Yogeshwar Dayal, J.
(1) This is a second appeal against the judgment of Shri 0. P. Singia, Additional District Judge, Delhi, setting aside the judgment and decree of the trial court dated 29th November, 1971, and remanding the case to the trial court for decision on merits.
(2) The plaintiffs filed asuit No. 381/70 in a civil Court for declaration to the effect that they were the bhoomidars to the exclusion of the defendants with respect to the land situated in villages Maujpur Babarpur and Karkardooma, Illaqa Shahdra, Union Territory of Delhi, as per khasra numbers mentioned in the plaint. The plaintiffs-respondents claimed to be in possession of the land and sought a permanent injunction restraining the defendants from interfering with the lawful possessi of the plaintiffs. The claim of the plaintiffs was based on the ground that their father, Chet Ram, son of Kalu, had been declared bhoomidar of the land in dispute. It was further pleaded by the plaintiffs-respondents that their father had died on 3rd June, 1969 leaving behind the parties to the suit as his heirs. The plaintiffs' case was that the deceased had separated defendant No. 1, appellant i.e. Mam Raj who is the eldest son from his previous wifre during his life time after gifting a portion in his favor and by registered will Chet Ram left his entire estate (which is the subject-matter of this suit) to the plaintiffs excluding the defepdants. It was further pleaded by the plaintiffs that the will was not taken into account by the Asstt. Collector during mutation proceedings and was admitted by the Additional Collector off appeal but on second appeal the Financial Commissioner reversed the orders of the Additional Collector on the ground that no proper application under Order 41 Rule27 Civil Procedure Code .had. beenfiled,and.therefore, the Additional Collector couldnot take into acco unt the said will and as such accepted the appeal-of the appellants. The suit had been filed because of the orders of the Financial Commissioner were against the plaintiffs. The plaintiffs also averred in the plaint in paragraph 4 that they were cultivating .the land in dispute as non-occupancy tenants under Chet Ram deceased and other bhomidars and even now they are inpossession of the land in dispute. The plaintiffs accordingly sought permanent injunction restraining the defendant (appellant) from interfering with the lawful possession of the plaintiffs. Prayer was also made for possession of the land in the alternative if the plaintiffs were evicted from the land in dispute during the' pendency of the suit.
(3) The defendant-appellant, Mam Raj, pleaded that civil Courts had no jurisdiction to entertain the suit and this claim was based on the authority of the Supreme Court in Hatti v. Sunder Singh. The trial court accordingly framed a preliminary issue :
'Whether this court has no jurisdiction to entertain the suit ?'
(4) Shri R. K. Jain, Subordinate Judge 1st Class, Delhi, after hearing the parties' and on relying on the judgment of the Supreme Court held that only the Revenue courts had jurisdiction to entertain the present suit and if a question of title was raised the civil court could deal with it on a reference, otherwise the present suit is not competent in a civil court. The plaintiffs being dissatisfied, went in appeal before the Additional District Judge and the learned Additional District by his judgment dated May 12, 1972 accepted the appeal and held that the case Hatti v. Sunder Singh does not apply on the facts of the present case and the civil courts had jurisdiction to. entertain the suit. It is against this decision that Mr. Shukla, learned counsel for the defendant, Mam Raj, has preferred the present appeal.
(5) In the written statement only Mam Raj, defendant, one of the sons, had challenged the jurisdiction of civil courts. Mr., Shukla, again, contended that the judgment in the case of Hatti applied to the facts of the present case.
