Full Judgment Text
*IN THE HIGH COURT OF DELHI AT NEW DELHI
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Date of decision: 15 March, 2011
+ W.P.(C) No.1070/1986
% RAM NIWAS …... Petitioner
Through: Mr. Subodh Markandaya, Sr. Adv.
with Mrs. Chitra Markandeya, Mr.
C.S. Parashar, Mr. Sachin Sharma &
Mrs. Noor Jahan, Advocates
Versus
THE FINANCIAL COMMISSIONER, DELHI
& ORS . ... Respondents
Through: Mr. Jitendra N. Mahato, Adv. for
Ms. Zubeda Begum, Adv. for R-1 to
3.
Mr. Manmohan Gupta, Adv. for
LRs of R-4, 5 & 8.
Mr. Ravi Gupta, Sr. Adv. with Mr.
Rahul Gupta & Mr. Shekhar Dasi,
Advocates for R-6 & 7.
AND
+ CONT.CAS(C) NO.336/1996
% SH. RAM NIWAS ..... Petitioner
Through: Mr. Subodh Markandaya, Sr. Adv.
with Mrs. Chitra Markandeya, Mr.
C.S. Parashar, Mr. Sachin Sharma &
Mrs. Noor Jahan, Advocates
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 1 of 33
Versus
SH. PITAMBER & ORS. …... Respondents
Through: Mr. Jitendra N. Mahato, Adv. for
Ms. Zubeda Begum, Adv.
Mr. Manmohan Gupta, Adv. for R-2
to 6.
Mr. Ravi Gupta, Sr. Adv. with Mr.
Rahul Gupta & Mr. Shekhar Dasi,
Advocates for R-7 & 8.
CORAM : -
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The writ petition impugns:-
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(i) Order dated 3 April, 1981 of the Revenue Assistant, Delhi
dismissing the application under Section 11(1)(a) of the Delhi Land
Reforms Act, 1954 of the deceased petitioner no.1 Sh. Dedh Raj @
Desh Raj. (during the pendency of the said application, the petitioner
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 2 of 33
no.2 herein Sh. Ram Niwas was allowed to be impleaded as
applicant no.2.).
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(ii) The order dated 20 September, 1983 of the Additional
Collector, Delhi dismissing the first appeal under Section 185 of the
Reforms Act of Sh. Dedh Raj and Sh. Ram Niwas against the order
aforesaid of the Revenue Assistant.
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(iii) Order dated 22 November, 1984 of the Financial
Commissioner dismissing the second appeal of Sh. Dedh Raj and Sh.
Ram Niwas against the order aforesaid of the Additional Collector,
Delhi.
2. The petitioners also seek the relief of declaration that they are the
exclusive Bhumidhars of the land subject matter of the writ petition and to
the exclusion of the respondent no.4 Smt. Misri Devi. Alternative relief of
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declaration that Smt. Misri Devi has only 1/3 share in the said land
instead of 1/2 as recorded in her name in the revenue records and that Sh.
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Dedh Raj and Sh. Ram Niwas have 2/3 share therein, is also claimed.
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 3 of 33
3. Even though this writ petition was preferred after nearly two years
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of the order of the Financial Commissioner, vide ex parte order dated 28
May, 1986 Rule was issued and respondent no.4 Smt. Misri Devi
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restrained from transferring 1/6 of her undivided share in the land subject
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matter of the writ petition. The said interim order was confirmed on 18
September, 1986 after hearing the counsel for the respondent no.4 Smt.
Misri Devi.
4. The factual matrix as now emerging from the records is as under:-
(i) Sh. Dedh Raj filed the application aforesaid under Section 11
of the Reforms Act pleading:-
(a) that land admeasuring 288 Bighas and 1 Biswas
situated in the revenue estate of Village-Matiala, Najafgarh,
Delhi belonged to his father Sh. Ram Saran;
(b) that on the demise of Sh. Ram Saran, the said land was
inherited by the three sons of Sh. Ram Saran namely Sh. Dedh
Raj, Sh. Sahaj Ram and Sh. Rati Ram;
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 4 of 33
(c) that upon the demise of Sh. Rati Ram in the year 1940
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his 1/3 share in the said land devolved on his widow i.e.
respondent no.4 herein Smt. Misri Devi;
(d) that thereafter Sh. Sahaj Ram died without leaving any
widow or children and under the Hindu Succession Act, 1956,
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his 1/3 share in the said land devolved on his brother Sh.
Dedh Raj;
(e) however Smt. Misri Devi filed a suit for partition
against Sh. Dedh Raj claiming 1/2 share in the said land on
the basis of the entries in the Record of Rights/Annual
Register and which suit was pending disposal;
(f) that on account of some misunderstanding, the
Bhumidhari and Proprietary Rights in the revenue records
were shown to the extent of 1/2 share in the entire holding in
the name of Smt. Misri Devi, though he (Sh. Dedh Raj) was in
cultivatory possession of the whole land and was in dark
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 5 of 33
about the error in the revenue record and which came to his
notice only on the suit for partition being filed by Smt. Misri
Devi;
(g) it was the plea of Sh. Dedh Raj that Smt. Misri Devi
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was entitled to only 1/3 share in the entire land and he had
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Bhumidhari rights over 2/3 share of the said land;
(h) accordingly, declaration was sought that Sh. Dedh Raj
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was the Bhumidhar of 2/3 share in the land aforesaid.
(ii) Smt. Misri Devi contested the said application by filing a
reply pleading that the same was barred by time inasmuch as Sh.
Sahaj Ram died much prior to the commencement of the Reforms
Act, and on his death his share in the land was mutated in the names
of Sh. Dedh Raj and Smt. Misri Devi in equal share and Sh. Dedh
Raj had never challenged the said mutation sanctioned by the
Revenue Authorities and was estopped from challenging the same
by way of application under Section 11 of the Reforms Act; that Sh.
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 6 of 33
Dedh Raj and Smt. Misri Devi had sold part of the land to other
persons and had shared the sale consideration in equal proportion;
that Sh. Dedh Raj and Smt. Misri Devi were enjoying possession of
the land; that Sh. Sahaj Ram had died much before coming into
force of the Reforms Act and thus the question of applicability of
Section 50 thereof did not arise and the share of Sh. Sahaj Ram in
the land was rightly mutated in the name of Sh. Dedh Raj and Smt.
Misri Devi.
(iii) During the pendency of the application under Section 11
before the Revenue Assistant, petitioner no.2 Sh. Ram Niwas being
the son of Sh. Dedh Raj applied for impleadment and which was
allowed.
(iv) The Revenue Assistant held that none of the parties had
placed any documentary proof or led documentary evidence except
oral evidence of partition between Sh. Dedh Raj and Sh. Ram
Niwas. It was further held that mutation of 1/2 share in the land
having been sanctioned in favour of Smt. Misri Devi and having
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 7 of 33
remained unchallenged, the application filed under Section 11 of the
Reforms Act was time barred. It was also held that Smt. Misri Devi
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was entitled to inherit 1/3 share of her husband Sh. Rati Ram and
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1/2 out of 1/3 share of Sh. Sahaj Ram and was thus entitled to 1/2
share in the entire land. The claim of Sh. Dedh Raj and Sh. Ram
Niwas to 2/3 share in the entire land was rejected.
(v) The Additional Collector while dismissing the appeal of Sh.
Dedh Raj and Ram Niwas held that the mutation of 1/2 share of land
in the name of Smt. Misri Devi had to be challenged in the legal
manner before the Court of competent jurisdiction and in the
proceedings under Section 11, no benefit could be claimed by
pleading illegality or factual inaccuracy in effecting the mutation
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when Smt. Misri Devi was admitted to be having 1/3 share in the
land and the principle of possession of one is possession of all co-
sharers applied. It was further held that in view of the non denial to
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the extent of 1/3 share, it could not be denied that 50% of the land
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 8 of 33
was Khudkasht of Smt. Misri Devi. The appeal was accordingly
dismissed.
(vi) The Financial Commissioner while dismissing the second
appeal of Sh. Dedh Raj and Sh. Ram Niwas also held that in the
absence of any challenge to the mutation, and Smt. Misri Devi
admittedly being a co-sharer, no relief could be granted. It was
further held that under Section 11, the declaration of Bhumidhari
rights is allowable on the basis of Khudkasht land and there was
nothing to show that Sh. Dedh Raj and Sh. Ram Niwas only could
be treated to be Khudkasht holders of the entire land when Smt.
