Gaon Sabha Of Lado Sarai v. Jage Ram

Avadh Behari, J.:— These ten Regular Second Appeals have been placed before us for decision. R.S.A 23-D of 1966 came up for hearing before Rajindar Sachar, J. The learned single Judge thought that appeal and appeals Nos. 38-D of 1966, 261-D of 1964 and 5-D of 1966 should be decided by a larger Bench since in his opinion the questions raised in those appeals were of public importance and were also involved in a number of cases pending in the courts below. By his referring order dated December 2, 1971, the learned single Judge referred these appeals to a larger Bench.

Before the learned single Judge (Rajindar Sachar, J.) a number of decisions given by D.K Kapur, J. were cited. These are (i) R.S A. 262-D of 1964 decided on August 17, 1971, (ii) R.S.A 284-D of 1964 decided on August 16, 1971, (iii) R.S.A 283-D of 1964 decided on August 17, 1971 and (iv) R.S.A 183-D of 1962 decided on February 8, 1971. In these decisions the learned single Judge D.K Kapur, J. has taken the view that it is open to a civil court to entertain a suit where the land is alleged to be banjar or ghair mumkin. Rajindar Sachar, J. thought that in view of the conflicting decisions it was necessary that the matter be settled by a Division Bench. This is how these appeals have been placed before us.

We may observe at the outset that in all the cases the question which has arisen for decision is whether a civil court has jurisdiction to try a suit in respect of land under the Delhi Land Reforms Act, 1954.

Under Section 185 (1) of the Delhi Land Reforms Act the civil court has no jurisdiction. Section 185 (1) reads as under: —

“185 (1) Except as provided by or under this Act no court other than a court mentioned in column 7 of Schedule I shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, take cognizance of any suit, application, or proceedings mentioned in column 3 thereof.”

The question regarding the maintainability of a suit in a civil court under the Delhi Land Reforms Act has been settled by the Supreme Court in Hatti v. Sunder Singh (1970) 2 S.C.C 841 (1). In that case the appellant Hatti was declared a Bhumidar of some land belonging to the respondent under Section 13 of the Delhi Land Reforms Act No. 8 of 1954 (hereinafter referred to as the Act). The respondent instituted a suit in the civil court claiming three reliefs. The first relief was for a declaration that the declaration of bhumidari issued in the name of the appellant with respect to the land in dispute was wrong, illegal, without jurisdiction, ultra vires, void and ineffective against the respondent. The second relief was that the respondent be declared to be entitled to bhumidari rights under Section 11 of the Act. The third relief was for possession of the land. The suit was brought on the allegation that the respondent was the owner of the land, while the appellant had no rights in it. The case of the respondent was that the appellant had wrongly been granted the declaration under Section 13 of the Act that he was bhumidar when he had no rights as a tenant in the land at all. The main defence on behalf of the appellant was that he was a non-occupancy tenant and he was entitled to the declaration of his bhumidari rights. Among other issues, one issue raised by the appellant was 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 jurisdiction of the civil court was not barred. A decree for possession was granted in favour of the respondent. The High Court also held that the jurisdiction of the civil court was not barred. On appeal the Supreme Court reversed the decree passed by the High Court and held that the civil courts had no jurisdiction to try the suit.

Their Lordships of the Supreme Court examined the provisions of the Act and came to the conclusion that the Act was a complete Code and the Civil court had no jurisdiction in view of Section 185 (1) of the Act to entertain a suit in which the plaintiff, alleging that he is the proprietor of the suit land, asks for the declaration that he is entitled to bhumidari rights in respect of the said land. It was held that all the three reliefs which were asked by the respondent in his suit were within the competent jurisdiction of the Revenue Assistant to grant under the provisions of the Act. Their Lordships observed at page 846: —

“The scheme of the Act appears to be that, initially, a declaration of Bhumidari right can be granted under Section 11 or Section 13 without calling for objections and without hearing contesting parties in favour of the person who appears to the revenue authorities to be entitled to the declaration on the basis of the records maintained by them. Thereafter, any person aggrieved and claiming bhumidari rights is expected to move an application before the Revenue Assistant who is to adjudicate upon the rights after following the usual judicial procedure. The order made by the “Revenue Assistant in such a proceeding will then have to be given effect to and would over-ride the declarations earlier issued in accordance with the Rules. This shows that any person, who is aggrieved by a declaration of Bhumidari right issued in favour of another person, can appropriately seek his remedy by moving an application before the Revenue Assistant under Item 4 of the First Schedule, whereupon, if he succeeds, he will obtain a declaration that he is the Bhumidar. Such a declaration will automatically supersede the declaration issued by the authorities in accordance with the Rules without any adjudication of rights and without notice to interested parties.”

