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Nihal Singh Vs. the Union of India - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 496 of 1971
Judge
Reported in8(1972)DLT386
ActsDelhi Land Reforms Act, 1954 - Sections 161B
AppellantNihal Singh
RespondentThe Union of India
Advocates: S.S. Dalal and; V.P. Kohli, Advs
Excerpt:
.....no. 20th july, 1954. it is stated that bihari died thereafter, and mutation regarding inheritance to bihari's 1/3rd share in the land and 1/6th share in the well was effected in the name of the gaon sabha. 92 of 1962 in the court of shri hukam chand gupta, subordinate judge, delhi, under section 36 (2) of the delhi panchayat raj act, 1954, for getting a declaration of ownership with respect to bihari's 1/3rd share in the land, and 1/6 share in the well. a/1) in the presence of nihal singh and the pradhan of of the gaon sabha whereby a declaration was made in favor of nihal singh to the effect that he was entitled as heir to bihari's 1/3rd share in the land and 1/6th share in the well. 8 (gher mumkin chah-well) was included in the holding of nihal singh and the share of bihari was..........it was established that nihal singh was neither the owner nor was in cultivating possession of the suit land. in view of that finding, he set aside the decree, dated 18th may, 1962, and directed that the suit shall be tried afresafter the union of india has been imp leaded as a party. it is against the said order that the present civil revision has been filed by nihal singh. (4) the land in dispute consists of khasra nos. 77 (13 bighas 17 biswas), 272 (4 bighas), 282 (5 bighas 12 biswas), 283 (8 bighas) and 332 (3 bighas 12 biswas) in khewat no. 5/16, and l/6th share in a well in khewat no. 7/18, khasra no. 78 (6 biswas), all situated that village jhuljhuli, delhi state. it is stated that there were three co-shares in respect of the aforesaid land, viz., nihal singh, bakhtawar and.....
Judgment:

T.V.R. Tatachari, J.

(1) This Civil Revision has been filed by Nihal Singh, plaintiff in Misc. Suit No. 1318 of 1966 on the file of Shri B.K. Agnihotri, Subordinate Judge, 1st Class, Delhi, against an order of the said Subordinate Judge, dated 14th October, 1971, made under section 161-B of the Delhi Land Reforms Act.

(2) The petitioner, Nihal Singh, filed a Suit, No. 92 of 1962, on 15th February, 1962, in the Court of Shri Hukam Chand Gupta, Subordinate Judge, Delhi, against the Gaon Sabha of village Jhuljhuli, Delhi State. The said suit was decreed on 18th May, 1962, declaring Nihal Singh as the owner of the land in suit. The Union of India thereupon filed an application under Section 161-B of the Delhi Land Reforms Act for setting aside the decree. The Union of India alleged in that application that the land in suit was not cultivated nor included in the holding of Nihal Singh or he predecessor-in-interest during the fasli year ending 30th June, 1954. The applica

(3) On those pleadings, the following issues were framed by the Court :-

'1.Is the application within time. 2. Whether the judgment and decree, dated 18th May, 1962 is liable to be set aside as per allegations in the application? 3. Relief.'

By his order, dated 14th October, 1971, Shri B.K. Agnihotri, Subordinate Judge, decided issue No. 1 in favor of the Union of India observing that the issue was not pressed by the decree-holder Nihal Singh. On issue No. 2, the learned Subordinate Judge held that it was established that Nihal Singh was neither the owner nor was in cultivating possession of the suit land. In view of that finding, he set aside the decree, dated 18th May, 1962, and directed that the suit shall be tried afresafter the Union of India has been imp leaded as a party. It is against the said order that the present Civil Revision has been filed by Nihal Singh.