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Misri Devi was admittedly a co-sharer with 1/3 share. It was also
observed that both Revenue Assistant and Additional Collector had
come to a concurrent finding of the possession of one being the
possession of others.
5. Smt. Misri Devi died during the pendency of the present writ
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petition on 22 December, 1986. Vide order dated 5 December, 1988 the
proceedings in the present case were adjourned sine die owing to the
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 9 of 33
alleged Will of Smt. Misri Devi being subject matter of consideration
before the Revenue Authorities.
6. Sh. Dedh Raj also died during the pendency of this writ petition.
The petitioner no.2 Sh. Ram Niwas was brought on record as the legal heir
of Sh. Dedh Raj as sole petitioner. However thereafter the other legal heirs
of Sh. Dedh Raj also applied for substitution in his place and which was
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contested by Sh. Ram Niwas. On 9 March, 1993 it was ordered that the
said applications of other legal heirs for substitution in place of Sh. Dedh
Raj and for recall of the earlier order substituting Sh. Ram Niwas only in
place of Sh. Dedh Raj will be decided at the time of final hearing and the
other heirs shall be allowed to intervene at the time of final hearing. Need
is not felt now to decide the said question, inasmuch as the same is not
relevant for the purposes of the present controversy inasmuch as if the writ
petition is to succeed, whatsoever share in the land is held of Sh. Dedh Raj
would devolve on whichsoever of his legal heirs are found entitled, in
separate appropriate proceedings.
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 10 of 33
7. In this writ petition, Sh. Dedh Raj and Sh. Ram Niwas changed their
stand. They claimed that after the death of Sh. Rati Ram, Smt. Misri Devi
left the Village-Matiala, and the matrimonial home in or about 1940-41
and went away to reside in her parental home and severed all connections
with her matrimonial home and abandoned the land. It was thus claimed
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that Smt. Misri Devi was not entitled to even 1/3 share in the land, as was
the stand till then in the proceedings before the Revenue Courts. In my
view, besides the fact that no such plea can be taken for the first time in
these proceedings, the stand now taken is contradictory to the stand till
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then of Sh. Dedh Raj that mutation in favour of Smt. Misri Devi of 1/3
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share of her husband Sh. Rati Ram and 1/2 share out of 1/3 share of Sh.
Sahaj Ram was a result of misunderstanding. If Smt. Misri Devi had
abandoned the land and gone away, obviously mutation would have been
got done by Sh. Dedh Raj only. The very fact that Sh. Dedh Raj got
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mutation done in the name of Smt. Misri Devi, first of 1/3 share of her
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husband Sh. Rati Ram and thereafter of 1/2 out of 1/3 share of Sh. Sahaj
Ram shows that there was no misunderstanding. Now it is being alleged,
that though Smt. Misri Devi had abandoned the land as far back as in the
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 11 of 33
year 1940-41 but it was Sh. Dedh Raj who contacted her in the year 1971-
72 for the purposes of disposal of the land since her name appeared in the
records and which made Smt. Misri Devi greedy.
8. From time to time the legal heirs of Sh. Dedh Raj have died and
applications filed for substitution of their legal heirs.
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9. Smt. Misri Devi as aforesaid died on 22 December, 1986. Her
brother Sh. Pitamber Singh filed an application for substitution in her place
pleading that Smt. Misri Devi had bequeathed her land in his favour vide a
Registered Will. Though Smt. Misri Devi had died as aforesaid in 1986
and application of her brother Sh. Pitamber Singh for substitution was
pending but neither was any substitution made in favour of Sh. Pitamber
Singh nor restraint order against Smt. Misri Devi extended to Sh. Pitamber
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Singh till 10 December, 1996. However before that Sh. Pitamber Singh
had informed this Court that he had already transferred the land inherited
by him from Smt. Misri Devi to Sh. Devi Ram Gupta, Sh. Rameshwar
Dayal, Sh. Satapal Rathi and Sh. Ram Kumar and the said persons were
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vide order dated 25 August, 1998 impleaded as respondents no.5 to 8 and
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 12 of 33
restrained from transferring 1/6 share of the land which had been
transferred by Sh. Pitamber Singh in their favour.
10. Several pending applications in the writ petition came up before this
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Court on 23 September, 2010 when the status of the proceedings owing
whereto the proceedings in this writ petition were adjourned sine die was
enquired. It was informed that not only the proceedings with respect to the
alleged Will of Smt. Misri Devi before the Revenue courts but a suit was
also pending in this Court with respect to the Will of Smt. Misri Devi.
This Court was of the opinion that since this writ petition concerns the
share of Smt. Misri Devi in the land, the pendency of the proceedings with
respect to the Will of Smt. Misri Devi would not come in the way of the
disposal of the writ petition inasmuch as whatsoever was found to be the
share of Smt. Misri Devi would devolve on whosoever was found to be her
heir. Accordingly, the order adjourning the proceedings sine die was
recalled and the writ petition listed for hearing. The senior counsel for the
petitioners, the senior counsel for the respondents no.6 & 7 and the
counsels for the other respondents have been heard.
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 13 of 33
11. The senior counsel for the petitioners (and which includes petitioner
no.2 Sh. Ram Niwas as well as the other legal heirs of Sh. Dedh Raj) has
contended:-
(a) That the Schedule I to the Reforms Act does not provide any
period of limitation for filing of application under Section 11 of the
Act.
(b) That the question is whether Smt. Misri Devi had abandoned
the land or not.
(c) That Section 5(ii) of the Hindu Succession Act makes an
exception with respect to land/tenancy laws.
(d) Smt. Misri Devi could not have inherited any share of Sh.
Sahaj Ram who died in or about the year 1960 owing to Section 50
of the Reforms Act.
(e) That a question of title having arisen in the proceedings under
Section 11, the Revenue Assistant ought to have under Section 186
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 14 of 33
of the Reforms Act referred the same to a Civil Court for
adjudication.
(f) That even if this petition were to fail, the share of Smt. Misri
Devi cannot go to her brother inasmuch as Section 48(2) of the
Reforms Act bars a Will and the said share of Smt. Misri Devi
would under Section 51 of the Reforms Act again fall on Sh. Ram
Niwas.
(g) That mutation entries are only for the purposes of collection
of land revenue and do not confer any title. Reliance in this regard
is placed on Suraj Bhan Vs. Financial Commissioner V (2007)
SLT 215.
(h) I may record that there exists on record a synopsis of
submissions of petitioner with copies of several other judgments but
to which no reference was made during the hearing and as such need
is not felt to deal with the same.
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 15 of 33
12. The senior counsel for the respondents no.6 & 7 being two of the
purchaser from Sh. Pitamber Singh, brother of Smt. Misri Devi has
contended:-
(a) That the case of abandonment has been set up in the present
petition for the first time.
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(b) That in the application under Section 11, 1/3 share of Smt.
Misri Devi in the land was admitted.
(c) That the application under Section 11 filed in 1973 was highly
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belated inasmuch as 1/3 share in the land was mutated in favour of
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Smt. Misri Devi on demise of her husband Sh. Rati Ram on 23
August, 1941 and her share in the land was increased to 1/2 vide
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mutation dated 22 July, 1961 on the demise of Sh. Sahaj Ram (the
senior counsel for the petitioners does not controvert the said dates).
(d) That Sh. Dedh Raj and Smt. Misri Devi had in the year 1971
sold a part of the land by claiming to be equal owners thereof and
shared the sale proceeds equally (this is also not controverted).
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 16 of 33
(e) Attention is invited to the provisions of the Delhi Land
Revenue Act, 1954, to Section 20 providing for the maintenance of a
Record of Rights; Section 22 providing for reporting of succession
or transfer of land and to sub-section (5) thereof which prohibits a
Revenue Court from entertaining a suit or application by a person
without reporting succession/transfer in his favour; Section 30
providing for presumption of correctness of the entries in the
revenue record until the contrary is proved; Section 64 providing for
appeal against orders of such mutation; Section 67 providing
limitation of 30 days from the date of mutation from preferring an
appeal thereagainst.
