MASTER VIJENDRA SINGH Vs. RAM CHANDER

JUDGEMENT

(1.) The plaintiff No.1, being the grand son of defendant No.1, has filed the present suit for partition through his mother, plaintiff No.2. Plaintiff No.3 is the eldest son of defendant No.1. Plaintiff No.2 is the widow of shri Dharamvir Singh, a pre-deceased, son of defendant No.1. Defendant No.2 is the wife of defendant No.1 whereas defendants 3 and 4 are the sons of defendant No.1 and defendant No.5 is the wife of defendant No.3. Defendant No.6 is the wife of defendant No.4. Defendants No.7 and 8 are the minor sons of defendant No.3 and defendants No.9 and 10 are the minor sons of defendant No.4. The plaintiffs have claimed partition of moveable and immovable properties of defendant No.1 alleging that he is holding the same as ancestral property. The immovable properties being agricultural land and residential plots and houses have been mentioned in para No.5(1) of the plaint whereas moveable properties have been mentioned in para No.5(II) of the plaint. The properties shown in sub paras a, b, c and d of para 5(1) of the plaint have been shown as residential plots and houses, out of which two plots, as shown in sub-para 'd' of para 5(1) have been allegedly sold by defendant No.1 to defendants 7 and 10, his minor grand sons. The agricultural land, shown at sub-para 'e' and 'f' in para 5(I) is alleged to have been sold to some outsiders. The agricultural land shown in sub-para "g" of para No.5(1) has been acquired by the Government and the amount of compensation has been put in fixed deposits by the Court of Additional District Judge where the claim of parties including the plaintiffs No.2 and 3 is pending adjudication under Section 30/31 of Land Acquisition Act. Another piece of land shown in sub-para 'h' of para 5(1) of the plaint has also been acquired by the Government and the matter is pending before the Land Acquisition Collector where also the plaintiffs have filed objections. Some more agricultural land, shown in sub-para 'i' and 'j' of para 5(1) of the plaint, is in possession of defendant No.1. Moveable properties, mentioned in para 5(11), include fixed deposits in the name of defendant No.1 and other defendants with banks, Kisan vikas partras, some vehicles existing and already sold, furniture, household goods and jewellery etc. The plaintiffs' averment is that defendant No.1 made all the moveable and immovable properties out of the income of agricultural property which he inherited from his father. Even the moveables including the fixed deposits and kisan vikas patras etc. in the names of defendant 2 to 10 are alleged to have been created from defendant No.1's agricultural income. The plaintiffs have, therefore, claimed partition of all the moveable and immovable properties mentioned in para 5 of the plaint. Alongwith the suit, plaintiffs have moved an application under Order 39 Rules 1 & 2 CODE OF CIVIL PROCEDURE, 1908 for interim injunction for restraining the defendants from disposing off/alienating or parting with possession of all the moveable and immoveable properties as mentioned in para 5 of the plaint. The plaintiffs have also sought direction to the Additional District Judge where apportionment proceedings, under Land Acquisition Act are pending, not to pay the compensation amount to defendant No.1. By this order, I propose to dispose of the said application.

(2.) The defendants have filed the Written Statement and reply to the application and have contested the plaintiffs' claim, inter alia, on the ground that defendant No.1 is a recorded Bhoomidar under Delhi Land Reforms Act,1954 (in short the Act) and no civil suit for partition of land of which he is a Bhoomidar is maintainable. It is submitted by the learned counsel for the defendants that the Act is a complete Code in itself and devolution of bhoomidari rights is provided under the Act. It is submitted that the Act abolished the ownership of agricultural land by previous proprietors. By virtue of Section 11 and 13 of this Act, the proprietors became Bhoomidars in respect of the lands, which were their khudkasht or Sir, while tenants became Bhoomidars in respect of their holdings. Referring to the provisions of the Act, it is submitted that Sections 31 to 47 deal with transfer of Bhoomidar's interest in land whereas Sections 48 to 54 deal with the devolution of his interest in Bhoomidari rights and Sections 55 to 61 deal with the partition of holding by a Bhoomidar. Learned counsel for the defendants has also referred to Section 185 of the Act to show that the jurisdiction of a Civil Court is barred. Reference is made to decision of the Supreme Court in Hatti Vs. Sunder Singh, 1970(2) SCC 841 where the Apex Court, after discussing various provisions of the Act, held that the jurisdiction of a Civil Court is barred by Section 185 read with various items of the first Schedule to the Act. It was also held that the Act is a complete Code under which it is clear that anyone, wanting a declaration of his right as a Bhoomidar, or aggrieved by the declaration issued without notice to him in favour of another can approach the Revenue Assistant under Item 4 of the First Schedule. The Apex Court held that the jurisdiction of the Civil Court is limited to decide the issue of title referred to it by the Revenue Court. It was further observed that there can be no suit by any person claiming to be a proprietor, because the Act does not envisage a proprietor as such continuing to have rights after the commencement of the Act. with regard to the proposition that with the coming into force of this Act, the proprietary rights stood abolished, the Apex Court held as under :-

(3.) It is submitted that in the instant case, defendant No.1 is a recorded Bhoomidar and his Bhoomidari rights can devolve upon his heirs only after his death and that too as provided in the Act. Neither the plaintiffs, nor defendants 2 to 10 can claim partition in the life time of defendant No.1 and after his death it would be governed by the provisions of Delhi Land Reforms Act. During his life time, he can transfer and create interest therein, subject to the restrictions imposed under the Act. As such, plaintiffs cannot claim partition of the land of which defendant No.1 is a Bhoomidar, by way of a civil suit.