Delhi High Court
Krishan Lal vs Financial Commissioner, Delhi & ... on 15 October, 2014
Author: Suresh Kait
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 15th October, 2014
+ W.P.(C) No.175/1997
KRISHAN LAL ..... Petitioner
Represented by: Mr.S.N.Gupta and Mr. Shahil
Dhawan, Advocates.
Versus
FINANCIAL COMMISSIONER, DELHI & ORS. ..... Respondents
Represented by: Mr. R.P.Vats and Mr.Neelmani,
Advocates for Respondent Nos. 1 and
2.
Mr.D.V.Khatri, Advocate for
Respondent No.3.
Mr. B.S. Maan, Advocate for
Respondent Nos. 4 and 5.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Vide the present petition, petitioner seeks setting aside of the
judgment and order dated 26.06.1995 passed by Shri Ramesh Tiwari,
Additional Collector, Delhi; judgments and orders dated 19.12.1995 and
02.02.1996 passed by the Financial Commissioner, Delhi, in Second Appeal
No.174/95/CA and review petition bearing Case No.9/96-CA respectively.
Further seeks restoration of the judgment and decree dated 01.05.1995
passed by the Revenue Assistant/Settlement Officer (Consolidation), Delhi,
by directing the respondents to comply with the orders dated 01.05.1995.
2. This case has a long history. Brief facts of the case are that in the year
1945, petitioner and one Shri Mithun were occupying tenancy in respect of
land measuring 46 Bighas and 14 Biswas, situated in Village Holambi
Khurd, Delhi. After coming into force of the Delhi Land Reforms Act,
1954 (hereinafter to be referred as 'the Act'), the aforesaid tenants were
illegally dispossessed in the year 1954-55 without following due process of
law.
3. Thereafter, on 18.07.1955, petitioner filed an application under
Section 18(2) of the Act for regaining possession of the land in question
against the recorded owners. The Revenue Assistant held that application
was defective and accordingly dismissed the same vide its order dated
23.05.1958. Being aggrieved, petitioner filed an appeal before the
Additional Collector, who dismissed the same vide order dated 17.03.1959.
Thereafter, petitioner filed second appeal before the Chief Commissioner,
Delhi, under Section 185(4) of the Act. Vide order dated 18.08.1961 while
setting aside the impugned order dated 23.05.1958, the Chief Commissioner
remanded the case back to the Revenue Assistant with directions to dispose
of the same on merits.
4. Accordingly, the aforesaid application under Section 18(2) of the Act
was taken up for consideration by the Revenue Assistant, which was
contested by the respondents on various grounds. Based upon pleadings of
the parties, following issues were framed on 29.01.1968 by Shri
S.L.Malhotra, Revenue Assistant:-
"(i) ........................
(ii) ........................
(iii) ........................
(iv) ........................
(v) ........................
(vi) Is the applicant entitled to eject the defendants from
Khasra number which was allotted to him in connection
of proceedings in lieu of land in dispute.
(vii) Whether the Umrao Co-operative Farming Society being
formed to defeat the right of the applicant under the
provisions of the DLR Act.
(viii) Relief."
5. All the aforementioned issues, i.e., issue Nos. (vi), (vii) and (viii)
were decided in favour of the petitioner and against the respondents by the
Revenue Assistant by recording as under:-
"ISSUE NO. (VI)
The learned counsel for the defendants has again reiterated
that the application of the petitioner is not competent as the
land, the possession of which is claimed, did not exist at the
time of the application. It has come on record that the
respondents were allotted alternative plots of land in lieu of the
original places of land as a result of Consolidation of Holdings.
It is not settled law that if as a result of Consolidation of
Holding new plots of land are given in lieu of the old ones hold
by a person the rights and liabilities attached to his earlier
holding stand transferred to his new holding. If the tenants had
the right to get back their pre-consolidation holdings right
would ensure to their benefit even after consolidation and
would be applicable to holding of the owner. In this connection
the decision of Hon‟ble High Court of Delhi dated 21.04.70 in
case Mangat Vs. Phurdan (RA No. 264 D/64) refers. This issue
is, therefore, decided in favour of the petitioner and against the
respondents.
ISSUE NO.(VII):-
It has come on record that Umrao Co-operative Farming
Society had been formed by defendants No. 1 to 5 after this
institution of application in the present case. There is nothing
on record to suggest that the holdings of any person other than
defendants No. 1 to 5 were pooled and the said society was
broad-based so as to provide opening for other cultivators.
Since the land in suit was being cultivated by the petitioner as a
tenant, and by virtue of Section 1892) of the DLR Act, the
petitioner was entitled to regain his possession, its transfer to a
co-operative society naturally defeated the rights of the
applicant under the provisions of DLR Act. This issue, is
therefore, decided in favour of the petitioner and against the
respondents.