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(f) Attention is also invited to the order dated 22 July, 1961 of
mutation on the demise of Sh. Sahaj Ram recording that the same
was done at the instance of Sh. Dedh Raj.
(g) It is contended that Sh. Dedh Raj could not be permitted to
change his stand after thirteen years.
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 17 of 33
(h) Section 4(2) of the Hindu Succession Act has been deleted
vide Amendment of the year 2005 and thus Section 50 of the
Reforms Act stands eclipsed.
(i) Reliance is placed on Nirmala Vs. Govt. of NCT of Delhi 170
(2010) DLT 577 (DB) and on Mangtu Vs. Financial Commissioner
(2007) 97 DRJ 570.
(j) That a proceeding under Section 11 of the Reforms Act is
only for declaration of Bhumidhari rights and not for declaration of
share, share in the land could only be determined in a proceeding for
partition under Section 55 of the Act. It is thus contended that the
proceedings under Section 11 seeking declaration of share were in
any case misconceived.
(k) Reliance is placed on Rolex Sa Vs. Alex Jewellery Pvt. Ltd.
MANU/DE/0796/2009, Gajendra Kumar Vs. Union of India 110
(2004) DLT 591 (DB) and on Chander Vs. Union of India 2005 VII
AD (Delhi) 125 to contend that the mutation even if alleged to be
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 18 of 33
void was required to be quashed and for the proposition that even a
statutory right could be waived.
13. The senior counsel for the petitioners in rejoinder has contended that
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the amendment to the Hindu Succession Act with effect from 9
September, 2005 would be of no avail since Smt. Misri Devi died long
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prior thereto on 22 December, 1986 and the Will allegedly left by her is
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of 18 November, 1971. It is contended that the said amendment is
prospective and not retrospective. Reliance in this regard is placed on Smt.
Mukesh Vs. Bharat Singh 149 (2008) DLT 114. Reliance is also placed
on Hatti Vs. Sunder Singh AIR 1971 SC 2320 to contend that since in
case of proprietors, upon the coming into force of Reforms Act, only the
Khudkasht rights survive, Section 11 application was competent.
14. I had during the hearing enquired from the counsels the fate of the
suit for partition preferred by Smt. Misri Devi and which was pending on
the date when the application under Section 11 was made. It is informed
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that the said suit was dismissed in default on 25 September, 1980.
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 19 of 33
15. The Legislature has not provided for any further remedy against the
order of the Financial Commissioner in second appeal and which under the
Act has been made final. This Court is only exercising the powers of
judicial review and thus the interference if any by his Court has to be
within the parameters of judicial review and not as if exercising appellate
powers. Merely because a wrong view has been taken, would not entitle
this Court to interfere. It is only in the cases of perversity being shown or
it being shown that the order of the Financial Commissioner is contrary to
the settled law, that this Court would exercise jurisdiction and interfere.
The only other ground for interference is when the findings returned are
shown to be not based upon any material whatsoever. This Court can
refuse to interfere for other reasons also.
16. The first and foremost aspect which stares one in the face is of the
delay of about two years in preferring the writ petition. The explanation
given therefor is that the advocate who had conducted the proceedings on
behalf of the petitioners before the Financial Commissioner had got some
papers signed from the petitioners for filing the writ petition in this Court;
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 20 of 33
however the said advocate died and the petitioners remained under
impression that the writ petition had been filed. The said explanation does
not inspire confidence. Considering the nature of the proceedings, where
the rights in favour of Smt. Misri Devi as borne out from the revenue
records were sought to challenged, mere filing of the writ petition was not
enough; unless Smt. Misri Devi was restrained from dealing with the land,
she could have on the basis of mutation entries in her name transferred the
same to some other person/s. There was no reason for the petitioners to be
merely satisfied by signing the papers for filing the writ petition and the
petitioners ought to have been in touch with their advocate to find out as to
whether Smt. Misri Devi had been so restrained or not.
17. However, since this writ petition has remained pending in this Court
for long, even though for the reasons attributable to the petitioners
themselves, I now refrain from dismissing the writ petition on this ground
alone.
18. I am of the opinion that the relief which was claimed in the
application under Section 11 of the Reforms Act i.e. of declaration that the
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 21 of 33
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share in the land of Sh. Dedh Raj was 2/3 and of Smt. Misri Devi 1/3 ,
could not be granted under Section 11 of the Act and the application under
Section 11 claiming the said relief was misconceived. The shares could
have been determined only in a proceeding for partition under Sections 55
to 61 of the Reforms Act. Rule 37 of the Delhi Land Reforms Rules, 1954
expressly provides that before making partition, the Court shall determine
separately the share of the plaintiff and each of the other co-tenure holders.
Not finding any provision in the Reforms Act enabling declaration of
shares, I have wondered whether right to seek such declaration can be read
in Section 11. However, I am unable to so read Section 11. Moreover, it is
not as if the relationship between Sh. Dedh Raj and Smt. Misri Devi at the
time of filing of application under Section 11 was cordial, for Sh. Dedh Raj
to merely want a declaration of respective shares in the land without
wanting partition. When the application under Section 11 was filed, Smt.
Misri Devi had already filed a suit for partition against Sh. Dedh Raj. The
battle lines were thus drawn. Sh. Dedh Raj was required to defend the said
suit for partition wherein Smt. Misri Devi had claimed 1/2 share by
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contending that her share was 1/3 and not as 1/2, as he pleaded in
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 22 of 33
application under Section 11. Even if Smt. Misri Devi had not wanted to
pursue the suit for partition, Sh. Dedh Raj could have continued the same.
By no stretch of imagination can it be said that under Section 11
declaration with respect to respective shares could be claimed. Section 11
envisages declaration upon coming into force of the Act of rights in
existence since prior to the coming into force of the Act and the enquiry
under Section 11 is to be limited to that aspect only and cannot stretch to
the determination of respective shares in the land. The Legislature while
providing for a proceeding for partition and which necessarily entails
determination of shares, has provided that to such suit for partition Gaon
Sabha concerned shall be made a party. The said right of Gaon Sabha to
be heard in a proceeding for partition and which as aforesaid entails
determination of shares, cannot be defeated by seeking such determination
in a proceeding under Section 11 of the Act. Sub-Sections3 & 4 of Section
11 while providing for the orders to be made on applications under Section
11 nowhere provide for the said order to also record the respective shares.
Rather, Section 11 requires the Deputy Commissioner to himself make the
declaration thereunder, even without requiring an application and persons
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 23 of 33
in whose favour such declaration is made become liable to pay to the
government land revenue with effect from the said declaration. In the
present case, admittedly, Sh. Dedh Raj as well as Smt. Misri Devi were
already recorded as Bhumidhars with respect to the said land since after
coming into force of the Reforms Act and there was no need for such
declaration in 1973 when the application under Section 11 was filed.
19. A Division Bench of this Court in Narinder Singh Vs. Khaliqur-
Rehman AIR 1974 Del 184 held the process of declaration of Bhumidhari
rights under Section 11 of the Reforms Act to be a non-judicial proceeding
and to be done on the basis of revenue entries for a particular year which
are to be presumed to be correct. It was further held that the Legislature
did not intend the declaration of Bhumidhari rights to wait for prolonged
proceedings for determination of legal rights in any judicial proceedings;
the process of declaration has therefore been made expeditious and non-
judicial but ultimately subject to judicial review.
20. A Full Bench of the Punjab and Haryana High Court in Dr. Kidar
Nath Sharma Vs. Rattiram Mangli AIR 1966 P&H 321 in para 3 of the
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 24 of 33
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judgment makes reference to a judgment dated 13 March, 1963 of the
Division Bench of that Court in Second Appeal No.46-D/1961 titled
Ramjilal Vs. Lekhi (which appears to be unreported) also laying down that
the task of determining what individuals were entitled to the benefit of the
general declaration of the Bhumidhari rights in accordance with the entries
in the revenue records was enormous and would take years if these were to
be a contest in every case and thus, the record of Bhumidhari rights was to
be made on the basis of revenue records and the persons who wished to
contest the certificates granted of Bhumidhari have ample opportunity to
do so under Rule 8(4) of the Reforms Rules.
