Maya Devi v. Rajeshwar & Ors.

Delhi High Court · 12 Oct 2018 · 2018:DHC:6719

Prathiba M. Singh

CS (OS) 1315/2014

2018:DHC:6719

civil other Significant

AI Summary

Civil courts have jurisdiction to entertain suits challenging the validity of Will and sale deeds notwithstanding the Delhi Land Reforms Act, and such suits cannot be dismissed at the pleading stage on grounds of bar under Order II Rule 2 CPC without trial.

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CS (OS) 1315/2014
HIGH COURT OF DELHI
Date of Decision: 12th October, 2018

CS (OS) 1315/2014
MAYA DEVI ..... Plaintiff
Through: Mr. Sudhir Kumar Sharma, Advocate (M-9811232930).

VERSUS

RAJESHWAR & ORS ..... Defendants
Through: Mr. Amol Sharma & Ms. Jagriti Ahuja, Advocates for D-1 to 11 (M-
9213743613).
Mr. Anant Bhushan, Advocate for D- 15 to 17 (M-8010070705).

CORAM:

JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J. (Oral)

I.A. 11387/2018 (for addition and deletion of D-18)

JUDGMENT

1. The impleadment sought of Tehsildar of Kapashera is permitted. I.A. is disposed of. I.A. 7129/2018 (Under Order XXII Rule 4 CPC)

2. This is an application for seeking impleadment of the legal heirs of Defendant No.12. Admittedly, Defendant No.12 never appeared in the matter, however, her legal heirs impleaded for the sake of completeness. I.A. is allowed in the above terms. I.A. 7130/2018 (for setting aside abatement of the suit) & I.A. 7131/2018 (for delay of 300 days in filing the application)

3. Since the impleadment of the legal heirs of Defendant No.12 is allowed, these two applications for abatement and delay become infructuous and the same are disposed of. 2018:DHC:6719 I.As. 14776/2015 (for delay in filing written statement) & 11984/2015 (Under Order VIII Rule 1 CPC)

4. The written statements are taken on record and the applications are disposed of. I.As. 6875/2015 & 8093/2015 (Under Order VII Rule 11 CPC)

5. The present applications have been filed under Order VII Rule 11 CPC seeking rejection of the plaint on various grounds. The grounds taken in the Order VII Rule 11 application are two fold. Firstly, it is submitted that under the provisions of the Delhi Land Reforms Act, 1954 (hereinafter, ‘DLR Act’) the appropriate authority for the Plaintiff to seek declaration is the Revenue Assistant constituted under the DLR Act. Secondly, it is also submitted that the Plaintiff had filed a suit for permanent injunction earlier and in the said suit, the relief of declaration for cancellation of mutation, agreement to sell, as also the Will there of were not sought.

6. The first and foremost submission of Mr. Sudhir Kumar Sharma, Ld. counsel appearing of the Plaintiff is that the Revenue Assistant does not have the jurisdiction to decide the issue of cancellation of mutation, cancellation of Will and agreement to sell as also the declaratory relief which has also been prayed for. It is his submission that the Revenue Assistant’s jurisdiction is limited in nature and by relying on the judgment of this Court in Ashok Kumar & Ors. v. Munni Devi & Ors. 188 (2012) Delhi Law Times 589 (hereinafter, ‘Ashok Kumar’), it is submitted by him that the suit for declaration, cancellation of sale deed, Power of Attorney, etc., are all beyond the jurisdiction and powers of the Revenue Assistant.

7. On the other hand, Ld. Counsel for the Defendants rely upon the judgment of the Learned Single Judge of this Court in Subhadara and Ors v. Surender Singh & Ors (hereinafter, ‘Subhadara’).

8. On this issue, the Ld. counsels for the parties have also taken the Court through the various entries in Schedule I of the DLR Act.

