FIRST APPEAL 108/2011 on 9 March 1983

Signature Not Verified

Digitally SignedBy:AMULYA

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CM(M)870/2013,CM APPL. 13282/2013^BRIJ MOHAN & ORS MOHAN & ORS & ORS ORSCM(M)951/2013,CM APPL. 14380/2013CM APPL. 14380/2013 APPL. 14380/2013 14380/2013, 'SHRI GOPESHWARKUMAR,.,> •,;.r-PetitionerRFA429/2013,CM APPLs. 14067to-fi^/lOl^'-^"GOPESHWAR KUMAR•'XppellaiitThrough:Mi-;Anil Ki-;.Ghunduru and Mi*.Neeraj Kumar,A^dv. for petitionei^\ih cm(m)'1085/2013:'; BRIJ MOHAN & ORS MOHAN & ORS & ORS ORSCM(M)951/2013,CM APPL. 14380/2013CM APPL. 14380/2013 APPL. 14380/2013 14380/2013

Mr. Ramakant Tripathi for Mts.Aiiita'Gupta,'Adv. for petitionersin CM(Mj951/2013anil429/2013

Mr. Sunder Khatri, Adys. "forpetitioners;CM(M)751^2013 andCM(M) 752/2013

Mr.Abhilesh' Arora,Adv; ^ forappellant in lEX.F:A.25/2013'

JMr. KameshwarGumber, Adv. forappellant in EX.F.A. 29/2013.

Ml". Abhijat and Mr. Harsh HariHaran,Advs.forappellantinEX.F.A. 22/2013.

Ml*. Tarun Sharma and Ms GarimaGupta, Advs. for petitioners inCM(M) 31/2014 to 34/2014.

Mr.. SudhirKumarSharma,Adv.forpetitionerinCM(M)870/2013.,

Versus

RADHA PARK PLOT HOLDER WELFARE ASSOCIATION(REGD) & ORS

...Defendant/Respondent

NAJMI WAZIRI, J.1.By this common order, the aforementionedRegularFirst Appeal(RFA), thi-ee Executive First Appeals (EFAs) and nine CivilMiscellaneous(Mains)[CM (M)] are beingdisposedoff.

2..These petitions arise out of an order dated 02.02.201Ij passed inCivil Suit No. 01/2010 (old suit number 2324/1989, hereinafter referredto as the "impugned order")which declared the partition orderdated09.03.1983 passed by the Court of .Revenue Assistant apropos the suitlandsas nulland void;it also declaredillegaland set aside thesubsequent sale deeds of the suit lands executed by defendant Nos. 1 to 5in favour of defendants 7 to 82. All the nine CM(M) petitions and thethree of the EFA petitions challenge a subsequent order dated 07.06.2013passedin ExecutionCase No. 108/2011wherebythe LearnedTrial Co^ftwas pleased to dismiss the objections filed by the petitioners hereinagainsttheexecutionof theimpugnedorder.TheRFAdirectlychallenges the impugned order.

3. In the suit, the plaintiffs had claimed that they had purchased thesuit lands, essentially agricultural, comprising varioussituated inthe Revenue Estate of Village Kadipur, Delhi from the originaloyNnQXslhhumidars(defendant No. 1 to 4) who had represented to theplaintiffsthat the lands can be developedinto acolonyknown as Rafjj^iaPark, Delhi replete with facilities of roads, parks, schools, hospitals,shops etc. The plaintiffs,through their respectiveregisteredsale deeds,purchasedthe suit land comprisingof KhasraNo. 643(2-08),644(2-16),645(4-16), 646(4-16), 647 min.(East)(3-03), 667(4-16), 666(4-16),668(4-16), 665(2-08),664(4-16), 710(4-16), 711(4-16), 712(4-16),713min(West)(2-08),715(4-16), 718 min(South)(4-12), 695(4-16), 694(4-16), 698(4-16), 713(2-10),714(4-16), 660(4-16), 659(4-16),655(2-08),654(4-09), 652 min(0-12), 653(4-07), 651(4-16), 648 min(4-09), 647min(l-17), 649 min (4-05), 650 min(4-17), 656min(4-09),657(2014), 4 I P a g e 658min(5-19), 716 min(6-07), 717(6-18) and 718 min(0-04); the landswere demarcated into plots by fixing bricks on the comers of the plotsand by putting plot numbers as well as sign boards.The plaintiffs .claimed ownership through respective registered sale deeds pertaining tothe suit lands and claimed to .have been in .exclusiveand peacefulpossession of the said lands. It was claimed that some plaintiffs had evenraised boundary walls and had also started construction thereon but mostof them, owing to distance from their place of residence, did not carry outany constmction.

4. Meanwhile, unbeknownst to the plaintiffs, defendant Nos. 1 to 5allegedly concealed the earlier sale transaction with the plaintiffs andfraudulently obtained an order of partition on 09.03.1983 in case No.224/RA/81fromtheCourtof RevenueAssistant.Admittedly,theplaintiffswere not impleadedin those proceedings.Pursuantto the saidorder of partition from the Court of Revenue Assistant,the suit landswere sold to defendant nos. 7 to 84, through sale deeds pertaining to theindividualdefendants,as shown in Annexure2 to the plaint. It was theplaintiffs'case that defendantNos. 1 to 5 and 7 to 84 had connivedtodefraud and cause wrongful loss to the plaintiffs.

