Delhi High Court
Sita Devi vs Radha Park Plot Holder Welfare ... on 23 March, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 25.02.2016
Pronounced on: 23.03.2016
+ CM(M) 31/2014, CM APPLs. 612-613/2014
SITA DEVI ..... Petitioner
+ CM(M) 32/2014, CM APPLs. 614-615/2014
SANJEEV KUMAR AGGARWAL ..... Petitioner
+ CM(M) 33/2014, CM APPLs. 622-623/2014
JAI KISHAN ..... Petitioner
+ CM(M) 34/2014, CM APPLs. 624-625/2014
RAJESH GAUBA ..... Petitioner
+ EX.F.A. 22/2013, CM APPLs. 13642-43/2013
SMT RAJNI DARGAN ..... Appellant
+ EX.F.A. 25/2013, CM APPL. 14868/2013
SMT NARINDER KAUR & ANR ..... Appellant
+ EX.F.A. 29/2013, CM APPLs. 16870-08/2013
KULBIR SINGH & ANR ..... Appellant
+ CM(M) 1085/2013, CM APPL. 16017/2013
SURENDER SINGH & ORS ..... Petitioner
+ CM(M) 751/2013, CM APPL. 11549/2013
VIJAY KUMAR ..... Petitioner
+ CM(M) 752/2013, CM APPL. 11558/2013
SMT SHASHI JAIN ..... Petitioner
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+ CM(M) 870/2013, CM APPL. 13282/2013
BRIJ MOHAN & ORS ..... Petitioner
+ CM(M) 951/2013, CM APPL. 14380/2013
SHRI GOPESHWAR KUMAR ..... Petitioner
+ RFA 429/2013, CM APPLs. 14067 to 69/2013
GOPESHWAR KUMAR ..... Appellant
Through: Mr.Anil Kr. Chunduru and Mr.
Neeraj Kumar, Adv. for petitioners
in CM(M) 1085/2013.
Mr. Ramakant Tripathi for Mrs.
Anita Gupta, Adv. for petitioners
in CM(M) 951/2013 and 429/2013
Mr. Sunder Khatri, Advs. for
petitioners CM(M) 751/2013 and
CM(M) 752/2013
Mr. Abhilesh Arora, Adv. for
appellant in EX.F.A. 25/2013
Mr. Kameshwar Gumber, Adv. for
appellant in EX.F.A. 29/2013.
Mr. Abhijat and Mr. Harsh Hari
Haran, Advs. for appellant in
EX.F.A. 22/2013.
Mr. Tarun Sharma and Ms Garima
Gupta, Advs. for petitioners in
CM(M) 31/2014 to 34/2014.
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Mr. Sudhir Kumar Sharma,
Adv.for petitioner in CM(M)
870/2013.
Versus
RADHA PARK PLOT HOLDER WELFARE ASSOCIATION
(REGD) & ORS
...Defendant/Respondent
Through: Mr. Kirti Uppal, Senior Advocate
with Mr. R.S. Saini and Mr.
Anshumaan Sahni, Advs. for
Respondents No. 1 to 263 in
CM(M) 951/2013 and RFA
429/2013
Mr. R.S. Sahni, Adv. for
respondents in CM(M) 31/2014 to
34/2014, EX.F.A. 22/2013,
EX.F.A. 25/2013, EX.F.A.
29/2013, CM(M) 1085/2013,
CM(M) 751/2013, CM(M)
752/2013,CM(M) 870/2013 and
RFA 429/2013.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J.
1. By this common order, the aforementioned Regular First Appeal
(RFA), three Executive First Appeals (EFAs) and nine Civil
Miscellaneous (Mains) [CM (M)] are being disposed off.
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2. These petitions arise out of an order dated 02.02.2011, passed in
Civil Suit No. 01/2010 (old suit number 2324/1989, hereinafter referred
to as the "impugned order") which declared the partition order dated
09.03.1983 passed by the Court of Revenue Assistant apropos the suit
lands as null and void; it also declared illegal and set aside the
subsequent sale deeds of the suit lands executed by defendant Nos. 1 to 5
in favour of defendants 7 to 82. All the nine CM(M) petitions and the
three of the EFA petitions challenge a subsequent order dated 07.06.2013
passed in Execution Case No. 108/2011 whereby the Learned Trial Court
was pleased to dismiss the objections filed by the petitioners herein
against the execution of the impugned order. The RFA directly
challenges the impugned order.
3. In the suit, the plaintiffs had claimed that they had purchased the
suit lands, essentially agricultural, comprising various khasras situated in
the Revenue Estate of Village Kadipur, Delhi from the original
owners/bhumidars (defendant No. 1 to 4) who had represented to the
plaintiffs that the lands can be developed into a colony known as Radha
Park, Delhi replete with facilities of roads, parks, schools, hospitals,
shops etc. The plaintiffs, through their respective registered sale deeds,
purchased the suit land comprising of Khasra No. 643(2-08), 644(2-16),
645(4-16), 646(4-16), 647 min.(East)(3-03), 667(4-16), 666(4-16),
668(4-16), 665(2-08), 664(4-16), 710(4-16), 711(4-16), 712(4-16), 713
min(West)(2-08), 715(4-16), 718 min(South) (4-12), 695(4-16), 694(4-
16), 698(4-16), 713(2-10), 714(4-16), 660(4-16), 659(4-16), 655(2-08),
654(4-09), 652 min(0-12), 653(4-07), 651(4-16), 648 min(4-09), 647
min(1-17), 649 min (4-05), 650 min(4-17), 656min(4-09), 657(2014),
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658min(5-19), 716 min(6-07), 717(6-18) and 718 min(0-04); the lands
were demarcated into plots by fixing bricks on the corners of the plots
and by putting plot numbers as well as sign boards. The plaintiffs
claimed ownership through respective registered sale deeds pertaining to
the suit lands and claimed to have been in exclusive and peaceful
possession of the said lands. It was claimed that some plaintiffs had even
raised boundary walls and had also started construction thereon but most
of them, owing to distance from their place of residence, did not carry out
any construction.
