Vijay Kumar v. Dr Asha Gandhi & Ors

NAJMI WAZIRI, J.

¶1By this common order, the aforementionedRegularFirst Appeal

(RFA), thi-ee Executive First Appeals (EFAs) and nine Civil Miscellaneous(Mains)[CM (M)] are beingdisposedoff. 3 1 P a g e

¶2.These petitions arise out of an order dated 02.02.201Ij passed in Civil Suit No. 01/2010 (old suit number 2324/1989, hereinafter referred to as the "impugned order") which declared the partition order dated

09.03.1983 passed by the Court of .Revenue Assistant apropos the suit lands as null and void; it also declared illegal and set aside the subsequent sale deeds of the suit lands executed by defendant Nos. 1 to 5 in favour of defendants 7 to 82. All the nine CM(M) petitions and the three of the EFA petitions challenge a subsequent order dated 07.06.2013 passedin ExecutionCase No. 108/2011wherebythe LearnedTrial Co^ft was pleased to dismiss the objections filed by the petitioners herein against the execution of the impugned order. The RFA directly challenges the impugned order.

¶3In the suit, the plaintiffs had claimed that they had purchased the suit lands, essentially agricultural, comprising various situated in the Revenue Estate of Village Kadipur, Delhi from the original oyNnQXslhhumidars(defendant No. 1 to 4) who had represented to the plaintiffsthat the lands can be developedinto acolonyknown as Rafjj^ia Park, Delhi replete with facilities of roads, parks, schools, hospitals, shops etc. The plaintiffs,through their respectiveregisteredsale deeds, purchasedthe suit land comprisingof KhasraNo. 643(2-08),644(2-16), 645(4-16), 646(4-16), 647 min.(East)(3-03), 667(4-16), 666(4-16), 668(4-16), 665(2-08),664(4-16), 710(4-16), 711(4-16), 712(4-16),713 min(West)(2-08),715(4-16), 718 min(South)(4-12), 695(4-16), 694(4-16), 698(4-16), 713(2-10),714(4-16), 660(4-16), 659(4-16),655(2-08), 654(4-09), 652 min(0-12), 653(4-07), 651(4-16), 648 min(4-09), 647 min(l-17), 649 min (4-05), 650 min(4-17), 656min(4-09),657(2014), 4 I P a g e 658min(5-19), 716 min(6-07), 717(6-18) and 718 min(0-04); the lands were demarcated into plots by fixing bricks on the comers of the plots and by putting plot numbers as well as sign boards. The plaintiffs . claimed ownership through respective registered sale deeds pertaining to the suit lands and claimed to .have been in .exclusive and peaceful possession of the said lands. It was claimed that some plaintiffs had even raised boundary walls and had also started construction thereon but most of them, owing to distance from their place of residence, did not carry out any constmction.

¶4Meanwhile, unbeknownst to the plaintiffs, defendant Nos. 1 to 5 allegedly concealed the earlier sale transaction with the plaintiffs and fraudulently obtained an order of partition on 09.03.1983 in case No. 224/RA/81 from the Court of Revenue Assistant. Admittedly, the plaintiffswere not impleadedin those proceedings.Pursuantto the said order of partition from the Court of Revenue Assistant,the suit lands were sold to defendant nos. 7 to 84, through sale deeds pertaining to the individualdefendants,as shown in Annexure2 to the plaint. It was the plaintiffs'case that defendantNos. 1 to 5 and 7 to 84 had connivedto defraud and cause wrongful loss to the plaintiffs.

¶5It was theplaintiffscasethatwhenthe defendantsencroachedupon the plaintiffs'lands in March-April,1984,the plaintiffscame to loiowof the allegedly fraudulent partition order; the plaintiffs founded the plamtiff no.l. association viz. 'Radha Park Plot Holder Welfare Association' and filed a ,suit to seek remedies against their illegal dispossessionofthe suit lands. WrittenStatementson behalfofcertain 5 1 P a g e , :Y) defendants were filed whereas the other defendants neither appeared nor filed any written statementsand were thus proceeded ex-parte.

¶6In all, 14 issues (13+1) were framed and all of them were returned in favour of the petitionersexceptissueNo. 6(a), whichwas 'whetherthe suit is barred by limitation against defendant No.84 on his impleadment? OPP (fi-amedvide order dated 29.11.2004).

¶7. The sale deeds in favour of.the plaintiffs were denied by the defendants. They also denied that possession of the suit lands had bex^i handed over to the plaintiffs or that it was restored to them in March, 1992. They also denied that the order of the Court of Revenue Assistant in favour of respondent,Nos..1 to 5 was obtained illegally or fraudulently. The defendants claimed that they had no knowledge of any prior sale of the suit lands to the plaintiffs and that they were innocent, bona fide purchasers against valuable consideration; that they were put in possession of the suit property by the owners hence no cause is made out against them by the plaintiffs. They also questioned the maintainability of the suit by the plaintiffsas they claimedthat the suit lands belong^o individual members and not to the society.

¶8It is seen fr'om the judgment that subsequently, the individual claimants/plaintiffswere also impleaded.

¶9Regardingthe veracityof the sale deeds filed by the plaintiffs,the Trial Court, after examining the original sale deeds, concluded that no evidence was led to show that the sale deeds executed, in favour of the plaintiffs by the originalowners were void and that nothing existed on 6 I P a ge record to prove that there was any dispute regarding the sale deeds in . favour of the plaintiffs prior to the institution of the suit. The Trial Court also observed that defendant Nos. 7 to 84 who had purchased the suit •lands and had stated that they had no knowledge of the earlier sale deeds; that since the original owners had sold the suit lands to the plaintiffs, it was upon them to disclose so before the learned Court of Revenue Assistant; that the original owners not only withlield relevant information but also falsely deposed before the Court of Revenue Assistant resulting in the partition order being passed. The Trial Court concluded that the said action was, therefore, fraudulent and that an order of partition obtained by fraudulent means is non est and open,to challenge. Hence, there was no..bar,to challenge the partition order,seeking declaration of sale deeds of defendant No. 7 to 84 as null and void.

