Judgment:
Anil Kumar, J.
1. The plaintiff has filed the above-noted suit for partition of the properties mentioned in Annexure A & B to the plaint, a declaration that the sale of the properties mentioned in Annexure C of the plaint is null and void and permanent injunction against defendants No. 1 to 5 restraining them from creating any third party interests in the plaintiff's share of the properties mentioned in Annexure A and from interfering with the peaceful possession of the plaintiff of the properties mentioned in Annexure B. The reliefs claimed by the plaintiff are as follow:
(a) Pass a decree for declaration in favour of the plaintiff and against the defendants No. 1 to 5, their representative, associates, agents and assigned etc., thereby declaring that the plaintiff is entitled to 1/6th portion of all the property as mentioned in Annexure -A along with the plaint;
(b) Pass a decree for partition in favour of the plaintiff and against the defendants No. 1 to 5 and their representatives, associates, agents and assigned etc., thereby effecting partition of the property as mentioned Annexure -A annexed to the plaint.
(c) Pass a decree for possession in favour of the plaintiff and against the defendants No. 1 to 5 and their representatives, associates, agents and assigned etc., thereby according to the plaintiff exclusive and separate possession of the 1/6th share in the property as mentioned in Annexure -A annexed to the plaint.
(d) Pass a decree for declaration in favour of the plaintiff and against the defendants No. 1 to 5 and their representatives, associates, agents and assigned etc., thereby declaring that the plaintiff is the sole/exclusive owner of the ancestral property as mentioned in Annexure-B annexed to the plaint.
(e) Pass a decree for declaration in favour of the plaintiff and against the defendants No. 1 to 8 and their representatives, associates, agents and assigned etc., thereby declaring that the transaction of transfer and/or sale of the agricultural land as mentioned in the Annexure-C annexed to the plaint entered into by the Defendant No. 1 in favour of the defendant No. 6 to 8 is null and void and that the said agricultural lands/holdings constitute the part of the ancestral property of the family of the plaintiff, being liable to partition as per prayer (b);
(f) Pass a decree for permanent injunction in favour of the plaintiff and against the defendants No. 1 to 5 and their representatives, associates, agents and assigned etc., thereby directing the defendants to refrain from parting with the possession or creating any third party interest with respect to 1/6th portion of the property as mentioned in Annexure-A annexed to the plaint;
(g) Pass a decree for permanent injunction in favour of the plaintiff and against the defendants No. 1 to 5 their representatives, associates, agents and assigns thereby restraining them from interfering into the peaceful possession of the plaintiff of the ancestral property as mentioned in Annexure-B annexed to the plaint.
2. The plaintiff has contended that he had filed a suit for partition before the Civil Judge against defendant No. 1, Shri Ram Kishan, only and the Civil Judge by order dated 13th May, 1996 had dismissed the suit by observing that the suit is barred under the provisions of Delhi Land Reforms Act and that the plaintiff is at liberty to file an appropriate suit before the appropriate court as per the provisions of Delhi Land Reforms Act. The plaintiff had preferred an appeal against the dismissal of suit by order dated 13th May, 1996 which was allowed by the Additional District Judge by order dated 5th September, 2000 and the matter was remanded back to the trial court to proceed in accordance with law.
3. The plaintiff has contended that he had realized that the values of the properties whose partition is being sought was in excess of the pecuniary jurisdiction of the Trial Court and therefore he had moved an application for withdrawal of the suit with liberty to file the matter in the appropriate court, which was subsequently allowed and thereafter the present suit for partition, possession and permanent injunction has been filed.
