Rama Nand vs Roop Ram
2018 Latest Caselaw 3934 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                         Date of decision: 13th July, 2018
+          RSA 228/2014 & CM No.14262/2018 (u/O XXII R-4 CPC)
         RAMA NAND                                   ..... Appellant
                          Through:     Mr. Neeraj Yadav, Adv.

                                Versus
         ROOP RAM                                     ..... Respondent

                          Through:     None.

CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 16th April, 2014 in RCA No.18/2011 (Unique No. 02401C0723232007) of the Court of the Additional District Judge-5, Central District, Tis Hazari Courts, Delhi] of dismissal of first appeal under Section 96 of the CPC preferred by the appellant / plaintiff against the judgment and decree [dated 31st May, 2007 in Suit No. 585/06/03 of the Court of Civil Judge, Delhi] of dismissal of suit filed by the appellant / plaintiff for declaration that he is in cultivatory physical possession of the land measuring 2 bighas out of Khasra No.655/1, 875/1/1 and 880 in the Revenue Estate of Village Rajokari Pahari, New Delhi and for permanent injunction restraining the respondent / defendant Roop Ram and defendant / Ram Chander, being the father of the appellant / plaintiff and the respondent / defendant Roop Ram and who has since died, from interfering with

the possession of the appellant / plaintiff and / or from dispossessing the appellant / plaintiff therefrom.

2. The appeal came up before this Court first on 3 rd September, 2014, when it was adjourned to enable the counsel for the appellant / plaintiff to take instructions whether the appellant / plaintiff was in possession of the land or not. Vide the same order, the record of the Suit Court and the First Appellate Court was also requisitioned.

3. Vide judgment dated 22nd December, 2014, after hearing the counsel for the appellant / plaintiff and holding that no substantial question of law arises, the appeal was dismissed. However on review sought by the appellant / plaintiff which was allowed on 9th March, 2018, the order of dismissal of the appeal was recalled and the appeal again set down for admission.

4. The counsel for the appellant / plaintiff has been heard and the Trial Court record requisitioned perused.

5. The appellant / plaintiff instituted the suit, pleading (i) that the father of the appellant / plaintiff and the respondent / defendant namely Ram Chander and the brothers of Ram Chander inherited agricultural land in Village Rajokari Pahari, New Delhi from their father and Ram Chander and his three brothers were recorded as bhumidhars of the said land with 1/4th share each; (ii) that the appellant / plaintiff was born in the year 1946 and the respondent / defendant Roop Ram was born 13 years before the birth of the appellant / plaintiff, i.e. both were born prior to the commencement of

the Delhi Land Reforms Act, 1954 (Reforms Act); (iii) the appellant / plaintiff and the respondent / defendant Roop Ram by birth acquired bhumidhari rights along with their father Ram Chander in the aforesaid land; and, (iv) that a compromise / family arrangement also took place orally between the appellant / plaintiff, respondent / defendant Roop Ram and their father Ram Chander and which was reduced to writing on 2nd April, 1978 and in terms of which, the 1/4th share of Ram Chander in the aforesaid land was divided half and half between the appellant / plaintiff and the respondent / defendant and they took possession of the same. Hence the suit for declaration and permanent injunction.

6. The respondent / defendant Roop Ram and the father of the parties namely Ram Chander contested the suit by filing a written statement pleading (i) that the suit was barred by Section 185 of the Land Reforms Act; (ii) that the suit was barred by Section 11 and Order II Rule 2(3) of the Code of Civil Procedure, 1908 (CPC); (iii) that the suit was barred by Section 41(h) of the Specific Relief Act, 1963; (iv) that the appellant / plaintiff is neither the owner nor co- sharer of the land and was never in possession thereof; (v) that on the demise of the paternal grandfather of the appellant / plaintiff, the appellant / plaintiff did not inherit any share in the land aforesaid; (vi) no Family Settlement or compromise was arrived at and no writing was executed of 2nd April, 1978; genuineness of the document dated 2nd April, 1978 was denied; (vii) that the question of a Family Settlement or division did not arise since the appellant / plaintiff or the

respondent / defendant Roop Ram had no share in the property; and,

(viii) the appellant / plaintiff was never in possession and his name was never entered in the Revenue Records.

