Badle Ram vs Financial Commissioner & Ors
- Court
- Delhi High Court
$~14 & 15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Date of Decision:13 July, 2026
+ W.P.(C) 5858/2008 & CM APPL. 15890/2025
BALDE RAM .....Petitioner
Through: Mr. Madhu Sudan Bhayana and Mr.
Madhav, Advocates.
versus
FINANCIAL COMMISSIONER & ORS. .....Respondents
Through: Mr. A. K. Sen, Advocate for R-6.
15
+ W.P.(C) 5884/2008
BADLE RAM .....Petitioner
Through: Mr. Madhu Sudan Bhayana and Mr.
Madhav, Advocates.
versus
FINANCIAL COMMISSIONER & ORS .....Respondents
Through: Mr. A. K. Sen, Advocate for R-11.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
JUDGMENT
SANJEEV NARULA, J. (Oral):
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1. These petitions arise from a common order dated 29 November,
2007 passed by the Financial Commissioner, Delhi, dismissing Revision
Petition Nos. 283/2001-CA and 284/2001-CA. The revisions, in turn, arose
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from a common order dated 24 September, 2001 passed by the Deputy
Commissioner (South-West) in two appeals preferred against mutation
entries relating to land situated in the revenue estate of Village Ghitorni.
2. The parcels of land and the chains of transfer in the two petitions are
not identical. The challenge in both, however, proceeds from the same
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asserted source of title and raises substantially overlapping questions
concerning the alienability of an undivided bhumidhari interest, the
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prohibition contained in Section 33 of the Delhi Land Reforms Act, 1954,
the requirement of notice in mutation proceedings, and the effect of the
absence of a prior partition. The Financial Commissioner considered the two
revisions together and disposed of them by the impugned common order. It
is, therefore, appropriate that the present petitions also be decided by this
common judgment.
Factual background
3. The dispute has its origin in agricultural and abadi land which,
according to the Petitioner, originally belonged to the common ancestor of
the contesting family, i.e., late Chhajjan. The Petitioner, Badle Ram, traced
his interest through his father, late Kishan Sahai. Ram Pal, the Petitioner’s
brother, belonged to the same branch, while the other branch descended
from Kale Ram, the Petitioner’s paternal uncle, and was represented by his
successors.
4. The property originally belonged to the common ancestor of the
parties. The dispute traces back to the consolidation proceedings and
preparation of the revenue records in 1953-54, when the ancestral land came
to be recorded separately in the two branches of the family. While the
Petitioner claims that the ancestral property was liable to devolve equally
upon the two branches and that a disproportionately larger portion was
recorded in the name of Kale Ram, the Respondents maintain that the
holdings were separately settled during consolidation, having regard to the
area and quality of the respective parcels, and the resultant entries reflected
1
“DLRA”
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distinct bhumidhari holdings.
5. This dispute over the original distribution of the ancestral estate
underlies both petitions. The transactions directly impugned in the two
matters must, however, to the extent necessary, be noticed separately.
W.P.(C) 5858/2008
6. The subject matter of W.P.(C) 5858/2008 is the Petitioner’s challenge
to the mutation of the half share formerly standing in the name of Ram Pal
(Petitioner’s brother) in land comprised in Khasra Nos. 5 (3-14), 10/1 (2-8)
and 10/2 (2-8), admeasuring 8 bighas and 10 biswas in all.
7. It is not in dispute that the Petitioner and Ram Pal were recorded as
co- bhumidhars of this land in equal shares. The Petitioner, however, claims
that in 1955-56, Ram Pal decided to shift his residence and orally
relinquished his entire interest in the ancestral property in the Petitioner’s
favour for a consideration of INR 2,000/-. He asserts that the arrangement
was communicated to the revenue authorities and that he thereafter remained
in exclusive possession as the sole owner. The alleged relinquishment did
not, however, result in any corresponding alteration of the record-of-rights,
and Ram Pal continued to be shown as a co- bhumidhar .
8. In 1974, Ram Pal executed a registered gift deed in favour of his wife,
Ram Kali, and his sons, transferring his share in the aforesaid agricultural
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land. The donees subsequently executed a registered sale deed dated 6 July,
1984 in favour of Rajinder Kumar Sharma, the private purchaser. On the
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strength of the registered instrument, mutation was sanctioned on 18
December, 1984.
9. The mutation order records that publication was effected in the names
of the concerned parties, service was completed and the relevant notices
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were placed on record. No objections were received within the stipulated
period. The vendors’ general power of attorney holder appeared before the
Tehsildar, affirmed receipt of the sale consideration and delivery of
possession, and produced the original registered sale deed. Upon
consideration of the sale deed and the Patwari’s report, the Tehsildar
concluded that no infraction of Section 33 was disclosed and consequently
sanctioned mutation of the vendors’ share in Khasra Nos. 5 (3-14), 10/1 (2-
8) and 10/2 (2-8) in favour of the purchasers.
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10. A report dated 25 April, 2000 was thereafter prepared by the Halqa
Patwari, tracing the revenue entries relating to the gift and subsequent
transfers. The report notes that Khasra No. 298/24/2, described therein as
extended abadi , continued to stand in the names of Ram Kali and others. It
also points to an anomalous entry concerning Khasra No. 431/2, inasmuch
as Ram Kali and the other purported vendors had been shown as selling a
share in that khasra to Ram Pal even though their own acquisition of that
interest was not reflected in the relevant revenue record. The report
consequently described the latter transfer as having been wrongly recorded.