21. Rule 8(4) of the Reforms Rules requires anyone challenging the
correctness of entries in the forms of declaration to, except where it refers
to a clerical omission or error, file a regular suit within two months of such
issuance of certificate of Bhumidhari .
22. Another Division Bench of this Court in Gaon Sabha Vs. Jage Ram
1973 Rajdhani Law Reporter 597 held that the person who wants to
challenge the correctness of the entries in the land revenue forms has first
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 25 of 33
to apply to the Revenue Assistant under Rule 8(4) of the Reforms Rules
and the Revenue Assistant may then require him to file a regular suit in a
Civil Court.
23. The application, orders whereon are impugned in this writ petition
itself being misconceived, the writ petition is liable to be dismissed on this
ground alone. However, propriety demands that the other grounds urged
be also dealt with and considered.
24. The common thread running through the order of the Revenue
Assistant, Additional Collector and the Financial Commissioner is of the
application under Section 11 being not maintainable for the reason of
mutation and mutation having not been challenged. I am unable to find
any illegality requiring interference in the said reasoning. I am also unable
to accept the arguments of the senior counsel for the petitioners that
mutation is irrelevant and does not confer any title. The Reforms Act was
enacted for modification of the then prevailing Z amindari system and so as
to create a uniform body of peasant proprietors. The Act created only one
class of tenure holders i.e. Bhumidhars and one class of sub tenure holders
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 26 of 33
i.e. Asamis . Under Section 7, upon coming into force of the Act, rights in
non-agricultural land i.e. waste land, pasture land or land for common
utilities vested in the Gaon Sabha. The proprietary rights in agricultural
land were saved by converting the same into Bhumidhari rights.
Simultaneously, with the enactment of the Reforms Act, the Revenue Act
was also enacted and which provided for maintenance of records. Thus the
rights which survived after coming into force of the said two Acts were
only the rights in terms of the said Acts and the rights existing in the land
prior to the said two enactments were extinguished. It thus cannot be said
that the records maintained under the said two Acts are not records of title
inasmuch as after coming into force of the said Laws, it is only the rights
under the said Laws which are recognized. The Record of Rights under
Sections 20 & 22 is required to record changes that take place and any
transaction that may affect any of the rights or interest in the land recorded.
The procedure and manner of making the said records and the settlement of
disputes as to entries therein is all provided in the Revenue Act. The
petitioners therefore cannot be heard to contend that the recording of the
rd
share of Smt. Misri Devi in the land first as 1/3 share on the demise of her
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 27 of 33
husband and then as 1/2 share on the demise of Sh. Sahaj Ram is of no
consequences. Section 22(5) of the Revenue Act is significant in this
regard. It prohibits a Revenue Court from entertaining a suit or application
“not merely under the Revenue Act” by a person until such person had
made a report as required to be made as successor for transfer under the
nd
Revenue Act. In the present case, the order dated 22 July, 1961 of
mutation in the Record of Rights clearly records that the report therefor
was made by Sh. Dedh Raj himself. Sh. Dedh Raj having himself reported
the succession on demise of Sh. Sahaj Ram and on the basis whereof in the
records of right, the land was entered in the names of Sh. Dedh Raj and
Smt. Misri Devi in the shares of 1/2 each, was certainly not entitled to in
the application under Section 11 take a contrary stand.
25. Insofar as reliance by the petitioner on the judgment of the Apex
Court in Suraj Bhan (supra) is concerned, the Supreme Court did not
interfere with the orders of the Revenue Court and High Court insofar as
approving mutation applied for in accordance with the law. However,
since the challenge to the Will on the basis of which the mutation was done
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 28 of 33
was pending in the Civil Court, the observations relied upon came to be
made. What was held was that mere entry of name in the Record of Rights
does not confer title.
26. There can be no doubt about the said proposition. A person who
otherwise has no right, merely by having his name entered cannot defeat
the rights of the rightful claimant. However, the present is a case where
Sh. Dedh Raj himself got the name of Smt. Misri Devi substituted in the
records first in place of her husband and thereafter got her share enlarged
on the demise of Sh. Sahaj Ram and the said records were allowed to stand
for long. Sh. Dedh Raj did not take any steps as required to be taken for
having the said records corrected. It is in this context that Sh. Dedh Raj
was held disentitled to claim the relief under Section 11. The Supreme
Court in Vishwa Vijay Bharati Vs. Fakhrul Hassan 1976 (3) SCC 642
held that entries in the revenue record ought generally to be accepted at
their face value and Courts should not embark upon an appellate enquiry
into their correctness unless it is shown to be made fraudulently and
surreptitiously. No such fraud was established in the present case. The Allahabad
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 29 of 33
High Court also in Jagdeo Vs. Deputy Director of Consolidation
MANU/UP/1079/2006 held that revenue entries in respect of agricultural
lands have great value since a meticulous procedure has been prescribed
for recording, correcting and maintaining the same and that they cannot be
equated with entries for purposes of house tax etc. under Municipalities
Act in respect of buildings. It was further held that the purchaser of
agricultural land and others dealing therewith check the right of vendor
from the revenue records only.
27. No error can also be found in the observations of the Revenue Court
of the proceedings being belated. The Revenue Act as aforesaid provides
the procedure for impugning a wrong entry if any made in the said record
of rights. Sh. Dedh Raj even if aggrieved from such mutation, was
required to have the same corrected. Without applying for correction of
the same, he could not be heard to contend to the contrary. The Legislature
has bestowed the presumption of correctness to the said entries and Sh.
Dedh Raj was required to first have the said record corrected and which
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 30 of 33
was the proper fora for adjudicating the dispute raised by him and as
aforesaid, the application under Section 11 was misconceived.
28. In cannot be thus said that there is any perversity in the orders
impugned in this writ petition.
29. Before parting with the subject, reference may also be made to
Bhagwan Singh Vs. Financial Commissioner ILR (2008) 2 Delhi 762. In
that case also, application under Section 11 of the Reforms Act was filed
which was rejected by the Revenue Assistant on the ground of the revenue
entries not showing the possession of the applicants or their predecessor
and the said order was upheld by the Additional Collector and the
Financial Commissioner. This Court held that challenge to the revenue
entries, in that case after 26 years, was not maintainable and dismissed the
writ petition.
30. As far as the arguments with respect to the effect of the demise of
Smt. Misri Devi and as to who will inherit her 1/2 share in the land are
concerned, the same are not required to be adjudicated in these
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 31 of 33
proceedings. This Court as aforesaid is only exercising the power of
judicial review with respect to the orders impugned in this writ petition and
which orders have not dealt with the said aspect and were infact not
required to deal with the said aspect. This court in this writ petition cannot
for the first time without any proper pleadings, adjudicate the said aspect.
Moreover, the disputes in this regard are stated to be already pending
before the Revenue Court as well as before the Original Side of this Court.
Need is not felt to deal with the arguments which were raised.
31. Contempt Case No.336/1996 was filed with respect to the Sale Deed
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executed by Sh. Pitamber Singh in favour of respondents no.5 to 8 on 22
th
July, 1996. It is averred that in view of the order dated 28 May, 1986
(supra) in the writ petition restraining Smt. Misri Devi from selling the
property, every person claiming under the said Smt. Misri Devi was so
restrained and Sh. Pitamber Singh has therefore violated the orders of this
Court.
32. I am unable to agree. As aforesaid, though Smt. Misri Devi died on
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22 December, 1986 and Sh. Pitamber Singh immediately thereafter
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 32 of 33
applied for substitution in her place in the writ petition but the petitioners
did not seek extension of the restraint order against Smt. Misri Devi to
against Sh. Pitamber Singh. Rather, the proceedings in the writ petition
were got adjourned sine die pending the disputes before the Revenue
th
Courts. It is only on 10 December, 1996 that the order against Smt. Misri
Devi was extended to Sh. Pitamber Singh and before which date Sh.
Pitamber Singh had already executed the Sale Deed. No case for contempt
is therefore made out. The senior counsel for the petitioners has also fairly
not urged any submissions with respect thereto.
