Smt Pataso Devi vs Sh Satish Kumar & Ors
2019 Latest Caselaw 3826 Del

$~OS-6
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of decision: 20.08.2019
+      CS(OS) 43/2017

       SMT PATASO DEVI                                    ..... Plaintiff
                    Through            Mr.Jaspreet Singh Rai and Mr.Rohit
                                       Nagpal, Advs. alonwith plaintiff in
                                       person

                versus
       SH SATISH KUMAR & ORS                     ..... Defendants
                       Through Mr.Abdhesh       Chaudhary         and
                               Ms.Sakshi Arora, Advs. for D-1
                               Mr.V.P.Rana, Adv. for D-2
                               Mr.Brijender S.Dhul, Adv. for D-3 &
                               D-6
                               Mr.V.S.Panwar, Adv. for D-4
                               Mr.Sunil Chauhan, Adv. for D-5

       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.(ORAL)

IA No. 5931/2017 & 6563/2017
1.

IA No.5931/2017 is filed by defendant No.2 for rejection of the plaint. IA No.6563/2017 is filed by defendant No.1 seeking the same relief.

2. The suit is filed by the plaintiff seeking a decree of partition of the stated five properties. The plaintiff is the mother of the defendants. Defendants No.1 and 2 are the sons and defendants No.4 to 6 are the daughters. The late father Shri Sahab Singh expired on 13.4.1991. The grievance of the plaintiff is that while her two sons are enjoying a luxurious

life running schools and owning big bungalows she has been left penniless in this scenario.

3. The daughters, namely, defendants No.3 to 6 are supporting the plaintiff.

4. By the present application the defendants No.1 and 2 states that admittedly late Shri Sahab Singh passed away on 13.4.1991. Defendant No.1 is the elder son. It is stated that the plaintiff is essentially seeking partition of the bhumidari rights and that the suit is barred under section 50 of The Delhi Land Reforms Act, 1954. It is further stated that the land which is sought to be partitioned is covered by The Delhi Land Reforms Act, 1954 and already stands mutated in favour of defendants No.1 and 2 by order dated 14.5.1991 by the Tehsildar. It is further pleaded that the Tehsildar passed a mutation order as the defendants No.1 and 2 are the only male lineal descendants in the male line of the descent of late Sahab Singh. It is further stated that the amendment in the Hindu Succession Act, 1956, which took place on 9.9.2005 would not apply to the facts of this case as the succession opened up in 1991. It is stated that the amendment to the Hindu Succession Act that took place in 2005 does not have retrospective effect.

5. Learned counsel for the plaintiff has, however, pointed out that all the immovable properties have already been built up long back. He further states that in view of the judgment of the Supreme Court in Harpal Singh vs. Ashok Kumar & Ors., AIR 2017 SC 5852, the properties have ceased to be controlled by The Delhi Land Reforms Act, 1954.He also relies upon the judgment of this court of a co-ordinate Bench in the case of Krishna Gupta vs. Rajinder Nath & Co.HUF & Ors., (2013) 134 DRJ 246.

6. Learned counsel for the applicants has relied upon the judgment of

this court in the case of Mukesh & Ors. vs. Bharat Singh and Ors., 149 (2008) DLT 114 to support their contention that in terms of The Delhi Land Reforms Act, 1954 the present plaint is barred by law. Reliance is also placed on Article 106 of the Limitation Act, 1963 to plead that the suit is barred by limitation.

It is also stated that there is no averment in the plaint that the land was built up long ago.

7. The legal position regarding Order 7 Rule 11 CPC is quite clear. The said provision reads as follows:-

"11. Rejection of plaint The plaint shall be rejected in the following cases :-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law :

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of rule 9;

xxxxxxx"

8. While considering an application under Order 7 Rule 11 CPC, the court can only look at the averments in the plaint and the accompanying documents. In Tilak Raj Bhagat vs. Ranjit Kaur, 2012 VAD (Delhi) 186 this court held as follows:-

"5. It may be worthwhile to mention here that while considering an application under Order 7 Rule 11 CPC, the Court has to look at the averments made in the plaint by taking the same as correct on its face value as also the documents filed in support thereof. Neither defence of the defendant nor averments made in the application have to be given any weightage. Plaint has to be read as a whole together with the documents filed by the plaintiff."

9. To the same effect are the judgments of the Division Bench of this Court in the case of Indian City Properties Ltd. Vs. Vimla Singh & Ors. 198(2013) DLT 432 and in the case of Inspiration Clothes & U vs. Collby International Ltd., 88(2000) DLT 769.

10. Reference may also be had to a judgment of the Supreme Court in the case of Hardesh Ores Pvt. Ltd v. M/s Hede and Company 2007 (7) SCALE 348, noted as follows:

"21. The language of Order VII Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr. Nariman did not dispute that "law within the meaning of clause (d) of Order VII Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint, in their entirety must be held to be correct."

11. While dealing with an application under Order 7 Rule 11 CPC the court should only look at the averments in the plaint and the accompanying documents and does not look into the defence of the defendants.