It did not, however, return a legal conclusion that the sale of the agricultural
land to the private purchaser contravened Section 33.
11. The dispute in W.P.(C) 5858/2008 thus centres on the mutation of
Ram Pal’s half share in favour of the private purchaser. The Petitioner
questions the same on the basis of Ram Pal’s alleged relinquishment of his
interest in 1955-56 and the validity of the subsequent gift and sale
transactions, besides alleging non-compliance with Section 33 of DLRA
W.P.(C) 5884/2008
12. The second petition concerns land comprised in Khasra Nos. 15 (4-
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16), 31/1 (3-0) and 33/1 (2-7), admeasuring 10 bighas and 3 biswas in all.
This land stood recorded in the branch of Kale Ram.
13. The recorded bhumidhars transferred the aforesaid land to Rajinder
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Kumar Sharma through two registered sale deeds executed on 26 June,
1984. The Respondents maintain that the deeds, though separate, were
executed contemporaneously in favour of the same purchaser and together
conveyed the entire recorded agricultural holding of the vendors. Mutation
was thereafter sanctioned in favour of the purchaser.
14. Herein, the dispute arises from the Petitioner’s claim that the common
ancestral estate was unequally recorded between the branches of Kishan
Sahai and Kale Ram during consolidation. On this premise, he questions the
subsequent transfer of the subject land by Kale Ram’s branch and the
mutation sanctioned in favour of the private purchaser, besides alleging non-
compliance with Section 33 of DLRA.
Proceedings before the revenue authorities
15. Nearly fifteen years after the mutations were sanctioned, the
Petitioner preferred Appeal Nos. 363/1999 and 364/1999 before the Deputy
Commissioner (South-West). The appeals were heard together. The
Petitioner questioned the mutations, inter alia , on the ground that the
transfers contravened the provisions of DLRA and that the mutations had
been sanctioned without notice to him.
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16. By a common order dated 24 September, 2001, the Deputy
Commissioner declined to interfere with the mutations. The authority found,
in substance, that the recorded bhumidhars had transferred their entire
relevant agricultural interests and that the built-up or extended- abadi parcels
relied upon by the Petitioner did not establish a violation of Section 33. The
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Deputy Commissioner further observed that the objections concerning the
validity of the gift and sale deeds raised issues which fell within the domain
of the competent civil court.
17. The Petitioner thereafter preferred Revision Petition Nos. 283/2001-
CA and 284/2001-CA under Section 187 of DLRA. By the common order
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dated 29 November, 2007, the Financial Commissioner dismissed both
revisions and affirmed the findings of the Deputy Commissioner.
18. The Financial Commissioner examined the transactions forming the
subject matter of both revisions and found no contravention of Section 33.
He further declined to adjudicate upon the validity of the registered
instruments, observing that such questions were within the jurisdiction of the
competent civil court. It was, however, clarified that, in the event the sale
deeds were subsequently declared invalid by the civil court, the
consequential revenue entries and attendant rights could be revisited in
accordance with law.
Civil proceedings and subsequent urbanisation
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19. The sale deed dated 6 July, 1984 was, in fact, challenged by the
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Petitioner in Civil Suit No. 747/1998. By judgment dated 2 July, 2018, the
Civil Judge-06 (Central) dismissed the suit, finding no documentary or
revenue record to substantiate the alleged oral relinquishment by Ram Pal in
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1955-56. The Court also sustained the registered gift deed dated 19
February, 1974, which stood reflected in the revenue record, and the
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subsequent sale deed dated 6 July, 1984, rejecting, inter alia , the challenge
founded on the alleged minority of one of its executants.
20. The said judgment was affirmed in appeal by the Additional District
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Judge in RCA No. 65/2018, vide judgment dated 13 December, 2023. The
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Appellate Court concurred with the findings of the Trial Court and
dismissed the appeal.
21. There is one further development. Village Ghitorni was urbanised by
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a notification dated 20 November, 2019 issued under Section 507(a) of the
Delhi Municipal Corporation Act, 1957. The Respondents contend that, after
urbanisation, the Delhi Land Reforms Act ceased to apply and that the
petitions are liable to be dismissed on that ground alone.
Submissions
22. Counsel for the Petitioner submits that the revenue entries made
during consolidation in 1953-54 did not reflect the equal devolution of the
ancestral estate upon the two branches descending from late Chhajjan. A
disproportionately larger portion of the ancestral land is stated to have been
recorded in the branch of Kale Ram, without any partition of the joint estate.
The Petitioner, therefore, disputes the authority of the recorded bhumidhars
in W.P.(C) 5884/2008 to exclusively deal with Khasra Nos. 15, 31/1 and
33/1.
23. Insofar as W.P.(C) 5858/2008 is concerned, it is submitted that Ram
Pal had orally relinquished his interest in favour of the Petitioner in 1955-56
and had, therefore, ceased to possess any transferable interest in the subject
land. The Petitioner further questions the sale transaction on the ground that
one of the executants was a minor at the relevant time and that his signature
on the sale deed was forged. The authority of the natural guardian to deal
with the minor’s interest is also disputed. It is further asserted that physical
possession was never delivered to the private purchaser.