7. On the pleadings aforesaid of the parties, the following issues were framed in the suit on 1st October, 2003:-

"(i) Whether the suit of plaintiff is not maintainable?

OPD

(ii) Whether the plaintiff is entitled for relief claimed in the suit? OPP

(iii) Relief."

8. The respondent / defendant Roop Ram and the father of the parties Ram Chander applied under Order XIV Rule 5 of the CPC but which application was dismissed. On CM(M) No.667/2004 being preferred thereagainst this Court ordered that while adjudicating Issue no.(i), the defendants will be entitled to raise objection regarding bar of Section 185 of the Reforms Act, bar of principle of res judicata as well as of Section 41(h) of the Specific Relief Act, 1963.

9. The Suit Court dismissed the suit, holding (i) that since the suit was not for declaration of bhumidhari rights but for declaration of cultivatory possession of the land, the suit was not barred by Section 185 of the Reforms Act; (ii) the suit was also not barred by res judicata as the earlier suit on the basis whereof the said plea was taken was dismissed on a preliminary issue and there was no decision on merits; (iii) for the same reason, the suit was also not barred by Order

II Rule 2 of the CPC; (iv) that the appellant / plaintiff had failed to prove that he was at any point of time in cultivatory possession of the land; (v) that the document dated 2nd April, 1978 on which Ex.PW1/4 was put, had been proved in accordance with law; (vi) however, the evidence led by the appellant / plaintiff did not prove that any such Family Settlement was implemented; and, (vii) a Family Settlement of partition has no legal significance if facts do not show that such arrangement was accepted and implemented by all the parties; from the factum of the appellant / plaintiff having failed to prove his possession, it was evident that no such Family Settlement was ever implemented.

10. The First Appellate Court has affirmed the findings of the Suit Court. In addition it was held, (a) that the father of the parties Ram Chander continued to be the recorded bhumidhar of the land and therefore the dispossession, even if any of the appellant / plaintiff, was permissive and the appellant / plaintiff had not taken any proceedings for being recorded as the bhumidhar; (b) if the Family Settlement created a legal right in favour of the appellant / plaintiff, the plaintiff in the earlier suit filed by him would have made a claim therefor and which had not been done; and (c) the earlier suit filed by the plaintiff was only on the basis of the appellant / plaintiff having inherited share by birth in the land.

11. The counsel for the appellant / plaintiff has fairly stated that the appellant / plaintiff today cannot urge having inherited any share in the land aforesaid by birth or otherwise and the only contention is on

the basis of document dated 2nd April, 1978 in Hindi language, copy whereof is at page 67 of the paper book and English translation whereof done by the counsel for the appellant / plaintiff at page 68. The said translation, even if were to be believed, discloses the document as under:-

"Today, dated 02.04.78 I have partitioned the entire residential and agricultural land for cultivation between my two sons. After dividing the entire land in two equal shares, I have handed over the possession of separate shares to both my sons. This partition has been effected by me to avoid the daily quarrels between my two sons or the coming of police to the house and also to avoid the bad blood between the two, as per my wish.

Since both of us, me and wife, have become weak and cannot do any work, therefore, the six shops adjacent to plot of Sohan Lal S/o Nathu have been given to us and we can survive on the rent by living with any of the son as per our wish. Now, we will live with Ramanand. The document has been made and one copy each has been given to both the sons. They are also agreeable to this settlement.