(4) The land in dispute consists of Khasra Nos. 77 (13 bighas 17 biswas), 272 (4 bighas), 282 (5 bighas 12 biswas), 283 (8 bighas) and 332 (3 bighas 12 biswas) in Khewat No. 5/16, and l/6th share in a well in Khewat No. 7/18, Khasra No. 78 (6 biswas), all situated that village Jhuljhuli, Delhi State. It is stated that there were three co-shares in respect of the aforesaid land, viz., Nihal Singh, Bakhtawar and Bihari. It is also stated that Bakhtawar died and his 1/3rd share was inherited by Nihal Singh, so that Nihal Singh thereafter had a 2/3rd share and Bihari had l/3rd share. Exhibit R-5, Khasra girdawari for 1953-54, shows that Nihal Singh and Bihari were jointly cultivating 2/3rd and 1/3rd shares in the aforesaid land. Exhibit R-1 shows that a declaration was made under the Delhi Land Reforms Act, 1924, that Nihal Singh and Bihari were bhumidars in respect of 2/3rd and 1/3rd shares respectively w. e. f. 20th July, 1954. It is stated that Bihari died thereafter, and mutation regarding inheritance to Bihari's 1/3rd share in the land and 1/6th share in the well was effected in the name of the Gaon Sabha. Thereupon. Nihal Singh filed Suit No. 92 of 1962 in the Court of Shri Hukam Chand Gupta, Subordinate Judge, Delhi, under section 36 (2) of the Delhi Panchayat Raj Act, 1954, for getting a declaration of ownership with respect to Bihari's 1/3rd share in the land, and 1/6 share in the well. Gaon Sabha of Jhuljhuli was the defendant in the suit. On 18th May, 1962, the parties made statements, and on the basis of the said statements the Court passed a decree (Ex. A/1) in the presence of Nihal Singh and the Pradhan of of the Gaon Sabha whereby a declaration was made in favor of Nihal Singh to the effect that he was entitled as heir to Bihari's 1/3rd share in the land and 1/6th share in the well.

(5) In pursuance of the decree, mutation No. 547 (Ex. R/2) was effected showing that Nihal Singh inherited Bihari's 1/3rd share in the land. Then, on 25th November, 1966, the Union of India filed an application under section 161-B of the Delhi Land Reforms (Amendment) Act, 1965, for setting aside the decree passed on 18th May, 1962. It was alleged in that application that the land in suit was neither cultivated by Nihal Singh nor was included in the holdding of Nihal Singh nor his predecessor-in-interest during the fasli year ending with 30th June, 1954, that the land was recorded as khali ', etc in the revenue records Jhuljhuli during the relevant period, and that the application should, thereforee, be allowed, the decree be set aside, and the suit may be heard and decided afresh after adding the Union of India as a defendant.

(6) Nihal Sinph filed a reply opposing the said application. He submitted, inter alia, that the land in question was, before the commencement of the Delhi Land Reforms Act, 1954, including the fasli year ending with 30th June, 1954, included in the holding of himself and his predecessor-in-interest, late Bihari, that they were jointly declared bhumdars of the suit land, and that the land has since been included in his bumidari holding exclusively. He prayed that the application may, thereforee, be dismissed. By his order, dated 14th October, 1971, the learned Senior Subordinate Judge, Shri B. K. Agnihotari, held that it was clear from the revenus record (Ex. R/1) that Nihal Singh and Bihari were jointly declared bumidars of the land in suit to the extent of 2/3rd and l/3rd shares respectively, that the mutation of succession in respect of the share of Bihari (deceased) had been effected in favor of Nihal Singh, and that similarly Khasra No. 8 (Gher mumkin Chah-well) was included in the holding of Nihal Singh and the share of Bihari was mutated in his favor as mentioned in Exh. B-2. He also observed that it was not denied by the counsel for the Union of India that Nihal Singh was entitled to the extent of 2/3rd share, and that it was also clear from the record that the land was in the cultivation of Nihal Singh and Bihari jointly in the year 1953-54 The learned Subordinate Judge further observed that the only point raised by the counsel for the Union of India was that there was no valid entitlement of Nihal Singh with respect to the share of Bihari who had 1/3rd share in the said land. The learned Subordinate Judge, however, took the view that in the fasli year ending with 30th June, 1954, Nihal Singh admittedly was not the owner of the l/3rd share of Bihari, nor was he in cultivating possession of the said l/3rd share of Bihari, and that consequently the decree passed in favor of Nihal Singh was liable to be set aside by virtue of the provisions in Section 161-B of the Delhi Land Reforms (Amandment) Act, 1965. He accordingly set aside the decree.

