Shri Vinod Kumar Sharma vs Smt. Seema Sethi and Others

Rajiv Sahai Endlaw, J.—The applications under Order 7 Rule 11 CPC (IA No. 5802/2008), under Order 39 Rules 1 and 2 CPC (IA No. 1227/2008) and under Order 39 Rule 4 CPC (3138/2008) are for consideration.

The plaintiff instituted the suit on averments that Mr. Dinesh Sethi, husband and father respectively of the defendants No. 1 to 3 was the owner of agricultural land admeasuring 13 Bighas 3 Biswas in Village Dera Mandi, Tehsil Mahrauli, New Delhi; that he had agreed to sell the same to the plaintiff and against receipt of entire sale consideration had executed and registered a general power of attorney in favour of the nominee of the plaintiff and an agreement to sell and Will in favour of the plaintiff and had in part performance of the said agreement to sell, in or about 1995 (i.e. prior to the amendment of the Registration Act in 2002) put the plaintiff into possession of the aforesaid land; that the plaintiff had since then been in possession thereof; that the said Sh. Dinesh Sethi died on 7th November, 2005 leaving the defendants 1 to 3 as his only natural heirs; that the plaintiff had applied to the District Judge, Delhi for probate of the Will with respect to the aforesaid land of Sh. Dinesh Sethi in his favour and the defendants No. 1 to 3 had filed objections thereto; the plaintiff had applied for the mutation in the revenue records from the name of Sh. Dinesh Sethi to his name but learnt that the defendants No. 1 to 3 had already got the property mutated in their name and had also sold the said land to the defendant No. 4. Proceedings before the Revenue Authorities are stated to be pending with respect to the said mutation proceedings. The plaintiff instituted the present suit for the relief of declaration that the sale deed executed by the defendants No. 1 to 3 in favour of the defendant No. 4 of the land aforesaid was illegal, null and void and for cancellation thereof and for permanent injunction restraining the defendants from forcibly dispossessing the plaintiff from the aforesaid land.

The defendants No 1 to 3 and the defendant No. 4 have filed their separate written statements though to the same effect. Rejection of the plaint is sought on the ground that the suit is barred by Section 185 of the Delhi Land Reforms Act, 1954. It is stated that the land subject matter of the suit is an agricultural land and the defendant No. 4 is recorded bhoomidar in possession thereof and any dispute with regard to its title and possession can be instituted and tried in Revenue Courts only and the Civil Court has no jurisdiction to entertain the suit. Reliance is placed on a judgment of a Civil Judge, Delhi in a suit filed by the plaintiff herein against some other party with respect to an adjoining land with respect whereto also the plaintiff had claimed permanent injunction restraining the defendants therein from forcibly dispossessing him therefrom and which suit was dismissed by the learned Civil Judge holding that though the suit was for injunction only but in fact was for declaration and the plaintiff could not be permitted to seek the relief of declaration in the garb of injunction. The suit was dismissed. Reliance is also placed on Hatti Vs. Sunder Singh, ; Balbir Singh v. Pehlad 1988 (2) RRR 234 Delhi; Ram Karan and Others Vs. Shri Jagdeep Rai and Sons, ; Smt. Adarsh Murghai v. Delhi Administration 1992 (3) dL 32 and lastly on Kamla Prasad and Others Vs. Sri Krishna Kant Pathak and Others, .

The relief with respect to which the present suit has been filed does not find mention in Schedule I to the Delhi Land Reforms Act. Revenue Courts under the said Act have not been empowered to grant the relief of declaration as void and cancellation of a sale deed with respect to agricultural land also or to grant the relief of injunction. From a bare reading of the plaint thus and which alone is to be seen at the stage under Order 7 Rule 11 of the CPC, the suit does not appear to be barred by Section 185 of the Act. What has to be seen is whether on a meaningful reading also, can it be said that the suit is barred by the said provision or can it be said that the plaint has been cleverly drafted and the relief in fact claimed is the relief which the Revenue Courts under Schedule 1 to the Act are entitled to grant and the jurisdiction with respect whereto of the Civil Courts/this Court is barred.

