Om Parkash Gupta and Others vs Yogesh Sharoha and Others

Rajiv Sahai Endlaw, J.—The appeal in which these applications have been filed, was filed impugning the judgment and decree dated 15.02.2005 of the Court of the Additional District Judge (ADJ), Delhi of dismissal of suit No. 34/2000 filed by the four original appellants. The said suit was filed, for the reliefs of:

(i) declaration of the decree dated 20.09.1997 of the Court of the ADJ in suit No. 469/1993 filed by the respondents No. 1&2 viz. Sh. Yogesh Saroha and Sh. Shyam Sunder Kaushik against the respondent No. 8 Smt. Shanti Devi daughter of Late Sh. Badlu Ram for specific performance of an Agreement of Sale of immovable property being 2 bighas 3 biswas of agricultural land out of Khasra No. 34 in village Neb Sarai, Mehrauli, New Delhi as null and void;

(ii) declaration of the sale deed dated 07.01.1999 executed in favour of the respondents No. 1&2 in pursuance of the aforesaid decree as null and void and for cancellation thereof;

(iii) for cancellation of mutation order dated 26.03.1999 with respect to the said land in favour of the respondents No. 1&2; and,

(iv) for mandatory injunction directing the respondents No. 1&2 to hand over possession of the said land to the four plaintiffs.

The appeal was admitted for hearing and the Trial Court record requisitioned and the respondents in the appeal restrained from creating third party interest in the subject land.

CM No. 6804/2011 was filed by the appellant No. 1 Sh. Om Parkash Gupta for permission to withdraw the appeal insofar as on his behalf. The said application was, vide order dated 18.04.2010 allowed and the appellant No. 1 deleted from the array of parties.

CM No. 7366/2013 was filed by the appellant No. 3 Smt. Pratibha Chaudhary also for withdrawal of the appeal insofar as qua her and the said application was also allowed on 15.05.2013 and the appellant No. 3 also deleted from the array of parties. On the same date, the earlier interim order was made absolute till the decision of the appeal.

None appeared for the appellant No. 4 Smt. Durga Devi Srivastava when the appeal was listed for hearing on 22.07.2013 (actual date) and accordingly the appeal qua her was dismissed on that date.

On 22.07.2013, the Advocate on behalf of the daughter of the appellant No. 2 M. Koteshwar Rao appeared and stated that the appellant No. 2 had also died and sought time for substitution of his legal representatives. However the name of the daughter on whose behalf he was appearing or the date of demise of the appellant No. 2 was not disclosed. The respondent No. 2 appearing in person on that date stated that the appellant No. 2 had died about three or four years ago. In the circumstances, the appeal was on 22.07.2013 dismissed as abated qua the appellant No. 2 but with liberty to the legal representatives of the appellant No. 2 to, if entitled, apply for setting aside of the abatement and/or for substitution.

It is thereafter that these applications have been filed for restoration of the appeal on behalf of the appellant No. 4 Smt. Durga Devi Srivastava and on behalf of the legal representatives of the appellant No. 2 Sh. M. Koteshwar Rao for setting aside of the abatement, for substitution and for condonation of 1372 days delay in applying therefor.

Notice of the said applications was issued and in response thereto the counsel for the contesting respondents No. 1&2 appeared. However when the said applications were listed on 19.11.2013, the counsel for the legal heirs of the appellant No. 2 was not prepared and sought adjournment and which was granted subject to payment of costs of Rs. 10,000/-.

The applications were thereafter listed on 03.12.2013 when though finding no cause, least sufficient cause for the default/delay aforesaid on the part of the appellants No. 2 and 4, the counsels appearing for them were quizzed about the merits of the appeal to ensure that no injustice is done to the said appellants on technical grounds. However it transpired that the counsels had only prepared and filed the applications without any knowledge of the merits of the appeal. Observing, that in old appeals such applications cannot be mechanically entertained without the counsels being prepared with the merits, an opportunity was given to the counsels to address this Court on merits of the appeal today, to satisfy the judicial conscience of this Court that the appellants have a semblance of a case.