33. The writ petition as well as the contempt petition are therefore
dismissed with no order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
MARCH 15, 2011
bs
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 33 of 33
th
Date of decision: 15 March, 2011
+ W.P.(C) No.1070/1986
% RAM NIWAS …... Petitioner
Through: Mr. Subodh Markandaya, Sr. Adv.
with Mrs. Chitra Markandeya, Mr.
C.S. Parashar, Mr. Sachin Sharma &
Mrs. Noor Jahan, Advocates
Versus
THE FINANCIAL COMMISSIONER, DELHI
& ORS . ... Respondents
Through: Mr. Jitendra N. Mahato, Adv. for
Ms. Zubeda Begum, Adv. for R-1 to
3.
Mr. Manmohan Gupta, Adv. for
LRs of R-4, 5 & 8.
Mr. Ravi Gupta, Sr. Adv. with Mr.
Rahul Gupta & Mr. Shekhar Dasi,
Advocates for R-6 & 7.
AND
+ CONT.CAS(C) NO.336/1996
% SH. RAM NIWAS ..... Petitioner
Through: Mr. Subodh Markandaya, Sr. Adv.
with Mrs. Chitra Markandeya, Mr.
C.S. Parashar, Mr. Sachin Sharma &
Mrs. Noor Jahan, Advocates
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 1 of 33
Versus
SH. PITAMBER & ORS. …... Respondents
Through: Mr. Jitendra N. Mahato, Adv. for
Ms. Zubeda Begum, Adv.
Mr. Manmohan Gupta, Adv. for R-2
to 6.
Mr. Ravi Gupta, Sr. Adv. with Mr.
Rahul Gupta & Mr. Shekhar Dasi,
Advocates for R-7 & 8.
CORAM : -
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The writ petition impugns:-
rd
(i) Order dated 3 April, 1981 of the Revenue Assistant, Delhi
dismissing the application under Section 11(1)(a) of the Delhi Land
Reforms Act, 1954 of the deceased petitioner no.1 Sh. Dedh Raj @
Desh Raj. (during the pendency of the said application, the petitioner
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 2 of 33
no.2 herein Sh. Ram Niwas was allowed to be impleaded as
applicant no.2.).
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(ii) The order dated 20 September, 1983 of the Additional
Collector, Delhi dismissing the first appeal under Section 185 of the
Reforms Act of Sh. Dedh Raj and Sh. Ram Niwas against the order
aforesaid of the Revenue Assistant.
nd
(iii) Order dated 22 November, 1984 of the Financial
Commissioner dismissing the second appeal of Sh. Dedh Raj and Sh.
Ram Niwas against the order aforesaid of the Additional Collector,
Delhi.
2. The petitioners also seek the relief of declaration that they are the
exclusive Bhumidhars of the land subject matter of the writ petition and to
the exclusion of the respondent no.4 Smt. Misri Devi. Alternative relief of
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declaration that Smt. Misri Devi has only 1/3 share in the said land
instead of 1/2 as recorded in her name in the revenue records and that Sh.
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Dedh Raj and Sh. Ram Niwas have 2/3 share therein, is also claimed.
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 3 of 33
3. Even though this writ petition was preferred after nearly two years
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of the order of the Financial Commissioner, vide ex parte order dated 28
May, 1986 Rule was issued and respondent no.4 Smt. Misri Devi
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restrained from transferring 1/6 of her undivided share in the land subject
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matter of the writ petition. The said interim order was confirmed on 18
September, 1986 after hearing the counsel for the respondent no.4 Smt.
Misri Devi.
4. The factual matrix as now emerging from the records is as under:-
(i) Sh. Dedh Raj filed the application aforesaid under Section 11
of the Reforms Act pleading:-
(a) that land admeasuring 288 Bighas and 1 Biswas
situated in the revenue estate of Village-Matiala, Najafgarh,
Delhi belonged to his father Sh. Ram Saran;
(b) that on the demise of Sh. Ram Saran, the said land was
inherited by the three sons of Sh. Ram Saran namely Sh. Dedh
Raj, Sh. Sahaj Ram and Sh. Rati Ram;
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 4 of 33
(c) that upon the demise of Sh. Rati Ram in the year 1940
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his 1/3 share in the said land devolved on his widow i.e.
respondent no.4 herein Smt. Misri Devi;
(d) that thereafter Sh. Sahaj Ram died without leaving any
widow or children and under the Hindu Succession Act, 1956,
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his 1/3 share in the said land devolved on his brother Sh.
Dedh Raj;
(e) however Smt. Misri Devi filed a suit for partition
against Sh. Dedh Raj claiming 1/2 share in the said land on
the basis of the entries in the Record of Rights/Annual
Register and which suit was pending disposal;
(f) that on account of some misunderstanding, the
Bhumidhari and Proprietary Rights in the revenue records
were shown to the extent of 1/2 share in the entire holding in
the name of Smt. Misri Devi, though he (Sh. Dedh Raj) was in
cultivatory possession of the whole land and was in dark
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 5 of 33
about the error in the revenue record and which came to his
notice only on the suit for partition being filed by Smt. Misri
Devi;
(g) it was the plea of Sh. Dedh Raj that Smt. Misri Devi
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was entitled to only 1/3 share in the entire land and he had
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Bhumidhari rights over 2/3 share of the said land;
(h) accordingly, declaration was sought that Sh. Dedh Raj
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was the Bhumidhar of 2/3 share in the land aforesaid.
(ii) Smt. Misri Devi contested the said application by filing a
reply pleading that the same was barred by time inasmuch as Sh.
Sahaj Ram died much prior to the commencement of the Reforms
Act, and on his death his share in the land was mutated in the names
of Sh. Dedh Raj and Smt. Misri Devi in equal share and Sh. Dedh
Raj had never challenged the said mutation sanctioned by the
Revenue Authorities and was estopped from challenging the same
by way of application under Section 11 of the Reforms Act; that Sh.
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 6 of 33
Dedh Raj and Smt. Misri Devi had sold part of the land to other
persons and had shared the sale consideration in equal proportion;
that Sh. Dedh Raj and Smt. Misri Devi were enjoying possession of
the land; that Sh. Sahaj Ram had died much before coming into
force of the Reforms Act and thus the question of applicability of
Section 50 thereof did not arise and the share of Sh. Sahaj Ram in
the land was rightly mutated in the name of Sh. Dedh Raj and Smt.
Misri Devi.
(iii) During the pendency of the application under Section 11
before the Revenue Assistant, petitioner no.2 Sh. Ram Niwas being
the son of Sh. Dedh Raj applied for impleadment and which was
allowed.
(iv) The Revenue Assistant held that none of the parties had
placed any documentary proof or led documentary evidence except
oral evidence of partition between Sh. Dedh Raj and Sh. Ram
Niwas. It was further held that mutation of 1/2 share in the land
having been sanctioned in favour of Smt. Misri Devi and having
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 7 of 33
remained unchallenged, the application filed under Section 11 of the
Reforms Act was time barred. It was also held that Smt. Misri Devi
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was entitled to inherit 1/3 share of her husband Sh. Rati Ram and
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1/2 out of 1/3 share of Sh. Sahaj Ram and was thus entitled to 1/2
share in the entire land. The claim of Sh. Dedh Raj and Sh. Ram
Niwas to 2/3 share in the entire land was rejected.
(v) The Additional Collector while dismissing the appeal of Sh.
Dedh Raj and Ram Niwas held that the mutation of 1/2 share of land
in the name of Smt. Misri Devi had to be challenged in the legal
manner before the Court of competent jurisdiction and in the
proceedings under Section 11, no benefit could be claimed by
pleading illegality or factual inaccuracy in effecting the mutation
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when Smt. Misri Devi was admitted to be having 1/3 share in the
land and the principle of possession of one is possession of all co-
sharers applied. It was further held that in view of the non denial to
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the extent of 1/3 share, it could not be denied that 50% of the land
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 8 of 33
was Khudkasht of Smt. Misri Devi. The appeal was accordingly
dismissed.
(vi) The Financial Commissioner while dismissing the second
appeal of Sh. Dedh Raj and Sh. Ram Niwas also held that in the
absence of any challenge to the mutation, and Smt. Misri Devi
admittedly being a co-sharer, no relief could be granted. It was
further held that under Section 11, the declaration of Bhumidhari
rights is allowable on the basis of Khudkasht land and there was
nothing to show that Sh. Dedh Raj and Sh. Ram Niwas only could
be treated to be Khudkasht holders of the entire land when Smt.
