Ravi Dutt & Ors. v. Dal Chand

1. This suit is filed seeking a decree of partition of the suit property between the respective families/successors in interest of late Shri Bhawani, Late Shri Chunni Lal and Shri Trikha to the extent of 1/3rd share in the suit property. The case of the plaintiff is that the suit property is an ancestral property and the parties claim their rights through a common ancestor late Shri Dayaram. It is further pleaded that as per the family tree the respective branches of late Shri Chunni Lal, Shri Trikha and late Shri Bhawani are the owners of the land in question in equal proportion.

2. It is also pointed out that the suit property was notified for acquisition on 25.11.1980 vide Notification under section 4 of the Land Acquisition Act, 1894. Despite the Award passed in 1987-88 physical possession of the suit property was never taken over. Subsequently, a Writ Petition was filed in this court in view of section 24 of the Right to Fair Compensation and 2019:DHC:3455 Transparency in Land Acquisition, Rehabilitation and Resettlement Act,

2013. The said Writ Petition was disposed off on 16.9.2014 when the parties regained rights to the land in question. SLP filed in the Supreme Court was also dismissed on 8.9.2016. Hence, the parties are stated to be joint owners.

3. The right of the defendant to file written statement was closed on 11.01.2019.

4. Learned counsel appearing for the defendant states that he has only one objection to the present suit, namely, that it is barred under the Delhi Land Reforms Act, 1954.

5. The matter was kept today on the said objection raised by learned counsel for the defendant. I have heard learned counsel for the parties. Learned counsel for the plaintiff has relied upon judgment of the Supreme Court in Harpal Singh vs. Ashok Kumar and Another, (2018) 11 SCC 113 to contend that where the land has ceased to be used for agricultural purposes the said Delhi Land Reforms Act,1954 would have no application.

6. Learned counsel for the plaintiff has also pointed out that in the plaint it has been clearly stated in paragraphs 19A and 19 B that the property is not used for agricultural purpose for the last 35 years.

7. The Supreme Court in Harpal Singh vs. Ashok Kumar and Another (supra) 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 purpose 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 includeland occupied by building in belts or areas adjacent to Delhi town, which the Chief Commissioner may be 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 authorized/unauthorized 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[1]. This position of law has not been controverted in the present proceedings.”

8. In para 19B of the plaint a clear averment has been made that the property has not been used for agricultural purpose for the last 35 years and construction has been carried out by the parties of dwelling units. Parties have also obtained electricity connection. As no written statement is on record the above averment has gone un-rebutted.

9. In view of the above, in my opinion, the provisions of Delhi Land Reforms Act, 1954 do not apply to the facts of the case.

10. Learned counsel for the defendant accepts that in case this plea of defendant is not accepted then there is no impediment in passing a decree of partition.

11. Accordingly, a preliminary decree of partition is passed holding the plaintiffs’ share as 2/3 undivided share in the suit property and the defendant’s share as 1/3rd in the suit property.

12. Mr. Rishi Manchanda, Advocate (Mobile No.:9911681178) is appointed as the Local Commissioner to visit the suit property and to suggest the means for partition of the property by metes and bounds. His fee is fixed at Rs.75,000/- plus out of pocket expense to be paid by the plaintiff. The Local Commissioner shall also be entitled to take the assistance of a Draughtsman to prepare an appropriate site plan whose fees shall be paid by the plaintiffs. He may submit his report within two months from today.