REPORTED * IN THE HIGH COURT OF DELHI AT NEW DELHI % DATE OF RESERVE: December 16, 2009 DATE OF DECISION: February 04, 2010 + RFA No.141/2005 and CM No.3637/2005 ANAND PRAKASH & ORS ..... Appellants Through: Mr. J.K. Jain with Mr. M.K. Tyagi, Advocates. versus SH RAM KALA & ANR ..... Respondents Through: Mr. S.C. Singhal with Mr. S.R. Sharma, Advocates. CORAM: HON'BLE MS. JUSTICE REVA KHETRAPAL 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : REVA KHETRAPAL, J. 1. This appeal is directed against the judgment dated January 31, 2005 passed by the learned Additional District Judge dismissing the suit of the plaintiffs. 2. The plaintiffs (appellants and the respondent No.2) had filed a suit for cancellation and declaration with the consequential relief of permanent RFA 141/2005 Page No. 1 of 24 injunction on the ground that the four plaintiffs/appellants and late Shri Pehlad were the joint bhumidhars of agricultural land bearing Khasra Nos.43/16 (4-9), 15/2 (3-4), 16 (4-16) 25/1 (0-6), 190/3 (3-19) and residential plot bearing No.235 (1-0) measuring 1 bigha, total 17 bighas 14 biswas situated in the Village Paprawat, Najafgarh, Delhi. Shri Pehlad died on 07.01.2000 at the age of 48 years as a bachelor. After the death of Pehlad, the appellants by virtue of the provisions of Section 50 of the Delhi Land Reforms Act, 1954 succeeded to his estate being the real brothers and natural heirs of the deceased. The appellants on 18.04.2000 accordingly moved an application for mutating the share in the agricultural bhumidhari holding left behind by Shri Pehlad in their names. Subsequently, the respondent No.1 (hereinafter referred to as 'the respondent') moved another application before the Tehsildar for mutation in his name on the ground that Shri Pehlad had executed a will dated 15.07.1996 in his favour. According to the appellants, the will purported to have been executed by the deceased in favour of the respondent is a forged and fabricated document. The appellants have stated in the plaint that the respondent on the basis of the said forged will was threatening to interfere in the peaceful possession of the appellants over the suit land. The appellants thus filed the present suit claiming their right over the land on the basis of inheritance from the deceased, asserting that the documents including the will RFA 141/2005 Page No. 2 of 24 dated 15.07.1996 being put forth by the respondent were forged and fabricated and conferred no title on the respondent. 3. The suit filed by the appellants was contested by the respondent, who raised a preliminary objection that the suit as framed for declaration with consequential relief was not maintainable as the civil court had no jurisdiction to entertain a suit in respect of agricultural land in view of the provisions of the Delhi Land Reforms Act. On merits, the respondent denied that after the death of Pehlad the appellants had succeeded to his estate and contended that in view of the fact that the Pehlad had left behind a will in favour of the respondent, the civil court had no jurisdiction to declare the same as null and void, and the suit was not maintainable. It was also stated that the appellants were out of possession and the respondent was in possession of the agricultural land and that the appellants wanted to dispossess the respondent after obtaining an injunction order. 4. The appellants filed replication wherein the averments made in the plaint were reiterated and the pleas raised by the respondent in the written statement denied. 5. On the pleadings of the parties, the following issues were framed on 15.10.2003:- “1. Whether the Civil court has no jurisdiction to entertain the suit in view of the provisions of Delhi RFA 141/2005 Page No. 3 of 24 Land Reforms Act? OPD. 2. Whether the suit of the plaintiff is not maintainable in view of para 2 of the preliminary objections of the written statement? OPD. 3. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD. 4. Whether the suit is barred by time? OPD. 5. Whether the plaintiff is entitled to the relief of declaration as prayed for? OPP. 6. Whether the plaintiff is entitled for permanent injunction as prayed for? OPP. 7. Relief.” 6. At the time of hearing of the parties, Issue No.3 was decided against the respondent, Issue No.4 was not pressed and Issues No.5, 6 and 7 were disposed of on the findings rendered on Issues No.1 and 2. The appellants were held not entitled to the relief of declaration or permanent injunction. 7. The findings rendered on issues No.1 and 2 are thus apposite for the purpose of deciding the present appeal. As regards Issue No.1, it was held by the learned trial court that the suit was barred under Section 185 of the Delhi Land Reforms Act and the civil court had, therefore, no jurisdiction to entertain the suit. As regards issue No.2, it was held that only the probate court was vested with the power to adjudicate upon the proof or validity of the will and the civil court cannot go into the said question. In view thereof, the suit of the plaintiff was dismissed as not maintainable. 