DEVENDER & ORS vs SAVITA JINDAL & ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 01st December, 2023
% Pronounced on: 12th March, 2024

+ CS(OS) 1459/2010

DEVENDER & ORS. ….. Plaintiffs
Through: Mr. Pawan Upadhyay, Mr. Rishab Khare & Ms. Supriya R. Pandey, Advocates.
versus

SAVITA JINDAL & ORS. ….. Defendants
Through: Mr. Sanjay Manchanda, Advocate for D-1, 2, 3, 7, 8 & 9. Mr. Rajesh Yadav, Sr. Advocate with Ms. Ruchira V. Arora, Mr. Dhananjay Mehlawat & Mr. Rohan Yadav, Advocates for D-6, 10 & 18

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.
I.A.13229/2010 (under Order 7 Rule 11 read with Section 151 CPC on behalf of defendant No.8 seeking Rejection of Plaint) & I.A.17219/2010 (under Order 7 Rule 11 read with Section 151 CPC on behalf of defendant No.18 for Rejection of Plaint)
1. The defendant No.8 Shri Ramesh Chandra Aggarwal and defendant No.18 Shri Shyam Sunder Kanoria in their respective applications have sought for rejection of plaint under Order 7 Rule 11, CPC.
2. It is submitted in the applications that the plaintiff has filed a suit for Declaration, Cancellation of Documents and Injunction. The respective defendants have already filed their detailed Written Statement on record. The defendant No.8 has alleged that the plaintiff has filed the present Suit after fifteen years of the sale of the suit property to defendant No.8 on the ground that the suit land is ancestral and the respective fathers of the defendants had no right to sell the same.
3. It is submitted that in the similarly filed suits bearing Nos. CS(OS)2287/2009 tiled as Om Prakash and Ors. vs. Savita Jindal & Ors. and in CS(OS) No.1521/09 titled Shishpal & Another vs. Savita Jindal & Ors. the plaintiffs have been directed to file the appropriate Court Fee. The defendants and the relief sought in the above mentioned Suits are similar in nature and the plaintiffs are bound to pay the deficient Court Fee as ordered in CS(OS)2287/2009. It is further asserted that all these Suits are being represented by one lawyer on behalf of the villagers and the plaintiffs in all these suits are claiming themselves to be co-parceners in respect of the suit land.
4. It is further submitted that as per Delhi Land Reforms Act, 1954, the Bhumidar is the absolute owner of the land, which he is cultivating. The time when the respective fathers of the plaintiffs sold their share in the suit land, they were shown as Bhumidars in the Revenue records. It is not disputed by the plaintiffs that their respective fathers were Bhumidars at the time when they sold their respective shares to defendant No.8 or his nominees. Further, after Notification of Delhi Land Reforms Act in the year 1954, the concept of ancestral land was removed and the person found to be cultivating the land were held be the Bhumidar and Asami. The rights of the sons of the Bhumidar of his share in the agricultural land would accrue only after his demise, as per Section 50 of the Act. The right of the daughter over her father’s share in the agricultural land, has accrued only after the amendment in the Hindu Succession Act, 2005.
5. The defendant No.8 has claimed that the plaint does not disclose on what basis the suit land is claimed to be a Joint Hindu Family. They themselves are claiming share in the suit land which shows that the suit land stood partitioned amongst the Bhumidars. It is, therefore, submitted that the plaint is liable to be rejected as disclosing no cause of action.
6. The defendant No.18 in his application has asserted that the suit of the plaintiff is barred by Limitation since it has been filed after three years of execution and registration of the documents namely GPAs and Sale Deeds, despite them having knowledge of the same.
7. It is further asserted that the suit has not been valued properly for the purpose of Court Fee for the reason that the relief of Declaration and Cancellation are different and liable to be valued separately but had been clubbed together.