¶10The Trial Court observed that the original owners had already sold the suitlandsto the plaintiffsway backin 1973-74arid had subsequently, with the'intention to defraudthe legal owners, filed the suit for partition ^ • - '• before the Court of Revenue Assistant; that'notice was never served upon - the plaintiffsalthough some of the members had akeady got mutated ownership of the lands purchased by them in their names; that the . originalownershad not filed any writtenstatementnor appearedto cross examine the plaintiffs'witnesses, leaving the plaintiffs'testimonyun-rebuttedthus provingthe issue on the basis ofthe evidenceavailableon record. The Trial Court therefore concluded that defendant Nos. 1 to 5 hadplayedfrauduponthe Courtof RevenueAssistant. 7 I P a g e u

¶11The contention of defendant Nos. 7 to 84^ to the effect that no fraud was. played by them in obtaining the partition order dated

09.03.1983, was accepted by the Trial Court for the reason that their sale deeds were executed after 1983 and hence they could not be presumed to have known about the previous sale transactions, before the Revenue Assistant, as they were neither parties nor witnesses in those proceedings. The Trial Courtheldthat any orderobtainedfraudulentlyis null and void and non est in the eyes' of law. Accordingly, the order dated 09.08.1983 was declarednull and void. Consequently,the Trial Court also ordered that the subsequent sale deeds executed in favour of defendant Nos. 7 to 84 were illegal and liable to be set aside.

¶12The defendants are the present petitioners/appellants in this bunch of cases while the original plaintiffs have been aiTayed as respondents

¶13The petitioners claim that sometime around May, 2012,. some persons attempted to enter upon the suit lands, which were in their possession, and started claiming right, title and interest therein. They were shockedwhentheywere shownthe impugnedjudgmentand decrle. On further investigation, they found that a judgment dated 02.02.2011 had been passed by the Civil Court and that executionproceedingsvide Execution Petition No. 108/2011 had already been initiated. The petitionersthen filed objectionsunder Section47 of the CPC againstthe impugnedjudgment in the said executionproceedings.The objections were dismissedbythe learnedADJ vide orderdated07.06.2013resulting in the nine CM(M)petitionsandthe thi-eeEFApetitions. 8 I P a g e

¶14It is the petitioners' case that the Civil Court did not have jurisdiction to try the suit and pass the impugned decree because it concerns agricultural \2in.dlhhumidari rights as mentioned in column nos. . 2 & 3 of Schedule I of Delhi Land Reforms Act, 1954 and that the . jurisdiction of Civil Courts is thus specifically barred. In support of their contention the petitioners rely upon the dicta of the Supreme Court in Hatti vs. Sunder Singh {\91\S>CK {2) 163) "8. The High Court, in this connection, referred to ,,, Section 186 of the Act under which any question raised regarding the title of any party to the land, •• • which is the subject-matter of a suit or proceeding under the First Schedule, has to be referred by the Revenue Court to the competent Civil Court for decision after framing of an issue on that question. Inference was sought to be drawn from this provision • that questions of title could, be competently agitated by a suit in the Civil Court, as the jurisdiction of the Civil Court was not barred,.It appears to us that there is no justificationfor drawing such an inference. On ' . • the contrary, Section186envisagesthat questions of . ., , . . . title will arise before the Revenue Courts .in suits or proceedingsundertheFirstScheduleand, onlyifsuch a questionarises in a competentproceedingpending in a revenue Court, an issue will be framed and referred to the Civil Court. Such a provisiondoes not give jurisdictionto the Civil Court to entertain the suit itselfon a questionof title. Thejurisdictionof the Civil Court is limited to deciding the issue of title referred to it by the Revenue Court. This clearly implies that, if a question of title is raised in an applicationfor declarationofBhumidarirights under • item 4 ofScheduleI ofthe Act, thatquestionwill then be referred by the Revenue Assistant to the Civil Court; but aparty wantingto-raisesuch a questionof title in order to claim Bhumidari right cannot directly 9 1 P a g e •rM r approachthe CivilCourt. The Act is a completeCode under which it is clear that any one, wanting a declarationofhis right as a Bhumidar, or ag^ieved by a declaration issued without notice to him in favour of. another, can approach the Revenue Assistant under item. 4 of the First Schedule and this he is allowed to do without any period of limitation, because he may not be aware of the fact that a declaration has. been issued in respect of his holding infavour of another. A declaration by a Gaon Sabha of the right of anyperson can also be sought without any period of limitation. If there, is dispute as to. possession of agricultural land, the remedy has to be sought under section84 read With item 19 of theFirst Schedule. All the reliefs claimed by the respondent in the present suit were, thus, within the competent jurisdiction of the Revenue Assistant, and the Civil Court had nojurisdiction to entertain the suit." .