8. Mr. J.K. Jain, the learned counsel for the appellants has assailed the aforesaid findings principally on the ground that the trial court had failed to RFA 141/2005 Page No. 4 of 24 take into consideration that under Section 185 of the Delhi Land Reforms Act the jurisdiction of the civil court to grant relief is barred only for such type of cases which are enumerated in Schedule-I attached to the Delhi Land Reforms Act. He urged that no entry has been pointed out by the learned trial court in Schedule I under which the revenue court can grant the relief claimed by the appellants in the suit. The succession to bhumidhari rights, it was urged by him, no doubt, is governed by Section 50 of the Delhi Land Reforms Act, but the question involved in the instant case is as to rightful successor to the title of the bhumidhari rights of the deceased Pehlad . 9. It was next contended by the learned counsel for the appellants that the mutation of agricultural lands is governed by sub-section (1) of Section 22 of the Delhi Land Revenue Act, 1954, which is captioned “Report of succession or transfer of possession” and envisages that every person obtaining possession as Bhumidhar or Asami or by succession or by transfer of any land in a village which is required to be recorded in the register specified in Section 20 shall report such admission, succession or transfer to the Tahsildar concerned (other than in the case of a lease permitted under the Delhi Land Reforms Act, 1954). Even under this Act (i.e., the Delhi Land Revenue Act), Section 41 stipulates that the entries of mutation entered in the record-of-rights shall be presumed to be true until the contrary is proved, and further lays RFA 141/2005 Page No. 5 of 24 down that no such entry or decision shall affect the right of any person to claim and establish in the civil court any interest in land which is required to be recorded in the register prescribed by Section 20. In other words, it is contended that the statute itself has provided that for the purpose of establishing his right or any interest in land any person may approach the civil court regardless of the entries made in the record-of-rights prepared by the revenue authorities in accordance with the provisions of Section 20 of the Act, which falls in Chapter III thereof. 10. The learned counsel for the respondent Mr. S.C. Singhal, on the other hand, supported the judgment of the learned trial court by placing reliance upon the provisions of Section 185 of the Delhi Land Reforms Act. It was also contended by him that the Court of the District Judge alone is entitled to deal with all the questions relating to the grant of probate as is clear from a bare reading of Section 266 of the Indian Succession Act and it was not open to the appellants to challenge the will in favour of the respondents in the instant suit. Reliance was also placed by the learned counsel for the respondent on the judgment of the Supreme Court reported in Chiranjilal Shrilal Goenka vs. Jasjit Singh & Ors., 50 (1993) DLT 226 (SC) wherein in paragraph 22 it has been held as follows:- “Thus the necessary conclusion is that the Probate Court alone has exclusive jurisdiction and the Civil RFA 141/2005 Page No. 6 of 24 Court on original side or the Arbitrator does not get jurisdiction, even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executrix, the applicant.” 11. In order to appreciate the respective contentions of the learned counsel for the parties, it is deemed necessary to reproduce the provisions of Section 50 and Section 185 of the Delhi Land Reforms Act, which read as under:- “50. General order of succession from males.–Subject to the provisions of section 48 and 52, when a Bhumidhar or Asami being a male dies, his interest in his holding shall devolve in accordance with the order of the succession given below: (a) male lineal descendants in the male line of the descent: Provided that no member of this class shall inherit if any male descendant between him and the deceased is alive: Provided further that the son or sons of a predeceased son howsoever low shall inherit the share which would have devolved upon the deceased if he had been then alive; (b) widow; (c) father; (d) mother, being a widow; (e) step mother, being a widow; (f) father’s father; (g) father’s mother, being a widow; (h) widow of a male lineal descendant in the male line of descent; (i) brother, being the son of same father as the deceased; (k) unmarried sister; (l) brother’s son, the brother having been son of the same father as the deceased; (m) father’s father’s son; (n) brother’s son’s son; RFA 141/2005 Page No. 7 of 24 (o) father’s father’s son’s son; (p) daughter’s son. x x x x” “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 (5 of 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 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.” 12. It is also deemed necessary at this juncture to look into the provisions of Sections 22 and 41 of the Delhi Land Revenue Act, 1954 which are as follows:- “22. Report of succession or transfer of possession.–(1) Every person obtaining possession on admission by the Gaon Sabha as Bhumindhar or Asami or by succession or by transfer other than a lease permitted under the Delhi Land Reforms Act, 1954, of any land in a village which is required to be recorded in the register specified in section 20 shall report such admission, succession or transfer to the Tahsildar. (2) In the case of any admission by the Gaon Sabha as Bhumidhar or Asami or of a succession or transfer, other than a lease permitted under Delhi Land RFA 141/2005 Page No. 8 of 24 Reforms Act, 1954, the report shall be made immediately after it has taken place. (3) In the case of lease permitted under the Delhi Land Reforms Act, 1954, the report shall be made by lessor immediately after the lessee has been delivered possession thereunder. (4) If the person so succeeding, or otherwise obtaining possession, or, in the case of a lease, the lessor is a minor or otherwise disqualified, the guardian or other person who has charge of his property shall make the report required by this section. (5) No revenue court shall entertain a suit or application by the person so succeeding or otherwise obtaining possession or, in the case of a lease, by the lessor until such person has made the report required by this section. Explanation.