4. The properties which are sought to be partitioned are detailed in the Annexure A & B to the plaint and the properties which have already been sold are detailed in Annexure C. The annexure annexed to the plaint are as follow:
Annexure -A
1. Khewat No. 182/210 85 bighas & 12 biswas2. Khewat No. 175/124 20 bighas & 10 biswas3. Khewat No. 174 89 bighas & 5 biswas4. Khewat No. 267 25 bighas & 16 biswasAll agricultural lands situated in the Revenue Estate of Village Mitron, Delhi
5. Khasra No. 52 plot No. 57 Masudabad, najafgarh comprising of a house built on 250 sq.yds area, which is lying closed.
6. House No. 1584A/25 Thana Road, Najafgarh comprising of an house built in the area of 300 sq.yds and lying vacant.
7. Khasra No. 54/13 Main Dhansa Road, Najafgarh. Plot of land measuring 800 sq.yds.
8. Khasra No. 460/3 measuring 1 bighas 11 biswas, the land lying vacant.
9. Khasra No. 296/227 piece of land measuring 10 biswas lying vacant.
Moveable Assets
1. Tractor bearing No. DEG-9719 Kirloskar
2. Bank deposits and fixed deposits
3. Gold and silver ornaments
Annexure -B
1. Khasra No. 35/18/3-Agricultural land comprising of approximately 5 bighas village Mitron, Delhi.
2. Khasra No. 48/3, 4,7 i.e 3-comprising of appx.5 bighas 4- comprising of appx.5 bighas 7- comprising of appx.1.5 bighas (on main phirni)
3. Khasra No. 35/23-comprising of 4 bighas 9 biswas.
All the above are agricultural land measuring 21 bigha 5 biswas situated in revenue estate of village Mitron.
4. Khasra No. 460/3- from this Khasra No. a land measuring 500 sq.yds transferred by defendant No. 1 i.e the father of the plaintiff in the name of the plaintiff, on 7.7.2004. the land falls in Lal Dora and a boundary wall is built thereon.
5. Khasra No. 53/24/2 a land of 307.5 sq.yds also transferred by the defendant No. 1 in favour of the plaintiff on 16.6.2004. on the same three shops and a gate and water closed built thereon.
6. Plot of land in Khasra No. 473-comprising of 5 bighas and 6 biswas out of which a total of 1500 sq.yds in possession of the plaintiff and a house is built thereon. The plaintiff is residing therein and the same falls in laldora of vill.Mitron, Delhi.
7. Khasra No. 471/1 a laldora land comprising of 300 sq.yds., residential in nature and is bounded by a boundary wall, vill.Mitron, Delhi.
8. House No. 269 in the area of 500 sq.yds falling in Laldora Abadi, Village Mitron, Delhi.
Annexure -C
1. Khewat No. 182/210
(New No. 186/193-276)- out of this Khewat No. land measuring approximately 36 bighas sold by defendant No. 1 to one Shri Ram Kumar Sharma in the year 1995.
2. Khewat No. 174- the entire land holding falling in this Khewat No. measuring 89 bighas and 5 biswas sold by the defendant No. 1 to:
(a) Braham Prakash 28 bighas and 3 biswas
(b) Surat Singh-11 bighas and 4 biswas
Both are sons of defendant No. 1, being brothers of the plaintiff.
(c) Gulab Singh- 11 bighas and 5 biswas
(d) Dewan Singh-26 bighas and 8 biswas
The plaintiff has contended that all the properties detailed in Annexure A & B have been inherited by the family comprising of the parties to the suit from the ancestors of the family and none of the said properties have been purchased out of the personal income of any of the parties. The said properties are alleged to be in the name of Defendant No. 1 who holds them as the Karta of the family. The plaintiff has contended that he is in possession of the properties mentioned in Annexure B. The plaintiff has also alleged that the defendants with a view to deprive him of his legitimate share in the ancestral properties are in the process of disposing of the said properties and that they have already sold off the properties mentioned in Annexure C.
