Ram Dutt and Others vs Dev Dutt and Others

Rajiv Sahai Endlaw, J.—The three Petitioners and the private Respondents 1 to 27 are members of a family. They/their predecessors owned land in the revenue estate of Burari, Delhi since prior to the enactment of the Delhi Land Reforms Act, 1954. It appears that after the coming into force of the said Act, a part of the said land was recorded in the Bhumidari of the Petitioners only. The Respondents 1 to 27/their predecessors filed a proceeding u/s 11 of the Act for declaration that they also were Bhumidars of the said land exclusively entered in the name of the Petitioners. The Petitioners claimed the said land to have exclusively vested in them subsequent to oral partition and repartition during consolidation proceedings in the year 1975-76. The said proceedings initiated by the Respondents 1 to 27/their predecessors were dismissed by the Court of the Revenue Assistant and the First Appeal preferred the reagainst was also dismissed on 20th March, 1978. The Respondents 1 to 27/their predecessors preferred a Second Appeal to the Financial Commissioner (impleaded as Respondent No. 28 in these proceedings) which was accepted vide order dated 8th February, 1979 and the Respondents 1-27/their predecessors were declared as Bhumidars (in accordance with their shares) alongwith the Petitioners in respect of those land contained in Khewat Nos. 73 and 85 in the Revenue Estate of village Burari. The said order was directed to be given effect to in the revenue records.

In pursuance and in implementation of the order dated 8th February, 1979 (supra) of the Financial Commissioner, the Consolidation Officer vide order dated 31st December, 1982 ordered modification in the allotment pursuant to repartition.

The Petitioners preferred a Revision Petition to the Financial Commissioner against the order dated 31st December, 1982 of the Consolidation Officer. It was the case of the Petitioners that the Consolidation Officer could not have ordered modification in the allotment, having become functus officio. The Financial Commissioner vide order dated 14th June, 1983 held that since at the time of the order dated 8th February, 1979 (supra) holding the Respondents 1 to 27/their predecessors as Bhumidars together with the Petitioners, consolidation proceedings in the village were in progress, the Respondents 1 to 27/their predecessors were entitled to approach the Consolidation Officer for allotment of land to them in lieu of their share in the Bhumidari rights out of Khewat Nos. 73 and 85. The contentions of the Petitioners that the Consolidation Officer had become functus officio and could not effect partition were negatived and the Consolidation Officer was held to be entitled to allot land to the Respondents 1 to 27/their predecessors as per their joint Khewats with the Petitioners.

The Petitioners preferred CWP 2462/1984 in this Court against the order dated 14th June, 1983 aforesaid of the Financial Commissioner. The said Writ Petition was dismissed vide order dated 11th February, 1985.

The Petitioners then preferred SLP 9594/1985 which was also dismissed vide order dated 27th January, 1986. However it appears that it was argued by the Petitioners before the Supreme Court that the Petitioners in their separate allotment against joint shares with the Respondents in the Khewat Nos. 73 and 85, been not allotted their entire 1/5th share. The Supreme Court thus, while dismissing the SLP observed that "if the Petitioners have not been allotted 1/5th of the total holding as determined in the order dated 8th February, 1979 it will be open to the Petitioners to resort to any other remedy available in law including a suit if it is permissible."

The Petitioners thereafter filed a suit in the Court of the Revenue Assistant for allocation of their 1/5th share in the Bhumidari in Khewat Nos. 73 and 85. The said suit was however subsequently withdrawn by the Petitioners.

The Respondent No. 26 being aggrieved by the distribution by the Consolidation Officer of Bhumidari on repartition/allotment in implementation of order dated 8th February, 1979 (supra) had also preferred a Revision Petition there against before the Financial Commissioner and which was being opposed by the Respondents 1 to 25. The Financial Commissioner vide order dated 13th April, 1987 in the said Revision Petition of the Respondent No. 26, remanded the matter to the Consolidation Officer for correct implementation of the order dated 8th February, 1979 (supra). The Writ Petition filed by the Respondents 1 to 25 in this Court against the said order of the Financial Commissioner was dismissed.

