Sh. Karambir Singh And Ors vs Govt. Of Nct Of Delhi And Ors
2016 Latest Caselaw 6828 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                  Judgment reserved on : 03.11.2016
                  Judgment delivered on: 07.11.2016.

+     W.P.(C) 4289/2012 & C.M. No.8900/2012
      SH. KARAMBIR SINGH AND ORS
                                                              ..... Petitioners
                           Through   Mr.A.K.Sen, Advocate.

                           Versus

      GOVT. OF NCT OF DELHI AND ORS
                                                          ..... Respondents
                           Through   Mr.Sanjoy Ghose, Mr.Rhishabh Jetley
                                     and Ms.Pratishtha Vij, Advocates for
                                     R-1 and R-2.
                                     Mr.Rajesh Yadav, Ms.Ruchira Arora
                                     and     Mr.Dhananjay        Mehlawat,
                                     Advocates for R-4 to R-9.
                                     Mr.S.S.Panwar     and      Ms.Nivedita
                                     Panwar, Advocate for R-10.


+     W.P.(C) 3486/2013 & C.M. No.6586/2013
      SATBIR SINGH
                                                             ..... Petitioner
                           Through   Mr. S.S.Panwar      and Ms.Nivedita
                                     Panwar, Advocate.

                           Versus

      GHANSHYAM DASS & ORS
                                                         ..... Respondents
                                     Through    Mr.    Rajesh       Yadav,
                                     Ms.Ruchira Arora and Mr.Dhananjay
                                     Mehlawat, Advocates for R-1 to R-6.




WP(C) Nos. 4289/2012 & 3486/2013                          Page 1 of 18
 CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 The petitioners before this Court are Satbir and Karambir. They are

aggrieved by the three consecutive orders i.e. the order of the Tehsildar

(dated 04.07.2009), the Deputy Collector (dated 21.03.2011) as also the

order passed by the Financial Commissioner dated 27.03.2012. All these

orders had endorsed the finding that the mutation of the disputed land be

accorded in favour of the private respondents i.e. respondents No. 4 to 9.

2     The petitioners are aggrieved by this finding.


3     The averments in the writ petition disclose that there was a dispute

about the possession of land comprised in khasra Nos. 71, 96, 100, 105, 116,

123, 137, 139, 172, 394/324/325/36, 395/326/327 and 267 situated in

revenue estate of village Saidulajaib, New Delhi. Respondents No. 4 to 9

had moved an application for mutation in respect of this subject land. Their

claim was based on two sale deeds dated 15.09.1980. Admittedly physical

possession of this land was never handed over to the aforenoted respondents.

In fact the sale deeds itself recorded that the possession of the said land

could not be transferred by the transferor in favour of the transferee

(respondents No.4 to 9) as it was in possession of the actual cultivatory

possessors. Contention of the petitioners is that they are in actual physical

possession of the land. Contention is that the impugned order of the

Tehsildar dated 04.07.2009 recording mutation in favour of respondents

No.4 to 9 was an order without any jurisdiction; since disputed questions of

fact had arisen and were admittedly pending inter-se the parties, Section 22

of the Delhi Land Revenue Act, 1954 (hereinafter referred to as the 'said

Act') clearly provided that the matter had to be referred to the Revenue

Assistant/SDM; the Tehsildar could not take it upon itself to decide the

question of mutation. The bar of Section 22 was inevitable. This hurdle had

not been crossed. The order passed by the Tehsildar was thus a nullity. The

subsequent orders passed by the Deputy Collector and the Financial

Commissioner endorsing the finding of the SDM are also void for the same

reason.

4 Additional submission raised by the learned counsel for the petitioners

is that an order had been passed by a Bench of this Court on 06.04.2009 in

W.P. (C) No.6824/2008 which was a writ petition filed by respondents No. 4

to 9. This petition had been disposed of on 06.04.2009 and the question of

mutation of the subject land was to be decided by the SDM. This was

clearly noted in the order dated 06.04.2009. The SDM has not abided by this

direction. The question of mutation has been decided by the Tehsildar which

is against the mandate of the order passed by the High Court. The order of

the High Court further stated that the notices would be issued to all those

parties who might have a say in the matter; notice was not issued to the

petitioners who admittedly had a say in the matter as there is a host of

litigations pending inter-se the parties. The suit seeking cancellation of the

sale deeds dated 15.09.1980 is yet pending inter-se the parties. For all the

aforestated reasons, the impugned orders are liable to be set aside.

