Delhi High Court

Jagmal vs Ramesh Chand Aggarwal And Ors. on 24 November, 2014

Author: G.P. Mittal

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Pronounced on: 24th November, 2014

+       CS (OS) 735/ 2011

        JAGMAL                                                          ..... Plaintiff

                                 Through:      Ms. Smita Maan, Adv.

                                 versus

        RAMESH CHAND AGGARWAL AND ORS.                                ..... Defendants

                                 Through:      Mr. Aditya Chandra, Adv. for D-1 and
                                               D-10.
                                               Mr. Pankaj Vivek, Adv. with
                                               Mr. Anupriya Singh, Adv. for D-2.
                                               Mr. Rajesh Yadav, Adv. for
                                               D-7, 8, 9, 11 and 12.

%
        CORAM:
        HON'BLE MR. JUSTICE G.P. MITTAL

IA No. 9211/ 2011 (Order VII Rule 11 CPC) in CS (OS) 735/ 2011

1.      By virtue of this application, Defendant no. 2 lays challenge to the

        jurisdiction of this Court to entertain the present civil suit. The

        contention raised by the Plaintiff is that for the purpose of deciding

        maintainability of the suit, only the pleadings in the suit are to be

        considered. In the plaint, the Plaintiff has himself claimed that the




I.A. No. 9211/ 2011 in CS (OS) No. 735/ 2011                              Page 1 of 14
         land, the subject matter of the suit is an agricultural land covered by

        the provisions of the Delhi Land Reforms Act, 1954 (the Act of 1954).

2.      This suit for permanent injunction has been filed by the Plaintiff

        against the Defendants seeking restraint upon the Defendants through

        its agents etc. from carving out any unauthorised colony from the suit

        land. Relying on the provisions of Sections 81, 83 and 185 of the Act

        of 1954 and the judgment of this Court in Anil Kumar and Anr. v.

        B.R.B. Constructions Pvt. Ltd. and Ors., CS (OS) No. 1332/ 2007

        decided on 14.05.2008, the contention of the learned counsel for

        Defendant no. 2, which is supported by the other Defendants is that

        the jurisdiction of the Civil Court to entertain such a suit for injunction

        is barred.

3.      On the other hand, the learned counsel for the Plaintiff places reliance

        on Pradeep Kumar Sharma and Anr. v. Smt. Shanta Sharma @ Shanti

        and Ors., CS (OS) No. 1920/ 2011, decided on 22.01.2013 and

        Ramesh Chander Aggarwal v. Ram Pal, FAO No. 240/ 2006, decided

        on 12.01.2010 to contend that the such a suit is maintainable before

        this Court.




I.A. No. 9211/ 2011 in CS (OS) No. 735/ 2011                           Page 2 of 14
 4.      Before adverting to the relevant case law, it would be apposite to go

        into the basis for filing the instant suit and the ground led by the

        Plaintiff.

5.      It is the case of the Plaintiff that he is an agriculturist by profession

        and is the co-owner and in possession of 1/ 36th share of land forming

        part of various khatas out of total land of 74 bighas and 16 biswas,

        situated in the revenue estate of village Rajokari. Paras 2 to 9 of the

        plaint reads as under:-


                "2. That the defendants are also co-owners in the
                above suit land. The suit land is governed by the
                provisions of Delhi Land Reforms Act, 1954 and same
                can be used for the purpose permitted under the said Act.
                The said Act is a complete code in itself the right and
                liability of the parties are controlled and governed by the
                said Act. The said Act places certain restriction on the
                bhoomidar in respect of the use and enjoyment of the
                said lands.

                3.    That there has been no partition in the suit land till
                date between the plaintiff, defendants and its other co-
                owners, the suit land can be partitioned under the
                provisions of said Act by restoring to section 55 of the
                said Act. The mode of partition of the land has been
                prescribed in section 57 of the said Act. Since no co-
                owner of the suit land has an area 8 standard acre or
                more, it is not partiable under the said Act.