¶15The petitionerscontendthat they had purchasedthe suit lands and were in actiaalpeaceful physical possession thereof;-.thatthe name of the appellants were duly mutated in the revenue records without any objection or dispute being raised before tiie revenue authorities; that under the express provision of Sections 33 and 81 of DLR Act, the Co'^t of Revenue Assistant had exclusive jurisdiction to adjudicate apropos agricultural land in the National Capital Territory of Delhi; therefore if anybody was aggrieved by the order of the Court of Revenue Assistant, the same could be impugned by way of an appeal before the Deputy Commissioner as per Schedule I of DLR Act. Other contentions regarding.bar of limitation, non-joinder of parties, forged GPA, doctrine of misrepresentation etc. were also raised by them against the suit. 10 I P a g e

¶16It is further contended that with respect to the question of title, which would arise as a consequence of any issue being raised before the Revenue Assistant, the matter could be referred to the Civil Court under Section 186 of the DLR Act; that the Civil Court lacked inherent jurisdiction to pass the decree and that hence it is void ab initio and that such decree could be challenged at any stage even in execution or collateralproceedings. In this regard, reliance was placed upon the dicta of the Supreme Court in Balvant N. Viswamitra and Ors. vs. Yadav Sadashiv Mule (dead) through Lrs. and Ors. 2004 8 SCC 706 held as follows: . "9. • The main question which . arises for our consideration is whether the decree passed by the tj'ial court can be said to be 'null' and 'void'. In our opinion, the law on the point is well settled. The ' distinction between a decree which is void and a decree which is wrong, incorrect irregular or not in accordance with law cannot be overlooked or ignored.Where a court lacks inherent-jurisdictionin . passing a.decree or making,an order, a.decree or order. passed by such court would be without jurisdiction,non estand voidab initio.A defect of ,jurisdictionofthe courtgoes to the.root.ofthe matter and strikes at the very authority of the court to pass a decree^or make an order. Such detect has always been treated as basic and fundamental and a decree or orderpassed by a court or an authorityhaving no ' '• jurisdictionis nullity. Validityofsuch decreeororder can be challengedat any stage, even in executionor collateral proceedings."

¶17, It is also the petitioners'case that the Executing Court did not adjudicateon the issueofjurisdictionon the groundthatthis had already 11 1 P a g e been decided by the Civil Court. Furthermore, the Executing Court failed to appreciate that several of the petitioners were not even impleaded as parties in the proceedings despite being recorded as tenure holders and having sale deeds in thek favour.

¶18Mi". Abhijat, learned counsel for the petitioners, contends that partition of agricultural lands can be done only under Entry 7 of Schedule 1 of the DLR Act; that once the partition has been done, the appeal would lie beforethe DeputyCommissionerconcernedand not beforeany oth^r authority or Court. Entry 3 concerns proceedings regarding regaining possession, whereas Entry 19 of the Schedule concerns suits for ejectment. Relying upon the case of Gaon Sabha ofLado Sarai v. Jage Ram (ILR 1973-Delhi 984) he further contends that the principal relief sought in the suit has to be seen. He submits that if the relief was primarily for declaration of title, then the partition would have to be disturbedfirst; therefore,the only remedy availableto the respondentis beforethe Court of RevenueAssistant.Mr. Abhijatfurthercontendsthat by virtue oflack ofinherentjurisdictionofthe Civil Court, the doctri|fe of Us pendens would not be applicableas the decree was void ab initio. Relyinguponthe case ofBalvantN. Visvamitrav. YadavSadashivMule, (supra)he submitsthatthe validityofsuch a decreecan be challengedat any stage - even during executionor collateralproceedings.He submits that the impugned judgment and decree had been obtained by the respondentsby misrepresentingthe facts and circumstancesunderlying the subjectmatterand also by suppressingmaterialfacts and documents. He refers to documentson recordto showthat the name ofthe appellant was duly mutated and recorded in the revenue records and that no 12 I P a g e obj.eGtionregarding the same was ever raised, nor was an Order 39 Rule 1 and 2 application made by the respondents between the years 1989 and 2009.

¶19Mr. Abhijat further submits that it is well settled that the suit lands are covered under Sections 33 and 81 of the Delhi Land Reforms Act and thus jurisdiction with respect to the suit lands, which is essentially agricultural land, lies solely with the Court of the Revenue Assistant. He submits that the impugned order suffers from defect and error on account of non-joinder of a necessary party since Shri Bhanu Ram and Smt. Rupinder Bedi, whom he represents (in Ex.F.A.22/2013), were neither impleaded as parties in the suit nor were summons sent to them.

¶20The learned counsel relied upon Jage Ram's case (supra) which held: "(4) We may observeat the outset that in ail the cases the questionwhich has arisenfor decisionis whether a civil court hasjurisdiction to try a suit in respect of land under the Delhi Land ReformsAct, 1954. Under Section185(1)ofthe DelhiLandReformsActthe civil coiirt has no jurisdiction. Section 185(1) reads as under:-, "185(1)Exceptas provided by or under this Act no court other than a court mentioned in column 7 of Schedule I shall, notwithstanding anything contained i n the Code of CivilProcedure, 1908, take^ cognizance of any suit, application, or proceeding mentioned in column 3 thereof."

(5) The question regardingthe maintainabilityof a suit in a civil court under the Delhi Land Reforms Act has been settled by the Supreme-Court in Haiti v. Sunder Singh. In that case the appellant Hatti was declared a Bhumidarof some land belongingto the 13 I P a g e respondent under Section 13 of the Delhi Land Reforms Act No 8 of 1954 (hereinafter referred to as the Act). The respondent instituted a suit in the civil court claiming three reliefs. Thefirst relief was for a declaration that the declaration of hhumidari issued in the name of the appeUant with respect to the land in dispute was wrong, illegal, without jurisdiction, ultra vires, void and ineffective against the respondent. The second relief was thai the respondent be declared to be entitled to bhumidari rights under Section 11 of the Act. The third, relief was for possession of the land. The suit was brought on the allegationthat the respondentwas the owner ofthe ^ land, while the appellant had no rights in it. The case of the respondent was that the appellant had wrongly been ^^-anted the declaration under Section 13 of the Act that he was bhumidar when he had no rights as a tenant in the land at all. The main defense on behalf of the appellant was that he was a non-occupancy tenant and he was entitled to the declaration of his bhumidari rights. Among other issues, one issue raised by the appellant was that the civil court had no. jurisdiction to entertain, the suit in view of the provisions of Section 185 of the Act. The trial Court held that the jurisdiction of the civil court was not barred. A decreefor possession.Mms gi'anted infavor of the respondent. The High. Court also held that the jurisdiction of the civil court was not barred. On appeal theSupremeCourtreversedthe decreepassed by the High Court and held that the civil courts had no jurisdiction to try the suit.