4. Meanwhile, unbeknownst to the plaintiffs, defendant Nos. 1 to 5
allegedly concealed the earlier sale transaction with the plaintiffs and
fraudulently obtained an order of partition on 09.03.1983 in case No.
224/RA/81 from the Court of Revenue Assistant. Admittedly, the
plaintiffs were not impleaded in those proceedings. Pursuant to the said
order of partition from the Court of Revenue Assistant, the suit lands
were sold to defendant nos. 7 to 84, through sale deeds pertaining to the
individual defendants, as shown in Annexure 2 to the plaint. It was the
plaintiffs‟ case that defendant Nos. 1 to 5 and 7 to 84 had connived to
defraud and cause wrongful loss to the plaintiffs.
5. It was the plaintiffs case that when the defendants encroached upon
the plaintiffs‟ lands in March-April, 1984, the plaintiffs came to know of
the allegedly fraudulent partition order; the plaintiffs founded the
plaintiff no.1. association viz. „Radha Park Plot Holder Welfare
Association‟ and filed a suit to seek remedies against their illegal
dispossession of the suit lands. Written Statements on behalf of certain
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defendants were filed whereas the other defendants neither appeared nor
filed any written statements and were thus proceeded ex-parte.
6. In all, 14 issues (13+1) were framed and all of them were returned
in favour of the petitioners except issue No. 6(a), which was „whether the
suit is barred by limitation against defendant No.84 on his impleadment?
OPP (framed vide order dated 29.11.2004).
7. The sale deeds in favour of the plaintiffs were denied by the
defendants. They also denied that possession of the suit lands had been
handed over to the plaintiffs or that it was restored to them in March,
1992. They also denied that the order of the Court of Revenue Assistant
in favour of respondent Nos. 1 to 5 was obtained illegally or fraudulently.
The defendants claimed that they had no knowledge of any prior sale of
the suit lands to the plaintiffs and that they were innocent, bona fide
purchasers against valuable consideration; that they were put in
possession of the suit property by the owners hence no cause is made out
against them by the plaintiffs. They also questioned the maintainability
of the suit by the plaintiffs as they claimed that the suit lands belong to
individual members and not to the society.
8. It is seen from the judgment that subsequently, the individual
claimants/plaintiffs were also impleaded.
9. Regarding the veracity of the sale deeds filed by the plaintiffs, the
Trial Court, after examining the original sale deeds, concluded that no
evidence was led to show that the sale deeds executed in favour of the
plaintiffs by the original owners were void and that nothing existed on
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record to prove that there was any dispute regarding the sale deeds in
favour of the plaintiffs prior to the institution of the suit. The Trial Court
also observed that defendant Nos. 7 to 84 who had purchased the suit
lands and had stated that they had no knowledge of the earlier sale deeds;
that since the original owners had sold the suit lands to the plaintiffs, it
was upon them to disclose so before the learned Court of Revenue
Assistant; that the original owners not only withheld relevant information
but also falsely deposed before the Court of Revenue Assistant resulting
in the partition order being passed. The Trial Court concluded that the
said action was, therefore, fraudulent and that an order of partition
obtained by fraudulent means is non est and open to challenge. Hence,
there was no bar to challenge the partition order seeking declaration of
sale deeds of defendant No. 7 to 84 as null and void.
10. The Trial Court observed that the original owners had already sold
the suit lands to the plaintiffs way back in 1973-74 and had subsequently,
with the intention to defraud the legal owners, filed the suit for partition
before the Court of Revenue Assistant; that notice was never served upon
the plaintiffs although some of the members had already got mutated
ownership of the lands purchased by them in their names; that the
original owners had not filed any written statement nor appeared to cross
examine the plaintiffs‟ witnesses, leaving the plaintiffs‟ testimony un-
rebutted thus proving the issue on the basis of the evidence available on
record. The Trial Court therefore concluded that defendant Nos. 1 to 5
had played fraud upon the Court of Revenue Assistant.
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11. The contention of defendant Nos. 7 to 84, to the effect that no
fraud was played by them in obtaining the partition order dated
09.03.1983, was accepted by the Trial Court for the reason that their sale
deeds were executed after 1983 and hence they could not be presumed to
have known about the previous sale transactions, before the Revenue
Assistant, as they were neither parties nor witnesses in those proceedings.
The Trial Court held that any order obtained fraudulently is null and void
and non est in the eyes of law. Accordingly, the order dated 09.08.1983
was declared null and void. Consequently, the Trial Court also ordered
that the subsequent sale deeds executed in favour of defendant Nos. 7 to
84 were illegal and liable to be set aside.
12. The defendants are the present petitioners/appellants in this bunch
of cases while the original plaintiffs have been arrayed as respondents
13. The petitioners claim that sometime around May, 2012, some
persons attempted to enter upon the suit lands, which were in their
possession, and started claiming right, title and interest therein. They
were shocked when they were shown the impugned judgment and decree.