–The word 'transfer' includes– (i) a family settlement by which the holding or part of the holding recorded in the record- of-rights in the name of one or more members of that family is declared to belong to another or other member, or (ii) an exchange of holding under section 40 of the Delhi Land Reforms Act, 1954.” x x x x “41. Presumption as to entries.–All entries in the record-of-rights prepared in accordance with the provisions of this Chapter shall be presumed to be true until the contrary is proved; and all decisions under this Chapter in cases of dispute shall, subject to the provisions of sub-section (3) of section 27, be binding on all revenue courts in respect of the subject-matter of such disputes; but no such entry or decision shall affect the right of any person to claim and establish in the civil court any interest in land which is required to be recorded in the register prescribed by section 20.” RFA 141/2005 Page No. 9 of 24 13. Having examined the various provisions of law and the precedents cited at the Bar, I am of the view that the findings returned by the learned trial court on Issues No.1 and 2 are clearly erroneous. A bare reading of Section 185 of the Delhi Land Reforms Act shows that only those suits are barred which are covered by any entry of Schedule I. The learned trial court held that the civil court had no jurisdiction to entertain the suit in the light of Section 185 of the Act, without pointing out any entry in Schedule I under which the appellants could have claimed the relief claimed in the suit. A meticulous examination of Schedule I of the Act shows that declarations in Schedule I are provided on the basis of cultivatory possession at the commencement of the Act or on the basis of adverse possession for three years or when an Asami is admitted as bhumidhar and under other such like provisions (See for instance Entry No.4). There is only one entry, viz., Entry No.28 which provides for declaratory suits as provided in Section 104. The said entry also, in my view, has no application to the present case as is clear from a bare reading of Section 104. The said Section reads as under:- “104. Declaratory suit.–Notwithstanding anything to the contrary in section 42 of the Specific Relief Act, 1877, the Gaon Sabha may institute a suit against any person claiming to be entitled to any right in any land for the declaration of the right of such person in such land, and the court in its discretion may make a declaration of the right of such persons: Provided that no court shall make any such RFA 141/2005 Page No. 10 of 24 declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.” 14. By virtue of the provisions of the aforesaid Section, it is clear that notwithstanding the provisions of Section 42 of the Specific Relief Act, 1877, the Gaon Sabha has been vested with the right to institute a suit against any person claiming to be entitled to any right in any land for the declaration of the right of such person in such land. The instant suit not being a suit instituted by the Gaon Sabha clearly neither Section 104 nor Entry 28 can be said to be attracted. 15. This Court also finds merit in the submission of the learned counsel for the appellants that though the question of succession to bhumidhari rights is governed by Section 50 of the Delhi Land Reforms Act (which provides that when a Bhumidhar being a male dies, his interest in his holding shall devolve in accordance with the order of succession given in the said Section), the question in the instant case is as to who is the rightful successor to the title of late Shri Pehlad to the land in dispute. Even the provisions of Section 50 are subject to the provisions of Sections 48 and 52 which deal with bequest by a bhumidhar (Section 48) and succession in the case of a holding inherited as father's father (Section 52), but it is significant to note that Schedule I of the Act does not deal with the proceedings envisaged under Sections 48 to 53 of RFA 141/2005 Page No. 11 of 24 the Act, which are found in Part E of Chapter III under the heading “Devolution (Bhumidari and Asami)”. In the instant case, the appellants have filed the present suit to establish their title and to challenge the will propounded by the respondent. The title to the Bhumidari rights acquired by the appellants by way of devolution and the challenge raised by them to the will cannot, therefore, be decided by the revenue courts. 