(6) Their Lordships of the Supreme Court examined the provisions of the Act and came to the conclusion that the Act was a complete Code and the Civil court had no jurisdiction in view of Section 185(1) of the Act to entertaina suit in which the plaintiff,alleging that he is theproprietor of the suit land, asJcsfor the 14 I P a g e 7) declaration that he is entitled to hhumidari rights in respect of the said land. It was held that all the three reliefs which were asked by the respondent in his suit were within the cortlpetent jurisdiction ofthe Revenue Assistant to grant under the provisions of the Act. Their Lordships observed at page 846:- "THE scheme ofthe Act appears to be that, initially, a declaration ofBhumidari right can be granted under Section 11 or Section 13 without calling for objections and without hearing contesting parties infavor of the person who appears to the revenue authorities to be entitled to the declaration on the basis of the records maintained by them. Thereafter, anyperson aggi'ieved - . and:claiming bhumidari rights is-expected to move an •• application before the Revenue Assistant who is to adjudicate upon the rights after following the usual • judicial procedufe. The order made by the 'Revenue Assistant in such a proceeding will then have to be given effect to and would over-ridethe declarations earlier issued in accordance, with the Rules. This , . - shows that any person, who is aggineved by a . j. . declaration of Bhumidari right issued in favor of • . anotherperson, can appropriately-seekhis remedyby moving an applicationbefore the'Revenue Assistant under Item 4 of the First Schedule, whereupon, if he succeeds, he will obtain a declaration that he is the Bhumidar. Such a declaration will automatically supersedethe declarationissuedby the authoritiesin accordance with the Rules without any adjudication ofrightsandwithoutnoticeto interestedparties."

(7) Their Lordshipsfurther held that Sections 6, 11, . 13 and 154 of the Act read togethershow that after the Act came into force, proprietorsof agricultural 15 I P a g e Ay land as such'ceased to exist: There can be no suit by any person claiming to be a proprietor because the Act does not envisage a proprietor as such continuing to have rights after the commencement of the Act, Dealing with the argument that Section 186 of the Act provides for the decision of a question raised regarding the title of any party to the land by a civil court on a reference to the Revenue Court their Lordships said:- "THE High Court, in this.connection, referred to Section 186. of the Act under which any questionraisedregardingthe title ofanyparty to the ^ land, which is the subject-matter of a suit or proceeding under the First Schedule, has to be referred by the Revenue Court to. the competent civil court for decision after fi-aming an. issue on that question. Inference was sought to be drawn from this provision that questions of title could be completely agitated by a suit in the civil court, as the Jurisdiction of the Civil Court was not bar-red. It appears to us that there is no justification for draM'ing such an inference. On the contrary, Section 186 envisages that questions of title, will arise before the "Revenue Courts in suits or proceedings under the First Schedule and, only if such a question arises in a competent proceeding pending in a Revenue Court, an issue will beframed and referred, to Civil Conn. Such a provision does not give jurisdiction to the Civil Court to entertain the suit itselfen a questionof title. The jurisdiction of the Civil Court is limited to decidingthe issueoftitlereferred to it bytheRevenue Court. This clearly implies that, if a question, of title is raised in an application for declaration of Bhumiddrirights under Item 4 of ScheduleI of the Act, that questionwill then be referred bytheRevenue 16 I P a g e § Assistant to the Civil Court; but a party wanting to . raise such a question of title in order to claim Bhumidari right cannot directly approach the Civil Court." ' . .

(8) The question of maintainability of the suit again arose for decision before their Lordships of the Supreme Court in Mukhfaria etc.Vs. Rama Shankar etc. Civil Appeals Nos. 987, 988 and 989 of 1967, decided on August 8, 1972. In those appeals the respective appellant was the defendant in each of the suits from which those appeals arose, Thefollowing reliefs were prayed for:-

(1) A declaratory decree to the effect that Bhumidari declaration mentioned in para lOA regarding said land in the name of the defendant is illegal, ultra vires, void against the '• plaintiff be passed in plaintiffs favor against the defendant. (2) A decree for possession of the ' . agricultural land with damages; and (3)for costs.

(9) The questionfor decisionwhicharose in the suits was whether the civil court had jurisdiction to grant " " the reliefsprayedfor. The trial ' court decreed the *§ plaintiffssuit. Thefirst appellatecourt affirmedthat decision. The second appellate court summarily dismissedthe appeal. The LettersPatent Appealwas also dismissed. The appeals were brought in the SupremeCourtafterobtainingspecialleave. - - . ••

(10) Their Lordshipsheld that the point which had arisenfor decisionin the appeals^as governedby the rule laid down by the court in the case of Hatti • - . • (supra). It was held that the civil court had no jurisdictionto entertaina suit ofthe type with which their Lordships were concerned in those three 17 I P a g e 1/ .. ' ' appeals. It was contended by the appellant's counsel thai the decision in Haiti's case (supra) required reconsideration. After hearing the counsel at length their Lordships were not satisfied that the decision required reconsideration. In the result the appeals were allowed and all the suits were dismissed. •

