Ram Dutt(D) TR.LRS.& Ors. Vs. Dev Dutt(D) TR.LRS.& Ors. on 4th March , 2016 – Supreme Court of India Judgement

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NON-REPORTABLE

 

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2522 OF 2016
(ARISING OUT OF S.L.P. (CIVIL) NO. 15358 OF 2011)

RAM DUTT (D) THROUGH LRS. & ORS. …..APPELLANT(S)

VERSUS

DEV DUTT (D) THROUGH LRS. & ORS. …..RESPONDENT(S)

J U D G M E N T
A.K. SIKRI, J.

Leave granted.

We heard learned counsel for the parties at length. For deciding this
appeal, those facts which are essential to understand the nature of
controversy are captured hereinafter.
The appellants, who are three in numbers, and the private
respondents, who are 27 in numbers (hereinafter referred to as the “private
respondents”), are members of one family. Their predecessors owned land in
the Revenue Estate of Burari, Delhi since 1948, i.e., much before the Delhi
Land Reforms Act, 1954 (hereinafter referred to as the “Act”) was enacted.
The appellants, therefore, claimed that they are co-sharers with the
private respondents in the said land which is described as Khewat Nos. 73
and 85 in Revenue Estate, Burari, Delhi. According to them, total area of
the land comprised by the aforesaid two Khewat numbers is 253.31 Bigha
which is now owned by the said family members. After coming into force of
the said Act, a part of said land was recorded in the Bhumidari of the
appellants only. This gave cause of action to the private
respondents/their predecessors to file proceedings under Section 11 of the
Act for declaration that they were also Bhoomidars of the said land which
could not be exclusively entered in the name of the appellants. The
appellants, on the other hand, claimed that the land in respect of which
they were declared Bhoomidars vested in them exclusively as a result of
oral partition and re-partition during consolidation proceedings conducted
in the year 1975-76. The Court of Revenue Assistant decided the issue in
favour of the appellants and dismissed the proceedings initiated by the
private respondents. First appeal of the private respondents preferred
against the aforesaid order was also dismissed. However, their second
appeal to the Financial Commissioner was accepted vide orders dated
February 08, 1979 and these private respondents were declared as
Bhoomidars, in accordance with their shares, along with the appellants in
respect of those lands contained in Khewat Nos. 73 and 85 in the Revenue
Estate of Burari.

The Consolidation Officer implemented the aforesaid orders vide his orders
dated December 31, 1982 thereby modifying the allotment pursuant to the re-
partition. The appellants, on the other hand, did not accept this order
and preferred a revision petition to the Financial Commissioner against
orders dated December 31, 1982. Main plea of the appellants was that the
Consolidation Officer could not have ordered modification in the allotment,
having become functus officio. The Financial Commissioner, however,
rejected the revision petition of the appellants vide his orders dated June
14, 1983. He held that since at the time when the order dated February 8,
1979 (supra) was passed holding the private respondents/their predecessors
as Bhumidars together with the appellants, consolidation proceedings in the
village were in progress, the private respondents/their predecessors were
entitled to approach the Consolidation Officer for allotment of land to
them in lieu of their share in the Bhumidari rights out of Khewat Nos. 73
and 85. The contentions of the appellants that the Consolidation Officer
had become functus officio and could not effect partition was negatived and
the Consolidation Officer was held to be entitled to allot land to the
private respondents/their predecessors as per their joint Khewats with the
appellants.

The appellants preferred CWP No. 2462/1984 in the High Court against the
aforesaid order dated June 14, 1983 of the Financial Commissioner. The
said Writ Petition was dismissed vide order dated February 11, 1985.

The appellants then preferred SLP No. 9594/1985 which was also dismissed
vide order dated January 27, 1986. It is, thus, clear that order of the
Financial Commissioner attained finality. However, while dismissing the
special leave petition, this Court also made certain observations. Since,
these observations are relevant for our purposes, we are reproducing the
order dated January 27, 1986 in its entirety:
“There is no ground to interfere with the order dated 8.2.1979 which shall
be binding on the parties. If the petitioners have not been allotted 1/5th
of the total holding as determined in the order dated 8.2.1979 it will be
opened to the petitioners to resort to any other remedy available in law
including a suit if it is permissible. Status quo will continue for four
weeks. The Special Leave Petition is disposed off with the observations.”

Armed with this order, showing a window to agitate their rights qua non-
allotment of a particular land, the appellants filed a suit in the court of
Revenue Assistant for allocation of their 1/5th share in the Bhoomidari in
Khewat Nos. 73 and 85. However, after some time the appellants withdrew
the said suit.