The four appellants had filed the suit from which this appeal arises, pleading:

(a) that they were the owners in possession of their respective plots i.e. plots No. D-137, D-151, D-152 and D-153 each ad-measuring 200 sq. yds. in Freedom Fighters Cultural Centre situated at village Neb Sarai, Mehrauli, New Delhi in Khasra No. 34;

(b) that the respondent/defendant No. 3 Freedom Fighters Cultural Centre is a society registered under the Societies Registration Act, 1860 and the appellants/plaintiffs No. 1 and 2 were the members thereof, the appellant/plaintiff No. 3 Smt. Pratibha Chaudhary is the subsequent purchaser from the original member and the appellant/plaintiff No. 4 is the legal heir of the original member thereof;

(c) that one Sh. Badlu Ram was the owner of land comprised in Khasra No. 34, Khata Khatauni 136, ad-measuring 4 bighas 6 biswas situated in revenue estate of Neb Sarai, Mehrauli, New Delhi;

(d) that the respondents/defendants No. 4 to 7 viz. Sh. Bishamber Dayal, Sh. Shobha Ram, Sh. Prema Nand and Sh. Darshan Singh are the sons of Sh. Badlu Ram, the respondent No. 8 is the daughter of Sh. Badlu Ram and the respondent No. 9 also named Smt. Shanti Devi is the widow of the said Sh. Badlu Ram;

(e) that the respondents/defendants No. 4 to 7 being the sons of Sh. Badlu Ram had vide Agreement to Sell, Power of Attorney, Will etc. all of the year 1987 sold the said 4 bighas 6 biswas of land to the respondent No. 3 Society and the respondent No. 3 Society had allotted the plots aforesaid on the said land to the four appellants/plaintiffs;

(f) the appellants/plaintiffs were in possession of their respective plots from the year 1986;

(g) however the respondent No. 8 being the daughter of Sh. Badlu Ram on the basis of a Will of the year 1984 of Sh. Badlu Ram, bequeathing half share out of the aforesaid 4 bighas 6 biswas of land to her and other half to the respondents No. 4 to 7 and the respondent No. 9, got the mutation of half of the land being the land on which the plots allotted to the appellants/plaintiff were situated in her name on 28.11.1988; and,

(h) that the said respondent No. 8 had purportedly agreed to sell her said 2 bighas 3 biswas of land to the respondents No. 1&2 who had filed a suit for specific performance of the said Agreement to Sell being Suit No. 469/1993 supra and which was decreed as aforesaid on 20th September, 1997 and whereafter the respondents No. 1&2 had dispossessed the appellants/plaintiffs from their plots on 06.11.1999.

Accordingly, relief aforesaid were claimed in the suit.

Though the counsels for the appellant No. 4 as well as the legal heirs of the appellant No. 2 are still not prepared and do not have the entire record and are unable to answer the various questions raised during the hearing but the Trial Court record has been gone through and the counsel for the respondents No. 1&2 has also been heard.

The learned ADJ dismissed the suit noticing the various contentions of the contesting respondents No. 1&2 but holding that the appellants/plaintiffs had failed to explain as to how the respective plots were allotted to them in December, 1986 when the Agreement to Sell by the sons of Sh. Badlu Ram in favour of the respondent No. 3 Society itself was of 21.04.1987. It was thus held that the plea of the appellants/plaintiffs of the allotment of plots to them was not acceptable as the appellants/plaintiffs had failed to prove that the respondent No. 3 Society through which they claimed title was itself the owner or had any right over the land in December, 1986 at the time of allotment thereof to the appellants/plaintiffs.

It is mentioned in para No. 3 of the impugned judgment that each of the four appellants/plaintiffs prior to institution of the suit from which this appeal arises had instituted separate suits in the High Court of Delhi u/s 6 of the Specific Relief Act, 1963 and which on the date of the impugned judgment i.e. 15.02.2005 were still pending adjudication.

It has as such been asked from the counsel for the appellant No. 4 and the counsel for the legal heirs of the appellant No. 2 as to what has been the fate of the said suits.

The counsel for the appellant No. 4 has invited attention to the reply filed by the respondents No. 1&2 to this appeal in which it is inter alia mentioned that the plaints in the four suits were returned for want of jurisdiction of Civil Courts over agricultural land governed by the Delhi Land Reforms Act, 1954.