Encouraged by the success of the Revision Petition of the Respondent No. 26, the Petitioners filed another Revision Petition before the Financial Commissioner contending that their grievances were the same as of the Respondent No. 26 and that the Supreme Court had also permitted them to claim their rightful share. The Financial Commissioner vide order dated 11th November, 1987 though dismissed the Revision Petition but held that since the Tehsildar/Consolidation Officer pursuant to the order in the Revision Petition of the Respondent No. 26 was verifying the shares of the family members in Khewat Nos. 73 and 85, if the Petitioners had any grievance, they could also approach the Tehsildar/Consolidation Officer. The Petitioners thereafter joined the proceedings before the Tehsildar/Consolidation Officer who vide order dated 12th July, 1988 divided the land in Khewat Nos. 73 and 85 between the Petitioners and the Respondents 1 to 27. The said order contains the particulars of the land allotted to each of the groups. However after so dividing /apportioning the land, the Tehsildar/Consolidation Officer at the foot of the order mentioned "the details of Khasra Nos. of two Khewats i.e. 73 and 85 which have been left out for distribution amongst the co-sharers" and thereafter gave the Khasra Nos. of 94 bighas 15 biswas of land so left out. The said order of the Tehsildar/Consolidation Officer records that the same was agreed to by all the parties. 9. The Petitioners contending that the Tehsildar / Consolidation Officer had failed to divide / apportion the aforesaid 94 bighas 15 biswas of land again preferred a Revision Petition to the Financial Commissioner.

The Financial Commissioner vide order dated 9th August, 1988 (impugned in this petition) dismissed the said Revision Petition as not maintainable. It was held that if the Petitioners were claiming Bhumidari rights in the said 94 bigha 15 biswas of land, their remedy was by way of an application u/s 11 of the Act for declaration of their Bhumidari rights and that the Petitioners had already been given their share in accordance with order dated 8th February, 1979 (supra).

The Petitioners impugn the aforesaid order dated 9th August, 1988 of the Financial Commissioner inter alia on the ground that once the Petitioners and the Respondents 1 to 27 had vide order dated 8th February, 1979 been held to be having a share in the land in Khewat Nos. 73 and 85 and further once the Tehsildar/Consolidation Officer in his order dated 12th July, 1988 had held 94 bigha 15 biswas of land to have been left out from distribution amongst the co-sharers, the Financial Commissioner ought to have directed distribution of the said 94 bigha 15 biswas of land also and not relegated the Petitioners to institute a proceeding u/s 11 of the Act with respect to their share in the said 94 bigha 15 biswas of land.

Rule was issued in this Writ Petition on 26th August, 1988. Vide order dated 22nd August, 1989 the Respondents were restrained from transferring, selling or alienating the property in dispute. However, the same order notices that the Respondent No. 17 had already transferred part of the land. The said interim order was continued and was made absolute only with respect to Khasra bearing Nos. 21/1/2, 21/2, 21/3/1, 21/22/2 , 35/2/2, 35/9/1, 35/3 and 35/8 admeasuring 25 bighas 10 biswas vide order dated 3rd November, 1993.

CM. No. 7514/2010 was filed by the Petitioners under Order 22 Rule 10 of the CPC for impleadment of one Mr. Sanjay Kumar as the Respondent on the plea that the Respondent Mr. Ramphal had sold a portion of the property bearing khasra Nos. 21/1/2 and 21/2 to the said Mr. Sanjay Kumar notwithstanding the interim order aforesaid and taking advantage of the dismissal of the Writ Petition in between (in the year 2005) for non prosecution. This Court on 28th May, 2010 while issuing notice of the said application to Mr. Sanjay Kumar directed maintenance of status quo and which order has also continued since then. Though no formal order allowing impleadment of Mr. Sanjay Kumar as Respondent has been made till now but the said application is now allowed and the counsel for Mr. Sanjay Kumar has also been heard in opposition to the Writ Petition.