5. The defendants No. 1 to 5 have contested the suit contending inter alia that the earlier suit bearing No. 64 of 1994 for partition filed by the plaintiff was withdrawn by him on the ground that the suit was in respect of agricultural land and so the Civil court had no jurisdiction to grant the relief. The defendants have contended that in the present suit the plaintiff is seeking partition of the same properties as in earlier suit bearing No. 64 of 1994 and as those properties are agricultural land the suit is barred under Section 185 of Delhi Land Reforms Act. It was contended that a partition suit in respect of agricultural land can be entertained only by Revenue assistant under Section 55 of the Delhi Land Reforms Act.
6. The plaintiff has also contended that the earlier suit filed by the plaintiff being No. 64 of 1994 was withdrawn by the plaintiff without seeking liberty of the Court to file a fresh suit on the same subject matter and therefore the present suit seeking the same relief on the same cause of action is barred. The dismissal of the suit is also prayed on the ground that the plaintiff had filed another suit bearing No. 1172 of 1993 for permanent injunction which was also abandoned by the plaintiffs as interim injunction was not granted to the plaintiffs.
7. The defendants have also contended that the plaintiff is living separately along with his wife and children for the last 33-34 years and has not contributed anything towards his family out of his salary and earning and he was not keeping any relation at all with the defendant No. 1. The defendants are stated to be in cultivatory possession of the properties and defendant No. 1 is the bhoomidar of agricultural land in Village Mitraon as per the revenue record maintained by Delhi Administration. It is asserted that though the plaintiff is the son of the defendant No. 1 he does not have any right and interest at all in the said agricultural properties and he cannot claim any right in the said land during the lifetime of the defendant No. 1. It is further asserted that the plaintiff is not in cultivatory possession of even a inch of land and his contention that he is doing cultivation for 21 bighas and 5 biswas is totally wrong. The defendants have alleged that the plaintiff with a view to harass them is filing false and frivolous suits.
8. On the pleas and contentions of the parties, the matter was taken up by the court on 22nd January, 2009 to hear arguments on the maintainability of the suit before a Civil Court in view of the provisions of Delhi Land Reforms Act. The plaintiff had sought adjournment on 22nd January, 2009; 20th February, 2009. Thereafter the matter was argued on behalf of the plaintiffs. The plaintiff has relied on CDR. Bhupinder Singh Rekhi v. C.S. Rekhi and Ors. 76 (1998) DLT 257, and Gaon Sabha and Anr. v. Nathi and Ors. : (2004)12SCC555 , to contend that the suit for partition of agricultural properties shall be maintainable in the Civil Court.
9. From the perusal of the Annexure A & B, it is apparent that the properties, except item No. 6 in Annexure A i.e. House No. 1584A/25 Thana Road, Najafgarh, built on 250 sq.yards area and the moveable properties, are agricultural lands. A suit for partition of agricultural land will not be maintainable in a Civil court.
10. A Division Bench of this court in Ram Mehar v. Mst. Dakhar : 9(1973)DLT44 had held that the rule of succession governing Bhomidars is to be found in Section 50 of the Delhi Land Reforms Act, 1954 and not in Hindu Succession Act. The Supreme Court in Hatti v. Sunder Singh : [1971]2SCR163 , had also held that Civil Court has no jurisdiction in view of Section 185(1) of the Act to entertain a suit in which the plaintiff alleges that he is the proprietor of the suit land and asks for declaration that he is entitled to bhoomidari rights in respect of the said land. It was held that any person who is aggrieved by a declaration of bhoomidari rights issued in favor of another person has to file an appropriate petition before the Revenue Assistant as contemplated in item 4 of the first schedule of the Act and if he succeeds he is granted a declaration that he is the bhoomidar. The present suit for declaration and partition of the agricultural land, therefore, shall not be maintainable under Section 185(1) of Delhi Land Reforms Act, 1954.