5 Learned counsel for the petitioners in support of his case has placed

reliance upon a Bench of this Court in DLT 547(DB) Balbir Singh Vs.

A.D.M. and Others. Submission being that possession always plays an

important role in the matters relating to land revenue. The Tehsildar without

going into the question as to who was holding the lawful possession of the

suit land has ordered the mutation. This is against the ratio of the order

passed by the Apex Court in Chattar Pal Vs. Mandir Thakurji and Others in

Civil Appeal No.6086/2000 decided on 30.10.2000 wherein the Apex Court

had clearly noted that the mutating authority is required to find out who is in

lawful possession of the property on the date when an order for mutation is

passed. This ratio has been bye-passed. Lastly learned counsel for the

petitioners has placed reliance upon a judgment of Bench of htis Court in

W.P. (C) No.6612/2011 titled Gurcharan Singh Vs. Govt of NCT of Delhi

and Others delivered on 02.07.2012. Submission being that in this case

where there was a dispute about the suit land, in view of Section 23 of the

said Act, it was the SDM who would have the jurisdiction to decide the

question of mutation and not the Tehsildar as has been done in the instant

case. For all the aforestaetd reasons, these orders are liable to be set aside.

6 Learned counsel for the petitioner Karambir has adopted the

submissions made by petitioner Satbir. He additionally submits that

litigation is pending inter-se the parties which includes not only the suit filed

by the petitioners seeking cancellation of the sale deeds dated 15.09.1980 but

proceedings under Section 84 of the Delhi Land Reforms Act (DLRA) are

also pending inter-se the parties. The petitioners are in possession of the suit

land since the year 1974 and all the documents which includes the khasra

girdawris have recorded the cultivatory possession of the petitioners. Since

the question of title is yet pending inter-se the parties, it was the SDM alone

who had the jurisdiction to decide the question of mutation and the Tehsildar

taking it upon itself to decide this question has committed an illegality.

Moreover, the order of the Tehsildar dated 06.04.2009 passed in W.P. (C)

No.6824/2008 has also not been complied as no notice has been received by

the petitioners; they definitely had a say in the matter; they had not been

heard.

7 In response, learned counsel for respondents No. 4 to 9 have

controverted this stand. Submission is that the question of the sale deeds has

been examined by the various Court; evidence had been led before the SDM

on the question of the authenticity of the sale deeds. The SDM vide his

report dated 29.10.1991 had submitted his recommendation to the Financial

Commissioner who had on 05.12.1991 passed an order upholding the

validity of the sale deeds dated 15.09.1980 as also the subsequent Will

(08.06.1986) executed by the predecessor in interest of respondents No. 4 to

9 in their favour. Additional submission being that after the death of father

of the petitioner (in whose favour sale deeds have been executed) the

petitioners had been substituted by the Financial Commissioner vide his

order dated 17.12.1991. He had in fact remanded the matter back to the

SDM. This order of remand had been challenged by the petitioners in W.P.

(C) No.1874/1994. This writ petition had been dismissed by the High Court

in limine on 05.08.1993 which order was endorsed by the Supreme Court on

15.12.1993. All matters have now come to a rest. The question of the sale

deeds being the subject matter of a civil suit is also an eye-wash; submission

being that an earlier suit had been filed by the petitioners seeking

cancellation of the sale deeds which stood abated; the application filed by the

petitioners seeking setting aside of the abatement order had also stood

dismissed. That order has become final. The petitioners have now chosen to

file a second suit which is not permissible as in the absence of leave having

been granted by the concerned Court, a second suit on the same cause of

action is not permissible. This argument is being propounded only to harass

the respondents and to delay their right which rightfully has passed on to

them. Learned counsel for the respondents in support of his submissions has

placed reliance upon the definition of 'possession' as also 'lawful

possession' as contained in the dictionary Law Laxicon. Submission being

that the lawful possession which has been highlighted by the learned counsel

for the petitioners in view of the judgment of Chattar Pal (supra) does not

necessarily mean a physical possession; the Tehsildar had rightfully passed

an order dealing with the land in question as there were no disputed

questions of facts which had arisen over the title of the land as the sale deeds

have been upheld right up to the Apex Court to be authentic documents and

this has also been noted by the Division Bench in its ordes dated 06.04.2009.