5. It was theplaintiffscasethatwhenthe defendantsencroacheduponthe plaintiffs'lands in March-April,1984,the plaintiffscame to loiowofthe allegedly fraudulent partition order; the plaintiffs founded theplamtiff no.l. association viz. 'Radha Park Plot Holder WelfareAssociation' and filed a ,suit to seek remedies against their illegaldispossessionofthe suit lands. WrittenStatementson behalfofcertain 5 1 P a g e defendants were filed whereas the other defendants neither appeared norfiled any written statementsand were thus proceeded ex-parte.

6. In all, 14 issues (13+1) were framed and all of them were returnedin favour of the petitionersexceptissueNo. 6(a), whichwas 'whetherthesuit is barred by limitation against defendant No.84 on his impleadment?OPP (fi-amedvide order dated 29.11.2004).

7.. The sale deeds in favour of.the plaintiffs were denied by thedefendants. They also denied that possession of the suit lands had bex^ihanded over to the plaintiffs or that it was restored to them in March,1992. They also denied that the order of the Court of Revenue Assistantin favour of respondent,Nos..1 to 5 was obtained illegally or fraudulently.The defendants claimed that they had no knowledge of any prior sale ofthe suit lands to the plaintiffs and that they were innocent, bona fidepurchasersagainstvaluableconsideration;thattheywereputinpossession of the suit property by the owners hence no cause is made outagainst them by the plaintiffs. They also questioned the maintainabilityof the suit by the plaintiffsas they claimedthat the suit lands belong^oindividual members and not to the society.

8. It is seen fr'om the judgment that subsequently, the individualclaimants/plaintiffswere also impleaded.

9. Regardingthe veracityof the sale deeds filed by the plaintiffs,theTrial Court, after examining the original sale deeds, concluded that noevidence was led to show that the sale deeds executed, in favour of theplaintiffs by the originalowners were void and that nothing existed on 6 I P a ge

record to prove that there was any dispute regarding the sale deeds in. favour of the plaintiffs prior to the institution of the suit. The Trial Courtalso observed that defendant Nos. 7 to 84 who had purchased the suit•lands and had stated that they had no knowledge of the earlier sale deeds;that since the original owners had sold the suit lands to the plaintiffs, itwas upon them to disclose so before the learned Court of RevenueAssistant; that the original owners not only withlield relevant informationbut also falsely deposed before the Court of Revenue Assistant resultingin the partition order being passed. The Trial Court concluded that thesaid action was, therefore,fraudulentand that an order of partitionobtained by fraudulent means is non est and open,to challenge. Hence,there was no..bar,to challenge the partition order,seeking declaration ofsale deeds of defendant No. 7 to 84 as null and void.

10. The Trial Court observed that the original owners had already soldthe suitlandsto the plaintiffsway backin 1973-74arid had subsequently,with the'intention to defraudthe legal owners, filed the suit for partition^•-'•before the Court of Revenue Assistant; that'notice was never served upon- the plaintiffsalthough some of the members had akeady got mutatedownership of the lands purchased by them in their names; that the. originalownershad not filed any writtenstatementnor appearedto crossexamine the plaintiffs'witnesses, leaving the plaintiffs'testimonyun-rebuttedthus provingthe issue on the basis ofthe evidenceavailableonrecord. The Trial Court therefore concluded that defendant Nos. 1 to 5hadfraudthe Courtof RevenueAssistant.playedupon 7 I P a g e

11. The contentionof defendantNos. 7 to 84^ to the effect that nofraud was. played by them in obtaining the partition order dated09.03.1983, was accepted by the Trial Court for the reason that their saledeeds were executed after 1983 and hence they could not be presumed tohave known about the previous sale transactions, before the RevenueAssistant, as they were neither parties nor witnesses in those proceedings.The Trial Courtheldthat any orderobtainedfraudulentlyis null and voidand non est in the eyes' of law. Accordingly, the order dated 09.08.1983was declarednull and void. Consequently,the Trial Court also orderedthat the subsequent sale deeds executed in favour of defendant Nos. 7 to84 were illegal and liable to be set aside.fraud was. played by them in obtaining the partition order dated09.03.1983, was accepted by the Trial Court for the reason that their saledeeds were executed after 1983 and hence they could not be presumed tohave known about the previous sale transactions, before the RevenueAssistant, as they were neither parties nor witnesses in those proceedings.The Trial Courtheldthat any orderobtainedfraudulentlyis null and voidand non est in the eyes' of law. Accordingly, the order dated 09.08.1983was declarednull and void. Consequently,the Trial Court also orderedthat the subsequent sale deeds executed in favour of defendant Nos. 7 to84 were illegal and liable to be set aside.

12. The defendants are the present petitioners/appellantsin this bunchof cases while the original plaintiffs have been aiTayed as respondents

13. The petitionersclaim that sometimearoundMay, 2012,. somepersonsattemptedto enter upon the suit lands, which were in theirpossession, and started claiming right, title and interest therein. Theywere shockedwhentheywere shownthe impugnedjudgmentand decrle.On further investigation, they found that a judgment dated 02.02.2011had been passed by the Civil Court and that executionproceedingsvideExecutionPetition No.108/2011 had already been initiated. Thepetitionersthen filed objectionsunder Section47 of the CPC againsttheimpugnedjudgment in the said executionproceedings.The objectionswere dismissedbythe learnedADJ vide orderdated07.06.2013resultingin the nine CM(M)petitionsandthe thi-eeEFApetitions.