9. A perusal of the prayer in the present suit, reveals that the Plaintiff is seeking a declaration of the alleged Will executed by the father – Late Sh. Dheeraj Tyagi and consequently seeks declaration that the sale deeds executed in favour of Defendants No.15 to 17 and the registered gift deed in favour of Defendants No.7 to 11 are null and void. The relief claimed is set out below: “(i) pass the decree of declaration in favour of the plaintiff and against the defendants no.1 to 11 and 15 to 17, thereby declaring that the Regd. Will executed by late Sh. Deeraj Tyagi bequeathing suit land in favour of defendants no.1 to 4 and Sh. Puran Mal (since deceased) duly registered with the office of Sub- No.760, Book No.III, Vol. No.460, on Pages 64&65 on 04.06.2009 is sham, inoperative, null & void document and the same does not confer any right and title upon the defendants no.1 to 4 and Sh. Puran Mal (since deceased) and consequently, the documents of Sale Deeds executed by defendants no.1 to 4 and late Sh. Puran Mal vide Registration No.7740 in Addl Book No.1, Vol. No. 5995 on pages 17 to 25 dated 15.07.2011 in favour of defendants no.16 & 17 and another Sale Deed vide Registration No. 7742 in Addl. Book No.I, Vol. No. 5995 on pages 31 to 39 dated 15.07.2011 in favour of defendant no.15 and also the Regd. Gift Deed executed by defendant no.1 to 4 and Sh. Puran Mal (since deceased) in favour of defendants no.7 to 11 vide Registration No. 7741 in Addl. Book No. I, Vol. No. 5995 on pages 26 to 30 dated 15.07.2011 are null and void ab-initio, inoperative and sham documents and the same do not confer any title upon defendants no.1 to 11 and 15 to 17 in any manner whatsoever, having no legal binding on the plaintiff, in the interest of justice;

(ii) direct the defendant no.18 to delete the entries of mutation made by him in the Revenue Board on th basis of above detailed registered Will, Sale Deeds and Gift Deed and further to issue necessary directions to the Sub-Registrar-IX, Kapashera, New Deli to deregister the entries of registration of above documents from the record maintained by it, in the interest of justice;

(iii) cost of the suit may also be awarded in favour of the plaintiff and against the defendants.”

10. The parties have relied upon the definition of Bhumidhar in Section 5 of the DLR Act as also entries no.4 and 28 in Schedule I. The nature of the reliefs sought in the two judgments relied upon by the Ld. counsels are different. Whereas in the case of Subhadara (supra)., this Court observes that the Delhi Land Reforms Act is a complete code in itself and that the Plaintiff has to approach the Revenue Assistant for seeking of annulment of mutation, in Ashok Kumar (supra), it is categorically held that the suits, such as suit for declaration, injunction and cancellation of sale deed on the ground of the same having been forged and fabricated cannot be decided by the Revenue Assistant.

11. In Ashok Kumar (supra), the Plaintiffs had filed a suit for declaration and injunction, on the ground that the documents executed by the defendant i.e. GPA, Sale Deed were void. The defendants in the case took a plea that the suit was barred under Section 185 of the DLR Act and the Civil Court had no jurisdiction. The Trial Court had held that that both the reliefs i.e. the declaration and injunction are within the competent jurisdiction of the Revenue Assistant to determine and that the Civil Court cannot be approached.

12. The Learned Single Judge of this court in Ashok Kumar (supra), thereafter, in an appeal, set aside the Trial Court’s judgement with the following observations:-

“5 In my opinion, the trial Court has fallen into a grave error in holding that the Civil Courts did not have jurisdiction in view of Section 185 of the Act. Section 185 has already been reproduced above and which Section shows that the Revenue Courts have jurisdiction to try such suits which are mentioned in Columns 2 and 3 of the Schedule I of the Act, and it is only with respect to such suits that the jurisdiction of the Civil Courts will be barred. The Sections and type of the suits which are mentioned in Columns 2 & 3 of the Schedule I of the Act, do not cover suits such as the subject suit for declaration, injunction and for cancellation of a sale deed/power of attorney on the ground of the same having been forged and fabricated. Such causes of action/reliefs of declaration and injunction which pertain to invalidity of the title documents which are said to have been got executed on the basis of a forged and fabricated General Power of Attorney are not covered under any of the Sections under Columns 2 & 3 of Schedule I and they can be thus decided by a Civil Court. A reference to Columns 2 and 3 of Schedule I of the Act shows that in none of the Sections or the description of suits, mentioned in Columns 2 and 3 of the Schedule I respectively, the subject suit would be covered. The only Sections which can be said to be somewhat related to the issues/causes of action/reliefs in the suit are Sections 13 and 104. Section 13 pertains to an application to regain possession after Bhumidhari rights are got declared and for which period of limitation is one year from the commencement of the Act. The Act commenced in the