On further investigation, they found that a judgment dated 02.02.2011
had been passed by the Civil Court and that execution proceedings vide
Execution Petition No. 108/2011 had already been initiated. The
petitioners then filed objections under Section 47 of the CPC against the
impugned judgment in the said execution proceedings. The objections
were dismissed by the learned ADJ vide order dated 07.06.2013 resulting
in the nine CM (M) petitions and the three EFA petitions.
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14. It is the petitioners‟ case that the Civil Court did not have
jurisdiction to try the suit and pass the impugned decree because it
concerns agricultural land/bhumidari rights as mentioned in column nos.
2 & 3 of Schedule I of Delhi Land Reforms Act, 1954 and that the
jurisdiction of Civil Courts is thus specifically barred. In support of their
contention the petitioners rely upon the dicta of the Supreme Court in
Hatti vs. Sunder Singh (1971 SCR (2) 163)
"8. The High Court, in this connection, referred to
Section 186 of the Act under which any question
raised regarding the title of any party to the land,
which is the subject-matter of a suit or proceeding
under the First Schedule, has to be referred by the
Revenue Court to the competent Civil Court for
decision after framing of an issue on that question.
Inference was sought to be drawn from this provision
that questions of title could be competently agitated
by a suit in the Civil Court, as the jurisdiction of the
Civil Court was not barred. It appears to us that there
is no justification for drawing such an inference. On
the contrary, Section 186 envisages that questions of
title will arise before the Revenue Courts in suits or
proceedings under the First Schedule and, only if such
a question arises in a competent proceeding pending
in a revenue Court, an issue will be framed and
referred to the Civil Court. Such a provision does not
give jurisdiction to the Civil Court to entertain the
suit itself on a question of title. The jurisdiction of the
Civil Court is limited to deciding the issue of title
referred to it by the Revenue Court. This clearly
implies that, if a question of title is raised in an
application for declaration of Bhumidari rights under
item 4 of Schedule I of the Act, that question will then
be referred by the Revenue Assistant to the Civil
Court; but a party wanting to raise such a question of
title in order to claim Bhumidari right cannot directly
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approach the Civil Court. The Act is a complete Code
under which it is clear that any one, wanting a
declaration of his right as a Bhumidar, or aggrieved
by a declaration issued without notice to him in
favour of another, can approach the Revenue
Assistant under item 4 of the First Schedule and this
he is allowed to do without any period of limitation,
because he may not be aware of the fact that a
declaration has been issued in respect of his holding
in favour of another. A declaration by a Gaon Sabha
of the right of any person can also be sought without
any period of limitation. If there is dispute as to
possession of agricultural land, the remedy has to be
sought under section 84 read with item 19 of the First
Schedule. All the reliefs claimed by the respondent in
the present suit were, thus, within the competent
jurisdiction of the Revenue Assistant, and the Civil
Court had no jurisdiction to entertain the suit."
15. The petitioners contend that they had purchased the suit lands and
were in actual peaceful physical possession thereof; that the name of the
appellants were duly mutated in the revenue records without any
objection or dispute being raised before the revenue authorities; that
under the express provision of Sections 33 and 81 of DLR Act, the Court
of Revenue Assistant had exclusive jurisdiction to adjudicate apropos
agricultural land in the National Capital Territory of Delhi; therefore if
anybody was aggrieved by the order of the Court of Revenue Assistant,
the same could be impugned by way of an appeal before the Deputy
Commissioner as per Schedule I of DLR Act. Other contentions
regarding bar of limitation, non-joinder of parties, forged GPA, doctrine
of misrepresentation etc. were also raised by them against the suit.
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16. It is further contended that with respect to the question of title,
which would arise as a consequence of any issue being raised before the
Revenue Assistant, the matter could be referred to the Civil Court under
Section 186 of the DLR Act; that the Civil Court lacked inherent
jurisdiction to pass the decree and that hence it is void ab initio and that
such decree could be challenged at any stage even in execution or
collateral proceedings. In this regard, reliance was placed upon the dicta
of the Supreme Court in Balvant N. Viswamitra and Ors. vs. Yadav
Sadashiv Mule (dead) through Lrs. and Ors. 2004 8 SCC 706 held as
follows:
"9. The main question which arises for our
consideration is whether the decree passed by the
trial court can be said to be 'null' and 'void'. In our
opinion, the law on the point is well settled. The
distinction between a decree which is void and a
decree which is wrong, incorrect irregular or not in
accordance with law cannot be overlooked or
ignored. Where a court lacks inherent jurisdiction in
passing a decree or making an order, a decree or
order passed by such court would be without
jurisdiction, non est and void ab initio. A defect of
jurisdiction of the court goes to the root of the matter
and strikes at the very authority of the court to pass a
decree or make an order. Such detect has always been
treated as basic and fundamental and a decree or
order passed by a court or an authority having no
jurisdiction is nullity. Validity of such decree or order
can be challenged at any stage, even in execution or
collateral proceedings."
17. It is also the petitioners‟ case that the Executing Court did not
adjudicate on the issue of jurisdiction on the ground that this had already
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been decided by the Civil Court. Furthermore, the Executing Court failed
to appreciate that several of the petitioners were not even impleaded as
parties in the proceedings despite being recorded as tenure holders and
having sale deeds in their favour.
