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Daryodh Singh Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberRegular First Appeal No. 149D of 1965
Judge
Reported inAIR1973Delhi58; 9(1973)DLT28
ActsRegistration Act, 1908 - Sections 17(1); Delhi (Urban Areas) Tenants Relief Act, 1961 - Sections 3
AppellantDaryodh Singh
RespondentUnion of India and ors.
Advocates: H.S. Tyagi and; Ravinder Sethi, Advs
Cases ReferredIn Gadadhar Bhatta v. Lalit Kumar Chatterji
Excerpt:
.....not entitled to any share in compensation. - - 104 to the land under his cultivation which bad not been acquired. (12) the compromise as well provided that in the event of the suit property being acquired by the government the owners shall be entitled to all compensation which may become payable to daryodh singh in respect of levelling, improving and developing or in respect of tenancy rights. - (a)that a decree for arrear of rent due in respect of the land remains unsatisfied after the expiry of the period allowed thereforee; (b) where rent is payable in kind, that he has without sufficient cause failed to cultivate the land; 4500.00 by the owners and their relinquishing their claim for rent against the appellant up to july 15, 1960. the contract as well did not contravene..........his interest in the acquired land under the following heads :- (i)compensation for deprivation of tenancy rights; (ii) expenses incurred on the land for making it fit for cultivation; (iii) compensation in respect of about 700 fruit trees alleged to have been planted by him on the land : (iv) compensation for right of 'pathway' through khasra no. 104, which was part of the acquired land to his residential house; (v) compensation in respect of the old water channel passing through khasra no. 104 to the land under his cultivation which bad not been acquired.(8) the claim of daryodh singh to a share in the amount of compensation was resisted by the owners on the ground that in the litigation for his eviction he had given up his right to receive compensation and through a compromise had.....
Judgment:

Jagjit Singh, J.

(1) This appeal is against the award of an Additional District Judge, Delhi, on a reference made under section 30 of the Land Acquisition Act, 1894.

(2) Daryodh Singh is the appellant. He was in possession of 42 Bighas of Land situated in village Rajpur Chhawni (Delhi) as a tenant. The land, on a portion of which some trees had been planted and there were some superstructures, belonged to Goverdhan Dass Motilal Mohtta Trust, Mohd. Yusuf, C. S. Jaitley, D. S. Jaitley and V. S. Jaitley.

(3) On July 17, 1956 the owners of the land instituted a suit for ejectment of Daryodh Singh from the land and for recovery of arrears of lent. While that suit was pending in the court of the Assistant Collector, First Grade, Delhi, the parties entered into a compromise. In terms of that compromise, dated July 30, 1959 the ejectment of the tenant was ordered but the plaintiffs were required to pay an amoun of Rs. 4,500.00 to the defendant ' two months prior to 15th July, 1960 ', before which date the decree was not to be executed. The operative part of the decree was as under :-

'It is ordered that decree of ejectment in respect of Garden and land together with super-structure and two wells is passed against the defendant. It is further ordered that the decree shall not be executed till 15-7-1960 and the plaintiff shall pay Rs. 4,500.00 to the defendant. So long the plaintiff does not pay Rs. 4,500.00 to the defendant two months prior to 15-7-1960, he shall not be entitled to possession.'

(4) Out of the land which formed part of the tenancy of Daryodh Singh 32 Bighas and 14 bids was were acquired by the Delhi Administration for the public purpose of construction of Delhi Transport Service Staff Quarters. Notification under section 4 of the Land Acquisition Act was issued on January 11, 1956 and the Land Acquisition Collector gave his award on April 28, 1961. Market value of 30 Bighas and 14 bids was of land, which was Nehri was assessed at Rs. 3,000.00 per bigha and for the remaining two Bighas of Gairmumkin land the value was determined at Rs. 2.500.00 per Bigha. Fifteen per cent was also awarded on the market value of the land in consideration of the compulsory nature of the acquisition. In addition to that Rs. 1000.00 were allowed as compensation for wells and Rs. 2,900.00 as compensation for the standing trees. Thus the total compensation payable by the Government came to Rs. 1,15,565.00.

(5) In his award the Land Acquisition Collector noted the fact that there was dispute, regarding the apportionment of the' compensation between the three Jaitley brothers and also between the owners and the tenant. Under section 30 of the Land Acquisition Act a reference was, thereforee, made and under section 31 of that Act the amount of compensation was also deposited in the Court to which the reference was made.