14. It is the petitioners'case that the CivilCourtdid not havejurisdictionto try the suit and pass the impugneddecree because itconcerns agricultural \2in.dlhhumidari rights as mentioned in column nos..2 & 3 of ScheduleI of Delhi Land ReformsAct,1954 and that the. jurisdiction of Civil Courts is thus specifically barred. In support of theircontention the petitioners rely upon the dicta of the Supreme Court inHatti vs. Sunder Singh {\91\S>CK {2) 163)

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"8. The High Court, in this connection, referred toSection 186 of the Act underwhichanyquestionraised regardingthe title of any party to the land,which is the subject-matterof a suit or proceedingunder the First Schedule, has to be referredby theRevenueCourtto the competentCivil Court fordecision after framing of an issue on that question.Inference was sought to be drawn from this provisionthat questions of title could, be competently agitatedby a suit in the Civil Court, as the jurisdiction of theCivil Court was not barred,.It appears to us that thereis no justificationfor drawing such an inference. Onthe contrary, Section186envisagesthat questions oftitle will arise before the Revenue Courts .in suits orproceedingsundertheFirstScheduleand, onlyifsuchaarises in a question competentproceedingpendingin a revenue Court, an issue will be framed andreferred to the Civil Court. Such a provisiondoes notgive jurisdictionto the Civil Court to entertain thesuit itselfon a questionof title. Thejurisdictionof theCivil Court is limited to deciding the issue of titlereferred to it by the Revenue Court. This clearlyimplies that, if a question of title is raised in anapplicationfor declarationofBhumidarirights under• item 4 ofScheduleI ofthe Act, thatquestionwill thenbe referred by the Revenue Assistant to the CivilCourt; but aparty wantingto-raisesuch a questionoftitle in order to claim Bhumidari right cannot directly 9 1 P a g e r approachthe CivilCourt. The Act is a completeCodeunderwhichit is clearthat any one,wantingadeclarationofhis right as a Bhumidar, or ag^ievedby a declaration issued without notice to him infavourof. another, can approachthe RevenueAssistant under item. 4 of the First Schedule and thishe is allowed to do without any period of limitation,because he may not be aware of the fact that adeclaration has. been issued in respect of his holdinginfavour of another. A declaration by a Gaon Sabhaof the right of anyperson can also be sought withoutany period of limitation. If there, is dispute as to.possession of agricultural land, the remedy has to besought under section84 read With item 19 of theFirstSchedule. All the reliefs claimed by the respondent inthe present suit were, thus, within the competentjurisdiction of the Revenue Assistant, and the CivilCourt had nojurisdiction to entertain the suit.".

15. The petitionerscontendthat they had purchasedthe suit lands andwere in actiaalpeaceful physical possession thereof;-.thatthe name of theappellants were duly mutated in the revenue records without anyobjection or dispute being raised before tiie revenue authorities; thatunder the express provision of Sections 33 and 81 of DLR Act, the Co'^tof Revenue Assistant had exclusive jurisdiction to adjudicate aproposagricultural land in the National Capital Territory of Delhi; therefore ifanybody was aggrieved by the order of the Court of Revenue Assistant,the same could be impugned by way of an appeal before the DeputyCommissioneras perScheduleI of DLR Act.Othercontentionsregarding.bar of limitation, non-joinder of parties, forged GPA, doctrineof misrepresentation etc. were also raised by them against the suit.

16. It is further contended that with respect to the question of title,which would arise as a consequence of any issue being raised before theRevenue Assistant, the matter could be referred to the Civil Court underSection186 of the DLR Act; that the CivilCourtlackedinherentjurisdiction to pass the decree and that hence it is void ab initio and thatsuch decree could be challenged at any stage even in execution orcollateralproceedings. In this regard, reliance was placed upon the dictaof the Supreme Court in Balvant N. Viswamitra and Ors. vs. YadavSadashiv Mule (dead) through Lrs. and Ors. 2004 8 SCC 706 held asfollows:.

"9. • The mainquestionwhich . arises forourconsiderationis whether the decree passed by thetj'ial court can be said to be 'null' and 'void'. In ouropinion, the law on the point is well settled. The' distinctionbetweena decreewhichis void and adecree which is wrong, incorrect irregular or not inaccordancewithlawcannotbeoverlookedorignored.Where a court lacks inherent-jurisdictionin. passing a.decree or making,an order, a.decree ororder. passed by such court would be withoutjurisdiction,non estand voidab initio.A defect of,jurisdictionofthe courtgoes to the.root.ofthe matterand strikes at the very authority of the court to pass adecree^or make an order. Such detect has always beentreated as basic and fundamental and a decree ororder a court or an nopassed by authorityhaving''•jurisdictionis nullity. Validityofsuch decreeorordercan be challengedat any stage, even in executionorcollateral proceedings."

17. , It is also the petitioners'case that the Executing Court did notadjudicateon the issueofjurisdictionon the groundthatthis had already been decided by the Civil Court. Furthermore, the Executing Court failedto appreciate that several of the petitioners were not even impleaded asparties in the proceedings despite being recorded as tenure holders andhaving sale deeds in thek favour.