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year 1954 and the subject suit for declaration and injunction cannot be said to be pertaining to Section 13 of the Act, and also because no declaration of Bhumidhari rights envisaged under Section 13 is in issue in the subject suit. Therefore, the subject legal proceedings are not covered under serial No.3 of the Schedule I which pertains to Section 13, being an application to regain possession. So far as the Section 104 is concerned which is the subject matter of serial No.28 of the Schedule I, the said Section pertains to a declaratory suit which is filed on behalf of Gaon Sabha against a person claiming entitlement to any right to the land which is the subject matter of the Act. Obviously, the subject suit filed by the private persons is not a suit for declaration, covered by Section 104. A reference to all other Sections which are the subject matter of Column 2 of the Schedule I and the description of such suits under those Sections as stated in Column 3 of Schedule I shows that there is no Section for filing of a suit of the nature of the suit in question. A reference to the Column 2 and the description of the Sections in Column 3 shows that the proceedings which are the subject matter of the Revenue Courts are those proceedings, which are with respect to either declaration of Bhumidhari rights (as distinguished from inter se dispute of claim of ownership/Bhumidhari rights on account of transfer by title deeds/sale deeds including by forging a power of attorney), suits which are with respect to exchange of Bhumidhari land or for partition of a Bhumidhari land or suit for ejectment filed by an Asami or a suit for injunction or damage caused to a holding of a person etc etc. These suits which the Civil Courts are barred from taking cognizance of are basically suits of a bhumidhar or Asami or Gaon Sabha and that too provided they are first of all the subject matter of the Sections which are stated in column 2 of the Schedule I.

6. Unless the suits are in substance, the suits which fall within the sections as stated in column 2, the jurisdiction of the Civil Courts is not barred by virtue of Section 185 of the Act. No doubt Section 186 states that where a question of title is raised in any proceeding falling under Column 3 of the Schedule I of the Act then such a proceeding has to be referred by the Revenue Court to a Civil Court to determine the question of title, however, it does not mean that suits where title is in question, and which suits are not the subject matter of Columns 2 and 3 of the Schedule I, such suits have to be filed in the Revenue Courts. In fact, it is other way round that firstly the suits must in substance be the suits essentially covered under Columns 2 and 3 of the Schedule I of the Act, and only thereafter if title of the land is in question then the Revenue Court will refer the issue of title to Civil Court, however, if the suits itself are not falling under Columns 2 and 3 of Schedule I, for such suits jurisdiction of the Civil Court is not barred.

7. In view of the above, the impugned judgment wrongly dismissed the suit by holding that the Civil Courts had no jurisdiction and the jurisdiction was of the Revenue Courts. I must hasten to add that I have not expressed any opinion on the merits of the matter, for or against either of the parties, and the trial Court will decide the suit in accordance with law as per the cases urged and proved by the parties.

13. In Subhadara (supra) the plaintiffs had sought declaration and injunction in respect of their father’s property which was an agricultural land. The defendants had filed an application u/O VII Rule 11 seeking dismissal of the plaint on the ground that the suit was barred by the DLR Act as also by limitation. The Trial Court had held that the suit was barred by limitation. This was confirmed by the First Appellate Court. Further in respect of part of the land, a further ground was raised that DLR Act has no application. In Second Appeal, the Learned Single Judge of this court was concerned with the distinction between agricultural land and residential plots and as to whether in respect of the Lal Dora land the DLR Act would be applicable. In this context the court had held that the DLR Act has held as under:

“19. The Delhi Land Reforms Act is a complete code in itself. Anyone who is desirous of a declaration of his right must approach the Revenue Assistant under Item No.4 of the First Schedule. What the appellant/plaintiff is seeking in the instant case is declaration of her title as an owner and in possession of the suit property, albeit the property which falls in Lal Dora. The respondent/defendants have disputed her possession categorically stated that she has not been in possession of the suit property and that the suit preferred by her is time barred. The reliefs, therefore, claimed by the appellant/plaintiff would not be within the jurisdiction of the Civil Courts. 20.....26........ 27. With respect to the prayer of annulment of mutation, the only remedy before the appellant was to prefer an appeal before the revenue courts.”

The Second Appeal was therefore dismissed.