8 In rejoinder, learned counsel for the petitioners points out that the sale

deeds are in fact forged/fabricated documents and permission sought for by

the predecessor in interest of the petitioners to obtain an NOC for the sale of

the land had in fact been rejected on 08.05.1980. No NOC having been

granted in favour of the predecessor in interest of the respondents, a transfer

of the land by virtue of the sale deeds dated 15.09.1980 clearly suffers from

an infirmity. All these disputed questions are pending before the Civil Court

which has to decide the question of the authenticity of the sale deeds. The

impugned orders recording mutation in favour of respondents No. 4 to 9

suffers from an illegality and infirmity.

9     Arguments have been heard. Record has been perused.


10    Record shows that the land in question was owned by Chuttan and

Chandgi. Chandgi had died on 27.08.1978. Chuttan had executed two sale

deeds in favour of Parmanand, father of respondents No. 4 to 9. This was

qua the total land i.e. 41 bigha and 17 biswas. Parmanand had expired on

10.04.1981. By operation of law, respondents No. 4 to 9 succeeded to his

estate. Chuttan during his lifetime had filed two suits under Section 84 of

the Delhi Land Reforms Act (DLRA) against Mam Chand (father of the

petitioners). These suits were dismissed in default. The restoration

application was also dismissed. Respondents No. 4 to 9 who had purchased

this land from Chuttan thereafter sought to be impleaded as legal

representatives of Chuttan on the basis of a Will (executed by Chuttan on

08.06.1986) and strength of two sale deeds dated 15.09.1980. This petition

of respondents No. 4 to 9 was dismissed by the Financial Commissioner on

22.09.1987. Against this order, respondents No. 4 to 9 preferred W.P. (C)

No.2449/1988. This petition was disposed of 17.05.1989. The matter was

remanded back to the Financial Commissioner to decide the validity of the

aforenoted sale deeds and the Will. The High Court in this order dated

17.05.1989 had noted that in case any of the aforenoted two documents (sale

deeds or the Will) are held to be valid, respondents No. 4 to 9 would have a

right to be impleaded as a legal representatives of deceased Chuttan. The

Financial Commissioner was vested with this authority.

11 The Financial Commissioner on 26.07.1989 directed the SDM to

record evidence in this matter and to submit its report. The SDM vide its

order dated 29.10.1991 submitted its reported to the Financial Commissioner

having arrived at a conclusion that respondents No. 4 to 9 are the legal

representatives of Chuttan by virtue of the sale deeds as also the Will and are

accordingly entitled to be substituted in place of Chuttan. This was after the

parties had been given opportunity to lead evidence. The petitioners were

represented before the SDM being the legal heirs of Mam Chand. This

report of the SDM dated 29.10.1991 was placed before the Financial

Commissioner. The Financial Commissioner vide his order dated

05.12.1991 allowed substitution of respondents No. 4 to 9 in place of

deceased Chuttan. The Financial Commissioner in its order had in fact noted

that the factum of execution of the sale deeds and Will has not been

contested by the non-applicants/petitioners. The Financial Commissioner

while upholding the sale deeds and the Will concluded that respondents No.

4 to 9 were liable to be impleaded as legal representatives of deceased

Chuttan. On 17.12.1991, the Financial Commissioner disposed of the

revision petition pending before it and remanded the matter back to the trial

Court where the petitions for ejectment (filed by the petitioner) were stated

to be pending. This order of remand was challenged by the petitioners in a

writ petition. This petition was dismissed in limine on 05.08.1993. A

Special Leave Petition preferred against the order dated 05.08.1993 was also

dismissed on 15.12.1993.