24. The principal challenge in both petitions is founded upon Section 33
of DLRA. Counsel for the Petitioner submits that the provision embodies a
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legislative policy against fragmentation and must receive an interpretation
which preserves viable agricultural holdings. It is argued that a bhumidhar
possessing less than eight standard acres may transfer only the entirety of
the land held by him. Since parts of the respective holdings remained with
the vendors, the transfers were contrary to Section 33(2), void under Section
45 and incapable of sustaining the consequential mutations.
25. In this regard, reliance is placed upon the report of the Halqa Patwari
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dated 25 April, 2000. Particular emphasis is laid on the entries relating to
Khasra Nos. 298/24/2 and 431/2 to contend that interests in other parcels
continued to remain with the vendors and that the entirety of the land held
by them had not been transferred. The revenue authorities failed to
appreciate the import of the said report while examining compliance with
Section 33.
26. It is further submitted that the lands were held jointly and had never
been partitioned in accordance with DLRA. An individual co- bhumidhar
could not transfer an undivided interest in favour of a stranger without first
obtaining partition by metes and bounds. In this regard, reliance is placed on
Smt. Hanso Devi (Deceased) through LRs v. Sh. Chandru (Deceased)
2
through LRs .
27. The Petitioner also invokes the scheme of Sections 57 to 60 of DLRA
and asserts a preferential right to purchase the land. It is urged that the
revenue authorities failed to examine this aspect and erroneously proceeded
on the premise that a holding could be transferred without regard to the
rights of the other recorded bhumidhars .
2 rd
In RSA No. 89/2008 , decided on 3 June, 2011.
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28. On the question of procedure, reliance is placed upon Master Mayank
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Vashishth v. Financial Commissioner , to contend that once a dispute
concerning title or a possible contravention of DLRA arose, the Tehsildar
was obliged, under Section 23 of the Delhi Land Revenue Act, 1954, to refer
the matter to the Revenue Assistant instead of sanctioning mutation. The
Petitioner also disputes the recital of service contained in the mutation order
and submits that no individual notice was ever served upon him. The
mutation proceedings are, therefore, stated to be vitiated.
29. Counsel for the Respondents controverts the Petitioner’s attempt to
reopen the revenue entries settled during consolidation in 1953-54. The
holdings of the two branches were separately settled during consolidation,
having regard to the area and quality of the respective parcels, and that the
resultant entries reflected distinct bhumidhari holdings. The Petitioner,
having never successfully assailed those entries, cannot question the title of
the recorded bhumidhars in collateral proceedings arising from mutation.
30. On Section 33, the Respondents submit that the vendors transferred
their entire recorded interests in the relevant agricultural holdings. In
W.P.(C) 5858/2008, the vendors conveyed the whole of Ram Pal’s half
share in Khasra Nos. 5, 10/1 and 10/2. The parcels relied upon by the
Petitioner, including Khasra Nos. 298/24/2 and 431/2, do not constitute
residual agricultural holdings so as to attract the prohibition under Section
33.
31. In W.P.(C) 5884/2008, it is submitted that the two sale deeds dated
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26 June, 1984 were executed contemporaneously in favour of the same
purchaser and together conveyed Khasra Nos. 15, 31/1 and 33/1 in their
3
2004 SCC OnLine Del 582.
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entirety. The fact that the transfer was evidenced by two instruments is
immaterial, since no part of the recorded agricultural holding remained with
the transferors.
32. The Respondents further submit that the Petitioner’s challenge to the
sale deed dated 6th July, 1984 was rejected in Civil Suit No. 747/1998, and
the said decision was affirmed in RCA No. 65/2018. The validity of the
underlying gift and sale transactions, therefore, cannot be reopened in the
present proceedings.
33. Lastly, relying upon Mohinder Singh (Dead) through LRs v. Narain
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Singh , the Respondents submit that the urbanisation notification dated 20
November, 2019 brought the applicability of DLRA to an end. On this basis,
it is urged that no useful purpose would now be served by remanding the
matter to any revenue authority.
Questions for determination
34. On the basis of the pleadings, the material on record and the
submissions advanced, the following questions arise for consideration:
(i) Whether the challenge to the mutation orders, though ostensibly
confined to the revenue entries, can be adjudicated without determining
disputed questions concerning title, possession and the validity of the
underlying registered instruments; and what bearing the civil proceedings
instituted in respect of those instruments have upon the scope of the present
writ petitions;
(ii) Whether the concurrent finding of the Deputy Commissioner and the
Financial Commissioner that the impugned transfers did not contravene
Section 33 of DLRA, discloses any error of law, perversity or failure to
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consider material evidence warranting interference under Article 226 of the
Constitution;
(iii) Whether a recorded co- bhumidhar was legally disabled from
transferring his undivided interest merely because the holding had not
previously been partitioned by metes and bounds;
(iv) Whether the mutation proceedings were vitiated on account of non-
service of notice upon the Petitioner or for failure of the Tehsildar to refer
the matter to the Revenue Assistant under Section 23 DLRA; and
(v) What is the effect of the subsequent urbanisation of Village Ghitorni
upon the maintainability of the present challenge and the relief, if any, that
may now be granted.