(6) The reference so made was disposed of by Shri Hans Raj, Additional District Judge, on December 12,1962. Before the Additional District Judge the owners settled amongst themselves the shares to which they were entitled in the compensation payable to them. It was agreed amongest them that the share of Goverdan Dass Motilal Mohatta Trust was one-half that of Mohd. Yusaf was one fourth and of C. S. Jaitley, D. S. Jaitley and V. S. Jaitley to be one fourth. The interse share of C. S. Jaitley, V. S. Jaitley and D. S. Jaitley in the one-fourth share of the compensation payable to the owners was to be equal.

(7) So far as Daryodh Singh was concerned he claimed an amount of Rs. 92,400.00 as his share of the compensation in respect of his interest in the acquired land under the following heads :-

(I)Compensation for deprivation of tenancy rights; (ii) expenses incurred on the land for making it fit for cultivation; (iii) Compensation in respect of about 700 fruit trees alleged to have been planted by him on the land : (iv) Compensation for right of 'pathway' through Khasra No. 104, which was part of the acquired land to his residential house; (v) Compensation in respect of the old water channel passing through Khasra No. 104 to the land under his cultivation which bad not been acquired.

(8) The claim of Daryodh Singh to a share in the amount of compensation was resisted by the owners on the ground that in the litigation for his eviction he had given up his right to receive compensation and through a compromise had agreed that if the land was acquired by the Government the owners would be entitled to all compensation which may be payable to him in respect of levelling, improving and developing or in respect of the tenancy rights.

(9) Thus the only dispule which survived for determination by the Additional District Judge was as to whether Daryodh Singh was entitled to a share in the amount of compensation and if so to what amount. While Daryodh Singh claimed the bulk: of the amount as due to him the owners of the land disputed his right to get any share, whatsoever, in the amount of compensation awarded by the Land Acquisition Collector.

(10) By his award the Additional District Judge held that the owners of the land had deposited Rs. 4500.00 in terms of the decree passed on the compromise between the parties and, thereforee, the decree had become 'operative' on July 15, 1960. Further through that compromise Daryodh Singh was considered to have relinquished his right to share in the compensation payable on acquisition of the land under his tenancy and, thereforee, not to be entitled to any share in the compensation under any of the heads of his claim. The dismissal of the application filed by landlord owners for execution of the ejectment decree, on account of the provisions of the subsequently enacted Delhi (Urban Areas) Tenants' Relief Act, 1961, was found to be of no consequence. In the result the claim of Daryodh Singh for a share in the amout of compensation was held untenable and;the compensation amount was ordered to be paid to the owners according lo the shares to which they had agreed.

(11) As already mentioned the owners of the land had filed a suit for ejectment of Daryodh Singh appellant. That suit was disposed of by Shri S. C Vajpayee, Assistant Collector First Class, Delhi, on the basis of a compromise which had been entered into between the parties on July 30, 1959. The compromise provided for a decree for ejectment to be passed against Daryodh Singh tenant but the decree was not to be executed before July 15, 1960 Daryodh Singh had agreed not to sow any fresh crop other than fodder after March 31, 1960. Clauses 3 and 4 of the compromise which provided for paying a sum of Rs. 4500.00 by the owners to the tenant by. depositing the amount in court two months prior to July 15,1960,were as under :-

'3.That the plaintiff have agreed to pay a sum of Rs. 4500.00 (Rupees four thousand five hundred only), being payable by the plaintiffs in equal amount ratio Rs. 1500.00 by each class of persons and have also agreed to give up their claim for rent for the period in suit and for the subsequent period till 15th July, 1960. in lieu of the defendant's claim for improvements and payment of land revenue as mentioned in the written statement and also his claim for compensation for disturbance as contanied in his application under section 70 read with section 69 of the Punjab Tenancy Act. 4. That the plaintiffs will deposit the aforesaid amount of Rs. 4500.00 (Rupees four thousand five hundred only) in court two mouths prior to 15th July, 1960. The said amount will be payable to the defendant only, after he delivers vacant possession of the property in suit to the plaintiffs and the plaintiff's also would not beentitled to take possession of the property in execution of the deeree even after 15th July, 1960. till they pay the aforesaid amount of Rs. 4500.00 to the defendant. '

After the payment of Rs 4500.00 in terms of the compromise Daryodh Singh was not to have any claim for improving, levelling or developing the land or any other claim in respect of the property in suit or compensation for disturbance from the said property.