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Misri Devi was admittedly a co-sharer with 1/3 share. It was also
observed that both Revenue Assistant and Additional Collector had
come to a concurrent finding of the possession of one being the
possession of others.
5. Smt. Misri Devi died during the pendency of the present writ
nd th
petition on 22 December, 1986. Vide order dated 5 December, 1988 the
proceedings in the present case were adjourned sine die owing to the
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 9 of 33
alleged Will of Smt. Misri Devi being subject matter of consideration
before the Revenue Authorities.
6. Sh. Dedh Raj also died during the pendency of this writ petition.
The petitioner no.2 Sh. Ram Niwas was brought on record as the legal heir
of Sh. Dedh Raj as sole petitioner. However thereafter the other legal heirs
of Sh. Dedh Raj also applied for substitution in his place and which was
th
contested by Sh. Ram Niwas. On 9 March, 1993 it was ordered that the
said applications of other legal heirs for substitution in place of Sh. Dedh
Raj and for recall of the earlier order substituting Sh. Ram Niwas only in
place of Sh. Dedh Raj will be decided at the time of final hearing and the
other heirs shall be allowed to intervene at the time of final hearing. Need
is not felt now to decide the said question, inasmuch as the same is not
relevant for the purposes of the present controversy inasmuch as if the writ
petition is to succeed, whatsoever share in the land is held of Sh. Dedh Raj
would devolve on whichsoever of his legal heirs are found entitled, in
separate appropriate proceedings.
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 10 of 33
7. In this writ petition, Sh. Dedh Raj and Sh. Ram Niwas changed their
stand. They claimed that after the death of Sh. Rati Ram, Smt. Misri Devi
left the Village-Matiala, and the matrimonial home in or about 1940-41
and went away to reside in her parental home and severed all connections
with her matrimonial home and abandoned the land. It was thus claimed
rd
that Smt. Misri Devi was not entitled to even 1/3 share in the land, as was
the stand till then in the proceedings before the Revenue Courts. In my
view, besides the fact that no such plea can be taken for the first time in
these proceedings, the stand now taken is contradictory to the stand till
rd
then of Sh. Dedh Raj that mutation in favour of Smt. Misri Devi of 1/3
rd
share of her husband Sh. Rati Ram and 1/2 share out of 1/3 share of Sh.
Sahaj Ram was a result of misunderstanding. If Smt. Misri Devi had
abandoned the land and gone away, obviously mutation would have been
got done by Sh. Dedh Raj only. The very fact that Sh. Dedh Raj got
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mutation done in the name of Smt. Misri Devi, first of 1/3 share of her
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husband Sh. Rati Ram and thereafter of 1/2 out of 1/3 share of Sh. Sahaj
Ram shows that there was no misunderstanding. Now it is being alleged,
that though Smt. Misri Devi had abandoned the land as far back as in the
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 11 of 33
year 1940-41 but it was Sh. Dedh Raj who contacted her in the year 1971-
72 for the purposes of disposal of the land since her name appeared in the
records and which made Smt. Misri Devi greedy.
8. From time to time the legal heirs of Sh. Dedh Raj have died and
applications filed for substitution of their legal heirs.
nd
9. Smt. Misri Devi as aforesaid died on 22 December, 1986. Her
brother Sh. Pitamber Singh filed an application for substitution in her place
pleading that Smt. Misri Devi had bequeathed her land in his favour vide a
Registered Will. Though Smt. Misri Devi had died as aforesaid in 1986
and application of her brother Sh. Pitamber Singh for substitution was
pending but neither was any substitution made in favour of Sh. Pitamber
Singh nor restraint order against Smt. Misri Devi extended to Sh. Pitamber
th
Singh till 10 December, 1996. However before that Sh. Pitamber Singh
had informed this Court that he had already transferred the land inherited
by him from Smt. Misri Devi to Sh. Devi Ram Gupta, Sh. Rameshwar
Dayal, Sh. Satapal Rathi and Sh. Ram Kumar and the said persons were
th
vide order dated 25 August, 1998 impleaded as respondents no.5 to 8 and
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 12 of 33
restrained from transferring 1/6 share of the land which had been
transferred by Sh. Pitamber Singh in their favour.
10. Several pending applications in the writ petition came up before this
rd
Court on 23 September, 2010 when the status of the proceedings owing
whereto the proceedings in this writ petition were adjourned sine die was
enquired. It was informed that not only the proceedings with respect to the
alleged Will of Smt. Misri Devi before the Revenue courts but a suit was
also pending in this Court with respect to the Will of Smt. Misri Devi.
This Court was of the opinion that since this writ petition concerns the
share of Smt. Misri Devi in the land, the pendency of the proceedings with
respect to the Will of Smt. Misri Devi would not come in the way of the
disposal of the writ petition inasmuch as whatsoever was found to be the
share of Smt. Misri Devi would devolve on whosoever was found to be her
heir. Accordingly, the order adjourning the proceedings sine die was
recalled and the writ petition listed for hearing. The senior counsel for the
petitioners, the senior counsel for the respondents no.6 & 7 and the
counsels for the other respondents have been heard.
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 13 of 33
11. The senior counsel for the petitioners (and which includes petitioner
no.2 Sh. Ram Niwas as well as the other legal heirs of Sh. Dedh Raj) has
contended:-
(a) That the Schedule I to the Reforms Act does not provide any
period of limitation for filing of application under Section 11 of the
Act.
(b) That the question is whether Smt. Misri Devi had abandoned
the land or not.
(c) That Section 5(ii) of the Hindu Succession Act makes an
exception with respect to land/tenancy laws.
(d) Smt. Misri Devi could not have inherited any share of Sh.
Sahaj Ram who died in or about the year 1960 owing to Section 50
of the Reforms Act.
(e) That a question of title having arisen in the proceedings under
Section 11, the Revenue Assistant ought to have under Section 186
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 14 of 33
of the Reforms Act referred the same to a Civil Court for
adjudication.
(f) That even if this petition were to fail, the share of Smt. Misri
Devi cannot go to her brother inasmuch as Section 48(2) of the
Reforms Act bars a Will and the said share of Smt. Misri Devi
would under Section 51 of the Reforms Act again fall on Sh. Ram
Niwas.
(g) That mutation entries are only for the purposes of collection
of land revenue and do not confer any title. Reliance in this regard
is placed on Suraj Bhan Vs. Financial Commissioner V (2007)
SLT 215.
(h) I may record that there exists on record a synopsis of
submissions of petitioner with copies of several other judgments but
to which no reference was made during the hearing and as such need
is not felt to deal with the same.
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 15 of 33
12. The senior counsel for the respondents no.6 & 7 being two of the
purchaser from Sh. Pitamber Singh, brother of Smt. Misri Devi has
contended:-
(a) That the case of abandonment has been set up in the present
petition for the first time.
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(b) That in the application under Section 11, 1/3 share of Smt.
Misri Devi in the land was admitted.
(c) That the application under Section 11 filed in 1973 was highly
rd
belated inasmuch as 1/3 share in the land was mutated in favour of
rd
Smt. Misri Devi on demise of her husband Sh. Rati Ram on 23
August, 1941 and her share in the land was increased to 1/2 vide
nd
mutation dated 22 July, 1961 on the demise of Sh. Sahaj Ram (the
senior counsel for the petitioners does not controvert the said dates).
(d) That Sh. Dedh Raj and Smt. Misri Devi had in the year 1971
sold a part of the land by claiming to be equal owners thereof and
shared the sale proceeds equally (this is also not controverted).
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 16 of 33
(e) Attention is invited to the provisions of the Delhi Land
Revenue Act, 1954, to Section 20 providing for the maintenance of a
Record of Rights; Section 22 providing for reporting of succession
or transfer of land and to sub-section (5) thereof which prohibits a
Revenue Court from entertaining a suit or application by a person
without reporting succession/transfer in his favour; Section 30
providing for presumption of correctness of the entries in the
revenue record until the contrary is proved; Section 64 providing for
appeal against orders of such mutation; Section 67 providing
limitation of 30 days from the date of mutation from preferring an
appeal thereagainst.
nd
(f) Attention is also invited to the order dated 22 July, 1961 of
mutation on the demise of Sh. Sahaj Ram recording that the same
was done at the instance of Sh. Dedh Raj.