Analysis
Scope of judicial review and the nature of a mutation entry
35. The present petitions invoke the writ jurisdiction of this Court and
seek issuance of a writ of certiorari against the order passed by the Financial
Commissioner. This Court is not exercising appellate jurisdiction over the
impugned decision. Its concern is with the legality of the exercise
undertaken by the statutory authorities, i.e., whether they acted within
jurisdiction, observed the requirements of procedural fairness, correctly
understood the governing law, and reached conclusions reasonably
supported by the material before them. Interference is warranted where an
authority has acted without jurisdiction, failed to exercise jurisdiction vested
in it, violated the principles of natural justice, misconstrued a statutory
provision, ignored material evidence, or returned a finding so perverse that
no reasonable authority, properly instructed in law, could have reached it.
4
2023 SCC OnLine SC 261.
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Certiorari does not permit a rehearing on facts or a reappraisal of disputed
5
evidence merely because another view may also be possible.
36. Equally settled is the legal character of a mutation entry. Mutation is
essentially a fiscal and administrative arrangement maintained for revenue
purposes. It enables the State to identify the person liable for payment of
land revenue and to keep the revenue record current. It neither creates nor
extinguishes title, nor does it confer proprietary rights upon the person in
6
whose favour it is sanctioned. This principle applies equally to entries
concerning succession or transfer of bhumidhari rights under the Delhi land
laws. Questions concerning the validity, genuineness or legal effect of the
instruments from which title is claimed cannot be conclusively determined
in mutation proceedings and must be left to the competent civil or revenue
forum, as the governing statutory scheme may require.
37. This does not place mutation orders beyond judicial review. A
mutation sanctioned without jurisdiction, in breach of a statutory prohibition
or contrary to the prescribed procedure remains amenable to interference.
Under the Delhi land laws, while the Tehsildar may sanction an undisputed
mutation, a disputed transfer or one appearing to contravene the DLRA may
require consideration by the competent revenue authority.
38. The enquiry in the present petitions is, therefore, confined to whether
the revenue authorities acted within their statutory jurisdiction and in
accordance with law. It does not extend to a fresh adjudication of the
5
Syed Yakoob v. K.S. Radhakrishnan AIR 1964 SC 477.
6
Sawarni (Smt) v. Inder Kaur (Smt) & Ors . 1996 6 SCC 223; Suraj Bhan & ors. v. Financial
Commissioner & ors. (2007) 6 SCC 186.
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parties’ competing claims to title or possession, or the validity of the
underlying registered instruments.
The Petitioner’s title-based objections and the civil proceedings
39. A substantial part of the Petitioner’s challenge in W.P.(C) 5858/2008
rests upon the alleged oral relinquishment by Ram Pal in 1955-56. The same
plea formed the foundation of Civil Suit No. 747/1998, wherein the
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Petitioner challenged the sale deed dated 6 July, 1984. By judgment dated
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2 July, 2018, the Civil Judge-06 (Central) rejected the plea, finding no
documentary evidence or corresponding revenue entry to substantiate the
alleged relinquishment.
40. The Civil Court also examined the chain of transactions culminating
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in the sale deed dated 6 July, 1984. It sustained the validity of gift deed
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dated 19 February, 1974 and rejected the challenge to the subsequent sale
deed, including the plea founded on the alleged minority of one of its
executants. These findings were affirmed in RCA No. 65/2018 by judgment
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dated 13 December, 2023. The Appellate Court further held that Ram Pal,
as a co-sharer, was competent to deal with his undivided share
notwithstanding the absence of a formal partition.
41. The Petitioner has also referred to separate civil proceedings in Civil
Suit No. 524/02/00 concerning the underlying instruments. However, no
final adjudication in those proceedings has been placed before this Court.
Likewise, in W.P.(C) 5884/2008, there is no material to indicate that the sale
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deeds dated 26 June, 1984 were challenged or invalidated before a
competent civil forum.
42. Thus, insofar as W.P.(C) 5858/2008 is concerned, the pleas founded
on the alleged relinquishment, Ram Pal’s authority to deal with his
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undivided share and the challenge to the sale deed on the ground of minority
have already been examined and rejected by the competent civil courts. The
same cannot be reopened indirectly through a challenge to the consequential
mutation. As regards the remaining objections to the underlying instruments,
including those urged in W.P.(C) 5884/2008, these raise questions of title
and validity which cannot be adjudicated for the first time in summary
mutation proceedings or in the present writ petitions. Any final
determination by a competent court on such issues would bind the parties
and may entail consequential correction of the revenue record in accordance
with law.
Section 33 of the Delhi Land Reforms Act
43. Section 31 declares the interest of a bhumidhar to be transferable,
subject to the conditions thereafter prescribed. Section 33 imposes one such
restriction. Sub-section (1) prohibits a transfer which would leave the
transferor with less than eight standard acres. Sub-section (2) addresses the
position of a bhumidhar who already holds less than eight standard acres
and permits a transfer only where it comprises the entire land held by him.
The enquiry must, therefore, be governed by the statutory text and not by an
abstract invocation of the policy against fragmentation.
