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TMI Blog1973 (2) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... In these decisions the learned single Judge D. K. Kapur, J. has taken the view that it is open to a civil court to entertain a suit where the land is alleged to be banjar or ghair murnkin. ( 3. ) Rajindar Sachar, J. thought that in view of the conflicting decisions it was necessary that the matter be settled by a Division Bench. This is how these appeals have been placed before us. ( 4. ) We may observe at the outset that in all the cases the question which has arisen for decision is whether a civil court has jurisdiction to try a suit in respect of land under the Delhi Land Reforms Act, 1954. Under Section 185(1) of the Delhi Land Reforms Act the civil court has no jurisdiction. Section 185(1) reads as under:- , "185(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 i n the Code of Civil Procedure, 1908, take cognizance of any suit, application, or proceeding mentioned in column 3 thereof." . ( 5. ) The question regarding the maintainability of a suit in a civil court under the Delhi Land Reforms Act has been settled by the Supreme Court in Haiti v. Sunder Singh (1970) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initially, a declaration of Bhumidari right can be granted under Section II or Section 13 without calling for objections and without hearing contesting parties in favour 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, any person aggrieved 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-ride the declarations earlier issued in accordance with the Rules. This shows that any person, who is aggrieved by a declaration of Bhumidari right issued in favour of another person, can appropriately seek his remedy by moving an application before 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 supersede the declaration issued by the authorities in accordance with the Rules without any adjudication of rights and without notice to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respective appellant was the defendant in each of the suits from which those appeals arose, The following reliefs were prayed for:- (1) A declaratory decree to the effect that Bhumidari declaration mentioned in para 10A regarding said land in the name of the defendant is illegal, ultra vires, void against the plaintiff be passed in plaintiff's favour against the defendant. (2) A decree for possession of the agricultural land with damages; and (3) for costs. ( 9. ) The question for decision which arose in the suits was whether the civil court had jurisdiction to grant the reliefs prayed for. The trial ' court decreed the plaintiff's suit. The first appellate court affirmed that decision. The second appellate court summarily dismissed the appeal. The Letters Patent Appeal was also dismissed. The appeals were brought in the Supreme Court afterobtaining special leave. ( 10. ) Their Lordships held that the point which had arisen for decision in the appeals was governed by the rule laid down by the court in the case of Hatti (supra). It was held that the civil court had no jurisdiction to entertain a suit of the type with which their Lordships were concerned in those th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of our judgment. ( 14. ) R . S. A. 199-D of 1964 decided on August 27, 1971 (Gaon Sabha of village Lado Sarai v. Risal Singh) is another decision of the learned single Judge which was cited before us and was relied upon by Mr. S.S. Dalal. In this case the appeal was filed by the GaonSabha of village Lado Sarai and arose out of a suit brought by Risal Singh, respondent, claiming that the order of the revenue Assistant placing the land in suit in L.R. Form No. 2 and then vesting it in the Gaon Sabha was without jurisdiction, void and not binding on the plaintiff. The suit initially instituted by the plaintiff was in relation to Khasra Nos. 333, 361, 372 and 373. The trial Court decided in favour of the plaintiff regarding Khasra No. 333, but with regard to the other three Khasra Nos. the trial court came to the conclusion that they were waste lands being ghair murnkin pahad and banjar qadim. The trial court held that the land did not form part of the holding of the plaintiff and, therefore, vested in the Gaon Sabha by virtue of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Subordinate Judge on appeal upheld the order of the trial court. The learned single Judge on second appeal held : "I agree with the courts below that this is a case in which the civil court has jurisdiction, as the only question in this suit is whether the Revenue Assistant has exceeded his jurisdiction under the Act or not, and this depends on whether or not the land in suit has been wrongly held to be