(11) In deciding the ten appeals we will bear in mind the decision to the Supreme Court in the case ofHaiH (supra) as in all these appeals we have to determine whether the civil courts had jurisdiction to entertain the suitbroughtin eachofthe cases. ' , 'h

(12) It is settled law that jurisdiction M'ith reference to the subject-matter of a claim, as in the case of other kinds ofjurisdiction, depends upon the allegations in the plaint and not upon the allegations in the written statement, nor upon those M'hich may ultimately be found true. Such allegations may, after the ti'ial, be held to be unfounded and in that case, the suit will be dismissed, not because the court has no jurisdiction, but because the allegations on which it was bas.ed are found to be untrue. The question of.maintainability of a suit is also governed by-the same principles and must be dealt with on thefooting of the allegation in the plaint being correct. The plaintiff cannot, by merely so drafting his prayers to exclude or include relief M'hich can or cannot be granted by a court, confer on the court jurisdiction to tiy the suit It is necessaiy in each case to consider what the cause of action in the plaint is and what is the substantive relief which the plaintiff would be entitled to if he succeeds in the,suit, in order to determine whether the court hasjurisdiction, irrespectiveofwhatprayers the draftsman has thoughtfit to put in the plaint The 18 I P a g e substance of the relief and not the mere form in the plaint has to be looked to. In deciding the point of maintainability of a suit the allegations in the plaint alone have to be considered. It is the allegation in the plaint which determine jurisdiction. To discover the real nature of the suit the plaint has to be looked at and plaint has to be read as a whole and in doing so the court must look at the substance of the plaint and not its outward form only. In each of ten appeals, therefore, we will take into account the substance of the suit in order to determine the nature of the claim made and reliefs sought.

(13) We may now deal with the decisions of D.K. Kapur, J. which are referred to in the referring order of Sachar, J. and which we have mentioned in the beginning ofour judgment.

(14) R. S. A. 199-D of 1964 decided on August 27, 1971 (Gaon Sabha of village Lado Sarai v. Risal Singh) is anotherdecisionofthe learnedsingleJiidge whichwas cited beforeus and was relied upon byMr. S.'S. Dalai In this case the'appeal was filed by the Gaon Sabha of villageLado Sarai and arose out ofa suit broughtby RisalSingh, respondent,claimingthat the order of the revenueAssistantplacing the land in suit in L.R. Form No. 2 arid then vesting it in the Gaon Sabha was withoutjurisdiction, void and not bindingon theplaintiff The suit initiallyinstitutedby theplaintijfwas in relationto KhdsraNos. 333, 361, 372 and 373. the trial Court decided infavor of the plaintiffregardingKhasraNo. 333, butwithregardto the other three Khasra Nos. the trial court came to the conclusion that they were waste'lands being ghair mumkinpahadand banjarqadim.The trialcourtheld 19 1 P a g e that the land did not form part of the holding of the plaintiff and, therefore, vested in the Gaon Sabha by virtue ofSection 7 and 154 of the Delhi Land Reforms Act. The learned single Judge took the view that the word 'holding' used in explanation to Section 7(1) of the Act which defines waste land is used as denoting the property owned by a proprietor and not in the same sense as in the definition section. The learned Judge summed up his conclusions as follows:- "Till the land is used for agriculture it is not land within the meaning of the definitionand the Act does not ^ apply to it. Hence,, if the land happens to be moiintanous or sub-mountanous i.e. Ghair mum kirn pahar or happens to be Banjar Qadim or Banjar Jadid i.e. not under cultivation then the proprietor remains the owner thereof. It is only when the land is used for agriculture or for a purpose subsei^ient to agriculture that the land came within the definition of land as given in section 3(13) ofthe Act and it is only at that stage that the provisions of the Act become applicable to it." /

(70) On the allegations made in the plaint it is abundantly clear that theplaintiffs claim in substance is that he has bhiimidari rights in the suit land and the vesting order is contrary to law. As such, such a suit could not be brought in the civil court by reason of section185(1) of the Act. In the result, the appeal of GaonSabhaisallowed. Thejudgmentsand decreesof the courts below are set aside. The suit of the plaintiffrespondent is dismissed as being incompetent. In view of the fact that the question involved in all the ten appeals'was one relating to 20 I P a g e jurisdiction, we think that the proper order will be to leave theparties to bear their own costs throughout in all the appeals. " " The petitioners also relied upon the dicta in AshokKumar vs. Munni Devi (2012(129)DRJ 476) whereinit was held that: "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 ofSection 185 of the Act. No doubt Section 186 states that where a question of title is raised in any proceedingfalling undercolumn3 ofthe ScheduleI 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 thatfirstly the suits must in substance be the suits essentially covered under columns2 and 3 oftheSchedule! oftheAct, 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 itselfare notfalling under columns 2 and 3 of Schedule I, for such suits jurisdictionofthe CivilCourtisnotbarred.

¶9By the impugnedjudgment, the suitfiled by the appellants/plaintiffsfor declaration, injunction and possession was dismissed by holding that the Civil Courts do not have jurisdiction. 21 I P a g e The reliefs of declaration, injunction and possession were claimed'on the ground that original owner-Sh, Inder Singh never executed a General Power of Attorney infavour ofwife,ofSh. Riiliya Singh, and on the basis of which Power ofAttorney, the wife of Sh: Ruliya Singh is stated to have executed a sale deed in favour of Sh. Ruliya Singh. Sh. Ruliya Singh is the father of defendant Nos.2 to 4. 10. I have given detailed reasoning . while disposing of RFA No.621/2003 and have held that unless the suit falls within the columns 2 and 3 of the Schedide J of the Act, the jurisdiction of the Civil Court is not barred. The suit such as the present claiming injunction, declaration of illegality of the sale deed executed allegedly on the basis of a fabricated General Power of Attorney and for repossession of the land, is not covered-imder any of the Sections mentioned in column 2 of the Schedule I. The jurisdiction of the Civil Court therefore will not be barred under Section 185 of the Act. I must once again reiterate that nothing contained in todays judgment is a reflection on the merits of the case of either oftheparties, and I am not touching upon the merits of the matter. The present judgment only decides the issue that there is no bar to thejurisdiction of the Civil Courts by virtue ofSection 185 ofthe Act. "