It has as such been enquired from the counsels for the appearing appellants/plaintiffs that when once the Court has adjudicated in an inter-party suit that the relief of possession of the land, as sought in this suit also, cannot be granted by the Civil Court, how the said question can be revisited in this appeal.

The counsel the for appellant No. 4 contends that the order of return of plaint would not constitute res judicata as no finding of a Court which has no jurisdiction can be res judicata.

No merit is found in the aforesaid contention. The said principle applies to findings on merits returned by the Court also holding that it did not have jurisdiction and cannot apply to a finding on the aspect of jurisdiction itself.

The counsel for the appellant No. 4 has next contended that the said reasoning returning the plaint is erroneous as the bar to jurisdiction of the Civil Court u/s 185 of the Delhi Land Reforms Act, 1954 is only for declaration of bhumidhari rights and not for claim for possession.

It was for the appellants/plaintiffs to agitate the said aspect against the order returning the plaints. It is the bounden duty of the Court to maintain discipline and once it is found that a question has been decided against a party and which question is not a pure question of law but a mixed question of law and fact, this Court would be failing in its duty if were to allow the said question to be agitated again. The same would be contrary to principle of finality of litigations. Once it has been held that the relief of possession, even though in that case on the basis of prior possession, cannot be granted to the appellants/plaintiffs in the Civil Courts, another suit for the same relief of possession, though this time on the basis of title, would be governed by the same principle.

I may notice that though in the suit from which this appeal arises, the appellants/plaintiffs have also claimed the reliefs of impugning the decree in another litigation between the respondent No. 8 on the one hand and the respondents No. 1&2 on the other hand and have also sought cancellation of the sale deed and mutation but the relief consequential to the said three reliefs is the relief of possession and once it is held that the relief of possession cannot be granted by the Civil Court, no purpose would be served in entertaining the suit for the other three reliefs. It is also not as if the Revenue Courts to whom the appellants/plaintiffs have been directed are totally denuded from deciding the said questions. Once in a proceeding before the Revenue Court, a question of title arises, the Revenue Court u/s 186 of the Reforms Act is entitled to make the reference to the Civil Court.

The counsel for the legal heirs of the appellant No. 2 has not made any submission on this aspect.

I am therefore of the view that the appeal for the said reason alone is not maintainable.

The impugned judgment also refers to a suit No. 11/1990 filed by the respondent No. 3 Society.

The counsel for the legal heirs of the appellant No. 2 has argued that the respondent No. 3 Society by the said suit is challenging the Will aforesaid of Sh. Badlu Ram and his star argument is that suit is still pending and the appellants/plaintiffs should not be deprived of their reliefs as it is in that suit that the validity of the Will shall be decided and if it is held that the Will is invalid, the appellants/plaintiffs shall be axiomatically entitled to the reliefs claimed.

The counsel for the appellant No. 4 also supports the said argument.

However the counsel for the respondents No. 1&2 informs that the subject Suit No. 11/1990 which was later numbered as Suit No. 461/2010 of the Court of Civil Judge-05 (West), Tis Hazari Courts, Delhi also has been dismissed on 23.04.2013. He has in Court handed over a copy of the said order. He has further informed that the said suit was not challenging the Will but was challenging the mutation dated 28.11.1988 of half share in the land aforesaid in favour of the respondent No. 8 through whom the respondents No. 1&2 claim and half share in favour of the respondents No. 4 to 7 and respondent No. 9.

The counsels for the appellant No. 4 and legal heirs of appellant No. 2 state that they are not aware of the dismissal of that suit.

The counsel for the respondents No. 1&2 points out that the counsel for the respondent No. 4 has filed an appeal against the said dismissal which is pending before the Court of Senior Civil Judge, Delhi.