ISSUE NO. (VIII):-
In view of my findings given above I have no hesitation in
holding that the petitioner Shri Krishan Lal is entitled to get
back the possession of the land in suit to the extent of his share
from the defendants u/s 18(2) of the Act. As the land in suit was
being jointly cultivated by the petitioner and Mithan
immediately before the possession was taken by the defendants,
the petitioner is entitled to get back the possession of the land
to the 50% of the land total area. The total area of the land is
46 bighas and 14 biswas. The petitioner is, therefore, held to
be entitled to get back possession of the area measuring 23
bighas and 7 biswas.
In view of the Consolidation of holding in the village
some other Khasra numbers have been allotted to the
respondents in lieu of the suit land. Let a copy of this order be
sent to the Settlement Officer (Consolidation) who shall after
consulting the Settlement record report as to which particular
plots were to be given to the petitioner in exchange of the half
share in the land in suit. His report shall also be accompanied
by a Aksh Sizra Map and copy of card. Formal decree shall be
prepared on receipt of the report of the Settlement Officer
(Consolidation) and orders thereon."
6. Mr.S.N.Gupta, learned counsel appearing on behalf of the petitioner
submitted that admittedly this order is final, however, the issue remains is
that which land is to be given to the petitioner.
7. It is pertinent to mention here that aforesaid order dated 31.03.1971
has been confirmed by the Additional Collector, Delhi and the Financial
Commissioner, Delhi vide orders dated 18.07.1977 and 22.06.1979
respectively.
8. Accordingly, Shri K.H. Sharangal, Settlement Officer (C)/R.A. vide
its order dated 03.07.1985 recorded as under:-
"The decree holder in this case has filed an application for the
execution of decree obtained by him from the court of R.A. in
the case No.16/69 decided on 31.3.71. All the appeals filed
against order of the learned R.A. have since been decided.
However, during the course of consolidation proceedings in the
Village Kh. No. have been changed. I have heard arguments of
both the parties in this case. According to the learned counsel
for the decree holder, the change in the Kh. No. have not
materially affected on the rights of the decree holders as the
decree has got to be executed against the property held by the
judgment debtor and not on the person although in appeal
between the decision of the curt and today, the land has been
alienated by the judgment debtor yet it hardly affects the rights
of the decree holders. So far as the question of LRs of various
parties and the jurisdiction of the court is concerned a decision
to this effect has already been stressed that since the land has
already been paying rent in the instant case the decree cannot
be executed against the respondent Baljit.
I am not convinced with the arguments of the learned counsel
for the respondents and order that decree holders be delivered
possession in respect of land out of khata of the respondent
Baljeet equivalent to 23-7 on which he was in possession prior
to the initiation of consolidation proceedings since the
judgement debtors is in possession in Khasra No.24/5, 6, 15/1
total measuring 12 bighas 8 bis. which is in possession of the
judgment debtor allotted to him in lieu of reconsolidation of
Khasra No.1 etc./203 min. As this area falls short of the total
area in his possession, the decree holders to be compensation
out of the khata of judgement debtor in the shape of Khasra
No.25/9 etc. 1-0, 25/10 (4-16), 25/1(5-2). The Judgment
debtor is ejected from the land mentioned above and decree
holder be given possession of the same to satisfy the decree
passed by the R.A. as stated above. Compliance report be sent
to the earliest."
9. Being aggrieved by aforesaid order, respondent No.3 Baljit Singh
(now deceased) filed a review petition bearing No.199/1985-CA before the
Financial Commissioner, Delhi wherein vide order dated 28.04.1986 held as
under:-
"In view of the above discussion, it is hereby held that the
respondent No.1 Shri Kishan Lal should be given possession of
land measuring 23 bighas and 7 biswas in lieu of land bearing
Khasra number 1 etc./203 in terms of orders dated 31.3.1971 of
the Revenue Assistant being confirmed in first appeal decided
on 18.7.1977 and further confirmed in second appeal on
22.6.1979 out of the holdings of the petitioner and successors-
in-interest of sarvshri Ram Swaroop and Jai Lal to the extent of
1/3rd share each after proper assessment of the valuation of
pre-consolidation khasra number 1 etc/203. The last
paragraph i.e. finding on issue No.8 should be deemed to be
decree for purpose of execution. The orders of the Settlement
Officer (C)/Revenue Assistant is modified to the extent that he
should first evaluate the land and thereafter deduct land out of
the holdings of the petitioner and that of the successors-in-
interest of sarvshri Ram Swaroop and Jai Lal to the extent of
1/3rd share each for being given to respondent No.1 Kishan Lal.
While dealing with the case, the Settlement Officer(C) should
also call for the option of these persons to surrender the land to
be given to Kishan Lal respondent in lieu of land held by him in
khasra number 1 etc/203. In consequences of the above, the
present case stands remanded to the Settlement
Officer(C)/Revenue Assistant for implementation of the above
observations forthwith."
10. It is important to note, as submitted by learned counsel for the
respondent Nos.4 and 5 that Umrao was grandfather of Baljit Singh. The
said Umrao was having three sons, namely, Sardar Singh, Ram Swaroop and
Jai Lal. Respondent No.3, Baljit Singh was son of Sardar Singh.