8. Moreover, each Sale is a distinct and a separate transaction in favour of individual purchaser and they have been executed on different dates at different times. Each Sale Deed is in respect of a separate piece of land and each Sale Deed has to be valued separately at its market value. The plaintiff has calculated the Court Fee by consolidating the value of all the 23 Sale Deeds, which is not permissible. Likewise, each of the GPA has to be valued separately in terms of Section 7(iv)(c) of the Court Fees Act. For this reliance has been placed on Om Prakash and Ors. vs. Savita Jindal & Ors. bearing CS(OS)2287/2009, where it has been observed that since the plaintiffs have asked for cancellation of Sale Deeds as a main relief in respect of 136 Bighas and 11 Biswas of land, they are supposed to affix the Court Fee on the market value of the land.
9. The plaintiffs in their respective reply to the application of defendant No.8 and 18, have contended that it is the case of the defendant that the entire estate of Late Shri Ganga Sahai, the great-grandfather of the defendants is still in common and the parties are sharing common account in the Revenue records. It would be wrong in the circumstances, to assert that a particular person was only a Bhumidar.
10. It is further asserted that while the defendants have asserted that there was sale of suit lands, the plaintiff has denied the factum of sale. The averments made by the plaintiff are specific in stipulating that no sale was ever made by their father either directly or indirectly. The defendants have developed a false story on fabricated documents and evidence. The plaintiff reiterates that they are in the possession of the land and have never been dispossessed.
11. The plaintiff further asserts that the provisions of Hindu Succession Act, 1956 are applicable to the case of lands to which allegedly Delhi Land Reforms Act is claimed to be applicable by the defendants and that the present suit is not barred by the Act.
12. Further, the plaintiff has specifically stated in the plaint that the sales have been made on the basis of GPA executed in favour of a third party who was an outsider, which speaks volumes on the authenticity of the Sale transactions. The plaintiff has specifically averred that all these documents are sham and the Sale Deed have been executed illegally and fraudulently. In view of the specific averments in the plaint, the claim of defendant No.8 is futile and has been taken only to stall and delay the proceedings. Furthermore, the present application has neither been filed by an authorized person nor any authority letter in his favour has been placed on record.
13. The plaintiff has further stated that the plaintiffs are continuing to be in possession of the suit property. He has sought the cancellation of GPAs’ and once the relief is allowed, the consequent Sale Deeds would automatically stand cancelled. It is, therefore, submitted that the present applications have no merit and are liable to be dismissed.
14. Submissions heard.
15. The first challenge raised by the defendants in their application is in regard to non-payment of the requisite Court Fee. The relevant paragraph of the plaint in regard to payment of Court Fee reads as under :
“48A. That the circle/market rate in he area is Rs. 52 lacs per acre. The total land of 136 bigha, 11 biswa out of which the present suit is related to 73 bighas (approx.) only. The said deed filed with the plaint are in two parts, first part related to 68 bigha, 3 biswa and second part related to 4 bigha, 16 biswa. The second part of 4 bigha, 16 biswa has been exclusive property of the family of the plaintiff. The sale deed for consideration before the Hon’ble Court are ralted to these 73 bighas only. The total land in acre are 17.34 and value in monetary terms is 9013.6 lacs. The court fee payable upon there would be Rs. 8,76,135/- out of which the plaintiffs have paid a sum of Rs. 94,802/- thus the total court fee payable is Rs. 7,88,135/- are which has been duly paid.
For the purpose of permanent injunction the suit has been valued at Rs. 1000/- and a consolidated court fee of a Rs. 100/- has been paid thereon. The plaintiffs undertake to pay the necessary court fee if require as and when directed by this Hon’ble Court.”