(12) The compromise as well provided that in the event of the suit property being acquired by the Government the owners shall be entitled to all compensation which may become payable to Daryodh Singh in respect of levelling, improving and developing or in respect of tenancy rights. In that event Daryodh Singh was only to get compensation which may become payable in respect of the standing crops but he was to have no right to cut down or remove trees or to damage or remove the superstructure on the land. In this respect clauses 6 and 7 of the compromise were as follows :-

'6.That if the Government acquires the property in suit, the plaintiffs shall be entitled to all compensation which may become payable to the defendant in respect of levelling, improving and developing or in respect of tenancy rights relating to the property in suit. The Plaintiffs shall be entitled to receive the said amount by virtue of this agreement and in consideration of the payment of Rs. 4,500/ and for relinquishing rent up to 15th July, 1960. The defendant shall be entitled to the crop standing on the property in suit or any compensation which may become payable in respect of the said standing crop, but he shall not be entitled to cut down or remove trees standing at present on the property as per schedule 'A' attached and will not damage or removed super-structure on the property.'

(13) Shri Tyagi learned counsel for the appellant, contended that the Additional District Judge fell in error in holding that Daryodh Singh had relinquished his right to compensation. It was submitted that as required by the decree for ejectment the payment of Rs. 4500.00 was not made by the owners of the land two months prior to July 15, 1960 and consequently there had been non-compliance with the terms of the decree. The clauses of the compromise, relating to matters other than the subject matter of the ejectment suit, including clause 6, were stated to be inadmissible in evidence as the deed of compromise was not got registered. It was further urged that in any event the terms of the compromise relating to the owners alone being entitled to all the compensation except for the standing crops were without consideration, illegal and void. Another contention which was raised was that the appellant had acquired new rights in the land as a result of coming into force, with effect from December,4 1961 of the Delhi (Urban Areas) Tenants Relief Act, 1961 (No. 30 of 1961) and even of clause 6 in the compromise could some how be read as part of the evidence still that clause only affected the tenancy rights which the appellant had on the day the compromise was executed and not the additional rights which came to be vested in him under Act 30 of 1961.

(14) As required by the ejectment decree against Daryodh Singh an amount of Rs. 4500.00 was to be paid by the owners of the land two mon- this prior to July 15, 1960. May 15 1960 happened to be a Sunday and on the next day the amount of Rs. 4500.00 was deposited on behalf of the owners of the land in the Stale Bank of India under the head 'Revenues Deposit as the amount' of the cecree passed by the Court of Shri S.C. Vajpayee, Revenue Officer, Delhi in case Seth Ram Gopal etc. Plaintiffs versus Daryodh Singh, suit No. 26/1956 decided on 30th July, 1959.

(15) Shri Tyagi contended that the payment was made one day late and no advantage could be taken of the fact that May 15, 1960 happened to be a Sunday. His other submissions were that the record of the Court of the Assistant Collector did not show the receipt of the counterpart of the challan by which the amount had been deposited and that in the Register of the Bank the entry relating to the deposit did not contain the name of the person to whom the amount was payable.

(16) The deposit of the amount of Rs. 4500.00 was actualy made on May 16. 1960. It has, thereforee, to be seen whether the deposit was made 'two months prior to 15th July, 1960.' In its ordinary accepted sense the expression 'month' means a 'calender month' and not a 'lunar month.' As to how a calendar month is to be counted from a date which is not the first of the month has been described in paragraph 143 of Halsbury's Laws of England Volume 37 (third Edition) in the following words:- 'When the period prescribed is a calendar month running from any arbitrary date the period expires with the day in the succeeding month immediately preceding the day corresponding to the date upon which the period starts; save that, if the period starts at the end of a calendar month which contains more days than the next succeeding month, the period expires at the end of the latter month.' Thus one month counted from July 15, 1960 would be on June 16 and the second month counted from June 16 would be on May 17, 1960. Evidently, thereforee, the deposit made on May 16, 1960 was two months prior to July 15, 1960

(17) Even if it is somehow considered that in order to fulfill the requirement of 'two months prior to 15th July, 1960' the deposit should have been made on May 15, 1960, as contended by the learned counsel for the appellant, still by applying the equitable principle of section 10 of the General Clauses Act, 1897, the deposit can be considered to have been made in due time. In Sankaran Unni (minor) and another v. Kummakattil Ezhwan Kandan's son Raman it was pointed out:-