18. Mr. Abhijat, learned counsel for the petitioners, contends that
partition of agricultural lands can be done only under Entry 7 of Schedule
1 of the DLR Act; that once the partition has been done, the appeal would
lie before the Deputy Commissioner concerned and not before any other
authority or Court. Entry 3 concerns proceedings regarding regaining
possession whereas Entry 19 of the Schedule concerns suits for
ejectment. Relying upon the case of Gaon Sabha of Lado Sarai v. Jage
Ram (ILR 1973 Delhi 984) he further contends that the principal relief
sought in the suit has to be seen. He submits that if the relief was
primarily for declaration of title, then the partition would have to be
disturbed first; therefore, the only remedy available to the respondent is
before the Court of Revenue Assistant. Mr. Abhijat further contends that
by virtue of lack of inherent jurisdiction of the Civil Court, the doctrine
of lis pendens would not be applicable as the decree was void ab initio.
Relying upon the case of Balvant N. Visvamitra v. Yadav Sadashiv Mule,
(supra) he submits that the validity of such a decree can be challenged at
any stage - even during execution or collateral proceedings. He submits
that the impugned judgment and decree had been obtained by the
respondents by misrepresenting the facts and circumstances underlying
the subject matter and also by suppressing material facts and documents.
He refers to documents on record to show that the name of the appellant
was duly mutated and recorded in the revenue records and that no
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objection regarding the same was ever raised, nor was an Order 39 Rule 1
and 2 application made by the respondents between the years 1989 and
2009.
19. Mr. Abhijat further submits that it is well settled that the suit lands
are covered under Sections 33 and 81 of the Delhi Land Reforms Act and
thus jurisdiction with respect to the suit lands, which is essentially
agricultural land, lies solely with the Court of the Revenue Assistant. He
submits that the impugned order suffers from defect and error on account
of non-joinder of a necessary party since Shri Bhanu Ram and Smt.
Rupinder Bedi, whom he represents (in Ex.F.A.22/2013), were neither
impleaded as parties in the suit nor were summons sent to them.
20. The learned counsel relied upon Jage Ram‟s case (supra) which
held:
"(4) We may observe at the outset that in all the cases
the question which has arisen for decision is whether
a civil court has jurisdiction to try a suit in respect of
land under the Delhi Land Reforms Act, 1954. Under
Section 185(1) of the Delhi Land Reforms Act the civil
court has no jurisdiction. Section 185(1) reads as
under:- , "185(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 i n the Code of Civil Procedure, 1908, take
cognizance of any suit, application, or proceeding
mentioned in column 3 thereof."
(5) The question regarding the maintainability of a
suit in a civil court under the Delhi Land Reforms Act
has been settled by the Supreme Court in Haiti v.
Sunder Singh. In that case the appellant Hatti was
declared a Bhumidar of some land belonging to the
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respondent under Section 13 of the Delhi Land
Reforms Act No 8 of 1954 (hereinafter referred to as
the Act). The respondent instituted a suit in the civil
court claiming three reliefs. The first relief was for a
declaration that the declaration of bhumidari issued
in the name of the appellant with respect to the land
in dispute was wrong, illegal, without jurisdiction,
ultra vires, void and ineffective against the
respondent. The second relief was that the respondent
be declared to be entitled to bhumidari rights under
Section 11 of the Act. The third relief was for
possession of the land. The suit was brought on the
allegation that the respondent was the owner of the
land, while the appellant had no rights in it. The case
of the respondent was that the appellant had wrongly
been granted the declaration under Section 13 of the
Act that he was bhumidar when he had no rights as a
tenant in the land at all. The main defense on behalf
of the appellant was that he was a non-occupancy
tenant and he was entitled to the declaration of his
bhumidari rights. Among other issues, one issue
raised by the appellant was that the civil court had no
jurisdiction to entertain the suit in view of the
provisions of Section 185 of the Act. The trial Court
held that the jurisdiction of the civil court was not
barred. A decree for possession was granted in favor
of the respondent. The High Court also held that the
jurisdiction of the civil court was not barred. On
appeal the Supreme Court reversed the decree passed
by the High Court and held that the civil courts had
no jurisdiction to try the suit.
(6) Their Lordships of the Supreme Court examined
the provisions of the Act and came to the conclusion
that the Act was a complete Code and the Civil court
had no jurisdiction in view of Section 185(1) of the
Act to entertain a suit in which the plaintiff, alleging
that he is the proprietor of the suit land, asks for the
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declaration that he is entitled to bhumidari rights in
respect of the said land. It was held that all the three
reliefs which were asked by the respondent in his suit
were within the cortlpetent jurisdiction of the Revenue
Assistant to grant under the provisions of the Act.
Their Lordships observed at page 846:-
"THE scheme of the Act appears to be that, initially, a
declaration of Bhumidari right can be granted under
Section 11 or Section 13 without calling for objections
and without hearing contesting parties in favor of the
person who appears to the revenue authorities to be
entitled to the declaration on the basis of the records
maintained by them. Thereafter, any person aggrieved
and claiming bhumidari rights is expected to move an
application before the Revenue Assistant who is to
adjudicate upon the rights after following the usual
judicial procedufe. The order made by the "Revenue
Assistant in such a proceeding will then have to be
given effect to and would over-ride the declarations
earlier issued in accordance with the Rules. This
shows that any person, who is aggrieved by a
declaration of Bhumidari right issued in favor of
another person, can appropriately seek his remedy by
moving an application before the Revenue Assistant
under Item 4 of the First Schedule, whereupon, if he
succeeds, he will obtain a declaration that he is the
Bhumidar. Such a declaration will automatically
supersede the declaration issued by the authorities in
accordance with the Rules without any adjudication
of rights and without notice to interested parties."