16. In the present case, the Sale Deeds have been executed by GPA Holder Pt. Prakash Sharma in favour of the defendants No.1 to 12. The question of payment of Court Fee in such instances where the plaintiff is not a party to the execution of a document was considered in the case of Suhrid Singh Alias Sardool Singh vs. Randhir Singh & Others (2010) 12 SCC 112, wherein it was observed as under :
“7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay a valorem court fee on the consideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs.19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act.”

17. Since, the plaintiffs are not the executants of the documents, which are sought to be cancelled/declared null and void, it cannot be said at this stage that the requisite Court Fee has not been paid.
18. The second objection taken by the defendants is that the plaint does not disclose any cause of action.
19. It had been submitted on behalf of the defendants that as per Delhi Land Reforms Act, 1954, the Bhumidar is the absolute owner of the land which he is cultivating and thus, it cannot be said that the property is ancestral in nature.
20. In the case of Yoginder Singh & Another vs. Sumit Gahlot and Others 2018 SCC OnLine Del 9315, it was observed that whenever a property is inherited by a person from his parental ancestors before the year 1956, the inheritance is as an HUF property and even if the inheritance is of a land which is subject matter of Delhi Land Reforms Act. Bhumidar under the Delhi Land Reforms Act is nothing but an owner of the land and all that has happened because of the Delhi Land Reforms Act is that the ownership of the land which was earlier vested in private landlords, has come to be vested in the State and the owners of the land/lessees, as the case may be, became the lessees of the land under the Government with the lessees being termed as Bhumidars who are none other than the owner of the lease rights in the land of which the State has been made the owner/lessor. Asami is nothing but a sub-tenant of the Bhumidar. There is absolutely nothing in the Delhi Land Reforms Act that the Bhumidar’s rights which vested in the Karta or a Co-parcener, ceased to be a subject matter of HUF or that Bhumidar in land becomes the self- acquired property of the Karta/Co-parcener in whose name the land stands mutated. It was held that it is preposterous to say that by virtue of Delhi Land Reforms Act, the HUF property gets converted into self-acquired property merely because the owner of the Lease rights under the Delhi Land Reforms Act, is termed as Bhumidar. Thus, the property in question does not become a self-acquired property of the Bhumidar and continues to be an HUF property.
21. It is the specific case of the plaintiffs that the entire estate/suit property belonged to Late Shri Ganga Sahai who is the forefather of the plaintiffs and that the property continues to be in common name of the parties to the suit who are sharing common account in the Revenue records. The lands continue to exist in their common name and there is no division/partition in the family irrespective of the ancestral properties. In the records of the Khatauni, the father of the plaintiffs Late Shri Sohan Lal is shown as the owner to the extent of 1/18th share in the suit property. The Revenue records and more particularly Khatauni pertaining to the period 1994-95 issued on 04.01.1996 clearly stipulates the details of the lands existing in the names of the members of the plaintiff’s family. After the demise of Shri Sohan Lal, the properties got equally divided amongst plaintiff No.1 to 5 as his only legal heirs. They even got their names mutated in the Revenue records which was allowed by the Tehsildar vide Order No.M-613/0304 dated 02.07.2004. The plaintiffs received Notice dated 07.12.2007 from the Office of Dy. Commissioner, South-West, from where they came to know that one Shri Ramesh Chand Aggarwal, defendant No.8 has filed Appeal against the order of Tehsildar for not mutating his name in the Revenue records. The plaintiffs thus, filed the suit challenging the Sale Deeds vide which defendant Nos.1 to 12 are claiming to have become the owners.
22. The plaintiffs have, therefore, make specific averments of continuing to be the recorded Bhumidars in the Revenue records and sought cancellation of Sale Deeds. The only relief sought by them is the cancellation of the sale deeds allegedly executed by third party in favour of defendant No.1 to 12.
23. From the perusal of the contents of the plaint, prima facie it cannot be said that the suit for declaration and cancellation in respect of the Sale Deed is barred under any provision of Delhi Land Reforms Act. The plaint discloses a cause of action and the relief is not shown to be barred under Delhi Land Reforms Act.
24. The third objection taken is that the suit is barred by limitation.
25. According to the plaintiff they came to know about the alleged Sale Deeds only on receipt of Notice dated 07.12.2007 and the suit has been filed on 16.07.2010. Prima facie, it is shown to be within three years of their knowledge about the Sale Deeds. The contention of the defendant that the suit is barred by limitation is also not tenable, at this stage.
26. In the light of above discussion it is held that the present applications under Order VII Rule 11 CPC are without merit and are hereby dismissed.
I.A. 3159/2015 (Under Order 39 Rule 1 & 2 read with Section 151 CPC)
27. List before the Joint Registrar for completion of pleadings on 15.04.2024.

(NEENA BANSAL KRISHNA)
JUDGE
MARCH 12, 2024
va

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