Their Lordships further held that Sections 6, 11, 13 and 154 of the Act real together show that after the Act came into force, proprietors of agricultural land as such ceased to exist. There can be no suit by any person claiming to be a proprietor because the Act does not envisage a proprietor as such continuing to have rights after the commencement of the Act.

Dealing with the argument that Section 186 of the Act provides for the decision of a question raised regarding the title of any party to the land by a civil court on a reference to the Revenue Court their Lordships said: —

“The High Court, in this connection, referred to Section 186 of the Act under which any question raised regarding the title of any party to the land, which is the subject-matter of a suit or proceeding under the First Schedule, has to be referred by the Revenue Court to the competent civil court for decision after framing an issue on that question. Inference was sought to be drawn from this provision that questions of title could be completely agitated by a suit in the civil court, as the jurisdiction of the Civil Court was not barred. It appears to us that there is no justification for drawing such an inference. On the contrary, Section 186 envisages that questions of title will arise before the “Revenue Courts in suits or proceedings under the First Schedule and, only if such a question arises in a competent proceeding pending in a Revenue Court, an issue will be framed and referred to Civil Court. Such a provision does not give jurisdiction to the Civil Court to entertain the suit itself on a question of title. The jurisdiction of the Civil Court is limited to deciding the issue of title referred to it by the Revenue Court. This clearly implies that, if a question of title is raised in an application for declaration of Bhumidari rights under Item 4 of Schedule I of the Act, that question will then be referred by the Revenue Assistant to the Civil Court; but a party wanting to raise such a question of title in order to claim Bhumidari right cannot directly approach the Civil Court.”

The question of maintainability of the suit again arose for decision before their Lordships of the Supreme Court in Mukhtaria etc. v. Rama Shankar etc. Civil Appeals Nos. 987, 988 and 989 of 1967, decided on August 8, 1972. In those appeals the respective appellant was the defendant in each of the suits from which those appeals arose. The following reliefs were prayed for: —

(1) A declaratory decree to the effect that Bhumidari declaration mentioned in para 10A regarding said land in the name of the defendant is illegal, ultra vires, void against the plaintiff be passed in plaintiff's favour against the defendant.

(2) A decree for possession of the agricultural land with damages; and

(3) for costs.

The question for decision which arose in the suits was whether the civil court had jurisdiction to grant the reliefs prayed for. The trial court decreed the plaintiff's suit. The first appellate court affirmed that decision. The second appellate court summarily dismissed the appeal. The Letters Patent Appeal was also dismissed. The appeals were brought in the Supreme Court after obtaining special leave.

Their Lordships held that the point which had arisen for decision in the appeals was governed by the rule laid down by the court in the case of Hatti (supra). It was held that the civil court had no jurisdiction to entertain a suit of the type with which their Lordships were concerned in those three appeals. It was contended by the appellant's counsel that the decision in Hatti's case (supra) required reconsideration. After hearing the counsel at length their Lordships were not satisfied that the decision required reconsideration. In the result the appeals were allowed and all the suits were dismissed.

In deciding the ten appeals we will bear in mind the decision of the Supreme Court in the case of Hatti (supra) as in all these appeals we have to determine whether the civil courts had jurisdiction to entertain the suit brought in each of the cases.

It is settled law that jurisdiction with reference to the subject-matter of a claim, as in the case of other kinds of jurisdiction, depends upon the allegations in the plaint and not upon the allegations in the written statement, nor upon those which may ultimately be found true. Such allegations may, after the trial, be held to be unfounded and in that case, the suit will be dismissed, not because the court has no jurisdiction, but because the allegations on which it was based are found to be untrue. The question of maintainability of a suit is also governed by the same principles and must be dealt with on the footing of the allegation in the plaint being correct. The plaintiff cannot, by merely so drafting his prayers to exclude or include relief which can or cannot be granted by a court, confer on the court jurisdiction to try the suit. It is necessary in each case to consider what the cause of action in the plaint is and what is the substantive relief which the plaintiff would be entitled to if he succeeds in the suit, in order to determine whether the court has jurisdiction, irrespective of what prayers the draftsman has-thought fit to put in the plaint. The substance of the relief and not the mere form in the plaint has to be looked to. In deciding the point of maintainability of a suit the allegations in the plaint alone have to be considered. It is the allegation in the plaint which determine jurisdiction. To discover the real nature of the suit the plaint has to be looked at and plaint has to be read as a whole and in doing so the court must look at the substance of the plaint and not its outward form only. In each of ten appeals, therefore, we will take into account the substance of the suit in order to determine the nature of the claim made and reliefs sought.