(7) Their Lordships further held that Sections 6, 11,
13 and 154 of the Act read together show that after
the Act came into force, proprietors of agricultural
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land as such ceased to exist. There can be no suit by
any person claiming to be a proprietor because the
Act does not envisage a proprietor as such continuing
to have rights after the commencement of the Act.
Dealing with the argument that Section 186 of the Act
provides for the decision of a question raised
regarding the title of any party to the land by a civil
court on a reference to the Revenue Court their
Lordships said:- "THE High Court, in this connection,
referred to Section 186 of the Act under which any
question raised regarding the title of any party to the
land, which is the subject-matter of a suit or
proceeding under the First Schedule, has to be
referred by the Revenue Court to the competent civil
court for decision after framing an issue on that
question. Inference was sought to be drawn from this
provision that questions of title could be completely
agitated by a suit in the civil court, as the Jurisdiction
of the Civil Court was not bar-red. It appears to us
that there is no justification for drawing such an
inference. On the contrary, Section 186 envisages that
questions of title will arise before the "Revenue
Courts in suits or proceedings under the First
Schedule and, only if such a question arises in a
competent proceeding pending in a Revenue Court, an
issue will be framed and referred to Civil Conn. Such
a provision does not give jurisdiction to the Civil
Court to entertain the suit itself en a question of title.
The jurisdiction of the Civil Court is limited to
deciding the issue of title referred to it by the Revenue
Court. This clearly implies that, if a question, of title
is raised in an application for declaration of
Bhumidari rights under Item 4 of Schedule I of the
Act, that question will then be referred by the Revenue
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Assistant to the Civil Court; but a party wanting to
raise such a question of title in order to claim
Bhumidari right cannot directly approach the Civil
Court."
(8) The question of maintainability of the suit again
arose for decision before their Lordships of the
Supreme Court in Mukhfaria etc.Vs. Rama Shankar
etc. Civil Appeals Nos. 987, 988 and 989 of 1967,
decided on August 8, 1972. In those appeals the
respective appellant was the defendant in each of the
suits from which those appeals arose, The following
reliefs were prayed for:- (1) A declaratory decree to
the effect that Bhumidari declaration mentioned in
para 10A regarding said land in the name of the
defendant is illegal, ultra vires, void against the
plaintiff be passed in plaintiff's favor against the
defendant. (2) A decree for possession of the
agricultural land with damages; and (3) for costs.
(9) The question for decision which arose in the suits
was whether the civil court had jurisdiction to grant
the reliefs prayed for. The trial ' court decreed the
plaintiff's suit. The first appellate court affirmed that
decision. The second appellate court summarily
dismissed the appeal. The Letters Patent Appeal was
also dismissed. The appeals were brought in the
Supreme Court after obtaining special leave.
(10) Their Lordships held that the point which had
arisen for decision in the appeals was governed by the
rule laid down by the court in the case of Hatti
(supra). It was held that the civil court had no
jurisdiction to entertain a suit of the type with which
their Lordships were concerned in those three
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appeals. It was contended by the appellant's counsel
that the decision in Haiti's case (supra) required
reconsideration. After hearing the counsel at length
their Lordships were not satisfied that the decision
required reconsideration. In the result the appeals
were allowed and all the suits were dismissed.
(11) In deciding the ten appeals we will bear in mind
the decision to the Supreme Court in the case of Haiti
(supra) as in all these appeals we have to determine
whether the civil courts had jurisdiction to entertain
the suit brought in each of the cases.
(12) It is settled law that jurisdiction with reference to
the subject-matter of a claim, as in the case of other
kinds of jurisdiction, depends upon the allegations in
the plaint and not upon the allegations in the written
statement, nor upon those which may ultimately be
found true. Such allegations may, after the trial, be
held to be unfounded and in that case, the suit will be
dismissed, not because the court has no jurisdiction,
but because the allegations on which it was based are
found to be untrue. The question of maintainability of
a suit is also governed by the same principles and
must be dealt with on the footing of the allegation in
the plaint being correct. The plaintiff cannot, by
merely so drafting his prayers to exclude or include
relief which can or cannot be granted by a court,
confer on the court jurisdiction to try the suit. It is
necessary in each case to consider what the cause of
action in the plaint is and what is the substantive
relief which the plaintiff would be entitled to if he
succeeds in the suit, in order to determine whether the
court has jurisdiction, irrespective of what prayers the
draftsman has thought fit to put in the plaint. The
18 | P a g e
substance of the relief and not the mere form in the
plaint has to be looked to. In deciding the point of
maintainability of a suit the allegations in the plaint
alone have to be considered. It is the allegation in the
plaint which determine jurisdiction. To discover the
real nature of the suit the plaint has to be looked at
and plaint has to be read as a whole and in doing so
the court must look at the substance of the plaint and
not its outward form only. In each of ten appeals,
therefore, we will take into account the substance of
the suit in order to determine the nature of the claim
made and reliefs sought.
(13) We may now deal with the decisions of D.K.
Kapur, J. which are referred to in the referring order
of Sachar, J. and which we have mentioned in the
beginning of our judgment.
(14) R. S. A. 199-D of 1964 decided on August 27,
1971 (Gaon Sabha of village Lado Sarai v. Risal
Singh) is another decision of the learned single Judge
which was cited before us and was relied upon by Mr.