waste land. If the land is not covered by the definition of 'waste land', then certainly the order of the Revenue Assistant is without jurisdiction." And again : "in. order to see whether the land in suit is 'waste land' the first question to be seen is whither the land in suit comes within the definition of 'holding' given in Section 3 (11) of of the Act. In this respect it has been urged that the land was not khudkasht for the simple reason that it was not agricultural land and was not used for agriculture. It seems to me that the fact that the land is not used for agriculture also brings it outside the definition of 'waste land' beause if land is used for a purpose other than those mentioned in Section 3 (13) before 1956 it come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to decide the questions which arise for decision in the present suit." ( 17. ) The learned Judge finally held that in view of the fact that Section 185 (1) of the Act did not bar the suit it was rightly held by the courts below that the land did not vest in the Gaon Sabha. In R.S.A. 284-D of 1964 decided on August 16, 1971 (Gaon Sabha Village Burari v. Raghu Nath etc.) the learned Judge held that though it is not open to the civil court to grant a declaration of Bhumidari rights it was nevertheless open to the civil court to grant a declaration that the vesting of the land in Gaon Sabha is illegal and not binding on the plaintiff. More or less to the same effect is the decision given in R.S.A. 283-D of 1964 decided on August 17, 1971 (Union of India V. Badlu etc.). ( 18. ) In R.S.A. 183-D of 1962 decided on February 8, 1971, by D.K. Kapur, J (The Gaon Sabha of Village Jasola v. Shri Inder Raj), the appellant was the Gaon Sabha in whose favour the order was passed by the Revenue Assistant on November 29, 1958, vesting the land in dispute as waste land under the Act. The respondent Inder Raj instituted a suit out of which the appeal arose claiming that the land was not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fact that the land in suit had been in the cultivating possession of the respondent and, therefore, could not be said to be a waste land. The appeal was dismissed and the order of the court belaw striking down the order of the Revenue Assistant dated November 29, 1958 was upheld. ( 20. ) Having set out the view of D.K. Kapur, J. in the various regular second appeals referred to above we mayinow examine the validity of the view. Section 185 (1) of the Act which we have set out above enacts a complete bar to the jurisdiction of the civil courts. Item 4 in Schedule I to the Act mentions applications for declaration of bhumidari rights in column 3 and the court of the Revenue Assistant is the court of original jurisdiction for such application in column 7. In all the cases what we generally find is that the plaintiff prays for a declaratory decree in his favour and against the Gaon Sabha to the effect that the order of the Revenue Assistant regarding the inclusion of the plaintiff's land in question in land Reform form No. 2 as the property of the Gaon Sabha is illegal and as a next step he. the plaintiff, claims that he is entitled to be declared a Bhumidar of the said land. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of entries in the forms of declaration, shall, except where it refers to a clerical omission or error, be directed by the Revenue Assistant to file a regular suit within two months of the date of issue. Obviously, this sub-rule has to be interpreted in conformity with Sections 185 and Item 4 of the First Schedule to the Act, so that the scope of this sub-rule must be confined to institution of suits in respect of matters not covered by Item 4 of the First Schedule. This sub-rule would not stand in the way of an application being made by any person claiming to be Bhumidar under Item 4 of the First Schedule." Section 7 (1) of the Act provides that all rights of an individual proprietor pertaining to a waste land, pasture land and lands of common utility etc. shall with effect from the commencement of the Act, be terminated in accordance with sub-section (2). Sub-section (2) provides that on the commencement of the Act the Revenue Assistant acting as the Deputy Commissioner shall pass an order divesting the individual properietors of the rights mentioned in sub-section (1) and vesting those rights in the Gaon Sabha and staling that the compensation should be paid to the proprie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vesting Ghair Murnkin land in the Gaon Sabha was made then the same was ultra vires and a suit with regard to a declaration could be brought in a civil court. It was submitted that in ghair murnkin land the plaintiff claims interest but not bhumidari rights and, therefore, the