1. Sd/- (Hindi) Ramchander S/o Shri Ranjeet

2. Sd/- (Hindi) Roopram

3. Sd/- (English) Ramanand Yadav 2/4/1978 Witnesses:

1. Sd/- (English) Bharat Singh S/o Shri Ranjeet

2. Sd/- (Hindi) Rammehar S/o Shri Ramprasad

3. Sd/- (Hindi) Choudary Jawhar Singh"

12. I have drawn the attention of the counsel for the appellant / plaintiff to the recent dicta of the Supreme Court in Theiry Santhanamal vs. Viswanathan (2018) 3 SCC 117 holding that partition deed can be entered into between the parties who are joint owners of the property; a father, as absolute owner of the property, could not give away portions of the property to his sons by entering into a partnership deed; in case the father wanted to give the property of which he was absolute owner, to his sons, it could be done by Will or by means of gift deed / donation, etc; however, the claim of the plaintiff was not on that basis; it was not stated anywhere whether necessary formalities, conditions or rules laid down for donation inter vivos or gifts so as to enforce a document were complied with; in the absence of pleadings, no evidence also to that effect was produced. Similarly, under a Family Settlement, pre-existing rights only can be apportioned and no new rights can be created. It has been enquired from the counsel for the appellant / plaintiff, that once the appellant / plaintiff by birth did not inherit any share in the land as was earlier claimed by the appellant / plaintiff, the 1/4 th share in the land inherited by the father of the parties was the exclusive property of the father of

the parties and how could the appellant / plaintiff by the document as aforesaid acquire rights therein. I have also in Sanjeev Gupta vs. Manoj Loharia 2018 SCC OnLine Del 9105 held that such a transaction does not come within the purview of the Family Settlement.

13. Even otherwise, from a bare reading of the translation of the document aforesaid, it is evident that the father of the parties Ram Chander thereunder sought to transfer / convey rights in the land from himself in favour of the appellant / plaintiff and the respondent / defendant Roop Ram. The document is not of Family Settlement. The law provides that such transfer of rights can be by a registered document only. The document is admittedly not registered and does not qualify as transferring any rights in land in favour of appellant / plaintiff.

14. Though the Courts below have held the suit to be not barred by the Reforms Act but I may mention that even if under the document aforesaid, the appellant / plaintiff on 2nd April, 1978, when the Reforms Act was admittedly in force, acquired rights, title or interest in the land, it was incumbent upon the appellant / plaintiff to, under Section 13(2) thereof, institute a suit / application before the Revenue Assistant for declaration of the bhumidhari rights so acquired in the land which he claims to have fallen under his share. The appellant / plaintiff in such proceeding, notwithstanding the non-existence of a registered document could have been declared as bhumidhar if found in cultivatory possession of land. However the appellant / plaintiff did

not chose to take any such action. On the coming into force of the Reforms Act, no ownership rights exist in agricultural land save for rights as bhumidhar and asami. The case of the appellant / plaintiff inter alia is of acquisition of bhumidhari rights but which the appellant / plaintiff has not established in accordance with law and in my opinion the jurisdiction of the Civil Judge invoked did not entitle the Civil Court to declare bhumidhari rights. The Civil Court could have only if had found the appellant / plaintiff in possession passed a decree for permanent injunction restraining the forceful dispossession of the appellant / plaintiff and which relief the Revenue Courts under the Reforms Act are incapable of granting. However, the appellant / plaintiff has not been found to be in possession also and with respect to which concurrent finding of the two Courts below, no substantial question of law arises. Once the appellant / plaintiff was not in possession, the question of declaration of his having any share in the land even otherwise did not arise.

15. No substantial question of law thus arises in this Second Appeal.

16. Dismissed.

17. No costs.

18. The counsel for the appellant / plaintiff at this stage states that the appellant / plaintiff claims rights as co-parcener in some other properties also and the statement of the counsel for the appellant /

plaintiff that he is not claiming any share in the land as co-parcener be confined to the subject land only.

19. It is made clear that the observations and reasonings aforesaid are only for the purpose of the present controversy and will not bind the appellant / plaintiff qua claim of the appellant / plaintiff for any other property.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J JULY 13, 2018 'pp'..