A perusal of the order dated 23.04.2013 in Suit No. 461/2010 (Old No. 11/1990) shows that the respondent No. 3 Society which had preferred the said suit had stopped appearing in the same; that the defendant No. 12 in that suit viz. Smt. Neelima Gupta had applied for transposition as the plaintiff in that suit and which application was dismissed vide order dated 27.03.2013 and review thereof was dismissed vide order dated 23.04.2013 and consequently the suit was also dismissed. However the appeal there against is stated to be still pending. On further enquiry it is informed that the appellants No. 2 & 4 were not parties to that suit.

While going through the Trial Court file, I also find the certified copy of the order dated 04.09.2000 of the Additional Collector in case No. 22/ADM(S)/99 being an appeal u/s 64 of the Delhi Land Revenue Act filed by the respondent No. 3 Society against the mutation order dated 26.03.1999 of the Naib Tehsildar, Mehrauli mutating the land from the name of the respondent No. 8 to the name of the respondents No. 1&2. The said appeal was dismissed holding that though the respondent No. 3 Society/appellant therein claimed to be engaged in the work of developing the residential colony and having developed the Freedom Fighters Colony where the said plots are situated but the Memorandum of Association of the respondent No. 3 Society filed on record nowhere showed that it was engaged in developing a colony or that the same was one of its objectives and on the ground that the appeal was not filed by a duly authorized person on behalf of the respondent No. 3 Society.

The counsel for the respondents No. 1&2 on enquiry states that no remedy has been taken by any person against the said order.

There is also on the Trial Court record a copy of the petition dated 15.05.1991 filed by the respondent No. 3 Society before the Revenue Assistant u/s 85 of the Delhi Land Reforms Act for declaration of itself as bhumidhar of the said land.

On enquiry, it is informed by the counsel for the respondents No. 1&2 that the said petition was also dismissed on 28.01.1993 and that order has also attained finality and no remedy has been taken there against also. The counsels for either of the appellants have no knowledge of the said proceedings.

A reading of the impugned judgment also shows it to be a defence of the respondents No. 1&2 that on 21.04.1987 when according to the appellants/plaintiffs the respondent No. 3 Society acquired the said land vide Agreement to Sell etc., a notification under Sections 4 and 6 of the Land Acquisition Act, 1894 was in force with respect to the said land and the transfer thereof was prohibited and the said notification was quashed by the judgment dated 14.10.1988 of this Court in B.R. Gupta Vs. Union of India and Others, upheld by the Supreme Court on 20.09.1991.

For all the aforesaid reasons, it is quite evident that the title to the said land which is governed by the Land Reforms Act has attained finality before the Revenue Courts enforcing the said Act and the suit from which this appeal arises has been rightly dismissed.

The counsel for the appellant No. 4 has invited attention to the evidence led of the appellants/plaintiffs of being in possession of their respective plots, in the nature of having incurred the expenses towards construction of boundary wall. He has thus contended that the appellants/plaintiffs were the owners and the respondents No. 1&2 in the suit for specific performance have set up a false case of having been delivered possession of the land by the respondent No. 8 at the time of Agreement to Sell dated 26.08.1990.

Though in this regard an ancillary question also arises as to whether at all an independent suit challenging the taking over of possession by the respondents No. 1&2 of the land as claimed by the appellants/plaintiffs on 06.11.1999 in pursuance of the decree in their favour is at all maintainable or whether the remedy of the appellants/plaintiffs was under Order 21 Rules 97 to 99 of the CPC as per the own pleadings of the appellants/plaintiffs, but it is not deemed necessary to consider the said aspect.

As far as the argument of the counsel for appellant No. 4 is concerned, once it is held that the respondent No. 3 Society through whom the appellants/plaintiffs claim, had no title to the land and/or once it is found that the challenge by the respondent No. 3 Society, through whom the appellants/plaintiffs claim, has given up challenge to the title of the respondents No. 1 & 2 and their predecessor respondent No. 8 and it is further found that it has already been held that Civil Court has no jurisdiction to give the relief of possession, the said evidence even if cogent of the appellants/plaintiffs being in possession earlier, is of no avail.

I am therefore satisfied that besides there being no cause for the non appearance of the appellants/plaintiffs and for delays on the part of the legal heirs of the respondent No. 2 in applying for substitution, there is no merit in the appeal. The applications as well as the appeal are therefore dismissed. Decree sheet be prepared.