civil courts have jurisdiction to make a declaration in his favour since what the plaintiff is asking for is not a declaration of bhumidari rights, but a declaration of aninterest in ghair murnkin land. We profoundly disagree with this submission. No person can claim proprietory rights in the land after the commencement of the Act as the concept of proprietorship has been-abolished altogether. ( 23. ) In our opinion it is a mistake to consider that banjar qadim or ghair murnkin are not agricultural lands. These two types of land are also covered by the provisions of the Act. In Land Revenue Assessment Rules 1929 which were framed by the Governor General in exercise of the powers conferred by Section 60 of the Punjab Land Revenue Act, 1887 on December 23, 1929, by Notification No. 6073-R dated December 23, 1929 under Rule 2, sub-rule (2), it is stated that: " (2) The most important classes of uncultiva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of K.apur. J. are in conflict with the decisions of the Supreme Court in Haiti's case (supra). At two places in their judgrnent their Lordships of the Supreme Court are at pains to point out that the Act is a complete Code. At page 847 they say: "The Act is a complete Code under which it is clear that any one wanting a declaration of his right as a Bhumidar. or aggrieved 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 withot 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 thright of any person can also be sought without any period of limitaton. If there is dispute as to possession of agricultural land, the remedy has to be sought under Section 84, read with Item 19 of the First Schedule." Again at page 844 they say : "Sections 6,11,13 and 154 of the Act read together, thus, show that, after the Act came into force, proprietors of agricultural land as such ceased to exist. If any land was part of a holdin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The jurisdiction of the Civil Court is clearly barred by Section 185 of the Act read with various items of the First Schedule mentioned above. If a Bhumidar seeks a declaration, of his right, he has to approach the Revenue Assistant by an application under Item 4, while, if a Gaon Sabha wants a clarification in respect of any person claiming to be entitled to any right in any land, it can institute a suit for a declaration under Item 28 and the Revenue Assistant can make a declaration of the right of such person. So far as suits for possession are concerned, we have already held earlier that Section 84, read with Item 19 of the First Schedule gives the jurisdiction to the Revenue Assistant to grant decree for possession, and that the suit for possession in respect of agricultural land, after the commencement of the Act. can only be instituted either by a Bhuinidar or an Asami or the Gaon Sabha. There can be no suit by any person, claiming to be a proprietor, because the Act docs not envisage a proprietor as such continuing to have rights after the commencement of the Act. The First Sch dule and Section 84 of the Act provide full remedy for suit for possession to persons who can hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he trial court held that the civil court had jurisdiction to try the suit. In the result, a decree in favour of the plaintiff was granted by the trial court. The appellant Gaon Sabha appealed to the court of Senior Sub-Judge, Delhi. The. first appellate Court by order dated August 31, 1965, dismissed the appeal. Gaon Sabha has come up in second appeal. in this case the learned counsel for the respondent Shri S.S. Dalal conceded that the prayer made in the plaint was covered by item 4 of Schedule I to the Act. It appears to us that in view of the decision of the Supreme Court in the case of Haiti (supra) the civil courts did not have jurisdiction to try this suit. In the result, the second appeal is allowed. The orders of the courts below are set aside and the suit of the plaintiff-respondent is dismissed. ( 32. ) This is a second appeal by the plaintiff appellant. The Plaintiffappellant instituted a suit for declaration. The plaintiff claimed to be the owner in possession of 39 bighas-12 biswas of land situated at village Bakhtawarpur, Delhi State. The plaintiff alleged that he was using the above land for the purposes of brick kiln for the last 13 years and had put up huts on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmission of the learned counsel. We have to see what is the claim in substance. On a reading of the plaint it is clear that the main grievance of the plaintiff is that the order of the Revenue Assistance dated September 15, 1961, is erroneous because the land has wrongly been vested in Gaon Sabha and that the plaintiff should be declared a bhumidar