12 Record thus shows that the title of respondents No. 4 to 9 had been

clinched by the order passed by the Financial Commissioner who had

endorsed the findings returned by the SDM. It is relevant to note that the

SDM has recorded evidence of the parties to draw a conclusion that the sale

deeds dated 15.09.1980 and the Will dated 08.06.1986 executed by Chuttan

were both valid and authentic documents entitling respondents No. 4 to 9 to

be substituted in placed of deceased Chuttan. The submission of the

petitioners that the SDM could not have decided the authenticity of the sale

deeds is negatived by the fact that in the instant case, it was pursuant to the

order of this Court dated 17.05.1989 passed in W.P. (C) No.2448/1988 that

the SDM had been given the authority to decide about the validity of the sale

deeds and the Will. Pursuant to this order passed by a Bench of this Court,

the authenticity and validity of sale deeds and Will had been examined by

the SDM who had given a report in favour of respondents No. 4 to 9 to the

Financial Commissioner who had endorsed this finding of the SDM. The

order of the Financial Commissioner is dated 05.12.1991.

13 It is also relevant to note that since the authenticity of these two

documents had been upheld in favour of respondents No. 4 to 9 but inspite of

respondents No. 4 to 9 having preferred applications repeatedly before the

Revenue Authorities seeking mutation of the land in question in their favour

and no order being passed in their favour, they had been constrained to move

a writ petition which was W.P. (C) No.6824/2008 before this Court. A

Bench of this Court had noted that the mutation application of respondents

No. 4 to 9 dated 10.01.1992 should be taken up and decided by the SDM in

accordance with law.

14 The SDM had thereafter relegated the matter to the Tehsildar. The

Tehsildar had passed an order dated 04.07.2009. This order records that the

application of respondents No. 4 to 9 seeking mutation was being decided in

terms of the directions of this Court in its order dated 06.04.2009 passed in

W.P. (C) No.6824/2008. The Tehsildar in this order had also noted that the

question of mutation has been earmarked to him by the SDM. After

recording the detailed history of the case and noting the submissions and

counter submissions of the parties, the SDM had passed an order in favour of

respondents No. 4 to 9 holding that mutation should be effected in favour of

respondents No. 4 to 9. The Tehsildar had noted that notices had been issued

to the predecessor in interest of respondents No. 4 to 9 namely Chuttan but

not had appeared for him. Public notices were accordingly issued in two

daily nationals namely 'Statesman' and 'Veer Arjun' inviting objection but

no one had filed any objection.

15 The order of the Tehsildar was upheld by the Deputy Collector in the

second impugned order i.e. order dated 21.03.2011. The petitioners before

this Court i.e. Karambir and Satbir were represented before the Deputy

Collector. Admittedly they were not present before the Tehsildar but their

submission that they have remained unheard is negatived by the fact that

they had the ample opportunity to place their case before the Deputy

Collector which they did and this has been noted in almost 30 page long

order passed by the Deputy Collector. The objections now raised before this

Court were in fact highlighted by the Deputy Collector. The petitioner had

brought to the notice of the Deputy Collector that the Tehsildar did not have

the jurisdiction to decide the question of mutation; provision of Sections 22

& 23 of the said Act had been highlighted. Contention of the petitioner

before this Court is that this aspect on Section 22 of the said Act has not

been considered by the Deputy Collector in the right perspective. It had

wrongly held that physical possession is not necessary for the purpose of

Section 22.

16 This Court notes this argument again today. This Court notes that

Section 22 of the said Act envisages a report of succession or transfer of

possession. The word 'possession' as highlighted in Section 22 does not

necessarily entail physical possession as has vehemently argued before this

Court. This has been rightly noted by the Deputy Collector. The question of

physical possession is not the aspect which has to be considered while

dealing with Section 22. Section 23 of the said Act is also clear. It provides

that the Tehsildar on receiving a report or on facts otherwise coming to his

knowledge in undisputed cases may deal with an application seeking

recording of rights in the annual register. The vehement contention of the

learned counsel for the petitioners that this was not an undisputed case where

the Tehsildar could have assumed jurisdiction is negatived by the fact that

the question of dispute in this case did not arise as the title of respondents

No. 4 to 9 to succeed to the land in question (based on the sale deed dated

15.09.1980) has been up-held by the SDM (after recording evidence) in its

order dated 29.10.1991 which was endorsed by the Financial Commissioner

on 05.12.1991. Respondents No. 4 to 9 had been substituted in place of

deceased Chuttan on the strength of the aforenoted sale deeds and the Will

executed by deceased Chuttan. Subsequent order had been passed by the

Financial Commissioner on 17.12.1991.