12. The only issue here is whether the present suit is barred by law. In Harpal Singh vs. Ashok Kumar & Ors. (supra), the Supreme Court held as follows:-

"5. Section 3(13) of the Delhi Land Reforms Act defines the expression "land" as follows:

"3. (13) "land" except in Sections 23 and 24, means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming and includes-

(a) buildings appurtenant thereto,

(b) village abadis,

(c) grovelands,

(d) lands for village pasture or land covered by water and used for growing singharas and other produce or land in the bed of a river and used for casual or occasional cultivation,

but does not include -

land occupied by buildings in belts of areas adjacent to Delhi town and New Delhi town, which the Chief Commissioner may by a notification in the Official Gazette declare as an acquisition thereto;"

The position of law which has been consistently followed is that where the land has not been used for any purpose contemplated under the Land Reforms Act and has been built upon, it would cease to be agricultural land. Once agricultural land loses its basic character and has been converted into authorised/unauthorised colonies by dividing it into plots, disputes of plot holders cannot be decided by the Revenue

Authorities and would have to be resolved by the civil court. The bar under Section 185 would not be attracted. This position of law has not been controverted in the present proceedings.

xxx

9. The above findings have not been squarely challenged in these proceedings. The suit which was decreed on 30-5-2009 was a suit under Section 6 of the Specific Relief Act which in any event, did not require a determination of the question of title. The earlier suit was a suit for injunction. The finding of fact which has been arrived at is to the effect that the land in question had ceased to be agricultural in nature on the date of the institution of the suit. Hence, it cannot be held that the decree of the trial court was a nullity. The land was not governed, as a result, by the Delhi Land Reforms Act, 1954 since it was not agricultural and the bar under Section 185 was not attracted. There was no inherent lack of jurisdiction and the objection to the execution of the decree was without foundation."

13. It follows from the above that where the land has not been used for any purpose contemplated under the said Delhi Land Reforms Act, 1954 and has been built upon, it would cease to be agricultural land. The Bar under section 185 would not be attracted.

14. A perusal of the plaint shows that clear averments are made that the suit properties have been constructed upon. It is stated that estate of late Sahab Singh comprises of land situated at Village & Post Office Devli, New Delhi comprising of 12-14 rooms, land at Sangam Vihar where schools are being run, land at Sainik Farms and land at village Devli which again comprise of four floors and three shops. Further land at Devli Village, New Delhi where again a school by the name and style of "The Rising Star" is

being operated upon.

The plea of the defendant is that all these properties have been constructed after the death of late Sahab Singh in 1991 and that in 1991 when succession opened these were all agricultural lands and Delhi Land Reforms Act, 1954 continued to apply. Reliance is placed on the judgment of a Co-ordinate Bench of this court in the case of Mukesh & Ors. vs. Bharat Singh and Ors.(supra) to contend that the Hindu Succession Act will not apply herein and the succession will be as per Delhi Land Reforms Act.

15. In my opinion, these are disputed questions of fact which would have to be gone into after the parties have led their evidence. At this stage, this court has to only consider the case of the plaintiff on the basis of averments in the plaint to determine whether the suit is liable to be dismissed. In my opinion, it cannot be said on a reading of the plaint that the suit is barred under the Delhi Land Reforms Act, 1954.

16. Regarding reliance of Article 106 of Schedule to Limitation Act the said provision reads as follows:-

106. For a legacy or Twelve years. When the legacy or for a share of a share becomes payable residur bequeathed by or deliverable.

          a testator or for a
          distributive share of
          the property of an
          intestate against an
          executor     or    an
          administrator or some
          other person legally
          charged with the duty
          of distributing the
          estate.

17. It is clear that the facts in the present case are materially different. The issue here does not pertain to legacy or for a share of a residue bequeathed by a testator or for a distributive share of the property of an intestate against an executor or an administrator.

18. The applications are without merits and are dismissed. IA No.1338/2017

1. This application is filed by the plaintiff under Order 39 Rule 1 and 2 CPC to restrain the defendants from creating third party interest.

2. Learned counsel for the defendant No.1 submits that a partition has already taken place between defendant No.1 and defendant No.2. He states that he has already sold the property being House No.186 (Khasra No. 186 area 2 Bigha 2 Biswa) measuring approx.2000 sq.yards situated at Village & Post Office Devli, New Delhi-110062 way back in 1999.

3. Learned counsel further states that he is not in possession of any of the suit properties and that he has disposed it of way back in 1999. Defendant No.1 will place on record an affidavit as the proof of having sold these properties. Defendants No.1 and 2 will maintain status quo regarding title and possession of the balance properties. Application stands disposed of.

CS(OS)43/2017 Learned counsel for defendant No.1 and 2 states that in terms of the order of the Family Court they pay a sum of Rs.10,000/- each to the mother/plaintiff regularly.

Learned counsel for defendant No.1 however states that he has moved an application for reduction of the maintenance amount.

List on 10.10.2019 before Joint Registrar for completion of admission/denial of documents.

List in court on 18.12.2019 for framing of issues.

JAYANT NATH, J.

AUGUST 20, 2019/n Corrected and signed on 28.08.2019.