of the land in A dispute. It is, therefore, impossible to separate the prayer into two parts as was contended before us. We are of the opinion that the civil suit was not maintainable and the courts below were in error in holding otherwise. The result is that the second appeal of the appellant Chhotu Ram is dismissed though for reasons different from those which found favour with the first appellate court. ( 36. ) The plaintiff-respondent instituted a suit for declaration and injunction in the Court of the Subordinate Judge, Delhi. The allegations in the plaint were that land Khasra No. 14/21 (4 bighas-16 biswas) Khasra No. 22 ( I bigha) Khasra No. 15/25 (4 bighas-16 biswas) Khasra No. 28/5 (4 bighas-16 biswas) and Khasra No. 29/1 (4 bighas-16 biswas) total 20 bighas-4 biswas situated in Village Tekri Khurd was ordered to have vested i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard to the remaining land the plaintiff's suit was dismissed. ( 39. ) Both the parties appealed to the court of the Senior Sub-Judge. The plaintiff appealed against that part of the suit which had been dismissed while Gaon Sabha appealed in respect of that part of the suit which had been decreed. The first appellate court, by order dated March 28. 1963. dismissed both the appeals. ( 40. ) The material words in the prayer are that the order of vesting of the land in suit in the Gaon Sabha is illegal, ultra vires and beyond jurisdiction. In essence the plaintiff claims that he is entitled to bhumidari rights since he "has been cultivating the suit land as a part of his holding and, therefore, it could not vest in the Gaon Sabha under Section 154 of the Delhi Land Reforms Act" (para 5(i) of the plaint). By means of a permanent injunction the plaintiff wanted to restrain the defendant from ejecting him from the said land. This being the substance of the prayer, there is no doubt that the civil Courts have no jurisdiction to try such a suit. ( 41. ) The result is that the appeal of the Gaon Sabha is allowed and the plaintiff's suit is dismissed. ( 42. ) In this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and not binding on the plaintiff. ( 45. ) Gaon Sabah appealed to the court of the Senior Sub-Judge. The first appellate Court by order dated August 4. 1965. allowed the appeal and dismissed the suit of the plaintiff with costs throughout. The plaintiffappellant has preferred this second appeal to this court. The suit in substance is for declaration of bhumidari rights. The Supreme Court ruling governs this case. in the result, the appsal is dismissed on the ground that the plaintiffs' suit is not cosn-zable by a civil court. ( 46. ) On August 3, 1964, that plintiff Bahadur instituted a suit for declaration that the inclusion in L.R. Form No. 2. by the Revenue Assistant on January 29, 1929, of 1 bigha-17 biswas of land out of Khasra No. 3 M in situated in village Lado Sarai, Delhi was illegal, ultra vires and void and did not affect the rights of the plaintiff in the suit land. It was alleged in the plaint that the plaintiff and defendants 2 to 8 were co-sharers in a joint Khewat in village Lado Sarai and had by mutual agreement partitioned the joint K.hewat for purposes of cultivation. Khasra No. 3 Min measuring 5 bighas fell to the share of the plaintiff and the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the inclusion in L.R. Form : 2 by the Revenue Assistant. Delhi on 29-1-1959 of I bigha 17 biswas of land out of khasra No. 3 Min situated in village Lado Sarai, District Delhi is illegal, ultra vires, and void and docs not affect the rights of the plaintiff in the suit land." ( 49. ) The suit was contested by the Gaon Sabha. The trial court by order dated January 30, 1965, granted 3 decree for declaration to the plaintiff to the effect that the order of the Revenue Assistant dated January 29. 1959, relating to 1 bigha-17 biswas of land out of khasra No. 3 Min in village Lado Sarai was illegal, ultra vires and void and did not affect the rights of the plaintiffin the suit land. ( 50. ) Gaon Sabaha appealed to the court of the Senior Sub-Judge. The first appellate court by order dated August 4, 1965, dismissed the the appeal. Gaon Sabah has now appealed to this court. The substance of the claim as made in the plaint is that there has been a wrong declaration by the Revenue Assistant. The plaintiff says that he should have been granted bhumidari rights in respect of the suit land. If this is so, then the suit is clearly hit by the rule laid down by the Supreme Court. The resul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dants with costs of the suit. Any other relief deemed proper be also granted." ( 53. ) The subject heading referred to in the prayer clause runs as under:- "Suit for declaration that inclusion