Respondent Nos. 4 and 5 are the legal heirs of Ram Swaroop and Jai Lal,
who challenged the order dated 28.04.1986 passed by the Financial
Commissioner before this Court by way of W.P.(C) No.463/87. The same
was disposed of vide order dated 09.12.1987, whereby held as under:-
"C.M.No.783/87 & C.W.No.463/87
Counsel for the parties point out that only a short point is
involved and the writ itself may be disposed of today.
This is a writ petition under Articles 226 & 227 of the
Constitution of India seeking writ of certiorari or any other
appropriate writ for quashing the order dated April 28, 1996,
passed by Shri Gorakh Ram, Financial Commissioner, in Case
No. 199 of 1985-CA being a revision petition under Section 187
of the Delhi Land Reforms Act, 1954. I need not reproduce all
the facts because counsel for the parties appearing before me
agree that the order dated July 30, 1986, of Sh. K.R.Sarangal,
Settlement Officer, and the order dated April 28, 1996 of Shri
Gorakh Ram, Financial Commissioner, be set aside and the
matter be remanded back to the settlement officer
(Consolidation) for compliance with the order made by Shri
L.D. Gupta, the then Revenue Assistant, passed on March 31,
1971. The order was made by Shri L.D. Gupta, Revenue
Assistant, under section 18(2) of the Delhi Land Reforms Act,
1954 and directions were given as contained in the last para of
the order to the following effect:
"In view of the consolidation of holding in the
village some other khasra numbers have been
allotted to the respondents in lieu of the suit land.
Let a copy of this order be sent to the Settlement
Officer (Consolidation) who shall after consulting
the Settlement record report as to which particular
plots were to be given to the petitioner in exchange
of the half share in the land in suit. His report
shall also be accompanied by a shazra map and
copy of card. Formal decree shall be prepared on
receipt of the report of the Settlement Officer
(Consolidation) and orders thereon."
It is admitted case now that these directions are never complied
with by the Settlement Officer. Hence, the impugned order is
vitiated with illegality. I allow the writ petition and quash the
impugned orders mentioned above and remand the case back to
the Settlement Officer (Consolidation) for deciding it afresh
and he is directed to comply with the order of Shri L.D. Gupta
after allowing opportunity of hearing to all the parties
concerned which would include giving an opportunity to the
parties to lead evidence and he shall deal with all the
objections and submit his report to the Revenue Assistant
concerned who will pass the final decree in accordance with
the order already made by him. The Settlement Officer should
take steps to dispose of the matter within four months. The
parties are directed to appear before the Settlement Officer
concerned on January 5, 1988. The parties shall bear their
own costs in this writ."
11. Thereafter, Shri M.K.Malha, Settlement Officer (Consolidation)/
Revenue Assistant, Tis Hazari Court, Delhi vide order dated 01.05.1995
recorded as under:-
" From a perusal of the history of the case above, it would
be noted out that the only thing to be complied by the
Settlement Officer to look into the settlement work and
determine as to which particular plots were to be givento
Sh.Kishan Lal in exchange of ½ share in the land in suit.
Now in view of the directions of the Hon‟ble High Court
in C.W.P. No.463/87 wherein the directions have been issued to
the Settlement Officer for deciding the case afresh in order to
comply with the order of Sh. L.D. Gupta. Accordingly. I have
summoned the Consolidation record and directed the office
Kanoongo to ascertain the value of Kh.No.203/1 etc. measuring
23 Bighas 7 biswas of Holambi-Khurd and also I have directed
the Office Kanooongo to carve out new Killa numbers equal to
the value and quality of Khasra Nos. as follows as per value
and quality equal to the value and quality of Khasra No.203/1
etc. as follows:-
Khasra No. Ordinary area
24/5 4-16 2-8
6 4-16 2-8
15/1 2-16 1-1
25/1 5-02 2-11
25/9 3-17 1-14
25/10 4-16 2-05
24/7 3-0 2-5
---------------- ----------------
29-03 14-12
---------------- ----------------
I, therefore, pass the order that the position of Killa
No.24/5, 6, 15/1, 25/1, 25/9, 25/10, 24/7 mentioned above be
handed over to Sh. Kishan Lal applicant.
Necessary directions be carried out accordingly. The
name of the applicant Kishan Lal be entered in revised record."
12. The aforesaid order dated 01.05.1995 was challenged by respondent
No.1 Rajender K. Gupta and respondent No.2 Kanta Gupta, before Shri
Ramesh Tiwari, Additional Collector, Delhi, vide Appeal No.72/95,
whereby held as under:-
"13. I have heard the counsels and gone through their written
arguments as well as the case files. I am of the opinion that in
the light of the High Court order referred to above, all the other
orders except the order passed by Sh.L.D. Gupta, the then RA
dated 31.3.1971 have come irrelevant. After the perusal of the
said order of Sh.L.D.Gupta, I find that the same was against the
defendants i.e. the present resp. nos. 2, 3 & 4. It implies that
the land to be given to the present resp. no.1 should have been
taken from the defendants i.e. the present resp. nos. 2, 3 & 4 in
equal shares whereas by virtue of the impugned order, the
liability of giving land to resp. no.1 has been fixed upon the
appellants who purchased the land, the subject matter of the
present appeal, from the resp. no.2. It would be worth
mentioning here that the land in question is the land other than
the land which was in dispute under the proceedings u/s 18(2)
of the DLR Act, 1954. So far as the question of lispendence is
concerned, it applies to Smt. Hardei who was declared
bhoomidar in r/o land bearing kh.no.1/203 vide order
dt.28.2.70 during the pendency of the proceedings u/s 18(2) of
the said Act. so, if at all, any land that is required to given to
resp. no.1, it should be the land of Smt. Hardei or in the
alternative it should be the land carved out from the joint
holdings of resp. no. 2 to 4. Since Sh.Baljeet resp. no.2 is no
more and his rights have been inherited by his LRs namely Sh.