¶21On behalf of the respondents, Mi*. Khli Uppal, learned Senior Advocate, contends that the order of the Court of Revenue Assistant was bad in law; thatinsofaras defendantNo.l to 5have fraudulentlyobtained the order of partition dated 09.03.1983,the Civil Court could always adjudicateupon it. He submitsthat the sale deeds were not disputedby the original sellers. He contends that indeed, apropos issue No. 9 the 22 I P a g e /• V learned Civil Court had recorded that there was no dispute regarding the sale deeds in favour of the plaintiffs, hence there was no occasion for the suit being referred to the Court of Revenue Assistant. The learned counsel relies upon the judgment of this Court in Mansa Ram v.. Tilak and Am', wherein it was observed that fraud of any nature, in any circumstance, must be adjudicated in trial before a Civil Court. The judgment read as follows: "13. The Full Bench of the Allahabad High Court in Ram Padarath vs. Union of India, -1989 All JVC 290 was ceased of a suitfor cancellation of a sale deed andpermanentinjunctionon the ground that the sale • ' deed has been executed by impersonation and that the plaintiffwas the tenure holder in possessionof the ' • land. The Bench held that the Civil Courts will have jurisdiction in a suit for cancellation of documents where, it is a suit for cancellation of document simplicitor with no declaration of title. The Constitution Bench decision in Rain Padarath (supra) case was upheld by the"'Supreme Court in Smt. Bismillah vs.-Janeswar Prasad & Ors, (1990) 1 SCC

¶207In the said case, a^ sUitfor cancellation of the document and possession was filed where the Apex Court held that the Civil Court would have jurisdiction to decide the issue as the sale deed requiresto, be set aside before theplaintijfis entitled for possessionand other consequentialreliefs. The SupremeCourt in Shri Ram &Ahr. V5. 1stAdditional • DistinctJudge&Ors., (2001)3SCC24approvingthe Ram Padarath (supra) case held thata tenure holder V- .23 I P a g e m possession. can file a suit in Civil Court for cancellation of a sale deed on the ground offraud or impersonation, as prima facie the title of the recorded tenure holder is not under cloud.

¶14Recently, the Supreme Court in Horil v^'. Keshav : & Anr.,, (2012) 5 SCC 525 has expanded the scope in case ofthejurisdiction ofthe Civil Court to decide the issue offraud and has held that the Civil Courts can entertain suit even in regard to decrees •or order's passed in suit or proceedings under different statute or U-ibunaloflimited jurisdiction."

¶22To buttress his contention that a suit would lie before the Civil Court and not before the Court of RevenueAssistant, he also relies upon the case of Shri Ram and Another v. 1st Addl. Distt. Judge and Ors,

(2001) 3 see 24, wherein the Hon'ble Supreme Court held that a recorded tenure holder, i.e., a person whose name has been mutated and recorded m the revenue records, need not file a suit before the Revenue Courtfor cancellationof a void documentbecausehis title isprimafacie valid. Such person can approach a Civil Court for this puipose. relevant paragraph reads as follows: "On analysis of the decisionscited above, we are of the opinion that where a recorded tenure holder havinga prima facie title and inpossessionfiles suit in the civilcourtfor cancellationofsale deedhaving obtained on the ^oiind of fraud, or impersonation cannot be directed tofile a suitfor declaration in the revenue court reason being that in such a case,prima facie, the title ofthe recorded tenure holder is not under cloud. He does not require declaration of his 24 I P a g e title to the land. Theposition would be different where a person not being a recorded tenure holder seeks cancellation ofsale deed byfiling a suit in the civil court on the ground offraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the revenue court, as the sale deed being void has to be ignored for giving him relief for declaration and possession."

¶23Apropos the question as to why no objection regarding jurisdiction was raised before the Civil Court, the petitioners state that most of them were not even party to the suit but were only objectors before the Executing Court in Execution No. 108 of 2011.

¶24As.per this tabular representation submitted by the petitioners, the following parties were objectors before the Executing Court: "COMPARATIVE/CORRESPONDING CHART OF LITIGANTS: Civil Suit No.' '1/2010 Execution No. 108/2011 CM(M) No.951/2013 & RFA 429/2013 Relation to oroceedinas ' ' Plaintiffs 1-263 Decree Holder 1-Respondent 1-263 f purchasers of land, bouaht before Suit of Partition was filed by original owners of land (Filed CivilSuit 1/10 when,they realised, original owners had pursuant to seeking partition soldoffland in questionto 2"'' 25 I P a s e purchaser. Defendants 1-5 Judgment Debtor 1-Respondent 264-Oriainal owners of land in question. : ' Defendants 7-84 Judgment Debtor 7-84 , Respondent 270-2"'' Durchasers of land, bought after suit for partition filed by original owners. (Civil suit decided: in favour of purchasers.) Not party Objector No. 14 Petitioner . / Part of 2"'' purchaser of (Other Objectioners have also filed CM(M)/Ex. FA as below) land/claiming from 2"'^ purchasers (i.e., claiming from Respondent 270-347 in present .proceedings), not party to suit, but objected in execution taking exception of S.185 Delhi Land Reforn^s Act, 1954, that bars jurisdiction of a civil court and that he. was not heard in suit. LITIGANTS FROM OTHER CASES V SI. No. Case No. Petitioner Name Relation to proceedings below CM(M) 951/2013 Sh.Gopeshwar Kumar [PET. Purchased land from Def. 61, 65, 70, 74, 80, 81 during pendency of suit] Objector no.14 before Execution Court in Exec. 108/2011 Not Party in Suit NO.1/2010