(6) BEFO.RE deciding the present appeal, it will be necessary to analyze the judgment of the Supreme Court in the case of Hatti v. Sunder Singh, relied upon by the learned counsel for the appellant. It will be noticed that the facts of that case were that the appellant therein had been declared bhoomidar of some land belonging to respondent Sunder Singh, under section 13 of the Delhi Land Reforms Act No. 8 of 1954 (hereinafter referred to as the Act). The respondent brought a suit in the civil court claiming three reliefs. The first relief claimed was for declaration that the declaration of the bhoomidari issued in the name of Hatti in respect of the land in dispute was wrong, illegal, without jurisdiction, ultravires, void and ineffective against Sunder Singh. The second relief was that it be declared that Sunder Singh was entitled to bhoomidari rights under section 11 of the Act ; and the third relief was for possession of the land. The. case of the plaintiff's was that the land along with some other land was on Mustrajri with one Sultan Singh for a period of 20 years ending in June, 1952, and Hatti had been admitted as a tenant-at-will by the Mustrajar. On the expiry of the period of 20 years in June 1952, the Mustrajri stood terminated and the original Mustrajar's heirs left the land and Hatti continued in possession but since he was tenant-at-will of the Mustrajar, he had no rights in the land after the expiry of the Mustrajii. He was asked to surrender possession but failed to do so and, on the other hand, he was wrongly granted the declaration under Section 13 of the Act that he was a bhoomidar when he had no rights as tenant in the land at all. The main defense taken on behalf of Hatti was that he was a nonoccupancy tenant during the relevant year 1953-54 and he was entitled to the declaration of his bhamidari rights. Apart from the issues on merits, one issue was raised by the tenant that the civil court had no jurisdiction to entertain the suit in view of the provisions of section 185 of the Act. The trial court held that the trial court had jurisdiction to decide the suit of the landlord. Sunder Singh. When the matter went before the Supreme Court, the relevant provisions of the Act including sections 11, 13, 185, 186 and the relevant entries in the First Schedule to the Act, namely, item Nos. 19 and 28 were dealt with by the Supreme Court. The Supreme Court after noticing the provisions of sections 185 and 186 and Schedule I to the Act came to the conclusion that it is only the courts mentioned in column? of Schedule I which could take cognizance of any suit, application or proceedings mentioned in column 3 thereof. The Supreme Court also noticed section 186 and held that if in such proceedings which are covered by various entries given in the First Schedule in column 3, any question arises relating to the title of any party to the land which is the subjectmatter of the suit or proceedings and such question was directly and substantially in issue before the Revenue Court, the Revenue Court shall frame anissue on the question of title and refer it for decision to the civil court and the civil court after reframing the issue, if necessary, decide such issue only and return the case with its finding on such issue to the Revenue Court, and thereafter the Revenue Court had to proceed to decide the suit in accordance with the finding of the civil court on the issue referred to it. It will be noticed that the three reliefs claimed in the suit before the Supreme Court, the question whether bhoomidari was rightly granted under section 13 of the Act to the tenant or should have been granted under section 11 of the Act to the proprietor were the questions which had to be decided on an application under item No. 4 of the First Schedule and if a person without title is occupying the land, the question of ejectment of such a person could be decided under item No. 19 in the First Schedule and with respect to declaratory suit, whether the tenant was entitled to bhoomidari or landlord was entitled to bhoomidari could be decided under item No. 28 to the First Schedule. The Supreme Court accordingly held that in respect to the matters covered by section 185 read with First Schedule only the Revenue Court had jurisdiction and the Civil Court's jurisdiction had been expressly barred under section 185 of the Act.
(7) In the present suit the plaintiffs were not claiming any declaration for grant of bhoomidari rights or a declaration that the grant of bhoomidari rights to somebody else was wrong or illegal. The plaintiffs case was simply this that their father was already a bhoomidar under whom they were cultivating the land as non-occupancy tenant and after his death also, they were in possession of the land in dispute. The only question which the plaintiffs were raising in the. present suit was that on the death of their father they succeeded to the bhoomidari rights of their father to the exclusion of the appellant. No question arose of the applicability of section 11 or 13 of the Act. The averments made in paragraph 4 of the plaint, were also not to the effect that they were initially entitled to the. grant of bhoomidari rights to the exclusion of their father, Chet Ram and the said averments cannot be construed to mean that the plaintiffs were claiming bhoomidari rights in view of their occupation during the year 1953-54 under section 13 of the Act. The Supreme Court was concerned with the case where the parties were disputing the grant or refusal of bhoomidari rights by the authorities under the Act to one or the other, on the basis of criteria as given in sections 11 and 13 of the Act. The Supreme Court . was concerned with the suit purely of the nature as contemplated by section 185 of the Act read with First Schedule.