44. The application of Section 33 is transferor-specific. Where there are
several vendors, compliance cannot be tested by aggregating their interests
and treating them as a single undifferentiated holding. It must be ascertained
whether each transferor, viewed individually, has divested himself of the
entire land held by him to which the provision applies. Conversely, the
requirement is not defeated merely because the complete divestment is
effected through more than one instrument or in favour of more than one
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purchaser, provided the transactions form part of the same arrangement and
leave no prohibited residue with the transferor.
45. Nor can the expression “entire land held by him” be read as referring
to the entire joint holding of all co- bhumidhars collectively. The restriction
attaches to the interest of the particular transferor. An undivided share is
capable of transfer, subject always to the restrictions contained in the Act.
The transferee acquires no interest larger than that possessed by the vendor
and cannot, merely on the strength of the conveyance, claim exclusive
ownership or possession of a specified portion to the prejudice of the other
co-sharers. He steps into the shoes of the transferor and must work out his
rights, where necessary, through partition. The general principle was
7
explained by the Supreme Court in Ramdas v. Sitabai & Ors .
46. The consequence of a contravention also bears emphasis. Section 45
declares a transfer made in breach of the provisions of the Chapter to be
void, while Section 42 renders the transferee and every person who has
obtained possession liable to ejectment in the manner prescribed. Neither
provision enlarges the share of another co- bhumidhar or vests the
transferred interest in him. Thus, even if a contravention of Section 33 were
established, the Petitioner’s claim for mutation of the entire land exclusively
in his name would not follow as a statutory consequence.
Application to W.P.(C) 5858/2008
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47. The registered sale deed dated 6 July, 1984 conveyed the vendors’
recorded half share in Khasra Nos. 5, 10/1 and 10/2. That establishes a
complete divestment of their recorded interest in those three khasras. It does
7
(2009) 7 SCC 444.
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not, by itself, conclude the enquiry under Section 33(2), for the Petitioner
contends that the vendors continued to retain interests in Khasra Nos.
298/24/2 and 431/2.
48. The position concerning Khasra No. 431/2 is far from clear. The
Patwari’s report records that, although Ram Pal had purportedly gifted an
interest in the said khasra to his wife and sons, the corresponding mutation
was not effected. It further notes that Ram Kali and the other vendors were
shown as transferring an interest in Khasra No. 431/2 to Ram Pal, even
though their own acquisition of that interest was not reflected in the revenue
record. The report, therefore, merely points to an inconsistency in the
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revenue entries. It does not establish that, on 6 July, 1984, the vendors
continued to hold a subsisting bhumidhari interest in Khasra No. 431/2 so as
to attract Section 33(2).
49. Khasra No. 298/24/2 stands on a somewhat different footing. The
Patwari’s report records that Ram Pal’s share in that khasra had been gifted
to Ram Kali and his sons and that the relevant entry continued in their
names. It also describes the parcel as forming part of the extended abadi .
The existence of that entry cannot, therefore, be disregarded. It does not,
however, by itself determine the legal character in which the parcel was
held.
50. The Financial Commissioner proceeded on the basis that land situated
in an abadi or extended abadi was not required to be taken into account
while examining compliance with Section 33. In the context of the present
case, the conclusion is correct, though the principle requires to be stated
with precision.
51. Section 3(13) defines “land” inclusively and expressly refers to
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village abadis . That definition cannot, however, be read in isolation. Section
3 itself makes the statutory definitions applicable “unless the context
otherwise requires” . Section 33 occurs in the part of the Act which regulates
transfers by bhumidhars and operates upon land held by the transferor in
that statutory capacity. The enquiry under Section 33 is, therefore, not
concerned with every parcel of immovable property which may answer the
wider description of land, but with land forming part of the bhumidhari
tenure regulated by the Act.
52. This construction is borne out by the statutory scheme. A “holding”
under Section 3(11A) comprises a parcel or parcels of land held under one
tenure, lease, engagement or grant. An “uneconomic holding”, as defined in
Section 3(22), is a holding of less than eight standard acres which, according
to local conditions, is insufficient to maintain the prescribed family unit,
while a “standard acre” under Section 3(20) is itself determined with
reference to the yield and quality of the soil. Section 33 employs the same
measure of eight standard acres. The restriction is thus directed towards
preservation of the economic integrity of the transferor’s agricultural
holding and the prevention of its further fragmentation.
53. The use of the expression “land”, instead of “holding”, in Section 33
does not compel a different conclusion. Sub-section (2) speaks of a
bhumidhar who “holds” less than eight standard acres and permits transfer
where it comprises the “entire land held by him”. The words “held by him”
connect the land to the transferor’s bhumidhari tenure. The provision cannot
reasonably be construed as requiring a bhumidhar proposing to transfer his
agricultural holding also to alienate a residential plot or other property
situated in an extended abadi which does not form part of that holding. Such
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an interpretation would neither further the object of preventing
fragmentation nor bear any rational connection with the concept of an
economic agricultural unit.
8
54. In Raj Kishore Tyagi v. Radhey Sh yam , this Court recognised that
land situated in an extended abadi may fall within the wider definition of
“land” under Section 3(13), yet may not constitute a “holding” within
Section 3(11A). The distinction was drawn in the context of Section 185, but
it reflects the structure of the Act: all land within the inclusive definition is
not necessarily land held under an agricultural tenure.