¶2RFA 429/2013 Sh.Gopeshwar Kumar Objector no.l4 before Execution Court in Exec.108/2011 26 I P a g e IV-Not Party in Suit No.1/2010

¶3EFA 22/2013 Smt. Raini Daraan . [PET. Purchased land from Def. 4,6,7,8,13,14,38,47,48,49, 57, 58, 72, 78, 79 during pendency of Suit] Objector no. 7 before Execution Court in Exec. 108/2011 Not Party in Suit NO.1/2010

¶4EFA 29/2013 Sh. KulbirSinah & Ors. Objector no.2 before Execution Court in Exec. 108/2011 Not Party in Suit No.1/2010 [PET. Purchased land from Def. 1, 5, 25 during pendency of Suit]

¶5CM(M) 870/2013 Sh. Brii Mohan & Ors. [PET. Purchased land from Def 6, 7, 9, 41, 42, 43, 44, 45 during pendency of Suit] Objector no.10 before Execution Court in Exec. 108/2011 Not Party in Suit No.1/2010

¶6CM(M) 33/2014 Sh. Jai Kishan Saini [PET. Purchased landfrom Def 6 after passing of Decree] Objector 17 and Defendant before Execution Court in Exec. 108/2011 Defendant No.36 in Suit No.1/2010

¶7CM(M) 34/2013 Sh. Raiesh Gauba [PET. Purchased landfrom Def 6] . . Objector no.3 before Execution Court in Exec. 108/2011 Not Party in Suit No.1/2010

¶8CM(M) 32/2014 Sh. Sanieev Kumar Aaaarwal Objector no.l before Execution Court in Exec. 108/2011 Not Party in Suit No.1/2010 ~ Neither was Mr. Devender Kumar from whom Pet, has got land as Gift. [PET. gifted land bySh.. Devender Kumar after passing of Decree] 27 1 P a a e 9-CM(M) 752/2013 Smt. Shashi Jain [PET. Purchased land from Def. 51, 52, 53, 54 during pendency of Suit] Objector no.11 before Execution Court in Exec. 108/2011 Not Party in Suit No.l/2Q10

¶10CM(M) 31/2014 . Smt. Sita Devi [PET. Purchased land from Def. 6 after passing of Decree] Objector no. 16 and Defendant before Execution Court in Exec. 108/2011 Defendant No.35 in Suit No.1/2010 .

¶11CM(M) 1085/2013 Sh. SurinderSinah & Ors. [PET. Purchased land from Def 19, 20 during pendency ofSuit] Objector no.15 before Execution Court in Exec. 108/2011 Not Party in Suit No.1/2010

¶12CM(M) 751/2013 Sh. Viiav Kumar [PET. Purchased land from Def. 6 after passing of Decree] Objector no.l8 and Defendant before Execution Court in Exec. 108/2011 Defendant No.40 in Suit No.1/2010

¶13EFA 25/2013 Smt. Narinder Kaur & Ors. [PET. Purchased land from Sh. Anil Maheshwari and Sh. Adesh Verma after passing of Decree] Objector no.4 before Execution Courtin Exec. 108/2011 ^ Not Party in Suit No.1/2010 ~ Neither were Sh. Anil Maheshwari and Sh. Adesh Vermafrom whom PET. has purchased land.

¶14CM(M) 308/2014 Sh. Tarsem Lai Verma Dismissed in limine on 27/03/2014

¶25Having consideredthe contentionof the parties the Court notes that these petitions essentiallyseek the setting aside of the impugned order dated 2.22011 which has set aside the partition order of the 28 I P a g e Revenue Assistant which recognized the right of defendant nos. 1 to 5 to sell the suit lands; as a consequence of which the suit lands were sold to defendant nos 7 to 84; they also seek the ancillary i.e. a declaration that the petitioners be declared as rightful owners of the suit property.

¶26Entry No. 7 of Schedule 1 of the DLR Act, 1954 makes the Court of Revenue Assistant as the Court of original jurisdiction to adjudicate on an application for determination of the share of the lessor and partition of holding. It also stipulated that an appeal from such order would lie before the Deputy Commissioner. Under Entry 3 of the Schedule, apphcation to regain possession would he before the same Revenue Assistant and under Entry 19 a suit for ejection of a person occupying land without title or damages would also he before the Revenue Assistant. The respondents,havingbeenaggrievedby the partitionorder passed by the Revenue Assistant,ought to have impugnedthe order as perthe provisionsoftheDLRAct beforethe DeputyCommissioner.The partitionorder caimot be the subject matter of adjudicationby a Civil Court because jurisdiction has been specifically and exclusively conferredupon the RevenueCourtregardingmattersof bhumidarirights and possessionof agriculturallands. The jurisdictionof othercourtshas been clearly ousted under Section 185(1) of the Act. Furthermore, section 186 of the Act provides the procedureto be followed when a questionof title is raised.It readsas under: "186. Procedure when question oftitle is raised. -

(1) Notwithstandinganything contained in section 185', if in anysuit orproceedingmentionedin column 29 I P a g e I \ 4r 3 ofScheduled I, question is raised regarding the title ofany party to the land which is the subject matter of the suit or proceeding and such question is directly and substantially in issue the Court shall, unless the question has already been decided by a competent civil court for the decision ofthat issue only. Explanation:- A plea regarding the title to the land. which is clearly untenable and intended solely to oust the jurisdiction of the revenue court shall not he deemed to raise a question regarding the title to the land within the meaning ofthis section.

