Raghbir & Ors. vs Puran Kumar Chug & Ors.
2015 Latest Caselaw 3134 Del

$~97
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment delivered on: 20.04.2015
+       FAO (OS) 190/2015 & CM No.7047/2015 (stay)

RAGHBIR & ORS.                                                 .... Appellants
                                       versus

PURAN KUMAR CHUG & ORS.                                        ..... Respondents

Advocates who appeared in this case:

For the Appellants           : Mr Sudhir Kumar Sharma, Advocate
For the Respondents          : None.

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA

                                  JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

CM No.7048/2015 (exemption)

Exemption is allowed subject to all just exceptions.

FAO (OS) 190/2015 & CM No.7047/2015 (stay)

1. The appellants are aggrieved by the order dated 25.02.2015 passed

by a learned Single Judge of this Court in IA 3555/2011 which was an

application under Order VII Rule 11 of the Code of Civil Procedure, 1908

filed by the appellants/defendants seeking rejection of the plaint on the

ground that the relief claimed therein was barred by Section 33 of the

Delhi Land Reforms Act, 1954. By virtue of the impugned

order/judgment, the learned Single Judge has rejected the said

application. One of the circumstances which led to the rejection was that

the application was moved in 2011 (on 17.11.2011 to be precise),

whereas the suit had been filed in 2008 and the written statement had also

been filed in 2008 itself and the ground sought to be taken in the

application under Order VII Rule 11 did not even find mention in the

written statement. It was therefore felt by the learned Single Judge that

the application under Order VII Rule 11 had been filed at a belated stage

and was an abuse of the process of the Court.

2. That apart, and more importantly, the learned Single Judge came to

the conclusion that no ground had been made out for rejecting the plaint

under Order VII Rule 11 CPC. The suit had been instituted by the

respondents seeking specific performance of an Agreement to Sell dated

14.03.2008 whereby the appellants/defendants had agreed to sell 4 Bighas

10 Biswas of land in Village Mukund Pur to the respondents/plaintiffs for

a total sale consideration of Rs76,50,000/- and in respect of which a sum

of Rs10,00,000/- had already been paid to the appellants/defendants.

The case of the respondents/plaintiffs was that the appellants/defendants

had failed to get the sale deed executed on one pretext or the other and

they were trying to resile from the said agreement.

3. The plea that was raised by the appellants in their application under

Order VII Rule 11 was that the plaint ought to be rejected on the ground

that the reliefs claimed are barred under Section 33 of the Delhi Land

Reforms Act, 1954 (hereinafter referred to as the said Act). Section 33 of

the said Act reads as under:-

"33. Restriction on transfers by Bhumidhar.- (1) No bhumidhar shall have the right to transfer by sale or gift or otherwise any land to any person, other than a religious or charitable institution or any person in charge of any such Bhoodan movement, as the Chief Commissioner may, by notification in the Official Gazette, specify, where a result of the transfer, the transferor shall be left with less than eight standard acres in the Union territory of Delhi.

Provided that the Chief Commissioner may exempt from the operation of this section, the transfer of any land made before the 1st day of December, 1958, if the land covered by such transfer does not exceed one acre in area and is used or intended to be used for purposes other than those mentioned in clause (13) of Section 3.

(2) Nothing contained in sub-section (1) shall preclude the transfer of land by a Bhumidhar who holds less than eight standard acres of land, if such transfer is of the entire land held by him;

Provided that such Bhumidhar may transfer a part of such land to any religious or charitable institution or other person referred to in sub-section (1).

Explanation.- For the purposes of this section, a religious or charitable institution shall mean an institution established for a religious purpose or a charitable purpose, as the case may be. "

4. It is the case of the appellants that they own 36 Bighas 4 Biswas

of land. Out of which 4 Bighas 10 Biswas had been agreed to be sold as

per the Agreement dated 14.03.2008. It is specifically stated that if the

transfer of 4 Bighas 10 Biswas of land takes place, the appellants would

be left with less than 8 standard acres of land which is not permissible

under Section 33 of the said Act.

5. In order to appreciate this submission of the learned counsel for the

appellants, it would be necessary to analyse Section 33 of the said Act

which has been extracted above. Sub-section (1) stipulates that no

Bhumidar has a right to transfer by sale or gift or otherwise any land to

any person (except to religious and charitable institutions etc.) where the

result of the transfer would leave the transferor with less than 8 standard

acres in the Union Territory of Delhi. This means that if a Bhumidar

owns land in excess of 8 standard acres in the Union Territory of Delhi

and he transfers a part of that land, the said transfer would be void in case

he is left with less than 8 standard acres in the Union Territory of Delhi

after the transfer takes place.

6. Sub-section (2) of Section 33 stipulates that nothing contained in

sub-section (1) shall preclude the transfer of land by a Bhumidar, who

holds less than 8 standard acres of land, if such transfer is of the entire

land held by him. According to the learned counsel for the appellants,

their case is covered under sub-section (2) of Section 33. According to

them, the extent of the land owned by the defendants is 36 Bighas 4

Biswas as would be evident from a copy of the Khatauni of the year 1997

which is a document which was annexed alongwith the plaint as

Annexure P-1. It is the case of the appellants that 8 standard acres

translate to approximately 39 Bighas 2 Biswas. Therefore, according to

the appellants, they hold less than 8 standard acres of land. The

consequence of this, in the context of sub-Section (2) of Section 33,

would be that either the appellants could have transferred the entire

holdings of 36 Bighas 4 Biswas or none at all and, therefore, the transfer

of only 4 Bighas 10 Biswas was barred by law.

7. A reference was also made by the learned counsel for the

appellants to a complaint filed by the respondents/plaintiffs with the

DCP, Outer Delhi with regard to the cancellation of the No Objection

Certificate by the Tehsildar. According to the learned counsel for the

appellant, a copy of the complaint was annexed with the plaint as

Annexure P-6. The said complaint, according to the learned counsel for

the appellants, indicates that the subject land was non-transferable.

8. We have examined the impugned order as also taken note of the

contents of the plaint and documents annexed thereto including the said

Annexures P1 and P6 which have been specifically referred to by the

learned counsel for the appellants. On going through the same and

without looking at the averments contained in the written statement or

any document filed on the part of the defendants, it is not possible for us

to conclude that the appellants hold less than 8 standard acres in the

Union Territory of Delhi and that the land referred to in the Khatauni of

the year 1997 was the only land owned by the appellants/defendants.

Therefore, going by the plaint and the documents filed alongwith the

plaint it cannot be concluded that the appellants/defendants hold less than

8 standard acres of land in the Union Territory of Delhi. It can also not

be concluded that after the sale of 4 Bighas 10 Biswas of land, as

contemplated under the Agreement to Sell in question, the

appellants/defendants would be left with less than 8 standard acres of

land in the Union Territory of Delhi. Therefore, we are in agreement

with the observations and conclusion of the learned Single Judge to the

following effect:-

"The averments in the plaint disclose that although the land which was agreed to be sold by the defendant to the plaintiff is 4 Bighas 10 Biswas but it nowhere establishes the submission of the defendant that in such an eventuality, the defendants would be left with less than 8 standard acres of land."

9. As a result, upon reading the plaint and the documents alongwith

the plaint alone, it cannot be concluded that the relief sought by the

respondents/plaintiffs is barred under Section 33 of the said Act. The

learned Single Judge has not committed any error in rejecting the

application under Order VII Rule 11 CPC.

10. The appeal is dismissed.

BADAR DURREZ AHMED, J

SANJEEV SACHDEVA, J APRIL 20, 2015 st