S.S. Dalal. In this case the appeal was filed by the
Gaon Sabha of village Lado Sarai and arose out of a
suit brought by Risal Singh, respondent, claiming that
the order of the revenue Assistant placing the land in
suit in L.R. Form No. 2 and then vesting it in the
Gaon Sabha was without jurisdiction, void and not
binding on the plaintiff. The suit initially instituted by
the plaintiff was in relation to Khasra Nos. 333, 361,
372 and 373. The trial Court decided in favor of the
plaintiff regarding Khasra No. 333, but with regard to
the other three Khasra Nos. the trial court came to the
conclusion that they were waste lands being ghair
mumkin pahad and banjar qadim. The trial court held
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that the land did not form part of the holding of the
plaintiff and, therefore, vested in the Gaon Sabha by
virtue of Section 7 and 154 of the Delhi Land Reforms
Act. The learned single Judge took the view that the
word 'holding' used in explanation to Section 7(1) of
the Act which defines waste land is used as denoting
the property owned by a proprietor and not in the
same sense as in the definition section. The learned
Judge summed up his conclusions as follows:- "Till
the land is used for agriculture it is not land within
the meaning of the definition and the Act does not
apply to it. Hence, if the land happens to be
mountanous or sub-mountanous i.e. Ghair mum kim
pahar or happens to be Banjar Qadim or Banjar
Jadid i.e. not under cultivation then the proprietor
remains the owner thereof. It is only when the land is
used for agriculture or for a purpose subservient to
agriculture that the land came within the definition of
land as given in section 3(13) of the Act and it is only
at that stage that the provisions of the Act become
applicable to it."
....
(70) On the allegations made in the plaint it is
abundantly clear that the plaintiff's claim in substance
is that he has bhumidari rights in the suit land and the
vesting order is contrary to law. As such, such a suit
could not be brought in the civil court by reason of
section 185(1) of the Act. In the result, the appeal of
Gaon Sabha is allowed. The judgments and decrees of
the courts below are set aside. The suit of the
plaintiff-respondent is dismissed as being
incompetent. In view of the fact that the question
involved in all the ten appeals was one relating to
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jurisdiction, we think that the proper order will be to
leave the parties to bear their own costs throughout in
all the appeals.""
The petitioners also relied upon the dicta in Ashok Kumar vs. Munni Devi
(2012 (129) DRJ 476) wherein it was held that:
"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, 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.
...
9. By the impugned judgment, the suit filed by the
appellants/plaintiffs for declaration, injunction and
possession was dismissed by holding that the Civil
Courts do not have jurisdiction.
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The reliefs of declaration, injunction and possession
were claimed on the ground that original owner-Sh.
Inder Singh never executed a General Power of
Attorney in favour of wife of Sh. Ruliya Singh, and on
the basis of which Power of Attorney, the wife of Sh.
Ruliya Singh is stated to have executed a sale deed in
favour of Sh. Ruliya Singh. Sh. Ruliya Singh is the
father of defendant Nos.2 to 4. 10. I have given
detailed reasoning while disposing of RFA
No.621/2003 and have held that unless the suit falls
within the columns 2 and 3 of the Schedule I of the
Act, the jurisdiction of the Civil Court is not barred.
The suit such as the present claiming injunction,
declaration of illegality of the sale deed executed
allegedly on the basis of a fabricated General Power
of Attorney and for repossession of the land, is not
covered under any of the Sections mentioned in
column 2 of the Schedule I. The jurisdiction of the
Civil Court therefore will not be barred under Section
185 of the Act. I must once again reiterate that
nothing contained in todays judgment is a reflection
on the merits of the case of either of the parties, and I
am not touching upon the merits of the matter. The
present judgment only decides the issue that there is
no bar to the jurisdiction of the Civil Courts by virtue
of Section 185 of the Act."
21. On behalf of the respondents, Mr. Kirti Uppal, learned Senior
Advocate, contends that the order of the Court of Revenue Assistant was
bad in law; that insofar as defendant No.1 to 5 have fraudulently obtained
the order of partition dated 09.03.1983, the Civil Court could always
adjudicate upon it. He submits that the sale deeds were not disputed by
the original sellers. He contends that indeed, apropos issue No. 9 the
22 | P a g e
learned Civil Court had recorded that there was no dispute regarding the
sale deeds in favour of the plaintiffs, hence there was no occasion for the
suit being referred to the Court of Revenue Assistant. The learned
counsel relies upon the judgment of this Court in Mansa Ram v. Tilak
and Anr1, wherein it was observed that fraud of any nature, in any
circumstance, must be adjudicated in trial before a Civil Court. The
judgment read as follows:
"13. The Full Bench of the Allahabad High Court in
Ram Padarath vs.Union of India, 1989 AII WC 290
was ceased of a suit for cancellation of a sale deed
and permanent injunction on the ground that the sale
deed has been executed by impersonation and that the
plaintiff was the tenure holder in possession of the
land. The Bench held that the Civil Courts will have
jurisdiction in a suit for cancellation of documents
where, it is a suit for cancellation of document
simplicitor with no declaration of title. The
Constitution Bench decision in Ram Padarath (supra)
case was upheld by the Supreme Court in Smt.
Bismillah vs. Janeswar Prasad & Ors, (1990) 1 SCC
207. In the said case, a suit for cancellation of the
document and possession was filed where the Apex
Court held that the Civil Court would have
jurisdiction to decide the issue as the sale deed
requires to be set aside before the plaintiff is entitled
for possession and other consequential reliefs. The
Supreme Court in Shri Ram & Anr. vs. Ist Additional
District Judge & Ors., (2001) 3 SCC 24 approving the
Ram Padarath (supra) case held that a tenure holder
23 | P a g e
in possession can file a suit in Civil Court for
cancellation of a sale deed on the ground of fraud or
impersonation, as prima facie the title of the recorded
tenure holder is not under cloud.