Jaipal s/o Sh.Baljeet Singh, 1/3rd share of land is required to be
taken from LRs of resp. no.4. There is no reason to take
possession of any land belonging to the appellants as their part
of the agricultural land is not a matter of dispute. It has come
in their bhoomidari rights legally, after execution of proper
sale deed. At present it is in their possession & a Farm House
duly approved by M.C.D. exists there. The land is also
mutated in their names. So far as the jurisdiction of the SO(c)
exercising the powers of R.A. is concerned, I am of the
considered view that the SO (c) can exercise the powers of RA
in r/o those villages where consolidation proceedings are in
operation. Herein this case, the consolidation proceedings in
village Holambi Khurd have been completed long ago and
thereafter this village falls in the jurisdiction of concerned R.A.
Hence, I do not think that the SO(c) should have exercised the
powers of R.A. also. Moreover, the Hon‟ble High Court in this
order as referred to above, has clearly directed the SO(c) to
find out the alternative kh.nos. and send his report to RA for
final order. Contrary to this, the SO (c) has himself passed the
final order which means that the order of the Hon‟ble High
Court has not been properly complied with.
In view of my findings and discussions above, I hold that
there are certain lapses in the impugned order and it warrants
my interference. Consequently, I accept the appeal and set
aside the impugned orders there is no need to interfere with the
peaceful possession of the land of the appellants. I however,
remand the case to the SO(c) to comply with the direction of the
Hon‟ble High Court wherein it has directed to decide it afresh
as per the order of Sh. L.D. Gupta dt.31.3.71 after allowing the
opportunity of hearing & leading evidence to all the concerned
parties. Consequently, SO(c) is directed to send a report to the
concerned R.A. i.e., SDM (KWC) of the alternative kh. nos. in
lieu of kh. no.1/203 and other kh. nos. belonging to resp. nos. 2
to 4 so that the RA can pass a final decree in favour of
Sh.Krishan Lal resp. no.1. since there has been abnormal
delay in carrying out the order of the Hon‟ble High Court,
SO(c) is directed to submit a report to the concerned RA i.e.
SDM(KWC) within one month & concerned RA i.e. SDM(KWC)
shall thereafter pass the final decree within one month...."
13. Mr.S.N.Gupta, learned counsel for the petitioner submitted that the
above named respondent Nos. 1 and 2 (herein) were never party before any
authority, therefore, the order dated 26.06.1995 had been passed without any
basis and jurisdiction. The aforesaid respondents purchased the land in
question from Smt. Hardei, mother of Baljit Singh, respondent No. 3 in the
year 1985, vide sale deed dated 19.06.1985 whereas Revenue Assistant
passed order on 31.03.1971 before execution of the aforesaid sale deed,
hence, prior thereto no interest of respondent Nos. 1 and 2 accrued, however,
created their rights vide aforesaid sale deed dated 19.06.1985 just before the
order dated 03.07.1985 passed by the Settlement Officer. At that point of
time, there was no mutation, as claimed by the respondent Nos. 1 and 2,
therefore, the Settlement Officer-cum-Revenue Assistant was to comply
with the aforesaid order dated 31.03.1971 as the said order has attained
finality.
14. Mr.S.N. Gupta, learned counsel further submitted that the order
passed by the Statutory Authority is a decree. As claimed by the respondent
Nos. 1 and 2, they purchased the land in question, however, without any
mutation, which is no sale in the eyes of law.
15. Mr. B.S. Maan, learned counsel for the respondent Nos. 4 and 5, i.e.,
legal heirs of Ram Swaroop and Jai Lal, while supporting the case of the
petitioner submitted that the order dated 28.04.1986 passed by the Financial
Commissioner was final and each of the authority accepted that the
petitioner is entitled for 23 bighas of land.
16. He further submitted that the petitioner filed an application under
Section 18(2) of the Act for regaining of possession of particular Khasra
No.1/203 (before consolidation), which has been allotted new Khasra
number after consolidation, as he was in cultivatory possession. Smt.
Hardei, mother of respondent No.3, Baljit Singh claimed adverse possession
on the ground that she was a Bhumidar of the land. Respondent Nos. 1 and
2 claimed that they have purchased the land from Baljit Singh and others and
became the Bhumidar of the land in question in succession of Baljit Singh.