We may now deal with the decisions of D.K Kapur, J. which are referred to in the referring order of Sachar, J. and which we have mentioned in the beginning of our judgment.

R.S A. 199-D of 1964 decided on August 27, 1971 (Gaon Sabha of village Lado Sarai v. Risal Singh) is another decision of the learned single Judge which was cited before us and was relied upon by Mr. S.S Dalal. In this case the appeal was filed by the Gaon Sabha of village Lado Sarai and arose out of a suit brought by Risal Singh, respondent, claiming that the order of the revenue Assistant placing the land in suit in L.R Form No. 2 and then vesting it in the Gaon Sabha was without jurisdiction, void and not binding on the plaintiff. The suit initially instituted by the plaintiff was in relation to Khasra Nos. 333, 361, 372 and 373. The trial Court decided in favour of the plaintiff regarding Khasra No. 333, but with regard to the other three Khasra Nos. the trial court came to the conclusion that they were waste lands being ghair mumkin pahad and banjar qadim. The trial court held that the land did not form part of the holding of the plaintiff and, therefore, vested in the Gaon Sabha by virtue of Section 7 and 154 of the Delhi Land Reforms Act. The learned single Judge took the view that the word ‘holding’ used in explanation to Section 7 (1) of the Act which defines waste land is used as denoting the property owned by a proprietor and not in the same sense as in the definition section. The learned Judge summed up his conclusions as follows: —

“Till the land is used for agriculture it is not land within the meaning of the definition and the Act does not apply to it. Hence, if the land happens to be mountanous or sub-mountanous i.e Ghair mumkin pahar or happens to be Banjar Qadim or Banjar Jadid i.e not under cultivation then the proprietor remains the owner thereof. It is only when the land is used for agriculture or for a purpose subservient to agriculture that the land came within the definition of land as given in section 3 (13) of the Act and it is only at that stage that the provisions of the Act become applicable to it.”

In R.S.A 308-D of 1962 decided on February 19, 1971, by D.K Kapur, J. (Pt. Munna Lal v. Gaon Sabha of Mesudpur Gaon Sabha Area), the appeal arose out of a suit challenging the order of the Revenue' Assistant passed under Section 7 of the Act. The land in suit was owned by the plaintiff and was described as ghair mumkin khandrat in the revenue records. On the basis that the land was the waste land within the meaning of Section 7 of the Act, the Revenue Assistant passed the impugned order vesting the land in the Gaon Sabha. The trial court held that there was no bar under Section 185 of the Act to the institution of the suit as there was no provision in the Act whereby the plaintiff could not challenge the decision of the Revenue Assistant acting as Deputy Commissioner under Section 7. It was also held that in a case where the special Tribunal exceeded its jurisdiction or powers, the civil court had jurisdiction to entertain a suit based on such exercise of jurisdiction. However, on the question whether the property was waste land the court held that the land of the appellant was not a ‘holding’ within the meaning of Section 3 (11) of the Act being not khudkasht and, therefore, it fell within the meaning of ‘waste land’ as given in Section 7 of the Delhi Land Reforms Act. In the circumstances the order of the Revenue Assistant was held to be invalid as it was passed without jurisdiction. The Senior Subordinate Judge on appeal upheld the order of the trial court. The learned single Judge on second appeal held:

“I agree with the courts below that this is a case in which the civil court has jurisdiction, as the only question in this suit is whether the Revenue Assistant has exceeded his jurisdiction under the Act or not, and this depends on whether or not the land in suit has been wrongly held to be waste land. If the land is not covered by the definition of ‘waste land’, then certainly the order of the Revenue Assistant is without jurisdiction.”

And again:

“In order to see whether the land in suit is ‘waste land’ the first question to be seen is whether the land in suit comes within the definition of ‘holding’ given in Section 3 (11) of the Act. In this respect it has been urged that the land was not khudkasht for the simple reason that it was not agricultural land and was not used for agriculture. It seems to me that the fact that the land is not used for agriculture also brings it outside the definition of ‘waste land’ because if land is used for a purpose other than those mentioned in Section 3 (13) before 1956 it comes within the excluded area not under sub-clause (a) but under sub-clause (b).”

