The Delhi High Court dismissed the civil appeal holding that civil courts lack jurisdiction under Section 185 of the Delhi Land Reforms Act to entertain suits for declaration of bhumidhari rights and cancellation of sale deeds concerning agricultural land.
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R.S.A. No.355/2006 HIGH COURT OF DELHI R.S.A. NO.355 OF 2006 Date of Decision: 8th February, 2013 MADAN MOHAN …… Appellant Through: Mr. R.S. Nirmal, Advocate.
VERSUS
ANTRO DEVI & ORS. …… Respondents Through: Mr. R.K. Sharma, Advocate for R-2 & 3. Mr. R.S. Rana, Advocate for R-5.
CORAM:
HON’BLE MR. JUSTICE V.K. SHALI V.K. SHALI, J. (ORAL)
JUDGMENT
1. This is an appeal under Section 100 CPC against the order dated 21.8.2006 passed by the learned Additional District Judge dismissing the appeal of the appellant bearing R.C.A. No.10/2006 titled Madan Mohan vs. Antro Devi & Ors.
2. Briefly stated the facts of the case are that the appellant filed a suit bearing No.29/2005 against the respondents claiming that one Chotu Ram, maternal grandfather of the appellant, was residing in Akbarpur Majra, Delhi and was bhumidhar of land bearing Khasra No.13/18/3 (3- 12), 23 (3-10), 34/9 (4-16), 11 (4-16), 44/5/2 (3-4), 45/10 (4-4) measuring 2013:DHC:680 24 bighas 2 biswa in the Revenue Estate of Village Akbarpur Majra, Delhi. It was alleged that Chotu Ram died on 14.8.1966 and the property was inherited by his widow, namely, Bhoori Devi and thereafter, the property was devolved in favour of Antro Devi (respondent No.1 herein through LRs) on the basis of the Will. It was further alleged that the land has been mutated in the name of Antro Devi after demise of Bhoori Devi on 8.2.1982. Reliance was placed on Section 50 (a) of the Delhi Land Reforms Act to aver that the mutation/transfer of the property in favour of Antro Devi was illegal and unlawful because as per Section 50 sub-clause (a) read with Clause (p) of the aforesaid provision, only the male descendent could inherit the property. It is pertinent here to reproduce Section 50 of the Delhi Land Reforms Act, which reads as under:-
“50. General order of succession from males –
Subject to the provisions of section 48 and 52, when a
Bhumidhar or Asami being a male dies, his interest in
his holding shall devolve in accordance with the order
of the succession given below :
(a) male lineal descendants in the male line of the descent: Provided that no member of this class shall inherit if any male descendant between him and the deceased is alive:
Provided further that the son or sons of a predeceased son howsoever low shall inherit the share which would have devolved upon the deceased if he had been then alive; (b) widow;
(c) father;
(d) mother, being a widow;
(e) step mother, being a widow; (f) father’s father; (g) father’s mother, being a widow; (h) widow of a male lineal descendant in the male line of descent;
(i) unmarried daughter;
(l) brother’s son, the brother having been son of the same father as the deceased;
(m) father’s father’s son;
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3. It was further alleged in the plaint that Antro Devi, w/o Laxman Singh, had executed four sale deeds in respect of the aforesaid suit property in favour of her sons, namely, Krishan Kumar, Jai Bhagwan, Harish Chander and one Chandro Devi, w/o Jai Bhagwan, who were impleaded as defendants in the suit and are respondents in the present appeal also. On the basis of the aforesaid fact, a declaration and permanent injunction was sought to the effect that the appellant has inherited the bhumidhari rights in respect of the suit land. The cancellation of sale deeds purported to have been executed by Antro Devi was also sought. The defendants appeared and filed their written statement and reply to the application. Various pleas were taken including that the suit is barred under Order II Rule 2 CPC as the previous suit bearing No.233/2001 had been filed by the appellant with various reliefs but the present reliefs were not claimed in the said suit. It was also alleged that the present suit is barred under Section 185 of the Delhi Land Reforms Act as only the Revenue Court has the jurisdiction to entertain the suit for declaration and relief of cancellation of the sale deed was an incidental relief to the relief of declaration. The learned Judge, after hearing the arguments of the parties, dismissed the application under Order 39 Rules 1 & 2 CPC on the ground that the appellant has not been able to make out a prima facie case. The learned judge further rejected the suit on the ground of jurisdiction holding that a suit for declaration under Section 185 of the Delhi Land Reforms Act in respect of an agricultural land could be filed only before the Revenue Authorities. This was de hors the fact that the appellant would be entitled to inherit the bhumidhari rights in terms of Section 50 of the Delhi Land Reforms Act.