in 'L.R. 2 of the land bearing Khasra Nos. 2703/1328/1 (10 big-4bis), 2703/1328/4 (0 big- 7 bis), 2703/1328/5 (0 big-13 bis), 2712/1660/8 (57 big-9 bis) 1739 (21 big-8 bis) and 1743/1 (31 big-9 bis) in all 121 bighas-10 biswas of village MehrauU, is wrong illegal withoutjllrisdiction, ultra vires void, ineffective, nullity against the proprietory interest of the plaintiff, who is entitled to bhumidari rights u/s ll ofD.L.R. Act or entitled to remain in possession and enjoyment of the suit land as proprietor thereof." ( 54. ) Gaon Sabha contested the suit. The trial court byjudgment dated July 21, 1967, granted a decree of declaration to the plaintiff to the effect that the vesting of the suit land in Gaon Sabha was wrong, illegal and without jurisdiction and not binding on the plaintiff. (55.) Gaon Sabha appealed to the court of the Senior .Sub-Judge, Delhi. By order dated December 11, 1967, the first appellate court dismiseed the appeal. Gaon Sabha has now come up in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the plaint runs as follows:- ''Suit for declaration that inclusion in LR 2 of the land bearing khasra Nos. 2712/1660/13 (6 bighas-15 biswas), 2742/2077/ 1679/2 (4 bighas-bis) 1249 (33 bighas-19 bis) in all 44 big-15 bis. village Mehrauli, Delhi, is wrong, illegal without jurisdiction, ultra vires, void, ineffective, nullity, against the proprietory interest of the plaintiff, who is entitled to Bhumidari rights u/s-ll of D.L.R. Act or entitled to remain in posatssion and enjoyment of the suit land as proprietor thereof." It will be seen that the plaint in Suit No. 70 of 1967 out of which R.S.A. 69-D of 1968 arose was in identical terms as the plaint in this suit. The Gaon Sabha contested the suit. The trial court by judgement, dated July 24, 1967, granted a decree of declaration to the plaintiff to the effect that the vesting of the suit land in Gaon Sabha was illegal and without jurisdiction and did not affect plaintiff's rights. Gaon Sabha carried an appeal to the court of the Senior SubJudge who by order, dated December 23, 1967, dismissed the appeal. Gaon Sabha has now come up in second appeal to this court. For reasons given in R.S.A. 69-D of 1968, we a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhumidari rights under Sec. 11 of D.L.R. Act or entitled to remain in possession thereof as proprietors." (61.) The Gaon Sabha contested the suit. The trial Court by order dated June 3, 1967, granted a decree of declaration to the plaintiff to the effect that the vesting order was illegal and without jurisdiction. Gaon Sabha carried an appeal to the court of the Senior SubJudge, Delhi, who by his order dated October 20 1967, dismissed the appeal with costs. Gaon Sabha has come up in second appeal to this court. (62.) The allegations in the plaint leave no doubt that the claim in question is for the declaration of bhumidari rights. This being so, the suit in a civil court did not lie. Allegations in the plaint are similar to the allegations made in plaints which we have considered in R.S.A. 69 and R.S.A. 71 of 1968. The result is that the appeal of Gaon Sabha succeeds. Accordingly we set aside the decrees of the courts below and dismiss the suit of the plaintiffsrespondents. (63.) On December 11, 1963 the plaintiff-respondent instituted a suit for a declaration against Gaon Sabha. The claim of the plaintiff in the plaint was that he was a proprietor in shamla patti Aal K-al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and null and void, and is not binding on the plaintiff who is entitled to the bhoomidari rights in the said land." (64.) Gaon Sabha contested the suit. The trial Court by order dated May 12, 1964 dismissed the suit of the plaintiff respondent. On the issue whether the court had jurisdiction to try the suit, the trial court came to the conclusion that the civil court had jurisdiction to try the suit. This issue was decided in favour of the plaintiff-respondent though in the result his suit was dismissed. (65.) The plaintiff-respondent appealed to the court of the Senior SubJudge. The first appellate court by order dated January 2, 1965, allowed the appeal in part and granted a partial decree to the plaintiff declaring that the order of vesting of the land in dispute in the Gaon Sabha was void. The plaintiffs clairnthathewasabhumidar of the land was not accepted in its entirety. The first appellate court declared that the bhumidari rights vested in Patti Aal Kalan and the plaintiff-respondent was entitled to hold this land as one of the bhumidars. (66 ) Against the judgment of the first appellate court Gaon Sabha has come up in second appeal. The allegations made in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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