(8) Mr. Vohra, learned counsel for the respondent contended that section 48 of the Act confers right on bhoomidar to bequeath his property by will and section 185 of the Act does not bar an issue to determine as to who were entitled to succeed the bhoomidari rights by virtue of the will or otherwise. In the case reported as Abdut Waheed Khan v. Bhawani and others, the Supreme Court held that under section 9 of. the Code of Civil Procedure the civil court can entertain a suit of a civil nature except a suit of which its cognizance is either expressly or impliedly barred. It has been observed that it is a settled principle that it is for the party who seeks to oust the jurisdiction of a .civil court to establish his contention that jurisdiction has either expressly or impliedly been ousted, It was also held that it was equally well settled that a statute ousting the jurisdiction of a civil court must be strictly construed The same principles were reiterated in the case of Dhulabhai etc. v. State of Madhya Pradesh and another.
(9) It will thus benoticed that it is only under section 185 which expressly ousts the jurisdiction of the civil courts in certain matters and not in all matters. The matters in respect of which the jurisdiction of the civil courts is ousted are only those matters which are mentioned inschedule I to the Act,andvarioustypesofsuits,applications and other proceedings are mentioned in column 3 of the said Schedule read with entries mentioned in column 2 and the courts in which the proceedings have to bs filed are mentioned in column 7 thereof. It is thus clear that in the suit of the present type in which permanent injunction is claimed on the basis of succession to bhoomidari rights by virtue of a will; such a suit is not covered by any entry in column 3 of First Schedule and thus the Delhi Land Reformrs Act does not either expressly or implied bar the present suit. So far as the alternative relief of possession is concerned, namely that in case it be held that the plaintiffs have been dispossessed during the pendency of the suit, it maybe argued that such claim can be decided by Revenue Courts in view of entry No. 19 in column 3 of the First Schedule but that question cannot be decided as a preliminary issue. The case of the plaintiffs is that they are in fact in possession whereas the defendant has denied the possession of the plaintiffs. It will thus be a question for trial whether the plaintiffs on the date of the suit had any possession or not. Again, if the plaintiffs are dispossessed during pendency of the suit, it will again be a question to be determined on facts. The question cannot be determined without taking evidence and so long as the issue is not decided as aquestion of fact, it cannot beheld that the suit itself is beyond the cognizance of civil courts; as and when the question arises whether the plaintiffs have been dispossessed during the pendertcy of the suit, the question will then arise as to the jurisdiction of the civil court to grant a degree for possession On the allegations as. contained in the plaint which has to betaken as correct for the purpose of deciding jurisdiction of the courts to take cognizance of the suit, .is cannot be said that the cognizance of the civil court is barred.
(10) A similar question also arose in the case of Jai, Bhagwan v. Lachhmi Devi etc, decided by B C. Misra J. by his judgment dated 22, November 1971. In that case one Manbhari had sold land in favor of the plaintiff on 29th April, 1955. She then made a gift of the same to her step daughter in 1957. The plaintiff filed asuit for declaration that gift was bad and in the alternative for possession, which was dismissed by the trial court on the ground that it had no jurisdiction to take cognizance of the suit. The plaintiff appealed to the High Court. It was held that as there was no complaint to the grant of bhoomidrai rights or that the grant of bhoomidari rights to Manbhari was wrong, the suit was not barred. As p'aintiff claims that the gift is void while defendants claim that sale to plaintiff was void and both claim to succeed to the rights of Manbhari, such a suit is maintainable. In the prevent case also both parties for their title rely on the grant of bhoomidari rights to their father. The ratio of the case in the aforesaid judgment of B.C. Misra J., thereforee, applies to the facts of the present case.
(11) The result is that I find no infirmity in the order of the lower appellate court and have no option but to dismiss the appeal with costs.