16. In Shri Ram vs. Jai Prakash and Ors. reported in DRJ 1991 (21) 48, the position of law was examined by this Court on somewhat similar facts. The petitioner had filed a suit for declaration and permanent injunction against the respondents founded on the claim that he was the sole heir and successor of Shri Om Prakash, who was his real brother. The respondent No.1, however, contested the suit and claimed succession to the land in dispute by virtue of an Adoption Deed allegedly executed by Shri Om Prakash – which was disputed by the petitioner. It was submitted by the respondent No.1 that the jurisdiction of the civil court was clearly barred in view of the law laid down by the Supreme Court. In paragraphs 7, 8 and 9 of the judgment in the Shri Ram case (supra), this Court held as under:- “7. There is no dispute that in the present case the controversy revolves on the question of succession to the land in dispute left by Shri Om Parkash. Declaration of bhoomidari rights of Shri Om Parkash is not the question in dispute. In these circumstances the question that arises for consideration is whether RFA 141/2005 Page No. 12 of 24 the jurisdiction of civil court is barred or not. Section 185(1) of the Act which bars the jurisdiction of the civil court in the matter of declaration of bhoomidari rights may be reported below:- “185(1) Except as provided by or under this Act no court other than 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.” 8. From the perusal of the above section it is clear that this saves only those cases which are mentioned in column 7 of Schedule I of the Delhi Land Reforms Act. Thus, the scope of Section 185 is confined to the specific matters enumerated in Schedule I of that Act and to none other. The present suit of the petitioner– plaintiff for declaration and permanent injunction seeking that he is sole heir and successor of Shri Om Parkash is not covered under specific matters enumerated in Schedule I of the Act and, therefore, the civil court has every jurisdiction to try the suit. Reliance was placed by the learned counsel for the respondent No.1 on Entry 28 of Schedule I and, according to him, the jurisdiction of civil court is barred. Mere perusal of Entry 28 of Schedule I relates to the declaratory suit under Section 104 of the Act. Such a suit is permissible to be filed by the Gaon Sabha only against any person claiming to be entitled to any right in any land or his right therein. Here it is not a suit by the Gaon Sabha. Therefore, this argument is of no help to respondent No.1. 9. Strong reliance placed by counsel for respondent No.1 in a case reported as Hatti v. Sunder Singh (AIR 1971 SC 2320) was also conecived. A close scrutiny of that judgment reveals that the case centres round substantially on the relief for declaration that the grant of bhoomidari rights to Hatti was wrong and illegal and such a declaration RFA 141/2005 Page No. 13 of 24 should have been granted in favour of Sunder Singh and that Sunder Singh was entitled to claim possession from Hatti whom he called a trespasser. The Supreme Court has held that all these reliefs can be granted by revenue courts. The disputes regarding declaration of bhoomidari rights is, inter alia, provided in Sections 11 and 13 of the Act and remedy for the disputes about it are included at item No.4 of Schedule I of the Act. The question of seeking possession from a person without authority is provided for under Section 84 of the Act and the same is entered at serial No.19 of Schedule I of the said Act. Having thus found that all the three reliefs claimed in that suit were provided for in Schedule I of the Act, therefore, the jurisdiction of the civil court to grant the same did not arise. It is thus clear that in the present suit no declaration whether Shri Om Parkash has acquired bhoomidari rights has been prayed for by the petitioner. But the only question which has been raised is as to who is the rightful successor of his title therein. The Act does not make any provision for cognizance of such questions under it. Counsel for the respondents next argued that the petitioner was seeking succession to the land in question under Section 50 of the Act. Section 50 only lays down the order of succession to the land of a bhoomidar. It nowhere provides the forum which is to decide if disputes arise regarding succession. There is no corresponding entry for cognizance of disputes arising to the succession under Section 50 in Schedule I of the Act. Therefore, the main question involved in the present case does not fall under any entry of Schedule I of the Act. Therefore, Section 185 of the Act does not affect the jurisdiction of civil court to try the present. The argument of counsel for respondent No.1, therefore, has to fail.” 17. In Mam Raj vs. Ram Chander etc. reported in 1974 Rajdhani Law Reporter 428, permanent injunction was claimed by the plaintiff on the basis RFA 141/2005 Page No. 14 of 24 of succession to bhumidhari rights by virtue of a will. A learned Single Judge of this Court [Hon'ble Mr. Justice Yogeshwar Dayal (as His Lordship then was)] held that a suit in which permanent injunction is claimed on the basis of succession to bhumidhari rights is not covered by any entry in column 3 of the First Schedule and thereby is not either expressly or impliedly barred by the Delhi Land Reforms Act. In paragraphs 7 to 9, it was observed as follows:- “7. In the present suit the plaintiffs were not claiming any declaration for grant of bhoomidari rights or a declaration that the grant of bhoomidari rights to somebody else was wrong or illegal. The plaintiffs case was simply this that there was already a bhoomidar under whom they were cultivating the land as non-occupancy