17. Mr. Maan submitted that undisputedly order dated 31.03.1971 has
attained finality and order dated 09.12.1987 passed by this Court has to be
complied with in its letter and spirit.
18. Mr.R.P.Vats, learned counsel appearing on behalf of respondent Nos.
1 and 2 submitted that by way of the application filed under Section 18(2) of
the Act, petitioner sought repossession of 23 Bighas 7 Biswas of land out of
Khasra No.1/203, which had been jointly owned by respondent Nos. 3 to 5.
He submitted that Revenue Assistant Shri L.D.Gupta, vide its order dated
31.03.1971 decided the aforesaid application holding the petitioner entitled
for repossession of the aforenoted land from respondent Nos. 3 to 5, i.e.,
Baljit Singh, Ram Swaroop and Jail Lal. Also held that after consolidation
of holding in the village some other Khasra numbers had been allotted to the
respondents in lieu of the suit land and directed the Settlement Officer
(Consolidation) to report as to which particular plots were to be given to the
petitioner in exchange of the half share in the suit land after consulting the
Settlement Record. Further directed, report shall also be accompanied by a
Aksh Sizra Map and copy of Fard. Pursuant to which formal decree was
directed to be prepared.
19. Mr.Vats submitted that Smt.Hardei was declared Bhumidar by Civil
Court on 25.08.1969 and also by the Revenue Assistant on 28.02.1970 for
the land comprised in Khasra No.1/203, i.e., the land in dispute vide
application filed under Section 18(2) of the Act. However, said Smt. Hardei
was not impleaded as party in the suit by the petitioner despite the fact that
the suit land belonged to her.
20. Mr. Vats further submitted that during consolidation, Smt. Hardei was
allotted land in different Khasras in lieu of the land in Khasra No.1/203
acquired by her under court orders. As per order dated 31.03.1971, passed
by the Revenue Assistant, the petitioner was to be granted repossession of
the suit land of Khasra No.1/203 or land allotted in lieu thereof. Since the
suit land in Khasra No.1/203 had gone to Smt. Hardei under court orders,
hence, respondent Nos. 3 to 5 were not allotted any land in lieu of Khasra
No. 1/203. Thus, the land acquired by respondent Nos. 3 to 5 during/after
consolidation was in lieu of the land other than land in Khasra No.1/203.
21. Also submitted that the respondent Nos. 1 and 2 purchased the land
from respondent No.3 after completion of consolidation proceedings and
definitely none of the land allotted to respondent No.3 was in lieu of Khasra
No.1/203 as the said land had already gone to Smt. Hardei before
consolidation itself. Hence, respondent Nos. 1 and 2 are the bona fide
purchasers of the land from respondent No.3, as the said land was never
subject matter of litigation at the time of its purchase. Therefore, the
doctrine of lis pendence is not applicable. The suit land before Revenue
Assistant Shri L.D. Gupta was different from the land purchased by the
respondent Nos. 1 and 2.
22. Mr.Vats submitted that neither Mr. K.R. Sharangal nor Mr. M.K.
Malha Settlement Officers (Consolidation) while passing orders dated
03.07.1985 and 01.05.1995 respectively complied with the directions of
Revenue Assistant Shri L.D.Gupta dated 31.03.1971, and the later did not
comply with the directions of this Court dated 09.12.1987 as well. In fact,
the Settlement Officer (Consolidation) was not supposed to pass any order
but to submit a report alongwith Shajra Aksh and Fard to the Revenue
Assistant, containing details of the land allotted in lieu of Khasra No.1/203.
23. Learned counsel further submitted that this Court vide aforesaid order
dated 09.12.1987, which was a consent order, specifically directed the
Settlement Officer (Consolidation) to comply with the orders dated
31.03.1971 passed by Revenue Assistant Shri L.D. Gupta after giving
opportunity of hearing to all parties concerned. However, the Settlement
Officer (Consolidation) Shri Malha neither recorded any evidence nor
provided any opportunity to the parties and instead of submitting its report
along with copies of Shajra Aksh and Fard as proof of allotment of land in
lieu of Khasra No. 1/203, ordered to hand over possession of the land
belonging to respondent Nos. 1 and 2, whereupon the said respondents are
having approved farm houses. Accordingly, the matter is required to be
decided afresh by the Settlement Officer (Consolidation) strictly in terms of
the orders dated 09.12.1987 passed by this Court and hence prayed that the
matter be remanded back to the Settlement Officer (Consolidation).
24. Mr.D.V.Khatri, learned counsel appearing on behalf of the respondent
No.3 submitted that pursuant to order dated 31.03.1971 passed by the
Revenue Assistant on the application filed by the petitioner under Section
18(2) of the Act, the petitioner was held entitled to repossession of the land
measuring 23 Bighas and 7 Biswas from respondent Nos. 3 to 5.
25. Being aggrieved, both the parties challenged the said order
dated 31.03.1971 before the Additional District Magistrate and thereafter
before the Financial Commissioner, Delhi, however, their appeals were
dismissed vide orders dated 18.07.1977 and 22.06.1979 respectively.