Though the contention of the Petitioners that 94 bighas 15 biswas of land left out and not distributed should also be distributed and the Petitioners should not be relegated to having their rights as Bhumidars with respect to the said land adjudicated by instituting a separate proceeding u/s 11 of the Act looks attractive but on deeper probing as to what is the said left out 94 bighas 15 biswas of land, it is found that the Petitioners are not entitled to any relief in this Writ Petition with respect to their rights, if any, in the said 94 bighas 15 biswas of left out land. The claim of the Petitioners with respect to their share in 94 bighas 15 biswas of land can be better appreciated from their written arguments dated 26th November, 2010. Their claim is that the Petitioners and the Respondents 1 to 27/their respective predecessors had a joint holding in the land in Khewat Nos. 73 and 85 as per the jamabandi of the year 1948; that as per the oral settlement amongst the family members, separate Bhumidari were recorded in the revenue records prepared in the year 1954-55 upon coming into force of the DLR Act; that some of the Respondents had mortgaged their separate lands pursuant to the oral settlement aforesaid and failed to take it back upon the coming into force of the DLR Act and mortgage being prohibited under the DLR Act, lost their rights in the said land; that the Respondents inspite of having lost their separated land, thereafter claimed share in the separated lands of the Petitioners by filing the proceedings u/s 11 of the DLR Act in which the Financial Commissioner finally vide order dated 8th February, 1979 held against the Petitioners and in favour of the Respondents 1 to 27 by holding the Respondents 1 to 27 to be having Bhumidari rights / share in land which the Petitioners claimed to be exclusively theirs. It thus appears that 94 bighas 15 biswas of the left out land referred to in the order dated 12th July, 1988 of the Tehsildar / Consolidation Officer is the balance land as per the Jamabandi of the year 1948. The land which the Consolidation Officer vide order dated 12th July, 1988 distributed/apportioned between the Petitioners and the Respondents was the land of which the Petitioners and the Respondents were Bhumidars and of which they were in possession of and which land was the subject matter of the order dated 8th February, 1979 (supra). It thus transpires that the entire land of which the Petitioners and the Respondents were the Bhumidars and in possession of and in which the rights of the Respondents 1 to 27 were upheld by the order dated 8th February, 1979 which has attained finality has already been distributed. The left out land admeasuring 94 bighas 15 biswas in which the Petitioners are now claiming share is the land which, according to the Petitioners, had in the settlement fallen to the share of the Respondents and in which the Respondents had lost their rights by not taking back the mortgage upon coming into force of the DLR Act. The counsel for the Petitioners during the hearing argued that the said 94 bighas 15 biswas of land is in possession of Respondent No. 1 and also recorded in the name of Respondent No. 1. The counsel for the Respondent No. 1denies. There is no finding of any of the authorities below on this aspect. This Court in writ jurisdiction cannot enquire into this factual aspect.

In consonance with the aforesaid position, the counsel for the Respondents also on inquiry stated that they had no objection to the Petitioners instituting proceedings if entitled to in law for claiming share in the said 94 bighas 15 biswas of land which stands vested in others.

Seen in this light, there is no error in the order dated 9th August, 1988 of the Financial Commissioner impugned in this petition.

There is another important aspect of the matter. The Petitioners after the liberty given by the Supreme Court instituted a proceeding for claiming their 1/5th entitlement in the entire land. I have inquired from the counsel for the Petitioners whether in that proceedings the said 94 bighas 15 biswas of land was also included. The counsel for the Petitioners replies in the affirmative. The same is also borne out from the copy of the said proceedings on record. The Petitioners however chose not to pursue that proceeding and withdrew the same. The Petitioners cannot now be permitted to re-agitate the claim.

The Petitioners for the reason of the said 94 bighas 15 biswas of land cannot hold up the distribution/partition of the remaining land vide order dated 12th July, 1988 of the Tehsildar/Consolidation Officer and which in fact was an agreed/consent order, and as has been done by the pendency of the present Writ Petition and the interim orders herein.

No error can be found in the order of the Financial Commissioner dismissing the Revision Petition of the Petitioners against the said order of the Tehsildar/Consolidation Officer and giving liberty to the Petitioners to institute separate proceedings with respect to the share, if any, claimed in 94 bighas 15 biswas of land.

The Petitioners have not pleaded that the said 94 bighas 15 biswas of land or any part thereof was part of the holding in Khewat Nos. 73 and 85 of which the Petitioners and the Respondents were Bhumidars and in possession. Thus it cannot be said that the partition/distribution of land of which the Petitioners and the Respondents were Bhumidars and in possession of is bad for the reason of non inclusion of 94 bighas 15 biswas of land of which the Petitioners are not shown to be Bhumidars and in possession. The Petitioners in fact by way of these proceedings are found to be seeking to reopen the matters which stand concluded in the earlier round of litigation till the Supreme Court. The Petitioners were then seeking to deny the share of the Respondents in the land which has now been partitioned / distributed, on the ground that the Respondents had in oral settlement been given the other land which they had lost. The said claim of the Petitioners was not upheld. The plea of oral settlement was not accepted. Thus the loss of the land was out of the joint holding of the Petitioners and the Respondents and if the Petitioners now desire to assert any right in that lost land, their remedy is by way of separate proceeding for which liberty has been granted to them by the Financial Commissioner also, and not by way of impugning the distribution/partition of the land in which the share of all has been upheld till the Supreme Court.

There is no merit in this Writ Petition. The same is dismissed. All interim orders are vacated. I refrain from imposing any cost in the hope that these proceedings which have remained pending for the last over 30 years will attain finality.