                4.     That it is relevant here to point out that the
                plaintiff is in actual physical cultivator possession upto

I.A. No. 9211/ 2011 in CS (OS) No. 735/ 2011                           Page 3 of 14
                 the extent of his 1/36th share in the suit land and using
                the same for agricultural purpose with the consent of the
                other co-owners for the convenience of between
                cultivation and similarly the other co-owners of the suit
                land are also using and cultivating the portion of the suit
                land with the consent of plaintiff. Every co-owner have
                his right over the every inch of the suit land as same has
                not been partitioned.

                5.     That the defendants who claim to be the developer
                of the land are engaged in the business of carving out the
                unauthorized colony in the Union Territory of Delhi. It is
                submitted that the defendants are not the original
                bhoomidars of the suit land, but they have purchased the
                part of the suit land from the other co-owners who were
                the original bhoomidars of the suit land. The defendants
                are not agriculturist by profession, the defendants have
                purchased the part of the suit land with the intention to
                carve out the unauthorized colony therein.

                6.     That the suit land can be used only for agricultural
                and related purposes. Section 22 of the said Act provides
                for the right of the bhoomidar to the exclusive possession
                of the land in his holding. It is provided that the land can
                be used for the purposes connected with agriculture,
                horticulture, animal husbandry, which include
                pisciculture and poultry farming and to make
                improvement. If any of the co-owners of the suit land use
                the land for any other purpose not permitted under the
                said Act or raises any construction without the
                permission of the concerned authorities, the proceedings
                u/s 81 of the said Act are liable to be initiated for the
                ejectment of bhoomidar on the suit of the Gaon Sabha for
                using the land for any purposes other than a purpose
                connected with agriculture, horticulture etc. The effect of


I.A. No. 9211/ 2011 in CS (OS) No. 735/ 2011                           Page 4 of 14
                 mis-user of the land and initiation of proceedings u/s. 81
                of the said Act is that the land is taken out of the holding
                of the bhoomidar and vests in Gaon Sabha. In this view
                of the matter, the suit land shall only be used for
                agricultural and related purposes as permitted under the
                said Act.

                7.     That the right from the beginning, the defendants
                have been bent upon mis-using the land. Their intentions
                and efforts were always opposed and thwarted by the
                plaintiff. The plaintiff from very beginning is engaged in
                agricultural activity over the suit land for his and his
                family livelihood.

                8.     That the defendants having ulterior motives and
                malafide intentions started pressurizing the plaintiff to
                transfer his share in the suit land at a throw away price
                to them, but the plaintiff declined to accede to the said
                threats of the defendants.

                9.      That recently, the defendants in order to mis-use
                the part of the suit land have stored the building material
                i.e. bricks and dust over the land bearing Khasra No.978,
                857/2 and 871/2 and have also engaged the labourers for
                digging the land with the intention to raise some
                unauthorized construction over the above said Khasra
                numbers which are a part of the suit land. The
                photographs which depict the picture of building
                materials stored by the defendants over the above said
                Khasra numbers and engagement of the labors by them
                for digging the land with the intention to raise the
                unauthorized constructions are attached herewith. The
                defendants have the ulterior motive behind this
                unauthorized construction to develop unauthorized
                colony therein."


I.A. No. 9211/ 2011 in CS (OS) No. 735/ 2011                           Page 5 of 14
 6.      The grievance of the Plaintiff is that as per the provision of Section 81

        of the Act of 1954, if a bhumidar or an asami misuses the land for

        purposes other than connected with agriculture, the land is liable to be

        vested in the Gaon Sabha and since the Plaintiff is a co-sharer/ co-

        bhumidar in respect of the entire land although his share is 1/ 36th and

        he is in possession of certain portions of the total land, the Plaintiff's

        land is also threatened to the action of its vesting in Gaon Sabha.

        Thus, to protect his rights, the Plaintiff has filed this suit.