Hence, the order dated 31.03.1971 has attained finality.
26. Mr.Khatri submitted that instead of complying with the directions
contained in order dated 31.03.1971 and submitting the requisite report, the
Settlement Officer (Consolidation) Shri K.H.Sarangal, passed an order dated
03.07.1985, whereby directing that the decree holders be delivered
possession equivalent to 23 Bighas 7 Biswas in respect of land out of khata
of the respondent No.3 Shri Baljit Singh.
27. Thereafter, the said order dated 03.07.1985 was challenged by the
respondent No.3 before the Financial Commissioner, who while remanding
the case back to the Settlement Officer (Consolidation), modified the same
vide its order dated 28.04.1986. Relevant portion of the same is as under:-
".......The orders of the Settlement Officer (C)/Revenue
Assistant is modified to the extent that he should first evaluate
the land and thereafter deduct land out of the holdings of the
petitioner and that of the successors-in-interest of sarvshri Ram
Swaroop and Jai Lal to the extent of 1/3rd share each for being
given to respondent No.1 Kishan Lal. While dealing with the
case, the Settlement Officer(C) should also call for the option of
these persons to surrender the land to be given to Kishan Lal
respondent in lieu of land held by him in khasra number 1
etc/203. In consequence of the above, the present case stands
remanded to the Settlement Officer(C)/Revenue Assistant for
implementation of the above observations forthwith."
28. Mr.Khatri submitted that vide order dated 09.12.1987, passed in
W.P.(C) No.463/1987, this Court set aside the orders dated 03.07.1985 and
28.04.1986 and remanded the case back to the Settlement Officer
(Consolidation) for deciding it afresh. However, again instead of complying
with the directions passed by this Court vide order dated 09.12.1987 and the
order dated 31.03.1971, the Settlement Officer (Consolidation) Shri
M.K.Malha passed the order dated 01.05.1995 illegally, unlawfully,
arbitrary and without any jurisdiction. Whereas the said order dated
01.05.1995 was set aside by the Revenue Assistant Shri Ramesh Tiwari vide
its order dated 26.06.1995 and remanded the case back to the Settlement
Officer (Consolidation) to comply with the directions of this Court vide
order dated 09.12.1987.
29. Mr.Khatri submitted that the aforesaid order dated 26.06.1995 was
confirmed by the Financial Commissioner vide orders dated 19.12.1995 and
02.02.1996 passed in second appeal and review petition respectively.
Accordingly, as per the order dated 31.03.1971 passed by the Revenue
Assistant Shri L.D. Gupta, formal decree is yet to be passed in the aforesaid
case, hence, the order dated 01.05.1995 passed by the Settlement Officer
(Consolidation) is illegal, unlawful, arbitrary, without jurisdiction and
against the directions of this Court dated 09.12.1987 and same has rightly
been set aside by the Additional Collector Shri Ramesh Tiwari and
confirmed by the Financial Commissioner vide orders dated 26.06.1995,
19.12.1995 and 02.02.1996 respectively. So, the challenge of the aforesaid
orders before this Court is not only misuse of process of law, a mischievous
act but also a mala fide speculative attempt on the part of the petitioner to
mislead this Court. Hence, prayed that the instant writ petition deserves to
be dismissed with exemplary costs.
30. I have heard the learned counsel for the parties.
31. The petitioner is a tenant under the Delhi Land Reforms Act, 1954.
On the basis of the rights accrued in time with provisions of the Act, the
petitioner has filed an application under Section 18 (2) of the Delhi Land
Reforms Act for regaining the possession before the Court of Revenue
Assistant.
32. Considering the facts and materials, the Court of Revenue Assistant
passed an order dated 31.03.1971 whereby the right over the property has
been determined after framing an issue in respect of the rights. However,
the same has been challenged before the Appellate and the Revisional
Authorities. Both the Authorities, under the Act, the Additional Collector
and the Financial Commissioner examined the aspects and dismissed the
appeal and revision petition vide the orders dated 18.07.1977 and
22.06.1979 respectively.
33. Thereafter, the petitioner moved an application before the Settlement
Officer for execution of the judgment/decree passed by the Court of
Revenue Assistant. During pendency of the proceedings under Section 18 of
the Act, the consolidation proceedings have been taken place at the
concerned village. Accordingly, changes have been effected. The properties
have been the subject matter of the petition were altered and new plots have
been given to the owners in lieu of pre-consolidation holdings. Accordingly,
the Khasra number is also changed. As a result of the consolidation
proceedings, the Settlement Officer could not execute the order as it was
passed, however, made an order which was again challenged by the
respondent before the respective forums.
34. Thereafter, the respondents has challenged the findings of the
authorities under the Act before this Court in W.P.(C) 463/87 and the same
has been allowed on 09.12.1987 with directions to the Court of Revenue
Assistant to pass the decree in accordance with the order already passed by
Revenue Assistant on 31.03.1971. Accordingly, the findings of Revenue
Assistant attained finality in respect of rights of the petitioner in the
property.