It so happened that respondent no. 26 also felt aggrieved by the orders
dated December 13, 1982 of the Consolidation Officer as according to him
the Consolidation Officer had not correctly implemented the orders dated
February 08, 1979 passed by the Financial Commissioner. He, thus, also
preferred a revision petition before the Financial Commissioner. This
revision petition was opposed by Respondent Nos. 1 to 25. The Financial
Commissioner, after hearing parties, passed orders dated April 13, 1987
thereby remanding the matter back to the Consolidation Officer for correct
implementation of his order dated February 08, 1978. The writ petition
filed by the Respondent Nos. 1 to 25 against the said order of the
Financial Commissioner was dismissed by the High Court.

When the matter was, thus, remanded back to the Consolidation Officer at
the instance of Respondent No. 26, the aforesaid success of Respondent No.
26 in the revision petition filed by him emboldened the appellants as well
to file another revision petition before the Financial Commissioner. They
contended that their grievances were the same as that of Respondent No. 26.
They also referred to orders dated January 27, 1986 passed by this Court
in Special Leave Petition No. 1994/1985 and on that basis submitted that
the Supreme Court had permitted them to claim their rightful share.

The Financial Commissioner vide order dated November 11, 1987 though
dismissed the Revision Petition but held that since the
Tehsildar/Consolidation Officer pursuant to the order in the Revision
Petition of the respondent no. 26 was verifying the shares of the family
members in Kehwat Nos. 73 and 85, if the appellants had any grievance, they
could also approach the Teshildar/Consolidation Officer who vide order
dated 12th July, 1988 divided the land in Khewat Nos. 73 & 85 between the
appellants and the private respondents. The said order contains the
particulars of the land allotted to each of the groups. However, after so
dividing/apportioning the land, the Tehsildar/Consolidation Officer at the
foot of the order mentioned “the details of Khasra Nos. of two Khewats i.e.
73 and 85 which have been left out for distribution amongst the co-sharers”
and thereafter gave the Khasra Nos. of 94 bighas 15 biswas of land so left
out. The said order of the Tehsildar/Consolidation Officer records that
the same was agreed to by all the parties.

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The appellants contending that the Tehsildar/Consolidation Officer had
failed to divide/apportion the aforesaid 94 bighas 15 biswas of land again
preferred a Revision Petition to the Financial Commissioner.

The Financial Commissioner vide order dated August 09, 1988 dismissed the
said Revision Petition as not maintainable. It was held that if the
appellants were claiming Bhumidari rights in the said 94 bighas 15 biswas
of land, their remedy was by way of an application under Section 11 of the
Act for declaration of this Bhumidari rights and that the appellants had
already been given their share in accordance with order dated February 8,
1979.

It is this order of the Financial Commissioner which was impugned by the
appellants by filing writ petition in the High Court. Learned Single Judge
was not convinced by the plea raised by the appellants in the said writ
petition and dismissed the same vide judgment dated December 01, 2010
holding that there was no error in the orders passed by the Financial
Commissioner. We may note that primary contention raised by the appellants
was that 94 bighas 15 biswas of land was left out and not distributed by
the Consolidation Officer. The appellants, therefore, pleaded that it
should also be distributed and they should not be relegated to having their
rights as Bhumidars with respect to the said land by instituting the
separate proceedings under Section 11 of the Act. This contention of the
appellants was rejected by the learned Single Judge of the High Court,
inter alia, on the ground that the land which the Consolidation Officer
distributed/apportioned between the appellants and the private respondents
vide his orders dated July 12, 1988 was a land of which the appellants and
the respondents were Bhumidars and of which they were in possession and it
was only that land which was the subject matter of orders dated February
08, 1979. According to the learned Single Judge of the High Court, left
out land admeasuring 94 bighas 15 biswas in which the appellants were now
claiming their share was the land in respect whereof there was a dispute of
ownership and it was not for the High Court to inquire into this factual
aspect in writ jurisdiction.

The appellants filed Letters Patent Appeal No. 128 of 2011 against the
aforesaid order of the learned Single Judge. This appeal has been
dismissed by the Division Bench vide its orders February 1, 2011. The
Division Bench has taken note of order dated January 27, 1986 passed by
this Court in SLP (C) No. 9594/1985 and filing of the suit by the
appellants thereof which was withdrawn. On that basis, it is held that a
second writ petition could not have been filed when on earlier occasion the
lis in-question was adjudicated. It has, thus, brushed aside the
submissions of the appellants that when a revision petition was filed by
one of the respondents, the appellants felt that they could also file a
revision petition.

It is this order which is in appeal before us.