I consider that the revenue entry itself shows that the area is non-cultivable land which consists mainly of ancient ruined buildings, i.e, khandrat. It is, therefore, obvious that it was necessarily used for a purpose other than those mentioned in Section 3 (13) of the Act at some time, though perhaps long ago, but before 1956. Hence the land in suit is not waste land. It, therefore, follows that the Revenue Assistants' order vesting the land in the Gaon Sabha was passed without jurisdiction and the order is therefore liable to be set aside.

“Hence I accept this appeal and reverse the judgment of the court below and decree the suit. The plaintiff-appellant is entitled to a declaration that the order of the Revenue Assistant passed on 30th September, 1959, whereby he vested the land in the Gaon Sabha Masudpur was passed without jurisdiction and has no legal effect.”

These two decisions of the learned single Judge may be taken as fairly representative of his view.

In Gaon Sabha Chilla v. Jai Gopal etc., R.S.A 262-D of 1964 decided on August 16, 1971, Kapur. J. held that as the land was shown banjar qadim there was no ouster of the jurisdiction of the civil courts as in such a case it was not open to the plaintiff to ask for Bhumidari rights under this Act. In this case again the learned Judge took the view that the word ‘holding’ in sub-clause (a) of explanation to Section 7 of the Act has to be read in its ordinary sense and not according to the restricted meaning given to the word ‘holding’ in the definition clause contained in Section 3 (11) (a) of the Act. The learned Judge observed:

“The land in suit being Banjar Qadim has never been cultivated by the proprietors and was therefore not khudkasht. It was therefore not possible for the respondents in the present case to apply for Bhumidari rights under Entry 4 to the relevant authority mentioned in Column 7 of Schedule 1 for the relief specified in column 3. That being so, there would be no ouster of the jurisdiction of the civil court, as there is no remedy available to the plaintiffs under Schedule I of the Act. Hence, there is no bar to the civil court having jurisdiction in the present case. I, therefore, come to the conclusion that the civil courts have jurisdiction to decide the questions which arise for decision in the present suit.”

The learned Judge finally held that in view of the fact that Section 185 (1) of the Act did not bar the suit it was rightly held by the courts below that the land did not vest in the Gaon Sabha.

In R.S.A 284-D of 1964 decided on August 16, 1971 (Gaon Sabha Village Burari v. Raghu Nath etc.) the learned Judge held that though it is not open to the civil court to grant a declaration of Bhumidari rights it was nevertheless open to the civil court to grant a declaration that the vesting of the land in Gaon Sabha is illegal and not binding on the plaintiff. More or less to the same effect is the decision given in R.S.A 283-D of 1964 decided on August 17, 1971 (Union of India v. Badlu etc.).

In R.S.A 183-D of 1962 decided on February 8, 1971, by D.K Kapur, J. (The Gaon Sabha of Village Jasola v. Shri Inder Raj), the appellant was the Gaon Sabha in whose favour the order was passed by the Revenue Assistant on November 29, 1958, vesting the land in dispute as waste land under the Act. The respondent Inder Raj instituted a suit out of which the appeal arose claiming that the land was not a waste land and that he was entitled to get the bhumidari rights in the same as he had been in the cultivating possession for a number of years. Both the courts held that the land was not a waste land, but was in the cultivating possession of the plaintiff. In this view, a declaration was granted to the plaintiff that he was in cultivating possession of the land and the order of the Revenue Assistant vesting the land in the Gaon Sabha was illegal and without jurisdiction. The learned single Judge held that the case of Hatti (supra) did not apply to the case because no declaration regarding bhumidari was given, but all that had been held was that the order of the Revenue Assistant dated November 29, 1958, vesting the land in Gaon Sabha was illegal and without jurisdiction. The conclusion of the learned Judge is summed up in the following observations:

As regards the contention that the civil courts had no jurisdiction, Mr. Bali relies on Hatti v. Sunder Singh 1970 2 S.C.C 841, in which it was held by the Supreme Court that a person claiming Bhumidari rights is not entitled to move the civil courts, but, should make an application to the Revenue Assistant.