7.      In Pradeep Kumar Sharma and Anr. relied upon by the learned

        counsel for the plaintiff, a suit for declaration, possession and

        permanent injunction restraining the Defendants from creating any

        third party right with respect to the suit land and raising any

        construction thereon or changing the user thereof was filed. A

        contention was raised about maintainability of the suit before the Civil

        Court. In paras 16 and 17, the learned Single Judge observed as

        under:-


                "16. Coming back to the application of the defendant
                No.1 under Order 7 Rule 11 of the CPC, the counsel for
                the plaintiff also does not controvert that the subject land
                is governed by the provisions of the Delhi Land Reforms
                Act, 1954. He however contends that the Delhi Land
                Reforms Act bars the jurisdiction of the Civil Court, as


I.A. No. 9211/ 2011 in CS (OS) No. 735/ 2011                              Page 6 of 14
                 this Bench is exercising, only qua the relief claimed in
                the plaint of declaration (which is inter alia a claim for
                declaration of bhumidari rights) and for the relief of
                possession. He states that insofar as the relief of
                declaration is concerned, he has already on 16.11.2012,
                on the basis of the statement of the counsel for the
                defendants no. 1 to 3 that the plaintiff no. 2 till then was
                the recorded owner of the land in question, given up the
                said relief. He further states that if the need for
                recovering possession arises, the plaintiff will institute
                appropriate proceedings before the Revenue Court under
                the provisions of the Delhi Land Reforms Act and the
                plaintiff as such does not press the relief of possession
                also.

                17. The remaining reliefs of the plaintiff are for
                cancellation of documents dated 05.05.2011 and for
                permanent injunction restraining the other defendants
                from alienating, encumbering or parting with possession
                of the land or raising construction thereon or changing
                the user thereof. The said reliefs are admittedly not
                within the purview of the Revenue Courts under the Delhi
                Land Reforms Act. The plaint for the said reliefs thus
                cannot be rejected on the ground of the Delhi Land
                Reforms Act."

8.      Consequently, an injunction against alienating, encumbering or

        parting with possession of the land or raising construction thereon or

        changing the user thereof till partition of the suit land was granted.

9.      Similarly, in Ramesh Chander Aggarwal v. Ram Pal (supra), an

        appeal was preferred against the order passed in an application under

        Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908

I.A. No. 9211/ 2011 in CS (OS) No. 735/ 2011                           Page 7 of 14
         (CPC). The relief claimed by the Plaintiff before the Trial Court in the

        said civil suit was that Defendants no. 1 to 9 had illegally transferred,

        alienated and sold their land in part in a piecemeal manner to

        Defendants no. 10 to 22 and that Defendants no. 10 to 22 had started

        raising boundary wall and construction which was in violation of the

        provisions of the Act of 1954. A plea was raised by the appellant/

        Defendant that there was an oral partition which fact was denied by

        the Plaintiff/ Respondent. In para 18, the learned Single Judge

extracted the conclusion reached by the Trial Court and while deciding

the appeal, in para 19 held that there was no infirmity in the impugned

order and thus, the learned Single Judge declined to interfere with the

order passed by the Trial Court. Paras 18 and 19 of the report in

Ramesh Chander Aggarwal v. Ram Pal are extracted hereunder:-

"18. Trial court in this regard observed;

"Admittedly plaintiff is having 1/16th share in the suit land and the said land is governed by the provisions of DLR Act. The suit land has not been partitioned by metes and bounds as has been alleged by the plaintiff in the plaint. Thus, the plaintiff has every right to file a suit for permanent injunction which is not governed under specific matters enumerated in Schedule I of the DLR Act and, therefore, the Civil Court has jurisdiction to entertain the present suit."

19. No ambiguity or infirmity can be found in the impugned order and there is no reason to disagree with the above findings of the trial court."

10. It may be mentioned that in both the cases i.e. Pradeep Kumar Sharma

and Anr. and Ramesh Chander Aggarwal, the scheme of the Act of

1954 was not gone into by the learned Single Judge. The facts of the

instant case are akin to the facts of Anil Kumar and Anr. v. B.R.B.

Constructions Pvt. Ltd. and Ors. (supra), wherein after noting the

facts, the Trial Court extracted the provisions of Sections 81, 83 and

185 of the Act of 1954. The learned Single Judge observed that the

reliefs sought were clearly within the exclusive jurisdiction of the

Revenue Assistant and thus, the remedy before the civil court was

barred. Consequently, the suit was dismissed being not maintainable

before the Civil Court. It would be appropriate to extract Sections 81,

83 and 185 of the Act of 1954 hereunder for ready reference:-

"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 land holder, 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.

Notwithstanding anything contained in sub section (1) the Revenue Assistant also may, on receiving information or on his own motion, eject the Bhumidhar or Asami, as the case may be, and also recover the damages referred to in sub-section (1), after following such procedure as may be prescribed."