Though the counsel for the plaintiff in spite of opportunity has not filed any reply to the application under Order 7 Rule 11 of the CPC but the senior counsel for the plaintiff orally contested the application and inter alia argued that the jurisdiction of the Civil Court would not be barred because the provisions of the Act had ceased to apply to the land. Relying upon Trikha Ram Vs. Sahib Ram, , it was urged that the land had been declared to be urban land and can no longer be classified as village abadi land.

In this regard, it may be noticed that in the plaint though there is no averment that the land is governed by the Delhi Land Reforms Act but the plaintiff has in paragraph 11 of the plaint stated that he had filed an appeal u/s 64 of the Delhi Land Reforms Act against the mutation of the land in favour of the defendants. Thus even though from the plaint itself the applicability of Delhi Land Reforms Act is borne out, there is no plea in the plaint of the land having been urbanized or of the provisions of the Act ceasing to apply with respect to said land. However, a plea in that regard having been raised at least in the arguments on the application under Order 7 Rule 11 of the CPC and the said plea being such which cannot be adjudicated without evidence, in my view, the plaint, in any case, cannot be rejected under Order 7 Rule 11 of the CPC. It cannot be said that from the statement in the plaint the suit appears to be barred by the provisions of the Delhi Land Reforms Act.

It is not uncommon that revenue records continue to be maintained even after notifications of urbanization are issued. It is thus not difficult to imagine that if mutation had been done under the provisions of Delhi Land Reforms Act, the plaintiff would have filed the appeal under that Act only, even though the notification of urbanization may have been issued.

The plaintiff in the present case has not claimed any declaration of bhoomidari rights and has not claimed possession also. It is the case of the plaintiff that the plaintiff had entered into a transaction of a power of attorney sale with the predecessor of the defendants No. 1 to 3. The Division Bench of this Court in Asha M. Jain Vs. The Canara Bank and Others, and the Single Judge of this Court in Kuldip Singh Suri Vs. Surinder Singh Kalra, have held that this Court cannot shut its eyes to the practice prevalent in Delhi of such power of attorney sales. u/s 53A of the Transfer of Property Act read with Section 49 of the Registration Act as it stood prior to 2002, once the seller in part performance of agreement to sell delivered the possession of the property agreed to be sold to the purchaser, the seller was barred from claiming any rights against the purchaser save as provided in the agreement to sell in writing. It cannot be lost sight of that the plaintiff is in possession of registered power of attorney executed by the predecessor of the defendants No. 1 to 3 in favour of the nominee of the plaintiff. The said document at this stage has to be believed. The photograph of the predecessor of the defendants No. 1 to 3 is also affixed on the said document. It is not the case of the defendants No. 1 to 3 that the photograph is not his. There is no explanation rendered by the defendants No. 1 to 3 with respect to the said power of attorney. The said power of attorney authorizes the attorney to do all acts as owner of the land. In the circumstances, the transaction averred by the plaintiff cannot be disbelieved at this stage. The plaintiff has also filed before this Court agreement to sell, possession letter, receipt and Will, all of which support such power of attorney transaction.

It can also not be lost sight of that the probate of the alleged Will of the predecessor of the defendants No. 1 to 3 in favour of the plaintiff is still pending. If the said Will is probated, then the plaintiff would become the bhoomidar of the land on the demise of the aforesaid Dinesh Sethi. The Defendants No. 1 to 3 would then have no right to have the property mutated in their favour or to sell the same to the defendant No. 4. Ordinarily, the property subject matter of a Will, of which probate is pending, is to be protected. Such protection is not within the domain of Section 185 of the Act or of the Revenue Courts. No provision has been brought to my notice where under the Revenue Courts are empowered to grant the relief of injunction as claimed in the present suit. If the Revenue Courts are not entitled to grant the injunction, the plaintiff cannot be left remedyless. The plaintiff who claims to be in possession of the property since 1995 is certainly entitled to protect his possession or to restrain the defendants from forcibly dispossessing him from the property. It is significant that the plaintiff is claiming his possession as agreement purchaser for consideration and under the Will, the validity whereof cannot also be determined by the Revenue Courts. Thus, in my view, it cannot be said that the reliefs claimed in the present suit are available to the plaintiff before the Revenue Courts. Axiomatically, the jurisdiction of this Court cannot be barred by Section 185 of Act.