55. The same construction accords with the object of Section 33. In
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Deepak Yadav v. Government of NCT of Delhi , the Division Bench held
that the provision is intended to prevent fragmentation of agricultural
holdings into uneconomical sizes. The statutory concern is, therefore, with
the residue of the agricultural holding left with the transferor, and not with
property held by him independently of that tenure.
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56. It is true that in Narain Singh v. Financial Commissioner , the
Court described the distinction between “land” and “holding”, in the specific
context of Section 33, as not “ free from difficulty ” and left the question
open. That decision however does not lay down a contrary proposition.
57. Upon a conjoint reading of Sections 3(11A), 3(13), 31 and 33, the
expression “the entire land held by him” in Section 33(2) must be
understood as referring to the entirety of the land held by the transferor in
his capacity as a bhumidhar and forming part of the holding governed by the
Act. Section 31 makes the interest of a bhumidhar transferable, while
8 th
In FAO No. 188/2007 , decided on 25 April, 2008.
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Section 33 imposes a restriction upon the exercise of that very right. The
restriction must, therefore, operate within the same juridical field, namely,
the bhumidhari tenure which the Act creates and regulates. Although the
inclusive definition in Section 3(13) may bring village- abadi land within the
general expression “land”, it does not follow that every parcel so described
necessarily forms part of a “holding” under Section 3(11A). To require a
bhumidhar , while transferring his agricultural holding, also to alienate a
residential or extended- abadi parcel held independently of that tenure would
neither prevent fragmentation of an agricultural holding nor advance the
object of preserving an economically viable unit. Accordingly, land situated
in an abadi or extended abadi is relevant to the enquiry under Section 33(2)
only if it is shown to form part of the land held by the transferor under his
bhumidhari tenure.
58. Khasra No. 298/24/2 is consistently described in the material relied
upon by the petitioner as extended- abadi land. The Patwari’s report records
the continuance of the names of Ram Kali and the sons of Ram Pal against
that khasra, but does not indicate that the parcel formed part of the
agricultural holding comprising Khasra Nos. 5, 10/1 and 10/2. Nor does it
show that Khasra No. 298/24/2 was held under the same agricultural tenure,
was assessed as part of the same holding, or entered into the computation of
its standard acreage.
59. The continued revenue entry in respect of Khasra No. 298/24/2 did
not, therefore, establish that the vendors retained a portion of the agricultural
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holding after execution of the sale deed dated 6 July, 1984. They had
transferred their entire recorded interest in Khasra Nos. 5, 10/1 and 10/2.
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2008 SCC OnLine Del 806.
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The Financial Commissioner was consequently correct in holding that
retention of the extended- abadi parcel did not render the transfer contrary to
Section 33(2).
Application to W.P.(C) 5884/2008
60. The position in W.P.(C) 5884/2008 is comparatively straightforward.
The land comprised in Khasra Nos. 15, 31/1 and 33/1, admeasuring 10
bighas and 3 biswas, was transferred to the private purchaser through two
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registered sale deeds executed on 26 June, 1984. The deeds were executed
on the same date, by the recorded bhumidhars , in favour of the same
purchaser and, when read together, covered the entirety of the agricultural
land recorded in the names of the transferors in the aforesaid khasras.
61. The enquiry under Section 33(2) must be undertaken with reference to
the holding of each transferor as it stood on the date of transfer. The
Petitioner has not identified any specific parcel of agricultural land which
continued to be held by any of the vendors after execution of the two sale
deeds. His case proceeds instead on the broader assertion that the entire
estate of the common ancestor, late Chhajjan, continued to be jointly owned
by the two branches of the family and that the entries made during
consolidation in favour of Kale Ram and his successors were themselves
erroneous.
62. That contention travels beyond the scope of the mutation proceedings.
The entries made during consolidation had continued in the revenue record
for several decades and formed the basis upon which the transferors were
recognised as bhumidhars of Khasra Nos. 15, 31/1 and 33/1. Unless those
foundational entries were displaced in proceedings before the competent
forum, the revenue authorities were entitled to examine compliance with
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Section 33 on the basis of the recorded holdings as they existed on the date
of sale. A claim founded upon a reconstructed ancestral title cannot, without
first establishing the invalidity of the subsisting entries, be employed to
demonstrate that the transferors retained some part of their holding after the
impugned conveyances.
63. The fact that the transfer was documented through two instruments
does not alter the position. Section 33 is concerned with the substantive
consequence of the transaction: whether the transferor was left with any land
in contravention of the statutory restriction. It does not prescribe that a
complete divestment must necessarily be embodied in a single instrument.
Where, as in the present case, contemporaneous deeds executed as part of
the same arrangement, in favour of the same purchaser, collectively convey
the whole of the recorded holding, the requirement of Section 33(2) is not
defeated merely because the conveyance is contained in more than one
document.
64. The Petitioner has, therefore, failed to demonstrate that the finding of
the Deputy Commissioner and the Financial Commissioner, that the
transferors had conveyed their entire recorded agricultural holding, was
contrary to the statutory provision, unsupported by the record or otherwise
perverse.