(2) The civil court, after refi-aming the issue, if necessary, shall decide such issue only and return the record together with itsfinding thereon to the revenue court which submitted it. ^

(3) The revenue court shall thenproceed to decide the suit or, accepting thefinding of the civil court on the issue referred to it.

(4) An appeal from a decree of a revenue court In a suit or proceeding in which an issue regarding title has been decided by a civil court under sub-section

(2)shalllie to the civil court which having regard to the valuation of the suit has jurisdiction to hear appealfrom the Court to which the issue of title has been referred."

¶27The dicta in Hqttivs. SunderSingh (supra) clearlylays down that the issue of declarationof bhumidarirights, as per S. 186 of the Delhi Land ReformsAct, can only be taken up by the RevenueCourt. In view ofthe aforesaiddiscussion,itis clearthatexclusivejurisdictionregarding

i) partition of agriculturalproperty, ii) application for declaration of 30 I P a g e t' / < ^7 bhumidari rights, iii) application for regaining of possession and for iv) ejection of a person occupying the land without title, would only lie before the Court of Revenue Assistant. Therefore, when the statute itself clearly stipulates jurisdiction of another court, a Civil Court cannot assume the jurisdiction even if an order has been procured by alleged misrepresentationbefore or suppressionof material facts from and/or by fraud played upon the Court of RevenueAssistant.Indeedjurisdictionof other courts has been specifically ousted by s.l85 of the Act.

¶28Therefore, insofar as the Civil Court lacked jurisdiction to set aside the order dated 08.03.1983passed by the Court of Revenue Assistant,the impugnedorder and decree is withoutjurisdictionand is liableto be set aside. Accordingly, the impugnedjudgment and decree dated 2.2.2011 Civil Suit no.1/2010 is set aside. It would be open for the respondents to pursueremediesas may beavailabletothem in lawunderthe DelhiLand ReformsAct, 1954. The aforesaidpetitionsare allowed and disposedoff in the above terms. No orders as to costs. NAJMIWAZIRI, J MARCH 23, 2015/acm/nrk/rtm 31 I P a g e

+ + + + + + + + + + IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 25.02.2016 Pronounced on: 23.03.2016 CM(M) 31/2014, CM APPLs. 612-613/2014 SITADEVI ' " Petitioner CM(M) 32/2014, CM APPLs. 614-^615/2014 SANJEEV KUMAR AGGARWAL Petitioner CM(M) 33/2014, CM-APPLs'.622-623/2014 JAIKISHAN Petitioner CM(M) 34/2014, CM APPLs. 624-625/2014 RAJESH GAUBA Petitioner EX.F.A. 22/2013, CM APPLs. 13642-43/2013 SMT RA.TNIDARGAN Appellant EX.F.A. 25/2013, CM APPL. 14868/2013 SMT NARINDER KAUR & ANR Appellant EX.F.A. 29/2013, CM APPLs. 16807-08/2013 KULBIR SINGH & ANR Appellant CM(M) 1085/2013,CMAPPL. 16017/2013 SURENDER SINGH & ORS Petitioner CM(M)751/2013,CMAPPL. 11549/2013 VIJAY KUMAR Petitioner CM(M)752/2013,CM APPL. 11558/2013 SMT SFL\SHI JAIN , Petitioner 1 I Page + + + CM(M)870/2013,CM APPL. 13282/2013 ^ BRIJ MOHAN & ORS CM(M)951/2013,CM APPL. 14380/2013 , ' SHRI GOPESHWARKUMAR ,. ,> •,;. r- Petitioner RFA429/2013,CM APPLs. 14067to-fi^/lOl^'-^" GOPESHWAR KUMAR Through: • 'Xppellaiit Mi-;Anil Ki-;.Ghunduru and Mi*. Neeraj Kumar,A^dv. for petitionei^\ ih cm(m)'1085/2013:' ; Mr. Ramakant Tripathi for Mts. Aiiita'Gupta,'Adv. for petitioners in CM(Mj951/2013anil429/2013 Mr. Sunder Khatri, Adys. "for petitioners;CM(M)751^2013 and CM(M) 752/2013 Mr. Abhilesh ' Arora, Adv; ^ for appellant in lEX.F:A.25/2013' J Mr. Kameshwar Gumber, Adv. for appellant in EX.F.A. 29/2013. Ml". Abhijat and Mr. Harsh Hari Haran, Advs. for appellant in EX.F.A. 22/2013. Ml*. Tarun Sharma and Ms Garima Gupta, Advs. for petitioners in CM(M) 31/2014 to 34/2014. 2 I P a e e Versus Mr. . Sudhir Kumar Sharma, Adv.for petitioner in CM(M) 870/2013. , RADHA PARK PLOT HOLDER WELFARE ASSOCIATION (REGD) & ORS ...Defendant/Respondent ThrougH: Mr. Kirti Uppal, Senior Advocate with Mr. R.S. Saini and Mi-. Anshumaan Sahni, Advs. for • - , Respondents No. 1 to in CM(M) 951/2013 and RFA 429/2013 Ml-. R.S. Sahni, Adv. for respondents in CM(M) 31/2014 to 34/2014, EX.F.A. 22/2013, • ' EX.F.A. 25/2013, EX.F.A. ' • • ' 29/2013,CM(M) 1085/2013, CM(M) 751/2013, CM(M) / , _ ^ 752/2013,CM(M)870/2013and RFA 429/2013. tv' • • ' CORAM: HON'BLE MR. JUSTICE NAJMI WAZIRI