(g) It is contended that Sh. Dedh Raj could not be permitted to
change his stand after thirteen years.
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 17 of 33
(h) Section 4(2) of the Hindu Succession Act has been deleted
vide Amendment of the year 2005 and thus Section 50 of the
Reforms Act stands eclipsed.
(i) Reliance is placed on Nirmala Vs. Govt. of NCT of Delhi 170
(2010) DLT 577 (DB) and on Mangtu Vs. Financial Commissioner
(2007) 97 DRJ 570.
(j) That a proceeding under Section 11 of the Reforms Act is
only for declaration of Bhumidhari rights and not for declaration of
share, share in the land could only be determined in a proceeding for
partition under Section 55 of the Act. It is thus contended that the
proceedings under Section 11 seeking declaration of share were in
any case misconceived.
(k) Reliance is placed on Rolex Sa Vs. Alex Jewellery Pvt. Ltd.
MANU/DE/0796/2009, Gajendra Kumar Vs. Union of India 110
(2004) DLT 591 (DB) and on Chander Vs. Union of India 2005 VII
AD (Delhi) 125 to contend that the mutation even if alleged to be
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 18 of 33
void was required to be quashed and for the proposition that even a
statutory right could be waived.
13. The senior counsel for the petitioners in rejoinder has contended that
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the amendment to the Hindu Succession Act with effect from 9
September, 2005 would be of no avail since Smt. Misri Devi died long
nd
prior thereto on 22 December, 1986 and the Will allegedly left by her is
th
of 18 November, 1971. It is contended that the said amendment is
prospective and not retrospective. Reliance in this regard is placed on Smt.
Mukesh Vs. Bharat Singh 149 (2008) DLT 114. Reliance is also placed
on Hatti Vs. Sunder Singh AIR 1971 SC 2320 to contend that since in
case of proprietors, upon the coming into force of Reforms Act, only the
Khudkasht rights survive, Section 11 application was competent.
14. I had during the hearing enquired from the counsels the fate of the
suit for partition preferred by Smt. Misri Devi and which was pending on
the date when the application under Section 11 was made. It is informed
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that the said suit was dismissed in default on 25 September, 1980.
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 19 of 33
15. The Legislature has not provided for any further remedy against the
order of the Financial Commissioner in second appeal and which under the
Act has been made final. This Court is only exercising the powers of
judicial review and thus the interference if any by his Court has to be
within the parameters of judicial review and not as if exercising appellate
powers. Merely because a wrong view has been taken, would not entitle
this Court to interfere. It is only in the cases of perversity being shown or
it being shown that the order of the Financial Commissioner is contrary to
the settled law, that this Court would exercise jurisdiction and interfere.
The only other ground for interference is when the findings returned are
shown to be not based upon any material whatsoever. This Court can
refuse to interfere for other reasons also.
16. The first and foremost aspect which stares one in the face is of the
delay of about two years in preferring the writ petition. The explanation
given therefor is that the advocate who had conducted the proceedings on
behalf of the petitioners before the Financial Commissioner had got some
papers signed from the petitioners for filing the writ petition in this Court;
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 20 of 33
however the said advocate died and the petitioners remained under
impression that the writ petition had been filed. The said explanation does
not inspire confidence. Considering the nature of the proceedings, where
the rights in favour of Smt. Misri Devi as borne out from the revenue
records were sought to challenged, mere filing of the writ petition was not
enough; unless Smt. Misri Devi was restrained from dealing with the land,
she could have on the basis of mutation entries in her name transferred the
same to some other person/s. There was no reason for the petitioners to be
merely satisfied by signing the papers for filing the writ petition and the
petitioners ought to have been in touch with their advocate to find out as to
whether Smt. Misri Devi had been so restrained or not.
17. However, since this writ petition has remained pending in this Court
for long, even though for the reasons attributable to the petitioners
themselves, I now refrain from dismissing the writ petition on this ground
alone.
18. I am of the opinion that the relief which was claimed in the
application under Section 11 of the Reforms Act i.e. of declaration that the
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 21 of 33
rd
share in the land of Sh. Dedh Raj was 2/3 and of Smt. Misri Devi 1/3 ,
could not be granted under Section 11 of the Act and the application under
Section 11 claiming the said relief was misconceived. The shares could
have been determined only in a proceeding for partition under Sections 55
to 61 of the Reforms Act. Rule 37 of the Delhi Land Reforms Rules, 1954
expressly provides that before making partition, the Court shall determine
separately the share of the plaintiff and each of the other co-tenure holders.
Not finding any provision in the Reforms Act enabling declaration of
shares, I have wondered whether right to seek such declaration can be read
in Section 11. However, I am unable to so read Section 11. Moreover, it is
not as if the relationship between Sh. Dedh Raj and Smt. Misri Devi at the
time of filing of application under Section 11 was cordial, for Sh. Dedh Raj
to merely want a declaration of respective shares in the land without
wanting partition. When the application under Section 11 was filed, Smt.
Misri Devi had already filed a suit for partition against Sh. Dedh Raj. The
battle lines were thus drawn. Sh. Dedh Raj was required to defend the said
suit for partition wherein Smt. Misri Devi had claimed 1/2 share by
rd
contending that her share was 1/3 and not as 1/2, as he pleaded in
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 22 of 33
application under Section 11. Even if Smt. Misri Devi had not wanted to
pursue the suit for partition, Sh. Dedh Raj could have continued the same.
By no stretch of imagination can it be said that under Section 11
declaration with respect to respective shares could be claimed. Section 11
envisages declaration upon coming into force of the Act of rights in
existence since prior to the coming into force of the Act and the enquiry
under Section 11 is to be limited to that aspect only and cannot stretch to
the determination of respective shares in the land. The Legislature while
providing for a proceeding for partition and which necessarily entails
determination of shares, has provided that to such suit for partition Gaon
Sabha concerned shall be made a party. The said right of Gaon Sabha to
be heard in a proceeding for partition and which as aforesaid entails
determination of shares, cannot be defeated by seeking such determination
in a proceeding under Section 11 of the Act. Sub-Sections3 & 4 of Section
11 while providing for the orders to be made on applications under Section
11 nowhere provide for the said order to also record the respective shares.
Rather, Section 11 requires the Deputy Commissioner to himself make the
declaration thereunder, even without requiring an application and persons
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 23 of 33
in whose favour such declaration is made become liable to pay to the
government land revenue with effect from the said declaration. In the
present case, admittedly, Sh. Dedh Raj as well as Smt. Misri Devi were
already recorded as Bhumidhars with respect to the said land since after
coming into force of the Reforms Act and there was no need for such
declaration in 1973 when the application under Section 11 was filed.
19. A Division Bench of this Court in Narinder Singh Vs. Khaliqur-
Rehman AIR 1974 Del 184 held the process of declaration of Bhumidhari
rights under Section 11 of the Reforms Act to be a non-judicial proceeding
and to be done on the basis of revenue entries for a particular year which
are to be presumed to be correct. It was further held that the Legislature
did not intend the declaration of Bhumidhari rights to wait for prolonged
proceedings for determination of legal rights in any judicial proceedings;
the process of declaration has therefore been made expeditious and non-
judicial but ultimately subject to judicial review.
20. A Full Bench of the Punjab and Haryana High Court in Dr. Kidar
Nath Sharma Vs. Rattiram Mangli AIR 1966 P&H 321 in para 3 of the
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 24 of 33
th
judgment makes reference to a judgment dated 13 March, 1963 of the
Division Bench of that Court in Second Appeal No.46-D/1961 titled
Ramjilal Vs. Lekhi (which appears to be unreported) also laying down that
the task of determining what individuals were entitled to the benefit of the
general declaration of the Bhumidhari rights in accordance with the entries
in the revenue records was enormous and would take years if these were to
be a contest in every case and thus, the record of Bhumidhari rights was to
be made on the basis of revenue records and the persons who wished to
contest the certificates granted of Bhumidhari have ample opportunity to
do so under Rule 8(4) of the Reforms Rules.