Absence of partition and reliance upon Sections 55 to 61
65. The further contention that a co- bhumidhar is incapable of
transferring his undivided interest unless the holding has first been
partitioned cannot be accepted. Section 31 expressly declares the interest of
a bhumidhar to be transferable, subject to the restrictions contained in the
succeeding provisions. The Act does not make a prior partition a condition
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precedent to the transfer of an undivided bhumidhari interest.
66. As noted above, joint tenure does not render an undivided bhumidhari
interest inalienable. A transferee merely steps into the shoes of the transferor
and remains subject to the rights of the other co- bhumidhars until a lawful
partition takes place. The absence of partition, therefore, does not invalidate
the transfer itself.
67. The decision in Hanso Devi (Deceased) through LRs v. Chandru
(Deceased) through LRs does not advance the Petitioner’s case. It
recognises that co- bhumidhars recorded jointly are entitled to joint
possession and that one co- bhumidhar cannot exclude another from any part
of the holding without a lawful partition. It does not lay down that a co-
bhumidhar is altogether disabled from transferring his undivided interest.
The transfer remains subject to the rights of the other co- bhumidhars , but is
not rendered void solely because no partition by metes and bounds had
preceded it.
68. In the present case, the Petitioner’s plea of want of partition rests, in
any event, upon his disputed assertion that he continued to hold an
undivided interest in the entire ancestral estate, including Khasra Nos. 15,
31/1 and 33/1. The subsisting revenue entries did not recognise such an
interest. They recorded the transferors as bhumidhars of the aforesaid land.
The Petitioner cannot establish a right as co- bhumidhar in those khasras
merely by invoking the absence of a partition, without first displacing the
entries upon which the transferors’ recorded tenure was founded.
69. Sections 55 to 61 operate in a distinct field. They govern proceedings
instituted for partition of a bhumidhari holding. Section 57 prescribes the
course to be adopted where the holding is of, or a partition would produce,
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less than eight standard acres. In specified circumstances, the Court may
direct sale instead of physical division. Sections 58 to 60 thereafter regulate
valuation, the order of preference among co-tenure holders and the manner
of sale. These provisions become operative when a competent court directs
sale in a partition proceeding; they do not confer upon every co- bhumidhar a
general right of pre-emption or first refusal whenever another co- bhumidhar
voluntarily transfers his interest.
70. The Petitioner’s reliance upon the partition provisions, therefore, does
not invalidate the registered conveyances or furnish a ground to interfere
with the mutations sanctioned on their basis.
Notice and the requirement of a reference under Section 23
71. Section 23 of the Delhi Land Revenue Act contemplates an enquiry
by the Tehsildar upon receipt of a report of succession or transfer, or when
the relevant facts otherwise come to his knowledge. Where the succession or
transfer is undisputed and appears to have taken place, the Tehsildar may
direct its entry in the Annual Register. Where, however, the succession or
transfer is disputed, or the Tehsildar finds that it contravenes DLRA, the
matter must be referred to the Revenue Assistant for determination after the
prescribed enquiry.
72. The statutory scheme necessarily permits the Tehsildar to undertake a
preliminary scrutiny of the transaction. The mere fact that he examines
whether the transfer appears to conform to DLRA does not amount to an
assumption of the adjudicatory jurisdiction of the Revenue Assistant. A
reference becomes necessary where a rival claim is raised, the material
discloses a genuine dispute concerning the succession or transfer, or the
Tehsildar finds a prima facie contravention of the Act. What he cannot do is
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finally adjudicate a contested title or determine a disputed statutory
infraction in summary mutation proceedings.
73. In Master Mayank Vashishth v. Financial Commissioner , mutation
had been sanctioned without notice to the joint bhumidhars . The absence of
notice itself prevented the rival claim from being placed before the Naib
Tehsildar, who thereafter treated the matter as undisputed and proceeded to
decide an issue arising under DLRA. The Court held that, had notice been
issued, the rival claim would have given rise to a dispute regarding the
proposed mutation, thereby taking the matter outside the jurisdiction of the
Naib Tehsildar under Section 23. The dispute ought, therefore, to have been
referred to the Revenue Assistant for determination. The decision thus rests
upon the combined circumstances of absence of notice, the existence of a
competing claim, and the assumption by the Naib Tehsildar of jurisdiction
reserved for the Revenue Assistant.
74. The facts of the present cases are materially different. The
contemporaneous mutation records refer to issuance of notice, publication
and service in the manner recorded therein, and further note that no
objection was received. The registered instruments were produced before the
Tehsildar; the vendors or their authorised representatives appeared; and the
relevant revenue reports were considered. Nothing in the material then
before the Tehsildar disclosed a subsisting rival claim or a dispute
concerning the transfer which required adjudication by the Revenue
Assistant.
75. The observation in the mutation orders that the transactions did not
offend Section 33 must be understood in this setting. The Tehsildar was not
deciding an inter partes dispute under that provision. He was undertaking the
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threshold scrutiny inherent in Section 23 to determine whether the matter
could be treated as an undisputed mutation or required a reference. Upon the
recorded facts, he found no apparent contravention and no objection had
been lodged by any affected person.
