliance of the learned counsel for defendants No. 2 and 3 on the judgment of this court in the case of Smt. Mukesh & Ors. vs. Shri Bharat Singh & Ors. (supra) is misplaced. In that case the daughters had sought for partition and injunction claiming an equal share in the suit land. Reliance was also placed on the Hindu Succession (Amendment) Act, 2005. This court concluded that prima facie the Amending Act of 2005 cannot be read retrospectively. Hence succession which has taken place prior to the said Act cannot be disturbed. Here the claim of the plaintiffs is based on the memorandum of family settlement dated 10.05.2013. That aspect would have to be gone into at the time of disposal of the suit.

16. In view of the above position, there is no merit in the contention of defendants No.2 and 3. The suit as filed by the plaintiffs is not covered by the provisions of Sections 81 and 83 of the Delhi Land Reforms Act. Hence Section 185 of the said Act would have no application to the facts of the present case.

17. The present application is accordingly dismissed.

IA No.15854/2013 (under Order VII Rule 11 (a), (d) CPC for rejection of plaint for want of cause of action on behalf of defendant No.1)

1. The present application is filed by defendant No.1 stating that the plaint is liable to be rejected. The application again relies upon provisions of the Delhi Land Reforms Act. In addition, it is urged that mutation has already taken place and the plaintiffs have no right, title or interest in the suit land. Other grounds are also urged, namely, that the present suit without seeking relief of declaration is not maintainable, and that the suit is not properly valued for the purposes of court fees.

2. Learned counsel appearing for defendant No.1 has stressed that in view of Section 185 of the Delhi Land Reforms Act and the order of the SDM directing mutation of the property in the name of the defendants the present suit does not lie. It is further argued that till the appeal against the order of the SDM is decided, the plaintiffs would have no right, title or interest. No other grounds have been urged in the course of arguments.

3. As I have already held above that Section 185 of the Delhi Land Reforms Act would have no application to the facts of the present case, there is no merit in the application. Defendant No.1 is free to raise other pleas at the time of disposal of the suit. The present application is dismissed.

CS(OS) 1032/2013 List on 6th August, 2014 before Joint Registrar.

JAYANT NATH (JUDGE) JULY 08, 2014 rb