18. Mi". Abhijat,learned counsel for the petitioners,contends thatpartition of agricultural lands can be done only under Entry 7 of Schedule1 of the DLR Act; that once the partition has been done, the appeal wouldlie beforethe DeputyCommissionerconcernedand not beforeany oth^rauthority or Court.Entry 3 concerns proceedings regarding regainingpossession,whereasEntry19 of theScheduleconcernssuitsforejectment. Relying upon the case of Gaon Sabha ofLado Sarai v. JageRam (ILR 1973-Delhi 984) he further contends that the principal reliefsought in the suit has to be seen.He submits that if the relief wasprimarily for declaration of title, then the partition would have to bedisturbedfirst; therefore,the only remedy availableto the respondentisbeforethe Court of RevenueAssistant.Mr. Abhijatfurthercontendsthatby virtue oflack ofinherentjurisdictionofthe Civil Court, the doctri|feof Us pendens would not be applicableas the decree was void ab initio.Relyinguponthe case ofBalvantN. Visvamitrav. YadavSadashivMule,(supra)he submitsthatthe validityofsuch a decreecan be challengedatany stage - even during executionor collateralproceedings.He submitsthat the impugned judgment and decree had been obtained by therespondentsby misrepresentingthe facts and circumstancesunderlyingthe subjectmatterand also by suppressingmaterialfacts and documents.He refers to documentson recordto showthat the name ofthe appellantwas mutated and recorded in the revenue records and that no duly 12 I P a g e obj.eGtionregarding the same was ever raised, nor was an Order 39 Rule 1and 2 application made by the respondents between the years 1989 and2009.

19. Mr. Abhijat further submits that it is well settled that the suit landsare covered under Sections 33 and 81 of the Delhi Land Reforms Act andthus jurisdiction with respect to the suit lands, which is essentiallyagricultural land, lies solely with the Court of the Revenue Assistant. Hesubmits that the impugned order suffers from defect and error on accountof non-joinder of a necessary party since Shri Bhanu Ram and Smt.Rupinder Bedi, whom he represents (in Ex.F.A.22/2013), were neitherimpleaded as parties in the suit nor were summons sent to them.

20. The learned counsel relied upon Jage Ram's case (supra) whichheld:

"(4) We may observeat the outset that in ail the casesthe questionwhich has arisenfor decisionis whethera civil court hasjurisdiction to try a suit in respect ofland under the Delhi Land ReformsAct, 1954. UnderSection185(1)ofthe DelhiLandReformsActthe civilcoiirt has no jurisdiction. Section 185(1) reads asunder:-, "185(1)Exceptas provided by or under thisAct no court other than a court mentioned in column 7of Schedule Ishall,notwithstanding anythingcontained i n the Code of CivilProcedure, 1908, take^cognizance of any suit, application, or proceedingmentioned in column 3 thereof."

(5) The question regardingthe maintainabilityof asuit in a civil court under the Delhi Land Reforms Acthas been settled by the Supreme-Court in Haiti v.Sunder Singh. In that case the appellant Hatti wasdeclared a Bhumidarof some land belongingto the

respondentunder Section13 of the DelhiLandReforms Act No 8 of 1954 (hereinafter referred to asthe Act). The respondent instituted a suit in the civilcourt claiming three reliefs. Thefirst relief was for adeclaration thatthe declaration of hhumidari issuedin the name of the appeUant with respect to the landin dispute was wrong, illegal, without jurisdiction,ultravires,voidandineffectiveagainsttherespondent. The second relief was thai the respondentbe declared to be entitled to bhumidari rights underSection 11 of the Act. The third, relief was forpossessionof the land. The suit was brought on thethat thewas the owner oftheallegation respondentland, while the appellant had no rights in it. The caseof the respondent was that the appellant had wronglybeen ^^-anted the declarationunder Section 13 of theAct that he was bhumidar when he had no rights as atenant in the land at all. The main defense on behalfof the appellant was that he was a non-occupancytenant and he was entitled to the declarationof hisbhumidarirights.Amongotherissues,oneissueraised by the appellant was that the civil court had no.jurisdictionto entertain, the suit in view of theprovisions of Section 185 of the Act. The trial Courtheld that the jurisdiction of the civil court was notbarred. A decreefor possession.Mms gi'anted infavorof the respondent. The High. Court also held that thejurisdictionof the civil court was not barred.Onappeal theSupremeCourtreversedthe decreepassedby the High Court and held that the civil courts hadno jurisdiction to try the suit.