11. Learned Counsel for the plaintiff has relied on Gaon Sabh and Anr. v. Nathi and Ors. : (2004)12SCC555 , to contend that the suit is maintainable. In the said judgment, it was rather held that there cannot even be the slightest doubt that a civil court has no jurisdiction to entertain a suit seeking a declaration that the order of vesting of land in Gaon Sabha is illegal. Relying on Kiran Singh v. Chaman Paswan : [1955]1SCR117 , it was rather held that a declaration that the decree passed by a civil court holding the vesting of land in Gaon Sabh to be illegal is a nullity can be sought even at the stage of execution and even in a collateral proceedings. It was held that the defect of jurisdiction whether it is pecuniary or territorial or whether it is in respect of the subject matter, strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of the parties. The Supreme Court had rather reaffirmed the decision of the Division Bench of this Court in Gaon Sabha of Lado Sarai v. Jage Ram : 1973RLR597 and Nathu v. Hukam Singh : AIR1983Delhi216 . Consequently on the basis of the decision of the Supreme Court in Gaon Sabha and Anr. v. Nathi, it cannot be held that the Civil Court has jurisdiction to try the suit for declaration in respect of agricultural land and its partition.
12. The precedent relied by the learned Counsel for the plaintiff, Cdr. Bhupinder Singh Rekhi v. C.S. Rekhi and Ors. (supra), is also distinguishable because the said suit was not filed for declaration of bhoomidari rights but it was for the declaration that he had purchased the property from its owner. Therefore, the suit of the plaintiff seeking partition of agricultural lands shown in Annexure A & B is not maintainable and is barred under Section 185(1) of Delhi Land Reforms Act, 1954 and, therefore, the plaint is liable to be rejected under Order VII Rule 11(d) of the Code of Civil Procedure as regards the reliefs sought against the Agricultural lands.
13. Order 7 Rule 11 of the Civil Procedure Code contemplates that where the suit appears from the averments made in the plaint to be barred by any law, then the plaint can be rejected. The legal position is that to decide whether a plaint is liable to be rejected under Order 7 Rule 11, averments in the plaint have to be read without looking at the defense and thereupon it has to be seen whether on the averments made in the plaint Under Order 7 Rule 11 of the Code of Civil Procedure gets attracted. For rejection of the plaint under Order 7 Rule 11 the averments in the plaint should be unequivocal, categorical and specific leading to only conclusion that the plaint is barred. From the plaint and the documents filed by the plaintiff it is apparent that the suit pertains to agricultural land and therefore, the relief of declaration and partition of such land covered under The Land Reforms Act shall be barred under Section 185 of the said Act and therefore, the plaint is liable to be rejected.
14. So far as the partition of the house shown at item No. 6 in Annexure A and the movable properties shown in Annexure A are concerned, the defendants have contended that the plaintiff had earlier filed a suit for the partition of the same properties, being No. 64 of 1994, which suit was withdrawn by the plaintiff without seeking any liberty from the Court to institute another suit on the same subject matter and therefore the present suit on the same subject matter seeking the same relief is barred.
15. Perusal of the documents filed by the parties reveals that the plaintiff had filed a suit for partition being suit No. 64 of 1994 (subsequently renumbered to 475 of 1995) before the Senior Civil Judge. The said suit was dismissed by the Civil Judge by an order dated 13th May, 1996 on the ground that the Civil Court does not have jurisdiction to entertain the suit as per the Schedule I of Entry 55 of Delhi Land Reforms Act as the properties whose partition was sought was falling within the revenue estate of village Mitraon and liberty was granted to the petitioner to file an appropriate suit before the appropriate Court. The plaintiff however preferred an appeal against the order of dismissal of the suit before the Additional District Judge which was allowed vide an order dated 5th August, 2000 and the matter was remanded back to the Civil Judge. Thereafter the suit seems to have proceeded and reached the stage of defendant's evidence. On 1st February, 2006 the plaintiff seems to have moved an application praying that as the value of the suit properties is around 2 crores he be permitted to withdraw the suit with liberty to file the same before a competent court or in the alternative reject the suit under Order VII Rule 11(b) on the finding that since the suit is undervalued it be filed before a competent court. However it appears that on 2nd February, 2006 the plaintiff appeared in person before the court and stated that he did not wish to proceed with the case as the suit property was agricultural land and the court had no jurisdiction to grant the reliefs prayed. In view of the statement made by the plaintiff the Court dismissed the suit as withdrawn. Liberty to file a fresh suit on the same subject matter was neither prayed for nor was granted. It appears that the plaintiff had moved an application on the very next day i.e. 7th February, 2006 contending that the statement made by the plaintiff was in view of the application dated 1st February, 2006 and that the plaintiff had specifically stated before the court that he wanted to file a fresh matter or that liberty be granted to him to file a fresh matter. It appears that on the application dated 7th February, 2006, no relief was granted. Thereafter on 1st March, 2006 the court has passed the following order:
Present: Counsel for plaintiff with plaintiff.Defendant in person.AIR 1950 All 489 filed by plaintiff.