17 This order was assailed in W.P. (C) 1874/1992 which was dismissed

on 05.08.1993 and again endorsed by the Apex Court on 15.12.1993. Thus it

was rightly assumed by the Tehsildar that being an undisputed case, he could

decide the application of respondents No. 4o to 9 seeking mutation.

18 Submission of the petitioners that there is yet another suit inter-se the

parties where cancellation of the sale deeds dated 15.09.1980 was sought

appears to be an eye-wash. The petitioners are not allowing the matter to

rest which as per this Court has come to a rest after the order of the Financial

Commissioner dated 17.12.1991 (upholding the validity of sale deeds and

Will) was a re-endorsement of the order of the Deputy Collector.

19 This Court also notes that earlier suit filed by the petitioners seeking

cancellation of the sale deeds had been dismissed as abated on 09.08.1986.

The application under Order XXII Rule 9 of the CPC filed by the petitioners

seeking setting aside of the abatement order was dismissed on 11.01.1991.

This subsequent suit has been filed in 26.08.1988 challenging the same sale

deeds. Learned counsel for the respondents submits that the petitioners

cannot be permitted to challenge the sale deeds once again when on the same

cause of action his suit has abated. This Court also notes that admittedly in

that pending suit, there is no stay which has been granted in favour of the

petitioners. This Court also notes that recording of entries in revenue records

does not confer title on a person. This has been held by the Apex Court in

catena of judgment including the judgment in (2007) 6 SCC 186 Surab Bhan

and Others Vs. Financial Commissioner and Others. Relevant extract of that

order is reproduced herein as under:-

"There is an additional reason as to why we need not interfere with that order under Article 136 of the Constitution. It is well settled that an entry in Revenue Records does not confer title on a person whose name appears in Record of Rights. It is settled law that entries in the Revenue Records or Jamabandi have only 'fiscal purpose' i.e. payment of land-revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent Civil Court (vide Jattu Ram v. Hakam Singh and Ors. MANU/SC/0399/1994 : AIR1994SC1653 ). As already noted earlier, Civil Proceedings in regard to genuineness of Will are pending with High Court of Delhi. In the circumstances, we see no reason to interfere with the order passed by the High Court in the writ petition."

20 A candid query has also been put to the learned counsel for the

petitioners as to how they would be effected by the aforenoted impugned

orders which have only recorded the name of respondents No. 4 to 9 in the

annual register i.e. in the revenue record which the Apex Court has noted to

be largely for a fiscal purpose. The query which has been put to the

petitioners is as to whether armed with these orders, the respondents can take

recourse to law and physically dispossess the petitioners as the case of the

petitioners is that they have been in settled possession of this land since the

last several decades. The answer to this query is that the petitioners

admittedly cannot be dispossessed from the land by the aforenoted impugned

orders. This Court also notes that the submission of the petitioners that the

NOC had not been granted to Chuttan to sell the aforenoted land is a wrong

submission. Although admittedly the NOC had been sought transfer of land

and the same declined on 08.05.1986 yet the subsequent NOC had been

granted to Chuttan on 27.08.1988 and this has also been recorded in the sale

deeds dated 15.09.1980.

21 The ratio of judgment of Balbir Singh (supra) is inapplicable. In that

case, Delhi Land Revenue Rules, 1962 were under challenge. In that

context, an orbiter had been recorded that possession plays an important role

in matters relating to land revenue. The judgment of Chattar Pal has

discussed the concept of lawful possession which does not necessarily entail

a physical possession. The judgment of Gurcharan Singh also related to

disputed questions of facts where the Court was of the view that provisions

of Section 23 would be applicable. In the instant case, this Court has already

noted that there is no dispute about the sale deeds which issue has already

been set to rest.

22 In view of the aforenoted narration of facts, this Court is not inclined

to interfere with the impugned orders.

23     Writ petitions are without any merit. Dismissed.




                                              INDERMEET KAUR, J
NOVEMBER 07, 2016
A