(6) Their Lordships of the Supreme Court examinedthe provisions of the Act and came to the conclusionthat the Act was a complete Code and the Civil courthad no jurisdiction in view of Section 185(1) of theAct to entertaina suit in which the plaintiff,allegingthat he is theproprietor of the suit land, asJcsfor the ^

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declarationthat he is entitled to hhumidarirights inrespect of the said land. It was held that all the threereliefs which were asked by the respondent in his suitwere within the cortlpetent jurisdiction ofthe RevenueAssistant to grant under the provisions of the Act.Their Lordships observed at page 846:- "THE scheme ofthe Act appears to be that, initially, adeclaration ofBhumidari right can be granted underSection 11 or Section 13 without calling for objectionsand without hearing contesting parties infavor of theperson who appears to the revenue authorities to beentitled to the declaration on the basis of the recordsmaintained by them. Thereafter, anyperson aggi'ievedand:claiming bhumidari rights is-expected to move anapplication before the Revenue Assistant who is toadjudicate upon the rights after following the usualjudicial procedufe. The order made by the 'RevenueAssistant in such a proceeding will then have to begiven effect to and would over-ridethe declarationsearlierissuedin accordance,with the Rules.This- shows that any person, who is aggineved by a. declaration of Bhumidari right issued in favor of. another canhisperson, appropriately-seek remedybymoving an applicationbefore the'Revenue Assistantunder Item 4 of the First Schedule, whereupon, if hesucceeds, he will obtain a declaration that he is theBhumidar. Such a declaration will automaticallysupersedethe declarationissuedby the authoritiesinaccordance with the Rules without any adjudicationofrightsandwithoutnoticeto interestedparties."

(7) Their Lordshipsfurther held that Sections 6, 11, .13 and 154 of the Act read togethershow that afterthe Act came into force, proprietorsof agricultural Ay

land as such'ceasedto exist: There can be no suit byany person claiming to be a proprietorbecause theAct does not envisage a proprietor as such continuingto have rights after the commencement of the Act,Dealing with the argument that Section 186 of the Actprovidesforthedecisionof aquestionraisedregarding the title of any party to the land by a civilcourton a referenceto the RevenueCourttheirLordships said:- "THE High Court, in this.connection,referred to Section 186. of the Act under which anyquestionraisedregardingthe title ofanyparty to theland,whichisthesubject-matterof asuitorproceedingunderthe FirstSchedule,hasto bereferred by the Revenue Court to. the competent civilcourt for decision after fi-aming an. issue on thatquestion. Inference was sought to be drawn from thisprovisionthat questions of title could be completelyagitated by a suit in the civil court, as the Jurisdictionof the Civil Court was not bar-red. It appears to usthat there is no justification for draM'ing such aninference. On the contrary, Section 186 envisages thatquestions of title, will arisebefore the"RevenueCourtsin suitsor proceedings underthe FirstSchedule and, only if such a question arises in acompetent proceeding pending in a Revenue Court, anissue will beframed and referred, to Civil Conn. Sucha provision does not give jurisdictionto the CivilCourt to entertain the suit itselfen a questionof title.The jurisdictionof the Civil Court is limited todecidingthe issueoftitlereferred to it bytheRevenueCourt. This clearly implies that, if a question, of titleis raised in an application fordeclaration ofBhumiddrirights under Item 4 of ScheduleI of theAct, that questionwill then be referred bytheRevenue ^

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Assistant to the Civil Court; but a party wanting to. raise such a question of title in order to claimBhumidari right cannot directly approach the Civil'Bhumidari right cannot directly approach the Civil'Court."..

(8) The question of maintainability of the suit againarose for decision before their Lordships of theSupreme Court in Mukhfaria etc.Vs. Rama Shankaretc. Civil Appeals Nos. 987, 988 and 989 of 1967,decided on August 8, 1972. In those appeals therespective appellant was the defendant in each of thesuits from which those appeals arose, Thefollowingreliefs were prayed for:-(1) A declaratory decree tothe effect that Bhumidari declaration mentioned inpara lOA regarding said land in the name of thedefendant is illegal, ultra vires, void against theSupreme Court in Mukhfaria etc.Vs. Rama Shankaretc. Civil Appeals Nos. 987, 988 and 989 of 1967,decided on August 8, 1972. In those appeals therespective appellant was the defendant in each of thesuits from which those appeals arose, Thefollowingreliefs were prayed for:-(1) A declaratory decree tothe effect that Bhumidari declaration mentioned inpara lOA regarding said land in the name of thedefendant is illegal, ultra vires, void against the'• plaintiff be passed in plaintiffs favor against thedefendant. (2) A decree for possession of theagricultural land with damages; and (3)for costs.defendant. (2) A decree for possession of theagricultural land with damages; and (3)for costs.

(9) The questionfor decisionwhicharose in the suitswas whether the civil court had jurisdictionto grantthe reliefsprayedfor. The trial ' court decreed theplaintiffssuit. Thefirst appellatecourt affirmedthatdecision. The second appellate court summarilydismissedthe The LettersPatentwas appeal. Appealthe reliefsprayedfor. The trial ' court decreed theplaintiffssuit. Thefirst appellatecourt affirmedthatdecision. The second appellate court summarilydismissedthe The LettersPatentwas appeal. Appealalso dismissed. The were the appeals brought in appeals brought inSupremeCourtafterobtainingspecialleave.