'THEREis a generally recognized principle of Law, under which parties, who are prevented from doing a thing not by any default of their own, but by the Court itself, are entitled to do it, at the first subsequent opportunity. That is the general principle of equity, quite apart from the terms of Section 10 of the General Clauses Act. In fact Section 10 is based upon that principle. In this case, the defendant had the option to pay either to the plaintiff directly or into Court. He was entitled to choose between the two. He was prevented from paying into Court, because the Court was closed on the due date. His payment thereforee on the re-opening day must, I think, be held to be a sufficient compliance with the terms of the decree' This decision was relied upon in Puran Chand v. Mohd. Din for applying the equitable principles of section 9 of the General Clauses Act fur the construction of & decree.

(18) As provided in the compromise the payment was to be made by depositing the amount and this is what was done by the respondents. The fact that a copy of a challan was some how not sent by the treasury officer either to the Court of the Assistant Collector, First Grade, Delhi, or was not traceable in the record of that court is of no consequence in determining the question whether payment in terms of the decree based on the compromise of the parties had been made or not. Similarly the short entry made in a register in the bank is of no relevance in that connection. The respondents having made the payment two months prior to July 15, 1960 they could get the decree for eviction executed on July 16, 1960. They, however, applied for execution of the decree on July 28 1962. Before that dale the Delhi (Urban Areas) Tenant's Relief Act, 1961 had already come into force. Section 3 of that Act, inter alia, provided that after its commencement no person was liable to be evicted from any land held by him as a tenant except on one or more of the following grounds, namely:-

'(A)that a decree for arrear of rent due in respect of the land remains unsatisfied after the expiry of the period allowed thereforee; (b) where rent is payable in kind, that he has without sufficient cause failed to cultivate the land; (c) that he has sub-let or otherwise transferred the whole or any part of the tenancy in contravention of any law for the time being in force or of any contract; (d) that he has used the land in a manner which readers it unfit for the purpose for which it was let.'

Further section 4 made a provision that except as provided in section 3 no tenant of land was to be ejected from the land whether in execution of a decree or order of a court or otherwise, and if there was any proceeding for ejectment of such tenant pending immediately before the commencement of the said Act and the proceedings could not have been instituted had the Act been in force at the time of the institution of such proceeding, then, notwithstanding anything contained in any law, such proceeding was on the such commencement to abate. As the decree for the appellant's ejectment was not covered by section 3 the execution application was dismissed by the Additional Revenue Assistant on November 6, 1962. From this order dated November 6, 1962 the only inference sought to be drawn by the learned counsel for the appellant was that the appellant continued to be in possession of the land as a tenant, including the land regarding which acquisition proceedings were then pending.

(19) The record of the case does not show on which date possession of the acquired land was taken by the Collector, but it must have been after December 4, 1961 as a suit filed by the appellant to obtain an injunction that possession of the land should not be taken from him was dismissed on December 6, 1961. The Delhi (Urban Areas) Tenants' Relief Act, 1961 having come into force with effect from December 4, 1961 the appellant could not be ejected from the land which was held by him as a tenant on the basis of the decree which the owners of the land had obtained from the Court of Assistant Collector, First Grade Delhi, on July 30, 1959. His future liability to be ejected from the land at the instance of the landlords also came to be restricted to the grounds mentioned in section 3 of the said Act.

(20) There, however, seems to be no force in the contention that the compromise dated July 30, 1959, (Exhibit A/2) was not admissible inevidence in so far as it related to relinquishment by the appellant of his right to receive compensation in respect of levelling improving and developing or in respect of tenancy rights.' Section 17-(1)(b) of the Indian Registration Act, 1908 on which reliance was placed, provides that non-testmantary instruments which purport or operate to create, declare, assign, limit or extinguish, whether inpresent or in future, the right, title or interest, whether vested or contingent, of the value of Rs.100.00 or onwards, to or in immovable property, require registration. If such a document is not registered then, as provided by section 49 of that Act, it is not to be received as evidence of any transaction affecting such immovable property though it may be received as evidence of a contract in a suit for specific performance or evidence of part-performance of a contract for the purposes of section 53-A of the Transfer or Property Act or as evidence of a collateral transaction not to be affected by registered instrument.

