Hukmi Decd Thr Lrs v. Fateh S/O Kure Decd Thr Lrs

KAUR, J. RSANo.98/2010 X. V * IN THE HIGH COURT OF DELHI AT NEW DELHI Date ofJudgment:

10.02.2011 + RSA No.54/2010 & CM Nos. 4970/2010 & 263/2011 RSA No. 98/2010 & CM Nos.8921/2010 & 264/2011 HUKMI (DECEASED)THROUGHLRS Appellant Through: Mr. ManeshwarDayal, Sr. Advocate with Mr. Om Prakash Sharma, Advocate. Versus NATHU&OTHERES Respondents Through: Mr. N.S. Vashisht, Advocate for respondent

¶2Mr. L.K. Garg, Advocate for respondents No. 3 to 7. CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR

¶1Whetherthe Reportersoflocalpapers maybe allowedto see the judgment?

¶2To be referred to the Reporter or not? Yes

¶3Whetherthe judgmentshouldbe reported in the Digest? Yes INDERMEET KAUR. T. (Oral) These two appeals haye impugned the judgment and decree dated 17.11.2009 which had endorsed the findings of the trial Judge dated 04.10.1993wherebythe two suits filed by the plaintiff seeking permanent injunction and declaration to the effect that he is the owner of the suit land (1 bigha 10 biswas comprised in Khasra 994, Village Karala, Delhi) as also Consohdation Proceedings rendered in the year 1975-76 are inoperative and not binding upon the plaintiff had been dismissed. Two suits i.e. Suit No. 391/1980 and Suit No. 90/1981-had been filed by the plaintiff. The first suit was a suit for permanent injunction. Contention of the plaintiff was that the plaintiff and defendants No. 1 & 2 had entered into a partnership for carrying Pa^e 1 of? on the business of grindingin the suit premises. Machineryworth Rs. 18,000/- had been purchased for the said purpose. It was agreed between the parties that this business would be carried out from the suit premises. The plaintiffhad constructed a factory on this suit land at his own cost. The business continued for three years; since it was not profitable; partnership was dissolved in 1975. A sum of Rs.l0,000/- each was paid to defendants No. 1 & 2 in full and final settlement of the shares of the said defendants; it was agreed that the suit land would fall to the share of the plaintiff and it was thereupon relinquished in favour of the plaintiff who is the owner and in possession of the land since then. The defendants under the agency of Consolidation Officer had made efforts to grab the land of the plaintiff which is illegal. The suit land does not fall within the definition of 'land' as defined in Section 2 (d) of the East Punjab Holding (Consolidation and Prevention of Fragmentation) Act 1948 (hereinafter referred to as the 'said Act'). The plaintiff is in continuous and uninterrupted possession of the suit land since last 30 years and his title has matured. The orders of Consolidation Officer dated

12.12.1979 affirmed by the Settlement Officer on

06.08.1980; thereafter by the Additional Collector on 29.12.1980 are illegal and ultravires. A decree of permanent injunction been prayed restraining defendants from interfering peaceful possession of the plaintiff. These were averments in the first suit. Suit 391/1980 was filed against defendants seeking a declaration to effect order of Officer, the Settlement Officer and the Additional Collector (as aforenoted) be declared null and void. The contention of the defendants was that in terms Proceedings which were carried out in Khasra 994, the land has fallen to the share of defendant No. 1 and the plaintiff has seized to have any title or right on any part over the aforenoted Khasra; it was never developed by the plaintiff; partnership and the alleged business carried out by the parties was specifically denied. The contention was that the suit land is covered by the Delhi Land Reforms Act, 1054 and in terms of the said Act, defendant No. 1 has already been delivered possession of the suit land by the Field Kanugo in terms orders Officer which have been upheld; jurisdiction Civil Court is barred. The following issues were framed in the first suit:-

¶1Whether the suit is not maintainable in view of Sections 44 and 16 of the East Punjab Consolidation Act? OPP

¶2Whether the land in dispute fell into the share of the plaintiff?ifso whatareitsright.andinterestthereto?OPP

¶3Whethertheplaintiffhasperfectedhis titledovertheland in dispute by adverse possession? OPP

¶4Whether the order of Consolidation Officers is inoperative and not bindingfor the grounds stated in para 12 of the plaint? OPP

¶5Whether the plaintiff has lost his possession and so the suit has become infructuous? OPD

¶6Whether the suit is not maintainable because pendencyof anothersuit for declarationand injunction? OPD

¶7Whetherthe plaintiffis entitled to the injunctionprayed for? The followingissues were framed in the second suit;-

¶1Whether the orders dated 29.09.1980 of No. 5, 6 & 7 are illegal void, withoutjurisdiction? OPP

¶2Whether the Ptr. is entitled for injunction prayed for? OPP RSA Nos.54/2010&98/2010 ^ J

¶3Whether the suit is within limitation? OPD

¶4Whether the suit is barred u/o 2 rule 2 CPC? OPD

¶5Whether the suit bad for misjoinder ofparties? OPD

¶6Whether the suit is bad for want of notice under Section 80 CPC? OPD

¶7Whether the suit is not properly valued for the purpose of court fee andjurisdiction ? OPD

¶8Whether the jurisdiction of the civil Court is barred under Section 44 of the Consolidation Act? OPD.