••(10) Their Lordshipsheld that the point which had(10) Their Lordshipsheld that the point which hadarisenfor decisionin the appeals^as governedby therule laid down by the court in the case of Hattirule laid down by the court in the case of Hatti• (supra). It was held that the civil court had nojurisdictionto entertaina suit ofthe type with whichtheir were concerned in those three Lordships (supra). It was held that the civil court had nojurisdictionto entertaina suit ofthe type with whichtheir were concerned in those three Lordships 1/..''1

appeals. It was contended by the appellant's counselthai the decisionin Haiti'scase(supra)requiredreconsideration.After hearing the counsel at lengththeir Lordships were not satisfied that the decisionrequired reconsideration.In the result the appealswere allowed and all the suits were dismissed.•

(11) In deciding the ten appeals we will bear in mindthe decision to the Supreme Court in the case ofHaiH(supra) as in all these appeals we have to determinewhether the civil courts had jurisdictionto entertainthe suitbroughtin eachofthe cases.' ,

(12) It is settled law that jurisdiction M'ith reference tothe subject-matter of a claim, as in the case of otherkinds ofjurisdiction, depends upon the allegations inthe plaint and not upon the allegationsin the writtenstatement,nor upon those M'hich may ultimately befound true. Such allegationsmay, after the ti'ial, beheld to be unfounded and in that case, the suit will bedismissed, not because the court has no jurisdiction,but because the allegations on which it was bas.ed arefound to be untrue. The question of.maintainability ofa suit is also governed by- the same principles andmust be dealt with on thefooting of the allegation inthe plaint being correct. The plaintiff cannot, bymerely so drafting his prayers to exclude or includerelief M'hich can or cannot be granted by a court,confer on the court jurisdiction to tiy the suit It isnecessaiy in each case to consider what the cause ofaction in the plaint is and what is the substantiverelief which the plaintiff would be entitled to if hesucceeds in the,suit,in order to determine whether thecourt hasjurisdiction, irrespectiveofwhatprayers thedraftsman has thoughtfit to put in the plaint The 'h substance of the relief and not the mere form in theplaint has to be looked to. In deciding the point ofmaintainability of a suit the allegationsin the plaintalone have to be considered. It is the allegationin theplaint which determine jurisdiction.To discover thereal nature of the suit the plaint has to be looked atand plaint has to be read as a whole and in doing sothe court must look at the substance of the plaint andnot its outward form only. In each of ten appeals,therefore, we will take into account the substance ofthe suit in order to determine the nature of the claimmade and reliefs sought.

(13) We may now deal with the decisions of D.K.Kapur, J. which are referred to in the referring orderof Sachar, J. and which we have mentioned in thebeginning ofour judgment.

(14) R. S. A. 199-D of 1964 decided on August 27,1971 (Gaon Sabha of village Lado Sarai v. RisalSingh) is anotherdecisionofthe learnedsingleJiidgewhichwas cited beforeus and was relied upon byMr.S.'S. Dalai In this case the'appeal was filed by theGaon Sabha of villageLado Sarai and arose out ofasuit broughtby RisalSingh, respondent,claimingthatthe order of the revenue the land inAssistantplacingsuit in L.R. Form No. 2 arid then vesting it in theGaon Sabha was withoutjurisdiction, void and notbindingon theplaintiff The suit initiallyinstitutedbytheplaintijfwas in relationto KhdsraNos. 333, 361,372 and 373. the trial Court decided infavor of theplaintiffregardingKhasraNo. 333, butwithregardtothe other three Khasra Nos. the trial court came to theconclusion that they were waste'lands being ghairmumkinpahadand banjarqadim.The trialcourtheld 19 1 P a g e that the land did not form part of the holding of theplaintiff and, therefore, vested in the Gaon Sabha byvirtue ofSection 7 and 154 of the Delhi Land ReformsAct. The learned single Judge took the view that theword 'holding' used in explanationto Section 7(1) ofthe Act which defines waste land is used as denotingthe propertyowned by a proprietorand not in thesame sense as in the definition section. The learnedJudge summed up his conclusions as follows:-"Tillthe land is used for agricultureit is not land withinthe meaning of the definitionand the Act does notapplytoit. Hence,, if thelandhappenstobemoiintanousor sub-mountanousi.e. Ghair mum kirnpahar or happens to be BanjarQadim or BanjarJadid i.e. not under cultivation then the proprietorremains the owner thereof. It is only when the land isused for agriculture or for a purpose subsei^ient toagriculture that the land came within the definition ofland as given in section 3(13) ofthe Act and it is onlyat that stage that the provisions of the Act becomeapplicable to it."

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(70) On the allegations made in the plaint it isabundantly clear that theplaintiffs claim in substanceis that he has bhiimidari rights in the suit land and thevesting order is contrary to law. As such, such a suitcould not be brought in the civil court by reason ofsection185(1) of the Act. In the result, the appeal ofGaonSabhaisallowed. Thejudgmentsand decreesofthe courts below are set aside. The suit of theisdismissedasplaintiffrespondentbeingincompetent. In view of the fact that the questioninvolved in all the tenwas one to appeals' relating 20 I P a g e jurisdiction, we think that the proper order will be toleave theparties to bear their own costs throughout inall the appeals. " "

The petitioners also relied upon the dicta in AshokKumar vs. Munni Devi(2012(129)DRJ 476) whereinit was held that:

"6. Unless the suits are in substance,the suits whichfall within the Sections as stated in column 2, thejurisdiction of the Civil Courts is not barred by virtueofSection 185 of the Act. No doubt Section 186 statesthat where a question of title is raisedin anyproceedingfalling undercolumn3 ofthe ScheduleI ofthe Act then such a proceeding has to be referred bythe RevenueCourt to a Civil Court to determinethequestion of title, however, it does not mean that suitswhere title is in question, and which suits are not thesubject matter of columns 2 and 3 of the Schedule I,such suits have to be filed in the Revenue Courts. Infact, it is other way round thatfirstly the suits must insubstancebe the suitsessentiallycoveredundercolumns2 and 3 oftheSchedule! oftheAct, and onlythereafter if title of the land is in question then theRevenue Court will refer the issue of title to CivilCourt, however, if the suits itselfare notfalling undercolumns 2 and 3 of Schedule I, for such suitsjurisdictionofthe CivilCourtisnotbarred.