(7) Shri S. S. Dalal, learned counsel for the petitioner Nihal Singh, contended that the learned Subordinate Judge mis-read and mis-applied the provisions in Section 161-B, and that for the purpose of the said section it was sufficient if Nihal Singh was in joint possession of the 1/3rd share of Bihari in the fasli year ending with 30th June, 1954. There is considerable force in the contention.

(8) Section 161-B, which has been added to the Parent Act by the Delhi Land Reforms (Amendment) Act 38 of 1965 which came into force on 30th November, 1965, reads as follows : -

'161-B,(1) Where in any suit or proceedings before any civil or revenue court filed under sub-section (2) of secton 36 of the Delhi Panchayat Raj Act, 1954, the ownership of any land has been decided in favor of any person other than the Gaon Sabha before the date of passing of the Delhi Land Reforms (Amendment) Act. 1965, then notwithstanding anything contained in clause (b) of sub-section (2) of section I or in any other law for the lime being in force, such decree or order shall, on an application made by the Government of India within twelve months from that date or within such further period as the Court may, for sufficient cause, allow, be set aside if in the revenue records of the fasli year ending with 30th June, 1954, such land was not included in the holding of the person in whose favor the decree was passed or his predecessor-in-interest ; or (ii) the land was not recorded as being in the cultivation of such person or his predecessor-ininterest:'

In other words, if the land in question was shown in the revenue records of the fasli year ending on 30th June, 1954, as included in the holding or the person in whose favor the decree was passed or in the holding of his predecessor-in interest or if the land was recorded in the said revenue records as being in the cultivation of such person or his precessor- in-interest, the decree passed in respect of that land will be outside the purview of the section and cannot be set aside by virtue of the said section. In the present case, admittedly the revenue record, i. e. Khasra girdawari (Ex. R-5), for the fasli year 1953 54, ending with 30th June, 1954, shows that Nihal Singh and Bihari were jointly clutivating the suit land in 2/3rd and l/3rd shares respectively. It is true that so far as 1/3rd share of Bihari is concerned Nihal Singh was not cultivating it by himself. But, Bihari was in cultivating possession of that 1/3rd share in that year, and Nihal Singh succeeded to that l/3rd share of Bihari. In other words, Bihari, who was the predecessor-in-interest of Nihal Singh, was in cultivating possession of the 1/3rd share in the relevant year. As pointed out above, if the land in question was in the cultivating possession of the predecessor-in interest of the person in whose favor the decree in question was passed the decree would fall outside the scope of section 161-B. The learned Subordinate Judge apparently missed the words 'predecessor in interest' in the relevant portion of Section 161-B. On (he admitted facts of the case, the decree passed on 18th May, 1962, was in respect of 1/3rn share of Bihari which was in the cultivation of Nihal Singh's predecessor-in interest during the fasli year ending with 30th June, 1954. Such a decree is clearly exempted from the effect of the provisions in section 161-B. A Court will have jurisdiction to set aside a decree under section 161-B only if the decree is covered by the provisions in section 161-B, and a Court will not have any jurisdiction to set aside a decree which falls within the exception mentioned in the said section. It is thus clear that the learned Subordinate Judge, in setting asi(e the decree passed on 18th May, 1962, exercised jurisdiction which was not vested in him, or at any rate acted with material irregularity in exercising the jurisdiction under section 161-B. It follows that the order of the learned Subordinate Judge, dated 14th October, 1971, is liable to be set aside.

(9) Shri V.P. Kohli, learned counsel for the respondent sought to conterd that there was no finding by the lower Court that Bihari was Nihal Sing's predecessor in-interest. But, the decree passed on 18th May, 1962, declared that Nihal Singh was entitled as heir to the 1/3rd share of Bihari. It was not questioned in the application filed by the Union of India under section 161-B. In his reply to the application, Nihal Singh asserted that Bihari was his predecesser-in-interest Yet, no replication was filed by the Union of India controverting the same. In the circumstances, it is not open to the learned counsel for the respondent to raise at this late stage the contention that Bihari was not Nihal Singh's predecessor-in-interest.

(10) For the for the foregoing reasons, the Civil Revision is allowed, the order of the learned Subordinate Judge, dated 14th October, 1971, is set aside, and the application filed by the Union of India under section 161-B of the Delhi Land Reforms (Amendment) Act 38 of 1965 is dismissed with costs throughout.


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