Kaushalya and Others vs Daya Chand and Others

Indermeet Kaur, J.

CM No. 13255/2007 (for delay)

There is no opposition to this application. The delay in filing the appeal is condoned. Application is disposed of.

R.S.A. No. 250/2007

This appeal has impugned the judgment and decree dated 19.1.2007 which had endorsed the finding of the trial judge dated 01.5.2004 whereby the suit filed Kaushalya and Ors. seeking the following prayer:

a) Pass a decree of declaration in favor of the Plaintiff and against the Defendants, thereby declaring the impugned order of mutation dated 7.2.2002 passed by the learned Consolidating Officer, Kanjhawla, Delhi (Defendant No. 5) in case No. 141/The/02 in respect of the agriculture land under khasra No. 94/23(2-00), 97/35(4-00) total admeasuring 6 bighas situated in the revenue estate of village Kanjhawala, Delhi and the plot No. 74/122 (2-2) 143/766 (0-6) and residential house measuring 150 sq. yards situated in village Kanjhawala, Delhi in favor of the Defendants No. 1 to 3, as null and void, invalid and illegal and inoperative in the eyes of law. Also declare that the forged and fabricated Relinquishment Deed registered on 22.1.2002 and Will dated 18.12.2001 as null and void and invalid and inoperative in the eyes of law. Also declare the Plaintiff and her son Rajesh Rana as the lawful owner of the subject land and property in question.

b) Pass a decree of Permanent injunction in favor of the Plaintiff and against the Defendants, thereby restraining the Defendants No. 1 to 3, their associates, agents, from transferring, alienating, disposing off and creating any third party interest over the subject land under khasra No. 93/23 (2-00), 97/36 (4-00) total measuring 6 bighas situated in the revenue estate of Village Kanjhawala, Delhi-84 and also plot of land measuring 1500 sq. yards situated in the extended Lal Dora abadi Deh and a residential house measuring 150 sq. yards situated in the village Kanjhawala, Delhi-81 in favor of any third person.

c) Costs of the suit be also awarded in favor of the Plaintiff. had been dismissed.

This finding had been endorsed in first appeal.

Both the courts below were of the view that the present suit is barred u/s 185 of Delhi Land Reforms Act, 1954 (hereinafter referred to the as ''the DLRA'')

This appeal has arisen out of a suit for declaration and permanent injunction which had been filed by the Plaintiff. The prayers have been affronted. Prayer No. (a) categorically recites that the relinquishment deed dated 22.1.2002 purported to have been executed by deceased Tara Chand was a forged and fabricated document; the will of deceased Tara chand dated 18.12.2001 is also forged and fabricated. This prayer categorically states that both the affronted documents be declared null and void. Paras 9 to 11 of the plaint are also relevant wherein it has been detailed that the affronted documents are, in fact, forged, fabricated and manipulated.

The impugned judgment had endorsed the finding of the trial judge. Trial judge had relied upon the judgment of Apex Court reported in Hatti Vs. Sunder Singh, to hold that the Civil Court has no jurisdiction in view of the afore noted provisions of Section 185 of the DLRA to entertain a suit of the present nature.

This is a second appeal. It has been admitted and on 15.12.2010 the following substantial question of law has been framed:

Whether the finding in the impugned judgment dated 19.01.2007 confirming the findings of the trial judge whereby the claimed of the Appellant/Plaintiff stood rejected are perverse? If so, its effect?

On behalf of the Appellant, it has been urged that only those matters as are referred to in Schedule 1 of the DLRA are barred under the provisions of the said Act. Courts below had not appreciated the fact that the Appellant/Plaintiff was also seeking a declaration to the effect that the relinquishment deed dated 22.12002 and the will dated 18.12.2001 are void for the reason that they are manipulated and forged documents; such an enquiry could not have been gone into by the Revenue Court. Reliance has been placed upon Suraj Bhan and Others Vs. Financial Commissioner and Others, to support this submission. In this case the Supreme Court had held that validity and genuineness of a will can only be decided by a competent Civil Court. It is pointed out that in view of the prayer (a) of the plaint specifically averring that the affronted two documents be declared null and void and this prayer not falling within the domain/jurisdiction of the Revenue Court, the suit in its entirety could not have been dismissed. This finding is a perversity and calls for interference.

This submission of the learned Counsel for the Appellant has force. Finding on this score as affronted are perverse. Matter is accordingly remanded back to the learned District Judge (Central) to assign the case to the concerned Civil Judge who will deal with the question of validity/invalidity of the relinquishment deed dated 22.1.2002 and the will dated 18.2.2001 of the deceased Tara Chand with the hopeful expectation that the Civil Judge shall make endeavor to dispose of the matter within outer limit of six months. This will be the limited issue before the Civil Court. For this purpose the parties are directed to appear before the learned District Judge (Central) on 10.5.2011.

Appeal is disposed of in the above terms.