After going through the orders and hearing the counsel for the parties, we
are of the opinion that the impugned order of the High Court does not call
for any interference. The narration of facts disclosed above unambiguously
reveals that in the first round they had claimed that they were the co-
sharers with private respondents in the land described as Khewat Nos. 73
and 85 in Revenue Estate of Burari, Delhi which was measuring 253.31 Bhiga.
The issue was whether the respondents were also Bhumidars of the said
land. The appellants had contended that they were declared Bhumidars
exclusively to the exclusion of private respondents as a result of oral
partition and re-partition during consolidation proceedings conducted in
the year 1975-1976. Their respective shares were apportioned. Such
proceedings were ultimately decided in favour of the respondents and
achieved finality as the SLP No. 9594/1985 of the appellants were also
dismissed. However, before this Court, the appellants took another plea,
namely, they were not allotted 1/5th of the total holding as determined in
the order dated 08.02.1979. Taking note of this contention, the Court
observed that it would be open to the appellants to resort to any other
remedy available in law including a suit if it is permissible. This
clearly implied that for non-allotment of entire 1/5th holding, the
appellants were free to avail ‘any other remedy’ as per law. Precise
contention of the appellants was that 94 Bigha 15 Biswa of land was left
out and not distributed and, therefore, the same be also distributed and
the appellants should get their rights as Bhumidars in the said land as
well. This land of 94 Bigha 15 Biswa was not the subject matter of the
earlier proceedings. Position in respect of this land is stated by the
learned single Judge of the High Court in judgment dated December 01, 2010
in the following manner:

“…It thus appears that 94 bighas 15 biswas of the left out land referred
to in the order dated 12th July, 1988 of the Tehsildar/Consolidation
Officer is the balance land as per the Jamabandi of the year 1948. The
land which the Consolidation Officer vide order dated 12th July, 1988
distributed/ apportioned between the petitioners and the respondents was
the land of which the petitioners and the respondents were Bhumidars and of
which they were in possession of and which land was the subject matter of
the order dated 8th February, 1979 (supra). It thus transpires that the
entire land of which the petitioners and the respondents were the Bhumidars
and in possession of and in which the rights of the respondents 1 to 27
were upheld by the order dated 8th February, 1979 which has attained
finality has already been distributed. The left out land admeasuring 94
bighas 15 biswas in which the petitioners are now claiming share is the
land which, according to the petitioners, had in the settlement fallen to
the share of the respondents and in which the respondents had lost their
rights by not taking back the mortgage upon coming into force of the DLR
Act.”

It becomes clear from the above that insofar as dispute pertaining to 94
Bigha 15 Biswa is concerned, it was totally a different subject matter not
covered by the proceedings in the first round. We would like to reproduce
the following observations of the learned single Judge in his judgment
dated December 01, 2010 which clinches the issue and we entirely agree with
the said reasons.

“20. The petitioners have not pleaded that the said 94 bighas 15 biswas of
land or any part thereof was part of the holding in Khewat Nos. 73 and 85
of which the petitioners and the respondents were Bhumidars and in
possession. Thus it cannot be said that the partition/distribution of land
of which the petitioners and the respondents were Bhumidars and in
possession of is bad for the reason of non inclusion of 94 bighas 15 biswas
of land of which the petitioners are not shown to be Bhumidars and in
possession. The petitioners in fact by way of these proceedings are found
to be seeking to reopen the matters which stand concluded in the earlier
round of litigation till the Supreme Court.”

It is for this reason that this Court gave liberty to the appellants to
initiate appropriate proceedings in this behalf including filing of suit if
that was remedy available in law. The appellants, in fact, filed the suit
for this purpose. However, for reasons best known to them, they choose to
withdraw the suit. After the withdrawal of the suit, they again approach
the Commissioner and filed revision petition arising out of earlier
proceedings which was rightly dismissed by the Commissioner holding that
such proceedings were not maintainable. It is this view which is upheld by
the single Judge as well as Division Bench of the High Court. We may point
out that the learned single Judge of the High Court has even recorded in
his judgment that respondents have no objection to the appellants
instituting proceedings, if entitled in law, for claiming share in the said
94 Bigha 15 Biswa of land.

We, thus, find no merit in this appeal which is accordingly dismissed.
However, there shall be no order as to cost.

……………………………………CJI.
(T.S.THAKUR)

………………………………………J.
(A.K. SIKRI)

………………………………………J.
(R. BANUMATHI)
NEW DELHI;
MARCH 04, 2016.

 

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See Also: Case BriefRam Dutt(D) TR.LRS.& Ors. Vs. Dev Dutt(D) TR.LRS.& Ors.