9. By the impugnedjudgment, the suitfiled by theappellants/plaintiffsfor declaration, injunction andpossession was dismissed by holding that the CivilCourts do not have jurisdiction.

The reliefs of declaration,injunction and possessionwere claimed'onthe ground that original owner-Sh,InderSinghneverexecutedaGeneralPowerofAttorney infavour ofwife,ofSh. Riiliya Singh, and onthe basis of which Power ofAttorney, the wife of Sh:Ruliya Singh is stated to have executed a sale deed infavour of Sh. Ruliya Singh. Sh. Ruliya Singh is thefatherof defendant Nos.2 to 4. 10. I have givendetailedreasoning . whiledisposingofRFANo.621/2003 and have held that unless the suit fallswithin the columns 2 and 3 of the Schedide J of theAct, the jurisdictionof the Civil Court is not barred.The suit such as the presentclaiming injunction,declarationof illegality of the sale deed executedallegedly on the basis of a fabricatedGeneral Powerof Attorney and for repossession of the land, is notcovered- imderany of the Sectionsmentionedincolumn 2 of the Schedule I. The jurisdictionof theCivil Court therefore will not be barred under Section185 of the Act. I must once againreiteratethatnothing contained in todays judgment is a reflectionon the merits of the case of either oftheparties, and Iam not touching upon the merits of the matter. Thepresent judgment only decides the issue that there isno bar to thejurisdiction of the Civil Courts by virtueofSection 185 ofthe Act. "

V

21. On behalf of the respondents, Mi*. Khli Uppal, learned SeniorAdvocate, contends that the order of the Court of Revenue Assistant wasbad in law; thatinsofaras defendantNo.l to 5have fraudulentlyobtainedthe order of partition dated 09.03.1983,the Civil Court could alwaysadjudicateupon it. He submitsthat the sale deeds were not disputedbythe original sellers. He contends that indeed, apropos issue No. 9 the 22 I P a g e V-

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learned Civil Court had recorded that there was no dispute regarding thesale deeds in favour of the plaintiffs, hence there was no occasion for thesuit being referred to theCourt of Revenue Assistant. The learnedcounsel relies upon the judgment of this Court in Mansa Ram v.. Tilakand Am', wherein it was observed that fraud of any nature, in anycircumstance, must be adjudicated in trial before a Civil Court. Thejudgment read as follows:

"13. The Full Bench of the Allahabad High Court inRam Padarathvs. Union of India, -1989 All JVC 290was ceased of a suitfor cancellation of a sale deedandpermanentinjunctionon the ground that the saledeed has been executed by impersonation and that thewas the tenure holder inof theplaintiff possessionland.The Bench held that the Civil Courts will havejurisdiction in a suit for cancellation of documentswhere, it is a suit for cancellation of documentsimplicitor withnodeclaration oftitle.TheConstitution Bench decision in Rain Padarath (supra)case was upheld by the"'Supreme Court in Smt.Bismillah vs.-Janeswar Prasad & Ors, (1990) 1 SCC207. In the said case, a^ sUitfor cancellation of thedocument and possession was filed where the ApexCourtheldthattheCivilCourtwouldhavejurisdiction to decide the issue as the sale deedrequiresto, be set aside before theplaintijfis entitledfor possessionand other consequentialreliefs. TheSupremeCourt in Shri Ram &Ahr. V5. 1stAdditional• DistinctJudge&Ors., (2001)3SCC24approvingtheRam Padarath (supra) case held thata tenure holder m possession. can filea suit in Civil Court forcancellation of a sale deed on the ground offraud orimpersonation, as prima facie the title of the recordedtenure holder is not under cloud.

14. Recently, the Supreme Court in Horil v^'. Keshav: & Anr.,, (2012) 5 SCC 525 has expanded the scope incase ofthejurisdiction ofthe Civil Court to decide theissue offraud and has held that the Civil Courts canentertainsuit even in regardto decrees •or order'spassed in suit or proceedings under different statuteor U-ibunaloflimited jurisdiction."

22. To buttresshis contentionthat a suit would lie before the CivilCourt and not before the Court of RevenueAssistant, he also relies uponthe case of Shri Ram and Another v. 1st Addl. Distt. Judge and Ors,(2001) 3 see 24, wherein the Hon'ble Supreme Court held that arecorded tenure holder, i.e., a person whose name has been mutated andrecorded m the revenue records, need not file a suit before the RevenueCourtfor cancellationof a void documentbecausehis title isprimafacievalid. Such can a Civil Court for this person approach puipose.relevant paragraph reads as follows:

"On analysis of the decisionscited above, we are ofthe opinionthatwherea recordedtenureholderhavinga prima facie title and inpossessionfiles suitin the civilcourtfor cancellationofsale deedhavingobtained on the ^oiind of fraud, or impersonationcannot be directed tofile a suitfor declaration in therevenue court reason being that in such a case,primafacie, the title ofthe recorded tenureholder is notunder cloud. He does not require declaration of his title to the land. Theposition would be different wherea person not being a recordedtenure holder seekscancellation ofsale deed byfiling a suit inthecivil court on the ground offraud or impersonation.There necessarilythe plaintiff is required to seek adeclarationof his title and, therefore, he may bedirected to approach the revenue court, as the saledeed being void has to be ignored forgivinghimrelief for declarationand possession."