¶9Relief Oral and documentary evidence been led by the respective parties. In the first suit, issues No. 1, 2 & 4 were the crucial issues. In the second suit issues No. 1 & 8 were relevant. Section 2(d) of the said Act defines land. It reads as under:- "'Land' means land which is not occupied as the site of any building in a town of village and is occupied or let for agricultural purposes or for purposes subservient to agriculture, or for pasture and include the sites ofbuilding and other structures on such land.' Khasra Girdawari year 1953-54 produced by the plaintiff been examined wherein land was shown as 'Banjar'; One biswas was referred to as 'Ghair Mumkin Makan'; testimony of PW-1, PW-2, PW-4, PW-5 & PW-7 had been adverted to coupled with the Khasra Girdawari (as noted hereinabove) to hold that it could not be stated that there was any factory at the said land. The Consolidation Proceedings in the aforenoted Khasra had admittedly been taken place in the year 1975-76 whereby the land including the suit property was distributed amongst various occupants. This scheme had stood confirmed by the order of the Officer on 12.12.1979 which had been affirmed in appeal by Settlement Officer on

06.08.1980; thereafter RSANos.54/2010 reaffirmed by the Additional Collector on 29.12.1980. Section 16 (2) of the said Act reads as under:- "When the scheme is (confirmed) under section 20 of the land so allotted to the occupancy tenant and the landlord shall notwithstanding anything to the contrary contained in the Tenancy Act in force in the Estate or Mahal concerned or in any other law for the time being in force, be held by each of them respectively in full right of ownership and the right of occupancy in the land allotted to the landlord shall be deemed to be extinguished. " Section 44 of the said Act which is also relevant reads as folio ws:- "No civil Court shall entertain any suit instituted or application made, to obtain a decision or order in respect of any matter which the Chief Commissioner or any officer is, by this Act, empowered to determine decide or dispose of." A coupled reading of Section 16(2) and Section 33 clearly shows that the jurisdiction of the civil Court in respect of anv matter which the Chief Commissioner or any officer is, by this Act, empowered to determine is barred. It was these statutory provisions which had weighed in the minds of the trial court as also the first appellate court to draw a conclusion that the suit filed by plaintiff is barred; civil court has no jurisdiction to entertain the suit. Learned counsel for the appellant has submitted on

22.12.2007, the High Court had remanded the matter back to the trial court to dispose of the appeal on merits. It is submitted the impugned judgment dated 17.11.2009 had addressed itself only the issue of jurisdiction; it was incumbent upon the Court to have decided each and every issue which had been framed by this Court. This by itself amounts to perversity and calls for an interference. For this proposition, reliance has been placed upon AIR 2007 Himachal Pradesh 11 Prithvi Rai Thinata & Anr Vs. Gopal Singh & Anr. This judgment has no apphcation to the factual scenario in the instant case. Order XIV Rule 2 (2) in fact gives powers to the Court to deal with an issue of law and to try it first if it relates either to

(a) jurisdiction of the Court or (b) a bar to the suit created by any law for the time being in force; settlement on other issues may be postponed. The impugned judgment had held that the jurisdiction Court is barred under Section 44 of the said Act; thereafter it was no longer incumbent upon the Court to have tried the case on merits and to go into the details of the matter; jurisdictional issue is an issue which goes to the root of the matter and when the root itself having become uprooted; further scrutiny of the evidence was not required. Reliance placed upon by learned counsel for appellant

(2002) 6 SCC 416 Dhruv Green Field Ltd. Vs Hukam Sinah & Ors. for the proposition that the jurisdiction of a civil Court would be retained despite an express or imphed bar if the order or action complained of is a nullity is misplaced. In the instant case, it is not in dispute that the proceedings Officers are dated 21.12.1979 which was affirmed by the Settlement Officer on 06.08.1980 and thereafter reaffirmed by Additional Collector on

29.12.1980. Remedy available to plaintiff under the said Act had stood exhausted. Thereafter, he had also filed a writ petition under Article 227 of the Constitution of India which been withdrawn on same day with RSA Nos.54/2010 & 98/2010 Page6 of7 permission to take appropriate legal remedy. The impugned judgment has correctly recorded forum of a civil proceedings was not the correct forum. Jurisdiction of the civil court to deal with the contentions raised by the plaintiff that he become owner land because of his uninterrupted possession since last 30 years and the orders of the Consolidation Officer, Settlement Officer and Additional Collector are null and void could not have been gone into or scrutinized by a Civil Court in view of the express bar of Section 44 of the said Act. There is no merit in these appeals. No substantial question of law has arisen Appeals as also pending applications are dismissed. FEBRUARY 10, 2011 A INDERMEET

KAUR, J.

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date ofJudgment: 10.02.2011 + RSA No. 98/2010 & CM Nos.8921/2010 & 264/2011 HUKMI (DECEASED) THROUGH LRS Appellant Through: Mr. Maneshwar Dayal, Sr. Advocate with Mr. Om Prakash Sharma, Advocate. Versus NATHU & OTHERES Respondents Through: Mr. N.S. Vashisht Advocate for respondent 2. Mr. L.K. Garg, Advocate for respondents No. 3 to 7. CORAM: C HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR. T. (Oral) For orders, see file of RSA No. 54/2010. FEBRUARY 10, 2011 A INDERMEET