35. In the present context, it is relevant to note Sub-Section 2 of Section 2
of Civil Procedure Code, 1908 which defines the term 'Decree' as under:
"„Decree‟ means the formal expression of an adjudication
which, so far as regards the Court expressing it, conclusively
determines the rights of the parties with regard to all or any of
the matters in controversy in the suit and may be either
preliminary or final. It shall be deemed to include the rejection
of a plaint and the determination of any question within section
144, but shall not include-----
(a) any adjudication from which an appeal lies as an appeal
from an order, or
(b) any order of dismissal for default.
Explanation.-A decree is preliminary when further proceedings
have to be taken before the suit can be completely disposed of.
It is final when such adjudication completely disposes of the
suit. It may be partly preliminary and partly final;
36. It is also relevant to note the definition of 'Judgment' as it is defined
in Sub-Section 9 of Section 2, which reads as under:
"Judgment means the statement given by the Judge on the
grounds of a Decree or Order."
37. Therefore, the rights of the petitioner has been exclusively
adjudicated in respect of the properties and determined by the Revenue
Assistant on 31.03.1971. The same has been affirmed by this Court vide
order dated 09.12.1987. However, the parties were given liberty to lead
evidence for the purposes of execution. Undisputedly, findings of the
Revenue Assistant were never disturbed by this Court.
38. However, the fact reveals that the judgment debtors, during the
pendency of the proceedings, the property in question has been sold to
respondent nos. 1 and 2 who are alleged to be the bonafide purchasers of the
property. Therefore, they are claiming the right over the property in
question and seeking the protection, since long they were in continuous
possession of the property and also constructed a Farm House at the
property by taking the permission from the Municipal Corporation of Delhi.
39. It is also important to note that the order passed by the revenue
assistant on 31-03-1971 has attained finality, accordingly, as per the
directions of this Court, the Settlement Commissioner / Revenue Assistant
summoned the Consolidation record and directed the office Kanoongo to
ascertain the value of Khasra No. 1/203 etc. measuring 23 Bighas 7 Biswas
situated at Holambi-Khurd. Moreover, directed the Kanoongo to carve out
new 'Killa' numbers equal to the value and quality of Khasra No.1/203.
Accordingly, the Revenue Assistant / Settlement Officer (Consolidation) has
identified the properties equal in value and quality and passed the order on
01.05.1995.
40. Thereafter, the respondent nos. 1 and 2, who were allegedly the
bonafide purchasers of the property, had challenged the order dated
01.05.1995 passed by the Revenue Assistant, before the Additional
Collector. While exercising the appellate jurisdiction under the Delhi Land
Reforms Act, 1994, the Additional Collector come to a specific conclusion
that the land in question was never in dispute and the respondent No.1 and 2
purchased land from respondent No.3 / Baljeet Singh, which is other than
Khasra No. 1/203 or land allotted in lieu of Khasra No. 1/203. Therefore,
the transaction between the respondent nos. 1, 2 and Late Baljeet Singh does
not hit by Section 52 of the Transfer of Property Act, 1882. The Additional
Collector also recorded that the liability arising out of the Decree is to be
bifurcated among the judgment debtors, i.e., Ram Swaroop and Jai Lal and
accordingly, remanded the matter to the concerned Revenue Assistant with a
direction that the alternative Khasra Nos. in lieu of Khasra no. 1/203
belonging to the judgment debtors be identified for passing the Decree.
41. The Order of the Additional Collector has been challenged under
Section 185 of the Delhi Land Reforms Act, 1954 before the Financial
Commissioner. The Financial Commissioner while exercising the power
under Section 185 of the DLR Act came to the conclusion that the executing
Court has travelled beyond the jurisdiction and accordingly the findings of
the Additional Collector has been confirmed, resultantly, the Appeal got
dismissed.
42. Being aggrieved, the petitioner has filed the present Writ Petition.
43. It is trite that the Executing Court shall execute / implement the
Decree as intended in the Decree, therefore, the Executing Court cannot go
further. However, in the present case, during the consolidation proceedings
different land has been allotted in lieu of the holdings, i.e., Khasra No. 1/203
in Village Holambi Kalan.
44. The important question needs to be looked into on the aspect of the
implementation of the decree against the judgment debtors who except Baljit
Singh have not received property in lieu of Khasra No. 1/203. The property
has been assigned to Baljit only in lieu of Khasra No. 1/203. Thus, except
Baljit, the judgment debtors, namely, Ram Swaroop and Jaipal are not
holding any property in lieu of Khasra No. 1/203 as a result of consolidation
proceedings.
45. In this context, the moot question is whether the properties which has
been assigned or devolved in the name of Ram Swaroop and Jai Pal will be
liable under the Decree.
46. In this context, it is relevant to note Section 4 Delhi Land Reforms
Act, 1954:
(1) There shall be, for the purposes of this Act, only one class
of tenure-holder, that is to say, „Bhumidar‟ and one of class of
sub-tenure holder, that is to say, „Asami‟.