23. Apropos the question as to why no objection regarding jurisdictionwas raised before the Civil Court, the petitioners state that most of themwere not even party to the suit but were only objectors before theExecuting Court in Execution No. 108 of 2011.

24. As.per this tabular representation submitted by the petitioners, thefollowing parties were objectors before the Executing Court:

"COMPARATIVE/CORRESPONDINGCHART OF LITIGANTS:

LITIGANTS FROM OTHER CASES

25. Having consideredthe contentionof the parties the Court notesthat these petitions essentiallyseek the setting aside of the impugnedorder dated 2.22011 which has set aside the partition order of the 28 I P a g e Revenue Assistantwhich recognized the right of defendant nos. 1 to 5 tosell the suit lands; as a consequence of which the suit lands were sold todefendant nos 7 to 84; they also seek the ancillary i.e. a declaration thatthe petitioners be declared as rightful owners of the suit property.

26. Entry No. 7 of Schedule 1 of the DLR Act, 1954 makes the Courtof Revenue Assistant as the Court of original jurisdiction to adjudicate onan application for determination of the share of the lessor and partition ofholding.It also stipulated that an appeal from such order would liebefore the Deputy Commissioner. Under Entry 3 of the Schedule,apphcation to regain possession would he before the same RevenueAssistant and under Entry 19 a suit for ejection of a person occupyingland without title or damages would also he before the RevenueAssistant. The respondents,havingbeenaggrievedby the partitionorderpassed by the Revenue Assistant,ought to have impugnedthe order astheoftheDLRAct beforetheCommissioner.Theper provisions Deputypartitionorder caimot be the subject matter of adjudicationby a CivilCourt because jurisdiction has been specifically and exclusivelyconferred the RevenueCourtmattersof bhumidariuponregardingrightsand possessionof agriculturallands. The jurisdictionof othercourtshasbeen clearly ousted under Section 185(1) of the Act.Furthermore,section 186 of the Act provides the procedureto be followed when aquestionof title is raised.It readsas under:

"186. Procedure when question oftitle is raised. -

(1) Notwithstandinganything contained in section185', if in anysuit orproceedingmentionedin column I

3 ofScheduled I, question is raised regarding the titleofany party to the land which is the subject matter ofthe suit or proceedingand such question is directlyand substantiallyin issue the Court shall, unless thequestion has already been decided by a competentcivil court for the decision ofthat issue only.

Explanation:- A plea regardingthe title to the land.which is clearly untenable and intended solely to oustthe jurisdictionof the revenuecourt shallnot hedeemed to raise a question regarding the title to theland within the meaning ofthis section.(2) The civil court, after refi-aming the issue, ifnecessary, shall decide such issue only and return therecord together with itsfinding thereon to the revenuecourt which submitted it.^

(3) The revenue court shall thenproceed to decide thesuit or, accepting thefinding of the civil court on theissue referred to it.

(4) An appeal from a decree of a revenue court In asuit or proceeding in which an issue regarding titlehas been decided by a civil court under sub-section(2)shalllie to the civil court which having regard tothe valuation of the suit has jurisdiction to hearappealfrom the Court to which the issue of title hasbeen referred."

t'

27. The dicta in Hqttivs. SunderSingh (supra) clearlylays down thatthe issue of declarationof bhumidari as S. 186 of the Delhirights, perLand ReformsAct, can only be taken up by the RevenueCourt. In viewofthe aforesaiddiscussion,itis clearthatexclusivejurisdictionregardingi) partition of agriculturalproperty, ii) application for declaration of 30 I P a g e <

bhumidari rights, iii) application for regaining of possession and for iv)ejection of a person occupying the land without title, would only liebefore the Court of Revenue Assistant.Therefore,when the statute itselfclearly stipulates jurisdiction of another court, a Civil Court cannotassume the jurisdiction even if an order has been procured by allegedmisrepresentationbefore or suppressionof material facts from and/or byfraud played upon the Court of RevenueAssistant.Indeedjurisdictionofother courts has been specifically ousted by s.l85 of the Act.

28. Therefore, insofar as the Civil Court lacked jurisdiction to set asidethe order dated 08.03.1983passed by the Court of Revenue Assistant,theimpugnedorder and decree is withoutjurisdictionand is liableto be setaside. Accordingly, the impugnedjudgment and decree dated 2.2.2011Civil Suit no.1/2010 is set aside. It would be open for the respondents toremediesas beavailabletothem in lawunderthe DelhiLandpursue mayReformsAct, 1954. The aforesaidpetitionsare allowed and disposedoffin the above terms.No orders as to costs.

NAJMIWAZIRI,J

MARCH 23, 2015/acm/nrk/rtm