“and the civil courts jurisdiction was barred under Section 185 of the Act. I find that authority is not applicable to the present case because here no declaration regarding Bhumidari has been given, but, all that has been held is that the order of the Revenue Assistant dated 29th November, 1958, vesting the land in the Gaon Sabha is illegal and without jurisdiction. This is not a question which could have been challenged by the respondent before the Revenue Assistant under any of the provisions of the Delhi Land Reforms Act, 1954. Section 185 of that Act does not therefore bar this suit. The order vesting the land in the Gaon Sabha could only be set aside by moving the civil courts, as no remedy is provided in this behalf by the Delhi Land Reforms Act. In this connection it is noteworthy that no serious objection to the civil courts jurisdiction was raised before the trial court or the lower appellate court where practically it was conceded that the civil courts had jurisdiction. I, therefore, come to the conclusion that the civil court has jurisdiction, or alternatively this objection was waived by the present appellant.”

On merits it was held that there was a concurrent finding of fact that the land in suit had been in the cultivating possession of the respondent and, therefore, could not be said to be a waste land. The appeal was dismissed and the order of the court below striking down the order of the Revenue Assistant dated November 29, 1958 was upheld.

Having set out the view of D.K Kapur, J. in the various regular second appeals referred to above we may now examine the validity of the view. Section 185 (1) of the Act which we have set out above enacts a complete bar to the jurisdiction of the civil courts. Item 4 in Schedule I to the Act mentions applications for declaration of bhumidari rights in column 3 and the court of the Revenue Assistant is the court of original jurisdiction for such application in column 7. In all the cases what we generally find is that the plaintiff prays for a declaratory decree in his favour and against the Gaon Sabha to the effect that the order of the Revenue Assistant regarding the inclusion of the plaintiff's land in question in land Reform form No. 2 as the property of the Gaon Sabha is illegal and as a next step he, the plaintiff, claims that he is entitled to be declared a Bhumidar of the said land. So far as the part of the prayer that the plaintiff is entitled to be declared as a Bhumidar of the land in question is concerned there can be no manner of doubt that it is clearly covered by item 4 of Schedule I and the jurisdiction of the civil court is barred by reason of Section 185 (1). In our opinion the other part of the prayer, namely, that the order of the Revenue Assistant including the land in question in Land Reform Form No. 2 as the property of the Gaon Sabha be declared as wrong and illegal also cannot be entertained by a civil court. The Supreme Court in the case of Hatti (supra) has held that the Act is a complete Code which lays down the rights that any person can possess in agricultural land in the area to which the Act applies and the remedies which can be sought in respect of such land for obtaining declaration of the rights. The Act abolishes at one stroke the proprietory rights of the owners in land and the proprietors of agricultural land as such have ceased to exist after the coming into force of the Act. If any land was part of a holding of a proprietor, he became a bhumidar of it. If it was part of holding of some other person such as tenant or sub-tenant etc. he became either a bhumidar or an asami. Regarding the provisions of the Act for declaration of bhumidari rights the Supreme Court observed as follows: —

“Sections 11 and 13 grant power to the Deputy Commissioner to declare proprietors in respect of their holdings and certain class of tenants in respect of their holdings as Bhumidars. The procedure to be adopted for issuing the declaration forms was laid down in the Delhi Land Reforms Rules, 1954 (hereinafter referred to as “the Rules”) made by the Chief Commissioner of Delhi in exercise of the powers conferred by Sections 9, 105, 149, 162, 180 and 191 of the Act. The relevant Rules are 6 to 8. These Rules envisaged preparation of declaration forms by the revenue authorities without any application from any party. The declaration forms are based on the entries in the revenue records and, having been prepared on their basis, the declarations forms are issued to the persons, who under the forms, are held to be entitled to be declared as Bhumidars. These Rules, thus, do not envisage any application under Section 11 or Section 13 at this early stage. Rule 8 (4) lays down that anyone, who challenges the correctness of entries in the forms of declaration, shall, except where it refers to a clerical omission or error, be directed by the Revenue Assistant to file a regular suit within two months of the date of issue. Obviously, this sub-rule has to be interpreted in conformity with Sections 185 and Item 4 of the First Schedule to the Act, so that the scope of this sub-rule must be confined to institution of suits in respect of matters not covered by Item 4 of the First Schedule. This sub-rule would not stand in the way of an application being made by any person claiming to be Bhumidar under Item 4 of the First Schedule.”