In the present case the declaration of rights of the plaintiff as Bhoomidar in the land is dependent on the outcome of the Probate Court and to the jurisdiction of which there is no challenge. In Balbir Singh (supra), the declaration claimed was of rights as bhumidar. In the present case the declaration is with respect to sale deed. Similarly in Ram Karan (supra) also the plaintiffs had claimed rights as an asamee under the Delhi Land Reforms Act and declaration of such rights was held to be barred. Similarly, in Adarsh Murghai also the position was that the plaintiff was not in possession of the land and the declaration was sought with respect to the entries of mutation in the revenue records. In those circumstances, the jurisdiction of the Civil Court was held to be barred. In the present case, it cannot be said that the plaintiff ought to have first got his rights as bhumidar declared from the Revenue Court before claiming injunction. As aforesaid, if the probate is granted, then the plaintiff would be the successor of the Dinesh Sethi who was the bhumidar of the land in his life time.

Though in Kamla Prasad (Supra), relief of declaration of sale deed as void was claimed, the Apex court held that revenue courts alone had jurisdiction for the reason that plaintiff himself was claiming that he was not the sole owner and that the defendants also had right, title in the land and further since Section 229B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 provided for declaration of asami of a holding exclusively or jointly. The Apex court in the facts of that case felt the case to be falling in the exceptions carved out in Shri Ram and Another Vs. Ist Addl. District Judge and Others, . I find the facts of the present case in alignment with the general rule laid down in Shri Ram (Supra), rather than with exception carved out therein.

In fact this Court in Mam Raj Vs. Ram Chander and Others, held that a suit for permanent injunction on the basis of succession to Bhoomidari rights on the basis of Will is not covered by any entry in First Schedule of the Delhi Land Reforms Act. It was also held that the Civil courts were competent to determine whether plaintiff was in possession of the land. Similarly, in Shri Ram v. Jai Prakash 1991 RLR 275 where the controversy revolved on the question of succession to the land and not as to declaration of Bhoomidari rights, this Court held that the jurisdiction of the Civil court was not barred and the court was entitled to make an interim order of status quo. Again in Cdr. Bhupinder Singh Rekhi Vs. C.S. Rekhi and Others, also it was held that where plaint claimed declaration of title on the ground that the plaintiff had purchased the land from the owner, the suit was not barred by Section 185 (Supra).

I, therefore, also find that the plaint even otherwise is not barred by Section 185 of the Delhi Land Reforms Act.

The other two applications for interim order and for vacation of ex parte order are taken up together for disposal. Vide ex parte order dated 30th January, 2008, the parties were directed to maintain status quo in respect of possession and title of property in question. The facts of the case have already been discussed hereinabove. The parties are at issue as to who is in possession; while the plaintiff claims to be in possession since 1995, the defendant No. 4 as purchaser from the defendants No. 1 to 3 also claims to be in possession. The property in question is vacant land. The legal possession of the said land is deemed to vest in the owner thereof. The ownership of the land aforesaid is dependent upon the outcome of the probate petition/proceedings. The plaintiff in the present case has opted not to sue for specific performance but to claim rights under the Will. If the probate is granted, the plaintiff would be the bhumidar and if it is refused then the defendants No. 1 to 3 as the natural heirs of Mr. Dinesh Sethi would be the bhumidar and have already conveyed the said rights vide sale deed in favour of the defendant No. 4.

At this stage, it cannot be adjudicated as to who is in possession of the property. The same requires evidence. On the contrary, if the plaintiff or the defendant No. 4 in exercise of claimed rights with respect to the property, sell the same or encumber the same, the same would lead to multiplicity of proceedings and also lead to delays in the disposal of the present suit. As aforesaid the property of the deceased needs to be protected. In the circumstances, it is deemed just to direct all parties concerned to maintain status quo regarding possession. It is not possible at this stage to give a finding on who is in possession. It would suffice that all parties concerned be restrained from raising any construction on the said land and from alienating or encumbering the same in any manner whatsoever. Accordingly, the application under Order 7 Rule 11 is dismissed. During the pendency of the suit, the parties are directed to maintain status quo qua possession. The parties are also restrained from alienating, encumbering or parting with possession of the property and from raising any construction thereon.