76. A dispute raised several years after a mutation has been sanctioned
does not, by itself, retrospectively convert an undisputed mutation into a
disputed one. The position would, however, be different if the absence of
objections resulted from a failure to issue notice in accordance with law. In
the present case, the Petitioner has placed no material on record to displace
the contemporaneous recitals in the mutation order regarding publication
and service. A bare denial, raised after nearly fifteen years, is insufficient to
rebut the official record.
77. In any event, the Petitioner was thereafter heard at length by the
Deputy Commissioner and the Financial Commissioner. All the objections
now urged, including the alleged violation of Section 33, absence of
partition, retention of other parcels, the Patwari’s report and the validity of
the underlying transactions, were duly considered. This subsequent hearing
is not relied upon to cure any defect of jurisdiction; rather, it demonstrates
that the Petitioner’s substantive objections received full consideration in the
appellate and revisional proceedings.
78. Master Mayank Vashishth is, therefore, distinguishable. The
impugned mutations cannot be set aside either for failure to serve notice or
for want of a reference under Section 23.
Effect of urbanisation
79. In Mohinder Singh (Dead) through LRs v. Narain Singh , the
Supreme Court held that once an area is urbanised by a notification issued
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under Section 507(a) of the Delhi Municipal Corporation Act, 1957, the
Delhi Land Reforms Act ceases to apply to that area and proceedings then
pending under the latter enactment become non est and lose their legal
significance.
80. The factual chronology in Mohinder Singh , however, is material. The
rd
notification urbanising the land had been issued on 23 April, 1982, whereas
the sale deed, mutation and the proceedings arising therefrom were all
subsequent events. The revenue authorities were thus called upon to exercise
jurisdiction under DLRA after that enactment had ceased to govern the land.
81. The chronology in the present cases is the reverse. The transfers were
effected in 1984; the mutations were sanctioned in 1984-85; the statutory
appeals were decided in 2001; and the revisions were dismissed by the
Financial Commissioner in 2007. Village Ghitorni was urbanised only by
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the notification dated 20 November, 2019. The proceedings before the
hierarchy of revenue authorities had, therefore, concluded approximately
twelve years before the change in the status of the village.
82. The distinction founded upon the timing of urbanisation was
explained by the Division Bench of this Court in Madan Pal Gupta & Anr.
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v. Maya Devi & Anr . The Court held that where proceedings under the
Delhi Land Reforms Act had been instituted before urbanisation, the rights
asserted therein were to be reckoned with reference to the date of institution.
The fact that their eventual determination occurred after urbanisation did
not, by itself, render the exercise non est ; its legal effect would relate back to
the commencement of the proceedings.
83. The present petitions stand on an even firmer footing. They are
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proceedings under Article 226 of the Constitution questioning the legality of
statutory orders which had attained finality within the revenue hierarchy
long before urbanisation. They are not original proceedings initiated under
the Delhi Land Reforms Act after the notification of 2019. The subsequent
change in the status of Village Ghitorni does not retrospectively extinguish
the jurisdiction lawfully exercised by the revenue authorities when the land
was governed by that enactment, nor does it erase the orders passed by them.
84. The legality of the impugned transfers and mutations must, therefore,
be examined with reference to the law applicable when the transactions
occurred and the statutory proceedings were undertaken. The notification of
2019 alters the legal regime prospectively; it does not retrospectively
validate an unlawful transfer or invalidate a transaction which was lawful
when made. Nor does it render the present writ petitions infructuous or
relieve the Court of examining the challenge to the Financial
Commissioner’s order on its merits.
85. Urbanisation is nevertheless relevant to the forum and remedies now
available in respect of any surviving controversy. Any fresh claim
concerning present title, possession, the validity or effect of the registered
instruments, or correction of the records maintained after urbanisation must
be pursued before the forum competent under the law presently governing
the land. Since no ground has been made out in these petitions to interfere
with the concluded revenue proceedings, the question whether a remand
could otherwise have been directed after urbanisation does not arise for
determination.
Conclusion
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86. In view of the foregoing discussion, this Court finds no merit in the
present petitions. No ground is made out to interfere with the concurrent
orders passed by the Deputy Commissioner and the Financial
Commissioner.
87. Accordingly, W.P.(C) 5858/2008 and W.P.(C) 5884/2008 are
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dismissed. The common order dated 29 November, 2007 passed by the
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Financial Commissioner, Delhi, and the common order dated 24
September, 2001 passed by the Deputy Commissioner (South-West) are
upheld.
88. It is clarified that the present judgment is confined to the legality of
the impugned revenue orders and the mutation proceedings. Save to the
extent issues have already been adjudicated by the competent civil court in
Civil Suit No. 747/1998 and affirmed in appeal, nothing contained in this
judgment shall be construed as a determination of any surviving dispute
concerning title, proprietary shares, possession or the validity of any
transaction which has not attained finality before the competent forum.
89. Insofar as Civil Suit No. 524/02/00 and RSA No. 114/2007 are
concerned, no final adjudication has been placed on record. The rights of the
parties in those proceedings, and in any other proceedings concerning issues
not finally determined, shall be governed by the outcome before the
competent forum, in accordance with law.
90. All pending applications also stand disposed of.
SANJEEV NARULA, J
JULY 13, 2026/ hc
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