14. A perusal of these two judgments shows that they dealt with two completely different fact situations. Section 5 of DLR Act relates to definition of Bhumidhar and reads as under:

“5. Bhumidhar – Every person belonging to any of the

following classes shall be a Bhumidhar and shall have

all the rights and the subject to all the liabilities

conferred or imposed upon a Bhumidhar by or under

this Act, namely:-

(a) a proprietor holding Sir or Khudkhast land [***] a proprietor’s grove holder, an occupancy tenant under

Section 5 of the Punjab Tenancy Act, 1887, paying rent at revenue rates or a person holding land under Patta Dawami, [or Istamrari] with rights of transfer by sale, who are declared Bhumidhars on the commencement of this Act; (b) every class of tenants other than those referred to clause (a) and sub-tenants who are declared Bhumidhars on the commencement of this Act; or

15. Section 185 of the DLR Act also reads 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, 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 in the proceedings 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.”

16. Insofar as the entries in Schedule I are concerned, the relevant entries are at serial no.4, serial No.11 and serial no.28. For the said entries, the original jurisdiction Court is that of the Revenue Assistant.

17. However, the question whether a person is a Bhumidhar or not is a question that can be decided by the Revenue Assistant when two persons are independently claiming to be Bhumidhars or there is an issue of demarcation between them.

18. Even item 28 relates to a declaratory suit seeking declaration as Bhumidhar. These three entries clearly would not relate to disputes where legal heirs of a known Bhumidhar whose Bhumidhari rights are not in dispute are challenging the documents executed by one set of legal heirs in favour of a third party, purportedly to sell the property in question. Thus, the present case would be governed by the decision in Ashok Kumar (supra) where this Court has held categorically that the jurisdiction of a civil court is not barred. The suit is thus held to be not barred by Section 185 of the Delhi Land Reforms Act.

19. Insofar as the question as to whether the suit is barred under Order II Rule 2, there is no doubt to the proposition that such objection cannot be entertained in an application under Order VII Rule 11. A Learned Single Judge of this Court in Suresh Kakkar & Anr. v. Mahender Nath Kakkar & Ors. 152 (2008) DLT 56 has ruled on this issue as under:

“17. In the light of the above discussion, it is clear that before the bar under Order 2 Rule 2, CPC can be set up, the defendant has to produce the pleadings in the previous suit by way of evidence and the court is required to go into the pleadings of the previous suit and compare it with the pleadings in the present suit to arrive at a conclusion as to the identity of the causes of action. However, under Order 7 Rule 11, CPC, the court is enjoined only to look at the averments made in the plaint of the present suit and not travel to the written statement or other documents filed by the

defendant. The plaint by itself must disclose that the suit is barred by law. The Constitution Bench in the case of Gurbux Singh (supra) has settled the issue that the inference as to the identity of the causes of action between the present suit and the earlier suit cannot be culled out from the plaint in the subsequent suit. It is, therefore, abundantly clear that in an application under Order 7 Rule 11, CPC, the plaint cannot be rejected on the bar of Order 2 Rule 2, CPC. The bar of Order 2 Rule 2, CPC can be raised by the defendants in the written statement and, if so raised, an issue can be framed in respect thereof. The court would then be in a position to conclusively determine the identity of the causes of action between the earlier suit and the later suit and rule on the basis of evidence led by the parties. But, such a course of action is not permissible under Order 7 Rule 11, CPC. As a result, this application is rejected.”

20. However, this would not bar the Court from looking at the objection under Order II Rule 2 independently of the application under Order VII Rule

11. A perusal of the earlier plaint paras 6 to 12 shows that the Plaintiff therein was aware of the mutation, the agreement to sell as also the existence of an alleged Will. However, the Plaintiff did not seek any declaration in the earlier suit. The reliefs of the earlier plaint are set out herein below: “(a) Pass a decree of Permanent Injunction in favour of the plaintiff and against the defendants thereby restraining defendants, their heirs, successors, nominees, agents, representatives, assignees, attorneys or any other person acting on their behalf from selling, alienating, transferring, mortgaging, letting (full/part), gifting or creating 3rd party interest of whatsoever nature in respect of the suit property measuring 47 Bigha 10 Biswa situated within revenue estate of Village Shikar Pur, Delhi; and (b) Award through out cost of suit in favour of the plaintiff and against defendants