21. Rule 8(4) of the Reforms Rules requires anyone challenging the
correctness of entries in the forms of declaration to, except where it refers
to a clerical omission or error, file a regular suit within two months of such
issuance of certificate of Bhumidhari .
22. Another Division Bench of this Court in Gaon Sabha Vs. Jage Ram
1973 Rajdhani Law Reporter 597 held that the person who wants to
challenge the correctness of the entries in the land revenue forms has first
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 25 of 33
to apply to the Revenue Assistant under Rule 8(4) of the Reforms Rules
and the Revenue Assistant may then require him to file a regular suit in a
Civil Court.
23. The application, orders whereon are impugned in this writ petition
itself being misconceived, the writ petition is liable to be dismissed on this
ground alone. However, propriety demands that the other grounds urged
be also dealt with and considered.
24. The common thread running through the order of the Revenue
Assistant, Additional Collector and the Financial Commissioner is of the
application under Section 11 being not maintainable for the reason of
mutation and mutation having not been challenged. I am unable to find
any illegality requiring interference in the said reasoning. I am also unable
to accept the arguments of the senior counsel for the petitioners that
mutation is irrelevant and does not confer any title. The Reforms Act was
enacted for modification of the then prevailing Z amindari system and so as
to create a uniform body of peasant proprietors. The Act created only one
class of tenure holders i.e. Bhumidhars and one class of sub tenure holders
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 26 of 33
i.e. Asamis . Under Section 7, upon coming into force of the Act, rights in
non-agricultural land i.e. waste land, pasture land or land for common
utilities vested in the Gaon Sabha. The proprietary rights in agricultural
land were saved by converting the same into Bhumidhari rights.
Simultaneously, with the enactment of the Reforms Act, the Revenue Act
was also enacted and which provided for maintenance of records. Thus the
rights which survived after coming into force of the said two Acts were
only the rights in terms of the said Acts and the rights existing in the land
prior to the said two enactments were extinguished. It thus cannot be said
that the records maintained under the said two Acts are not records of title
inasmuch as after coming into force of the said Laws, it is only the rights
under the said Laws which are recognized. The Record of Rights under
Sections 20 & 22 is required to record changes that take place and any
transaction that may affect any of the rights or interest in the land recorded.
The procedure and manner of making the said records and the settlement of
disputes as to entries therein is all provided in the Revenue Act. The
petitioners therefore cannot be heard to contend that the recording of the
rd
share of Smt. Misri Devi in the land first as 1/3 share on the demise of her
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 27 of 33
husband and then as 1/2 share on the demise of Sh. Sahaj Ram is of no
consequences. Section 22(5) of the Revenue Act is significant in this
regard. It prohibits a Revenue Court from entertaining a suit or application
“not merely under the Revenue Act” by a person until such person had
made a report as required to be made as successor for transfer under the
nd
Revenue Act. In the present case, the order dated 22 July, 1961 of
mutation in the Record of Rights clearly records that the report therefor
was made by Sh. Dedh Raj himself. Sh. Dedh Raj having himself reported
the succession on demise of Sh. Sahaj Ram and on the basis whereof in the
records of right, the land was entered in the names of Sh. Dedh Raj and
Smt. Misri Devi in the shares of 1/2 each, was certainly not entitled to in
the application under Section 11 take a contrary stand.
25. Insofar as reliance by the petitioner on the judgment of the Apex
Court in Suraj Bhan (supra) is concerned, the Supreme Court did not
interfere with the orders of the Revenue Court and High Court insofar as
approving mutation applied for in accordance with the law. However,
since the challenge to the Will on the basis of which the mutation was done
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 28 of 33
was pending in the Civil Court, the observations relied upon came to be
made. What was held was that mere entry of name in the Record of Rights
does not confer title.
26. There can be no doubt about the said proposition. A person who
otherwise has no right, merely by having his name entered cannot defeat
the rights of the rightful claimant. However, the present is a case where
Sh. Dedh Raj himself got the name of Smt. Misri Devi substituted in the
records first in place of her husband and thereafter got her share enlarged
on the demise of Sh. Sahaj Ram and the said records were allowed to stand
for long. Sh. Dedh Raj did not take any steps as required to be taken for
having the said records corrected. It is in this context that Sh. Dedh Raj
was held disentitled to claim the relief under Section 11. The Supreme
Court in Vishwa Vijay Bharati Vs. Fakhrul Hassan 1976 (3) SCC 642
held that entries in the revenue record ought generally to be accepted at
their face value and Courts should not embark upon an appellate enquiry
into their correctness unless it is shown to be made fraudulently and
surreptitiously. No such fraud was established in the present case. The Allahabad
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 29 of 33
High Court also in Jagdeo Vs. Deputy Director of Consolidation
MANU/UP/1079/2006 held that revenue entries in respect of agricultural
lands have great value since a meticulous procedure has been prescribed
for recording, correcting and maintaining the same and that they cannot be
equated with entries for purposes of house tax etc. under Municipalities
Act in respect of buildings. It was further held that the purchaser of
agricultural land and others dealing therewith check the right of vendor
from the revenue records only.
27. No error can also be found in the observations of the Revenue Court
of the proceedings being belated. The Revenue Act as aforesaid provides
the procedure for impugning a wrong entry if any made in the said record
of rights. Sh. Dedh Raj even if aggrieved from such mutation, was
required to have the same corrected. Without applying for correction of
the same, he could not be heard to contend to the contrary. The Legislature
has bestowed the presumption of correctness to the said entries and Sh.
Dedh Raj was required to first have the said record corrected and which
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 30 of 33
was the proper fora for adjudicating the dispute raised by him and as
aforesaid, the application under Section 11 was misconceived.
28. In cannot be thus said that there is any perversity in the orders
impugned in this writ petition.
29. Before parting with the subject, reference may also be made to
Bhagwan Singh Vs. Financial Commissioner ILR (2008) 2 Delhi 762. In
that case also, application under Section 11 of the Reforms Act was filed
which was rejected by the Revenue Assistant on the ground of the revenue
entries not showing the possession of the applicants or their predecessor
and the said order was upheld by the Additional Collector and the
Financial Commissioner. This Court held that challenge to the revenue
entries, in that case after 26 years, was not maintainable and dismissed the
writ petition.
30. As far as the arguments with respect to the effect of the demise of
Smt. Misri Devi and as to who will inherit her 1/2 share in the land are
concerned, the same are not required to be adjudicated in these
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 31 of 33
proceedings. This Court as aforesaid is only exercising the power of
judicial review with respect to the orders impugned in this writ petition and
which orders have not dealt with the said aspect and were infact not
required to deal with the said aspect. This court in this writ petition cannot
for the first time without any proper pleadings, adjudicate the said aspect.
Moreover, the disputes in this regard are stated to be already pending
before the Revenue Court as well as before the Original Side of this Court.
Need is not felt to deal with the arguments which were raised.
31. Contempt Case No.336/1996 was filed with respect to the Sale Deed
nd
executed by Sh. Pitamber Singh in favour of respondents no.5 to 8 on 22
th
July, 1996. It is averred that in view of the order dated 28 May, 1986
(supra) in the writ petition restraining Smt. Misri Devi from selling the
property, every person claiming under the said Smt. Misri Devi was so
restrained and Sh. Pitamber Singh has therefore violated the orders of this
Court.
32. I am unable to agree. As aforesaid, though Smt. Misri Devi died on
nd
22 December, 1986 and Sh. Pitamber Singh immediately thereafter
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 32 of 33
applied for substitution in her place in the writ petition but the petitioners
did not seek extension of the restraint order against Smt. Misri Devi to
against Sh. Pitamber Singh. Rather, the proceedings in the writ petition
were got adjourned sine die pending the disputes before the Revenue
th
Courts. It is only on 10 December, 1996 that the order against Smt. Misri
Devi was extended to Sh. Pitamber Singh and before which date Sh.
Pitamber Singh had already executed the Sale Deed. No case for contempt
is therefore made out. The senior counsel for the petitioners has also fairly
not urged any submissions with respect thereto.
33. The writ petition as well as the contempt petition are therefore
dismissed with no order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
MARCH 15, 2011
bs
W.P.(C) No.1070/1986 & Cont.Cas(C)No.336/1996 Page 33 of 33