(21) The compensation to be paid in respect of any land which is acquired under the provisions of the Land Acquisition Act, 1894, can by no stretch of imagination, be regarded as immovable property To clause 6 of the compiomise, thereforee, section 17(1)(b) of the Registration Act was not applicable, even though it was not the subject matter of the suit by the owners of the land against the appellant and the decree passed also made no reference to it.

(22) In Mrinalini Dusi v. Abinash Chandra Dutt, a case cited by the appellants learned counsel, a Hindu widow had sold without legal necessity a pottion of the lands inherited by her from her husband. That portion of the lands was later on acquired under the Land Acquisition Act and the compensation money was withdrawn by the person lo whom the land had been sold. The reversionary heirs brought a suit for a declaration that the transfer was not operative against them and to compel the transferee to bring the money into court for investment: It was held that the court had inherent power to compel the transferee to bring the money into court and to direct its investment in Government or Other approved securities in terms of section 32 of the Land Acquisition Act. Evidently the facts of that case were entirely different and it can be of no help for supporting the contention sought to be raised that compensation paid by Government on acquiring land under the Land Acquisition Act can be regards as immovable property. The compensation amount is obviously movable property and a contract relating to it cannot be said to be regarding a right, title or interest in immovable property.

(23) Clause 6 of the compromise between the parties by which it was agreed that the owners shall be entitled to all compensation which may become payable to the tenant in respect of levelling, improving and developing or in respect of tenancy rights was not hit by section 17(1)(b) of the Indian Registration Act. The contract so embodied in clause 6 was not without consideration and was in no way illegal or void. The consideration for the appellant giving up his right to receive compensation was mentioned in the clause itself. The consideration so mentioned was payment of Rs. 4500.00 by the owners and their relinquishing their claim for rent against the appellant up to July 15, 1960. The contract as well did not contravene any of the provisions of Delhi (Urban Areas) Tenants Relief Act, 1961 or any other law. In Gadadhar Bhatta v. Lalit Kumar Chatterji a condition in a permanent lease that if the tenancy is terminated by reason of the acquisition of the land for public purposes, the whole amount of the acquisition money will be payable to the landlord was considered to be valid.

(24) It is not possible to agree with the learned counsel for the appellant that under clause 6 of the compromise the appellant had only relinquished his rights to receive compensation in respect of the tenancy rights as they existed under the Punjab Tenancy Act on the dale of execution of the compromise and that there was no relinquishment of the compensation that may become payable in respect of the rights of tenancy as safeguarded by the Delhi (Urban Areas) Tenant's Relief Act, 1961. It was urged that the nature of the appellant's tenancy changed and clause 6 had, thereforee, no application to this changed tenancy.

(25) What was intended by clause 6 of the compromise was that if the Government acquired the property which was the subject matter of the ejectment suit the owners (i.e. the plaintiffs in that suit) shall be entitled to all compensation which may become payable to the tenant in respect of levelling, improving and developing or in respect of tenancy rights relating to the property. The tenancy rights referred to in the clause were those for which compensation was payable if the Government acquired the land. The appellant had thus relinquished bids rights to receive compensation for such tenancy rights as he may possess when compensation became payable to him on the land being acquired by the Government. The contract between the parties was not made with reference to the nature of the tenancy rights as these existed on July 30, 1959 but took into its purview whatever tenancy rights the appellant may happen to possess when compensation may become payable by the Government in the event of the land being acquired. No advantage can, thereforee, be taken by the appellant from the fact that in consequence of the Delhi (Urban Areas) Tenant's Relief Act. 1961 certain additional safeguards came to be provided to persons holding any land as a tenant in the areas to which that Act extended.

(26) The learned Additional District Judge was, in our opinion, right in holding that the appellant had given up his rights to compensation in respect of levelling, improving and developing the land or his tenancy rights. The appellant was also not entitled to compensation allowed for the trees standing on the land, even though the trees may have been planted by him. Clause 7 of the compromise specifically provided that on the land being acquired he was not to be entitled to cut down or remove the trees. If he did not have the right to cut down or remove the trees he could not get the compensation assessed as the price of the trees. The claim of the appellant for compensation for items other than those relating to tenancy rights and tress was not even pressed before us.

(27) The appellant not being entitled to any share in the compensation amount of Rs. l,15,565.00 his appeal fails and is accordingly dismissed. In view of the fact that the appellant had to pay ad valorem court fee on the portion claimed by him in the amount of compensation and but for his giving up his rights to receive compensation he may have been entitled to a substantial amount, we leave the parties to bear their own costs of the appeal.


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