4. Feeling aggrieved by the aforesaid order dated 5.12.2005, the appellant preferred an appeal which was also dismissed on 21.8.2006 by the learned Additional District Judge upholding the point of the trial court that Section 185 of the Delhi Land Reforms Act bars the jurisdiction of the civil court to grant any declaration and since the grant of declaration was essential for seeking cancellation of sale deeds, therefore, the Revenue Authorities would be the proper forum which could grant the said declaration.
5. Still feeling dissatisfied, the appellant has now filed the present regular second appeal.
6. I have heard the learned counsel for the appellant and have gone through the record. I have given my careful consideration to the entire record and the judgments passed by the courts below. There is a concurrent finding by the courts below that the relief which is claimed by the appellant is essentially a relief of declaration to the effect that he should be declared to have inherited bhumidhari rights in respect of the suit land. So far as the prayer for cancelation of sale deeds in respect of the suit land is concerned, this is only a consequential relief. According to Section 185 of the Delhi Land Reforms Act, the jurisdiction of the civil court is barred to entertain any petition in respect of which Schedule I of the Delhi Land Reforms Act provides the forum where the suit can be filed. The exact language of Section 185 of the Delhi Land Reforms Act is as under:-
“185. Cognizance of suits, etc., under this Act. – (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 in the Code of Civil Procedure, 1908 (5 of 1908), take cognizance of any suit, application, or proceedings mentioned in column 3 thereof. (2) Except as hereinafter provided no appeal shall lie from an order passed under any of the proceedings mentioned in column 3 of the Schedule aforesaid. (3) An appeal shall lie from the final order passed by a court mentioned in column 3 to the court or authority mentioned in column 8 thereof. (4) A second appeal shall lie from the final order passed in an appeal under sub-section (3) to the authority, if any, mentioned against it in column 9 of the Schedule aforesaid.”
7. Serial No.28 of Schedule I and Section 104 of the Delhi Land Reforms Act clearly lays down that a declaratory suit can be filed only before the Revenue Assistant. By virtue of the aforesaid provision, the entertainment of the suit by a civil court with regard to the grant of declaration is barred, therefore, the suit has been rightly rejected in terms of Order VII Rule 11 sub-clause (d) of the CPC. The present second appeal does not raise any substantial question of law. The questions of law which the learned counsel for the appellant has formulated in the appeal are essentially questions of fact except question Nos.(b) and (c) which is to the effect whether cancellation of the sale deed is barred under Section 185 of the Delhi Land Reforms Act. So far as this question is concerned, I have already observed hereinabove that the main relief which the appellant is praying is for declaration which can be entertained only by the revenue court, therefore, this relief with regard to the cancellation of sale deeds, which has been prayed by the appellant, is essentially a consequential relief to the declaration of his bhumidhari rights. Consequently, the suit could not be entertained by a civil court only on account of the ancillary relief of the appellant.
9. For the reasons mentioned above, I am of the considered opinion that no substantial question of law is arising from the present appeal and accordingly, the same is dismissed. V.K. SHALI, J. FEBRUARY 08, 2013/‘AA’
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