14. Recently, the Supreme Court in Horil vs. Keshav
& Anr., (2012) 5 SCC 525 has expanded the scope in
case of the jurisdiction of the Civil Court to decide the
issue of fraud and has held that the Civil Courts can
entertain suit even in regard to decrees or orders
passed in suit or proceedings under different statute
or tribunal of limited jurisdiction."
22. To buttress his contention that a suit would lie before the Civil
Court and not before the Court of Revenue Assistant, he also relies upon
the case of Shri Ram and Another v. 1st Addl. Distt. Judge and Ors,
(2001) 3 SCC 24, wherein the Hon'ble Supreme Court held that a
recorded tenure holder, i.e., a person whose name has been mutated and
recorded in the revenue records, need not file a suit before the Revenue
Court for cancellation of a void document because his title is prima facie
valid. Such person can approach a Civil Court for this purpose. The
relevant paragraph reads as follows:
"On analysis of the decisions cited above, we are of
the opinion that where a recorded tenure holder
having a prima facie title and in possession files suit
in the civil court for cancellation of sale deed having
obtained on the ground of fraud or impersonation
cannot be directed to file a suit for declaration in the
revenue court reason being that in such a case, prima
facie, the title of the recorded tenure holder is not
under cloud. He does not require declaration of his
24 | P a g e
title to the land. The position would be different where
a person not being a recorded tenure holder seeks
cancellation of sale deed by filing a suit in the
civil court on the ground of fraud or impersonation.
There necessarily the plaintiff is required to seek a
declaration of his title and, therefore, he may be
directed to approach the revenue court, as the sale
deed being void has to be ignored for giving him
relief for declaration and possession."
23. Apropos the question as to why no objection regarding jurisdiction
was raised before the Civil Court, the petitioners state that most of them
were not even party to the suit but were only objectors before the
Executing Court in Execution No. 108 of 2011.
24. As per this tabular representation submitted by the petitioners, the
following parties were objectors before the Executing Court:
"COMPARATIVE/CORRESPONDING CHART OF LITIGANTS:
Civil Suit No. Execution No. CM(M) Relation to proceedings
1/2010 108/2011 No.951/2013 & RFA
429/2013
Plaintiffs Decree Holder 1- Respondent 1-263 1st purchasers of land, bought
263 before Suit of Partition was
1-263 filed by original owners of land
(Filed Civil Suit 1/10 when they
realised, original owners had
pursuant to seeking partition
sold off land in question to 2nd
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purchaser.
Defendants Judgment Debtor 1- Respondent 264- Original owners of land in
5 268 question.
1-5
Defendants Judgment Debtor Respondent 270- 2nd purchasers of land, bought
347 after suit for partition filed by
7-84 7-84 original owners.
(Civil suit decided in favour of
1st purchasers.)
Not party Objector No.14 Petitioner Part of 2nd purchaser of
land/claiming from 2nd
(Other Objectioners purchasers (i.e., claiming from
have also filed Respondent 270-347 in present
CM(M)/Ex. FA as proceedings), not party to suit,
below) but objected in execution
taking exception of S.185 Delhi
Land Reforms Act, 1954, that
bars jurisdiction of a civil court
and that he was not heard in
suit.
LITIGANTS FROM OTHER CASES
Sl.No. Case No. Petitioner Name Relation to proceedings below
1 CM(M) Sh.Gopeshwar Kumar Objector no.14 before Execution
951/2013 Court in Exec. 108/2011
[PET. Purchased land from Def.
61, 65, 70, 74, 80, 81 during Not Party in Suit NO.1/2010
pendency of suit]
2. RFA Sh.Gopeshwar Kumar Objector no.14 before Execution
429/2013 Court in Exec.108/2011
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Not Party in Suit No.1/2010
3. EFA Smt. Rajni Dargan Objector no.7 before Execution
22/2013 Court in Exec. 108/2011
[PET. Purchased land from Def.
4, 6, 7, 8, 13, 14, 38, 47, 48, 49, Not Party in Suit NO.1/2010
57, 58, 72, 78, 79 during
pendency of Suit]
4. EFA Sh. Kulbir Singh & Ors. Objector no.2 before Execution
29/2013 Court in Exec. 108/2011
[PET. Purchased land from Def.
1, 5, 25 during pendency of Not Party in Suit No.1/2010
Suit]
5. CM(M) Sh. Brij Mohan & Ors. Objector no.10 before Execution
870/2013 Court in Exec. 108/2011
[PET. Purchased land from Def.
6, 7, 9, 41, 42, 43, 44, 45 Not Party in Suit No.1/2010
during pendency of Suit]
6. CM(M) Sh. Jai Kishan Saini Objector 17 and Defendant before
33/2014 Execution Court in Exec. 108/2011
[PET. Purchased land from Def.
6 after passing of Decree] Defendant No.36 in Suit No.1/2010
7. CM(M) Sh. Rajesh Gauba Objector no.3 before Execution
34/2013 Court in Exec. 108/2011
[PET. Purchased land from Def.
6] Not Party in Suit No.1/2010
8. CM(M) Sh. Sanjeev Kumar Aggarwal Objector no.1 before Execution
32/2014 Court in Exec. 108/2011
[PET. gifted land by Sh.
Devender Kumar after passing Not Party in Suit No.1/2010 ~
of Decree] Neither was Mr. Devender Kumar
from whom Pet, has got land as
Gift.