Perused heard.
Application under Section 151 CPC filed on 01.02.2006 for permission to withdraw the suit with liberty to file a fresh or to reject under Order 711(b) CPC is rejected. Suit is restored as plaintiff submits that he inadvertently asked for dismissal for withdrawal as he had the impression that liberty was granted.
No liberty to file a fresh case can be granted in view of the contentions of application under Section 151 CPC filed on 01.02.2006 in the facts and the circumstances of this case.
PE is already closed in the case and 06.02.2006 was last date/opportunity to plaintiff to cross-examine defendant. Subject to cost of Rs. 1,000/- when the aforesaid application was filed. Last opportunity as granted to plaintiff for 06.02.2006 is extended for next date subject to payment of earlier cost. No further cost is imposed on the plaintiff though the conduct of the plaintiff warrants it. Non imposition of any further cost is only with a view to dispose of the matter expeditiously. Put up on 05.04.2006.
However, on 5th April, 2006, the matter was withdrawn by the plaintiff by writing on the order sheet 'main apna dava bina sart vapis le raha hoon'. ( I am withdrawing my suit without any condition).
16. It is apparent from the record of the proceedings in suit No. 64 of 1994 that the plaintiff had withdrawn the suit without seeking liberty to institute a fresh suit on the same cause of action nor had court given such a liberty while dismissing the matter as withdrawn. Order XXIII Rule 1 of the Code of Civil Procedure lays down that where a party withdraws a suit without seeking permission to bring a fresh suit on the same cause of action or abandons a part of the claim or where the court does not grant such a liberty, he is precluded from claiming the abandoned relief or from bringing a fresh suit on the same cause of action. So, on the face value there appears to be some merit in the contention of the defendants. However it is trite law that the general proposition laid down in Rule 1 of Order XXIII does not apply to a suit for partition and a suit for redemption of mortgage. The right to demand partition and separate possession is a recurring right. Therefore the cause of action in the subsequent suit for partition will be different from cause of action in the earlier suit which was withdrawn or abandoned and consequently Order XXIII Rule 1 Sub-rule 4 will have no application.
17. The right to enforce partition is a legal incident of a co-ownership and as long as such co-ownership subsists, the right to seek partition continues. The mere fact that a co-owner files a suit for partition and then abandons or withdraws it will not deprive him of his right to seek partition of the joint property. The substantive right of a co-owner to seek partition of the joint property will not be extinguished by the provisions of Order XXIII Rule 1. If the plaintiff brings a suit for partition and then, for any reason, decides not to enforce the right immediately and withdraws the suit, then he would be deemed to have chosen to continue the ownership in common for some time more till he would find it necessary again to seek its termination. A suit which is barred by withdrawal of the claim under Order XXIII Rule 1(3) is one which is based on the same cause of action but a suit for partition and separate possession of the share which may be brought subsequently will be on a cause of action arising upon a demand subsequently made and refused [See Radhe Lal v. Mulchand AIR 1924 ALL 905].