83. Suit for compensation and repair of the waste or damage. - 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.

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, take cognizance of any suit, application, or proceedings mentioned in column 3 thereof.

(2) Except as hereinafter provided no appeal shall lie form 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."

11. In paras 9 to 14 of the report in Anil Kumar and Anr. v. B.R.B.

Constructions Pvt. Ltd. and Ors. (supra), the learned Single Judge

held as under:-

"9. The reliefs claimed in the present case undeniably are injunctive in nature. Therefore, prima facie, the reliefs appear to be covered by Section 83(a). The question is whether the said provision is a supplementary, in aid of Section 81 as contended by the plaintiffs or an independent one as contended by defendants. In case of the former, the plaintiffs' choice to maintain the proceedings is preserved. However, if it is held that Section 83 confers an independent power, then the suit may be barred by virtue of Section 185.

10. Section 81(1) enacts that the bhumidar would be liable to ejectment of the suit instituted at the behest of the Gaon Sabha or land owner as the case may be for using the land for purposes other than what are deemed agricultural (a term which is statutorily defined) under the Act. Section 81 (2) confers suo moto power upon the Revenue Assistant to seek direct ejectment and also recover damages, further to the power under Section 81(1). Textually itself, the machinery for ejectment is not exclusively set into motion by the Gaon Sabha; it can also be independently brought through a suit filed by the land owner. Undoubtedly, this provision spells out a larger relief. However, it is restricted in its scope, in that

it enables the land owner or the Gaon Sabha to file a suit for ejectment from the land in case the act complained of does not amount to agricultural use.

11. Section 83 beings with a non-obstante clause and makes express reference to Section 81. It enacts that the Gaon Sabha or the land owner may "in lieu of" seeing for ejectment, sue for injunction with or without compensation (clause (a)). It is now well settled that a non-obstante clause has to be given effect to in its own terms. In this case, Section 83 makes parliamentary intendment clearly beyond any shade of doubt i.e. that anything stated in Section 81 should not be construed as an impediment in regard to matters enacted in the latter provision. So viewed, the amplitude of the relief, claimed in Section 83 cannot be cut down in the manner suggested on behalf of the plaintiffs. Therefore, the expression "in lieu of" has also to be construed in its own terms as "instead" rather than in aid of the power under Section 81.

12. The above reasoning is also supported by Entry 18 to Schedule-I to Section 185 which enacts the bar to jurisdiction of the civil court. It reads as follows:

"suit for injunction or for the repair of the waste or damage caused to the holdings"

13. The reference for suit for injunction is cast the widest amplitude if this is read with Section 83. The nature of the reliefs which are available by provisions of Act have to be construed in a wide and liberal manner and not restrictively as suggested on behalf of the plaintiffs.

14. The Act is a complete code. It regulates agricultural holdings and spells out various categories of rights (bhumidari, Asami etc.) as well as condition for their recognition or grant. It creates and empowers a hierarchy of revenue authorities who have powers to administer its provisions. The Act is meant also to preserve agricultural use of land. The various actions which individuals can initiate include proceedings for declaration as well as partition. In this case, the title of the plaintiffs to the lands in their possession as joint owners is not questioned. Their alleged encroachment and threat to construct on the plaintiffs' portions, however, is sought to be injuncted. Having regard to the amplitude of powers under Sections 81 and 83, particularly the latter, the Revenue Assistant has exclusive jurisdiction to grant such relief."

12. Thus, the learned Single Judge held that the suit for injunction or for

repair of the waste or damage caused to the holding is covered by the

provisions of Sections 81, 83 and 185 of the Act of 1954 read with

Entry 18 to Schedule-I and therefore, the Civil Court did not have any

jurisdiction to entertain the suit.

13. It is urged by the learned counsel for the Plaintiff that since there is

divergence of opinion in the judgments relied upon by the Plaintiff

and the Defendants, the Court may deem it appropriate to make a

reference for constitution of Larger Bench. I am, however, unable to

agree with the contention raised on behalf of the Plaintiff.

14. The question was gone into in detail and the scheme of the Act

discussed by the learned Single Judge in Anil Kumar. Therefore, the