27 | P a g e
9. CM(M) Smt. Shashi Jain Objector no.11 before Execution
752/2013 Court in Exec. 108/2011
[PET. Purchased land from Def.
51, 52, 53, 54 during pendency Not Party in Suit No.1/2010
of Suit]
10. CM(M) Smt. Sita Devi Objector no.16 and Defendant
31/2014 before Execution Court in Exec.
[PET. Purchased land from Def. 108/2011
6 after passing of Decree]
Defendant No.35 in Suit No.1/2010
11. CM(M) Sh. Surinder Singh & Ors. Objector no.15 before Execution
1085/2013 Court in Exec. 108/2011
[PET. Purchased land from Def.
19, 20 during pendency of Suit] Not Party in Suit No.1/2010
12. CM(M) Sh. Vijay Kumar Objector no.18 and Defendant
751/2013 before Execution Court in Exec.
[PET. Purchased land from Def. 108/2011
6 after passing of Decree]
Defendant No.40 in Suit No.1/2010
13. EFA Smt. Narinder Kaur & Ors. Objector no.4 before Execution
25/2013 Court in Exec. 108/2011
[PET. Purchased land from Sh.
Anil Maheshwari and Sh. Not Party in Suit No.1/2010 ~
Adesh Verma after passing of Neither were Sh. Anil Maheshwari
Decree] and Sh. Adesh Verma from whom
PET. has purchased land.
14. CM(M) Sh. Tarsem Lal Verma Dismissed in limine on 27/03/2014
308/2014
25. Having considered the contention of the parties the Court notes
that these petitions essentially seek the setting aside of the impugned
order dated 2.22011 which has set aside the partition order of the
28 | P a g e
Revenue Assistant which recognized the right of defendant nos. 1 to 5 to
sell the suit lands; as a consequence of which the suit lands were sold to
defendant nos 7 to 84; they also seek the ancillary i.e. a declaration that
the petitioners be declared as rightful owners of the suit property.
26. Entry No. 7 of Schedule 1 of the DLR Act, 1954 makes the Court
of Revenue Assistant as the Court of original jurisdiction to adjudicate on
an application for determination of the share of the lessor and partition of
holding. It also stipulated that an appeal from such order would lie
before the Deputy Commissioner. Under Entry 3 of the Schedule,
application to regain possession would lie before the same Revenue
Assistant and under Entry 19 a suit for ejection of a person occupying
land without title or damages would also lie before the Revenue
Assistant. The respondents, having been aggrieved by the partition order
passed by the Revenue Assistant, ought to have impugned the order as
per the provisions of the DLR Act before the Deputy Commissioner. The
partition order cannot be the subject matter of adjudication by a Civil
Court because jurisdiction has been specifically and exclusively
conferred upon the Revenue Court regarding matters of bhumidari rights
and possession of agricultural lands. The jurisdiction of other courts has
been clearly ousted under Section 185(1) of the Act. Furthermore,
section 186 of the Act provides the procedure to be followed when a
question of title is raised. It reads as under:
"186. Procedure when question of title is raised. -
(1) Notwithstanding anything contained in section
185, if in any suit or proceeding mentioned in column
29 | P a g e
3 of Scheduled I, question is raised regarding the title
of any party to the land which is the subject matter of
the suit or proceeding and such question is directly
and substantially in issue the Court shall, unless the
question has already been decided by a competent
civil court for the decision of that issue only.
Explanation:- A plea regarding the title to the land
which is clearly untenable and intended solely to oust
the jurisdiction of the revenue court shall not be
deemed to raise a question regarding the title to the
land within the meaning of this section.
(2) The civil court, after reframing the issue, if
necessary, shall decide such issue only and return the
record together with its finding thereon to the revenue
court which submitted it.
(3) The revenue court shall then proceed to decide the
suit or , accepting the finding of the civil court on the
issue referred to it.
(4) An appeal from a decree of a revenue court in a
suit or proceeding in which an issue regarding title
has been decided by a civil court under sub-section
(2)shall lie to the civil court which having regard to
the valuation of the suit has jurisdiction to hear
appeal from the Court to which the issue of title has
been referred."
27. The dicta in Hatti vs. Sunder Singh (supra) clearly lays down that
the issue of declaration of bhumidari rights, as per S. 186 of the Delhi
Land Reforms Act, can only be taken up by the Revenue Court. In view
of the aforesaid discussion, it is clear that exclusive jurisdiction regarding
i) partition of agricultural property, ii) application for declaration of
30 | P a g e
bhumidari rights, iii) application for regaining of possession and for iv)
ejection of a person occupying the land without title, would only lie
before the Court of Revenue Assistant. Therefore, when the statute itself
clearly stipulates jurisdiction of another court, a Civil Court cannot
assume the jurisdiction even if an order has been procured by alleged
misrepresentation before or suppression of material facts from and/or by
fraud played upon the Court of Revenue Assistant. Indeed jurisdiction of
other courts has been specifically ousted by s.185 of the Act.
28. Therefore, insofar as the Civil Court lacked jurisdiction to set aside
the order dated 08.03.1983 passed by the Court of Revenue Assistant, the
impugned order and decree is without jurisdiction and is liable to be set
aside. Accordingly, the impugned judgment and decree dated 2.2.2011
Civil Suit no.1/2010 is set aside. It would be open for the respondents to
pursue remedies as may be available to them in law under the Delhi Land
Reforms Act, 1954. The aforesaid petitions are allowed and disposed off
in the above terms. No orders as to costs.
NAJMI WAZIRI, J
MARCH 23, 2015/acm/nrk/rtm
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