(2) Tenure-holder means a person who holds land directly
under and is liable to pay land revenue for that land to the State,
and sub-tenure holder is a person who holds land from a tenure-
holder or Gaon Sabha and is liable to pay rent therefore to the
tenure-holder or a Gaon Sabha:
[Provided that land given in exchange to a tenure-holder or a
sub-tenure holder, as a result of consolidation of holdings, shall
for the purposes of this Act be deemed to be land originally held
by the tenure-holder or the sub-tenure holder, as the case may
be]"
47. Section 4 of Delhi Land Reforms Act, 1954, has legal significance to
solve the issue regarding enforceability of the Decree against the judgment
debtors. Section 4 also carved out the legal principle that the devolution of
property is more important than the persons who are holding the property.
48. In view of the Proviso of Section 4 of Delhi Land Reforms Act, 1954,
Baljeet Singh / respondent No. 3 is deemed to be the judgment debtor for the
purposes of the execution of the order passed by the Revenue Assistant.
49. Despite the legal position as narrated above, the Financial
Commissioner recorded that the property of the respondent Nos. 1 and 2 is
not connected with present dispute and the Khasra Number is different,
therefore, the transaction and execution of sale deed is not hit principle of lis
pendence which is envisaged as per Section 56 of Transfer of Property Act,
1882. The reason that has been recorded by the Financial Commissioner is
peculiar because of the fact that the dispute was in respect of Kharsa No.
1/203, whereas the property transferred to the respondent Nos. 1 and 2 falls
under different Khasra numbers.
50. It is not in dispute that the property has been transferred to respondent
Nos. 1 and 2, which was received by Baljit in lieu of consolidation falling in
Khasra No.1/203. Therefore, the findings of the Financial Commissioner
regarding the non-applicability of the principle of lis pendence is not proper,
therefore, it is set aside on that account.
51. The Additional Collector came to a specific conclusion that the decree
is to be executed against the original respondents that is Baljit, Ram
Swaroop & Shri. Jai Lal bifurcating the liability among the judgement
debtors. However, the fact remains that the property that has been received
in lieu of Khasra No. 1/203 falls under the share of Baljit. Therefore, the
properties which is acquired and received by the judgement debtors in
different proceedings cannot be said part of the proceedings, until and unless
the property is assigned in lieu of pre-holdings, specifically in view of the
proviso to section 4 of Delhi land reforms Act, 1954. It is also recorded by
the Additional Collector that the land has been received by Baljeet in lieu of
Khasra No. 1/203, but the property falls under different Khasras. The
reasoning of the Additional Collector will not hold good in view of the
proviso of Section 4 of DLR Act, 1954. Undisputedly, respondent nos. 1
and 2 had purchased the property from Baljeet Singh. Therefore, it is
specifically hit by the doctrine of lis pendence. The transferer cannot
transfer better right or title to the transferee, which he never holds at the time
of transfer.
52. It is also fundamental to note that the Financial Commissioner did not
consider the legal aspect which has been missed out by the Additional
Collector. In a routine manner, the Financial Commissioner confirmed the
findings of Additional Collector. Moreover, both the authorities mentioned
above ought to note the facts and circumstances on which the executing
Court was executing the Decree in letter and spirit as per the directions of
this Court vide order dated 09.12.1987 in W.P.(C) 463/1987.
53. Pertinently, as per the provisions of the Land Reforms Act, 1954, the
property has been received by the order in Consolidation Proceedings, in
lieu of pre-consolidation holdings, is considered to be the property for the
purposes of Delhi Land Reforms Act, 1954. Therefore, the property or land
that has been given to the owner in lieu of pre-consolidation holdings shall
carry the liability with the holdings, irrespective of the fact that the property
may transfer to a third party with the liability which the holder carries. The
Proviso of Section 4 of Delhi Land Reforms Act, 1954 also implies that the
property which was in the name of one or more co-owners may devolved
entirely into one co-owner, who thereafter shall be considered as a holder of
the property for the purposes of Delhi Land Reforms Act, 1954. Therefore,
the Additional Collector came to a wrong conclusion that the liability shall
be bifurcated in the name of judgment debtors, whereas the land in question,
i.e., the land which has been received or assigned in lieu of Khasra No.
1/203 never devolved or assigned to other judgment debtors, except Late
Baljeet Singh/Respondent No.3.
54. In view of above discussion, the order dated 26.06.1994 passed by the
Additional Collector and the subsequent orders dated 19.12.1995 and
02.12.1996 passed by the Financial Commissioner are hereby set aside.
55. Accordingly, this Court restores the order passed by the Revenue
Assistant / Consolidation Officer dated 01.05.1995.
56. This Court also note, the litigation started way back in 1955. The
petitioner has been pursuing the remedies under the Statute and we reached
in 2014, i.e., 59 years in the process of litigation.
57. Accordingly, I direct the Revenue Assistant to take necessary actions
and proceedings for delivering the possession of the property to petitioner.
58. It is also open to the alleged bonafide purchasers, i.e., respondent
nos. 1 and 2 to take legal recourse against the owners of the property, if so
advised.
59. The petition is allowed with no order as to costs.
SURESH KAIT. J
OCTOBER 15, 2014
sb/jg