18. A Division Bench of this Court in Jai Devi and Ors. v. Jodhi Ram and Ors. : 6(1970)DLT549 has held that the bar of second suit contemplated in Order XXIII, Rule 1(4) is not applicable to a partition suit, as the cause of action in such a suit is a recurring one. In the said case the husband of the appellant therein, Mr. Babu Ram had filed a suit in the Court of Subordinate Judge Ist Class, Delhi for partition of the joint family properties. An application was moved in the said suit by the plaintiff stating that he intended to withdraw the suit and did not want to pursue the same. Liberty was not reserved by the plaintiff either in his application or in his statement in Court to institute a fresh suit in respect of the subject matter of the suit nor was permission granted by the Court to withdraw with liberty to institute a fresh suit. Thereafter the wife of the plaintiff and his sons filed a suit for the partition of the same properties. One of the issues before the Court was whether the subsequent suit was barred by Order XXIII Rule 1 of the Code of Civil Procedure. The Court observed:
(13) Coming to the merits of the appeal the only Issue which require determination is whether the suit out of which the present appeal has arisen was barred by Order 23, Rule 1 of the Code of Civil Procedure. The learned Subordinate Judge came to the conclusion that where a party withdraws a suit without seeking permission to bring a fresh suit on the same cause of action or abandons a part of the claim, he is precluded from claiming the abandoned relief or from bringing a fresh suit on the same cause of action. This proposition, as a general proposition, is correct but it does not apply to suits for partition. In 1967 (1) Mlj 175 in re : Bajah V. Maheswara Rao v. Bajah V. Bajeswara Rao it has been held that:
So far as a suit for partition or a suit for redemption is concerned, it is axiomatic that, when the plaintiff withdraws his suit, he will be entitled to file a fresh suit as the cause of action is recurring cause of action. Even if the plaintiff is not granted permission, under Order 23, Rule 1, Civil Procedure Code, he will nevertheless have a right to file a suit for partition at any time he pleases.
(14) To the same effect are the cases reported in AIR 1944. Sindh 192; AIR Mad 112; AIR 1935 Mad 909 and AIR 1924 All 905. We may only mention one other case reported in AIR 1950 FC In re : Thota China Subha Rao and Ors. v. Mattapalli Raju and Ors. where it has been observed:
Provisions like Order 9, Rule 9 or Order 23, Rule 1 will not debar the mortgagor from filing a second suit for redemption because, as in a partition suit the cause of action in a redemption suit is a recurring one.
(15) Even though, therefore, liberty was not reserved while withdrawing the earlier suit, the present suit would not be barred by Order 23, Rule 1 of the Code of Civil Procedure.
19. In view of the law laid down by the Courts, it cannot be held that the present suit is barred as the earlier suit filed by the plaintiff for the partition of the same properties was withdrawn by the plaintiff without liberty from the court to file a fresh suit on the matter. The contention of the plaintiff is that the suit properties are ancestral in nature and he being the son of defendant No. 1, the karta of the family he is entitled to seek partition and enjoy exclusive possession of his share in the joint family property. Though the defendants have denied that the properties are ancestral and that the plaintiff has any right in them, these are issues which ought to be decided at the time of trial. At the stage of deciding the maintainability of the suit the averments made in the suit are to be taken as true. If that be so, then the plaintiff would have a right to seek partition of his ancestral properties, which right would not be defeated by the provisions of Order XXII Rule 1 of the Code of Civil Procedure.
20. Therefore, in the present facts and circumstances, the suit of the plaintiff is liable to be rejected under Order VII Rule 11(d) of the Code of Civil Procedure so far as the Agricultural properties are concerned which are detailed in Annexure A & B of the plaint except the House at item No. 6 in Annexure A and the moveable properties also detailed in Annexure A. The suit shall, however, continue in respect of house shown in Annexure A at item No. 6 and the moveable properties also shown in Annexure A to the plaint.