21. In the written statement in the said suit, the Defendants propounded the Will and may be due to legal advice or otherwise, the Plaintiff moved an application under Order XXIII Rule 1 seeking withdrawal of the suit with liberty. The relevant paras of the application are set out herein below:

“1. That claiming herself co-bhumidhar of suit land being one of legal heirs of late Sh. Dhiraj Tyagi, the plaintiff filed Suit for Permanent Injunction against the defendants, who have got the land in question mutated in their name on the basis of manipulated and forged Will. 2. That during the pendency of present suit, it has been revealed that the defendants have sold land measuring 12 Bighas and 14 Biswas to M/s. Gyan Financed Ltd. for sale consideration of Rs. 1,58,75,000/- through Regd. Sale Deed dated 15.07.2011 and another piece of land measuring 12 Bighas and 14 Biswas to Sh. Ajay Sarup Riya and his wife for a sale consideration of Rs. 1,58,75,000/- through Regd. Sale Deed dated 15.07.2011 and further the remaining land measuring 22 Bighas and 2 Biswas has also been transferred by the defendants to their close relatives through Regd. Gift Deed dated 15.07.2011. 3. That the decree for permanent injunction is not likely to be granted unless the registered Sale Deeds and Gift Deed are declared null & void by competent court of law. Since this Hon’ble Court has not pecuniary jurisdiction to declare the said Regd. Sale Deed and Gift Deed hence interest of justice requires that the present suit be withdrawn with liberty to file fresh suit before the Hon’ble High Court of Delhi of the same of cause of action.

It is, therefore, most humbly prayed that this Hon’ble Court may kindly be pleased to permit the plaintiff to withdraw present suit with liberty to file fresh suit on the same cause of action before appropriate court of law in the facts and circumstances of the case, in the interest of justice.”

22. The present suit was filed on 28th April, 2014 during the pendency of the first suit. In the present suit, there is a clear averment to the effect that the Khatoni was obtained on 8th August, 2011 and despite the same, no relief of declaration was sought in the first suit which was instituted on 30th August, 2011. But in the present suit, the relief of declaration was sought. The unfortunate chronology of events reveals that the Plaintiff after having filed an application under Order XXIII Rule 1 for withdrawal of the first suit with liberty to file second suit, did not pursue the said application.

23. The Trial Court adjourned the matter on three separate dates i.e. 21st April, 2014, 15th May, 2014 and 28th May, 2014. On all these three dates, none appeared for the Plaintiff. The suit was thus dismissed in default.

24. From the turn of events, it is quite clear that the Plaintiff who is the daughter of Late Sh. Dheeraj Tyagi has not received any share in the suit property which belonged to their father. However, she had knowledge of the Khatoni even prior to filing of the first suit and ought to have sought a decree of declaration in the first suit. Having not done so, the question of Order II Rule 2 does arise in the present suit. However, the same cannot be an objection that would result in the dismissal of the suit at this stage. An issue would be required to be framed.

25. The Defendants admittedly rely on the Will executed by their father dated 2nd June, 2009, the validity of which has not been tested in any Court of law. Accordingly, this Court is of the opinion that the issue of Order II Rule 2 and the validity of the Will needs to be gone into the present suit. The following issues are framed in this matter: i) Whether the present suit is barred by Order II Rule 2? OPD ii) Whether the Will dated 2nd June, 2009 registered on 4th June, 2009 is valid and enforceable? OPD iii) Whether the Plaintiff is entitled for declaration as prayed for and any consequential relief? iv) Relief.

26. Since the onus of both the issues is on Defendants they are permitted to lead evidence first in the matter. I.As are disposed of in the above terms. I.A. 8553/2014 (for stay)

27. All parties are directed to maintain status quo in respect of title and possession of the suit property. I.A. is disposed of. CS(OS) 1315/2014

28. List on 18th December, 2018.

29. List of witnesses be filed within four weeks. Evidence by way of affidavit be filed by the Defendants within four weeks thereafter.

30. The Plaintiff is one of the sisters who is challenging the rights in the suit property. Considering the nature of the dispute, the Plaintiff and one competent person from Defendant Nos.[1] to 11 who can take decisions on behalf of the rest of the Defendants, be present in Court on the next date.

PRATHIBA M. SINGH JUDGE OCTOBER 12, 2018 Rahul/NR

Maya Devi v. Rajeshwar & Ors.

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