Section 7 (1) of the Act provides that all rights of an individual proprietor pertaining to a waste land, pasture land and lands of common utility etc. shall with effect from the commencement of the Act, be terminated in accordance with sub-section (2). Sub-section (2) provides that on the commencement of the Act the Revenue Assistant acting as the Deputy Commissioner shall pass an order divesting the individual proprietors of the rights mentioned in sub-section (1) and vesting those rights in the Gaon Sabha and stating that the compensation should be paid to the proprietor or the proprietors concerned. Under Rule 8 (1) of the Delhi Land Reforms Rules 1954 the Revenue Assistant has to distribute declaration forms to the bhumidars and Asamis in each village. Under Rule 8 (4) any one who challenges the correctness of the entries in the form of declaration made by the Revenue Assistant under Rule 2 and 3 shall except where it refers to a clerical omission or error, be directed by the Revenue Assistant to file regular suit within two months of the date of the issue of such declaration forms.

The Supreme Court has observed in the case of Hatti (supra) that Section 186 does not give jurisdiction to the civil court to entertain the suit itself on a question of title. In fact it will appear from Section 186 that the Legislature has cast the duty on the revenue court to decide the suit accepting the finding of the civil court on the issue referred to it under sub-section (1). Reading Section 186 and Rule 8 (4) together the irresistible conclusion is that any person who wants to challenge the correctness of the entries in the Land Reform Forms has first to apply to the Revenue Assistant and it is for the Revenue Assistant to direct the said person to file a regular suit. The aggrieved party who in this case will either be a bhumidar or an Asami cannot directly approach the civil court but has to apply to the Revenue Assistant under Rule 8 (4) and he will then be directed by the Revenue Assistant to file a regular suit in a civil court. The finding of the civil court is made binding on the Revenue Assistant who shall then decide the suit accepting the finding of the civil court on the question regarding the title of any party to the land. It will, therefore, appear that both the reliefs claimed by the plaintiff, namely, that he is the bhumidar or an Asami as the case may be of a certain agricultural land as well as that the vesting of the land in the Gaon Sabha is illegal are properly speaking within the competent jurisdiction of the Revenue Assistant to determine and a civil court cannot be approached directly by an aggrieved person.

Mr. S.S Dalal conceded before us that if the land in dispute is banjar qadim then the civil courts have no jurisdiction, for banjar qadim also includes all cultivable waste. (Douie's Settlement Manual para 267 page 131). What the learned counsel contended was that if an order vesting Ghair Mumkin land in the Gaon Sabha was made then the same was ultra vires and a suit with regard to a declaration could be brought in a civil court. It was submitted that in ghair mumkin land the plaintiff claims interest but not bhumidari rights and, therefore, the civil courts have jurisdiction to make a declaration in his favour since what the plaintiff is asking for is not a declaration of bhumidari rights, but a declaration of an interest in ghair mumkin land. We profoundly disagree with this submission. No person can claim proprietory rights in the land after the commencement of the Act as the concept of proprietorship has been abolished altogether.

In our opinion it is a mistake to consider that banjar qadim or ghair mumkin are not agricultural lands. These two types of land are also covered by the provisions of the Act. In Land Revenue Assessment Rules 1929 which were framed by the Governor General in exercise of the powers conferred by Section 60 of the Punjab Land Revenue Act, 1887 on December 23, 1929, by Notification No. 6073-R dated December 23, 1929 under Rule 2, sub-rule (2), it is stated that:

“(2) The most important classes of uncultivated land are as follows: —

(a) banjar jadid: land which has remained unsown for four successive harvests;

(b) banjar qadim: land which has remained unsown for eight successive harvests; and

(c) ghair mumkin: land which has for any reason become uncultivable, such as land under roads, buildings, streams, canals, tanks, or the like, or land which is barren, sand or ravines.”

It will inevitably happen that when a plaintiff, a bhumidar or an Assami comes to court and challenges the vesting order of the Revenue Assistant regarding his land in the Gaon Sabha then he invariably asks that he (the plaintiff) is entitled to the bhumidari rights and that a declaration be made in his favour. Unless the civil court can first grant a declaration that the plaintiff is entitled to bhumidari rights, no order can be passed about the vesting order of the Revenue Assistant in the Gaon Sabha.

In the ten civil appeals to which we will turn immediately, we find that the two reliefs are inextricably, connected. The plaintiff says that the land is included in his holding and that he is entitled to the declaration of bhumidari rights and that the vesting order of the land in Gaon Sabha is illegal. The second relief in each case is dependent upon and consequential to the plaintiff being granted the first relief. In each case what we find is that the substantive relief claimed by the plaintiffs that he is entitled to the declaration of bhumidari rights. This claim cannot be entertained by a civil court. Secondly the other part of the prayer is also beyond the cognizance of the civil court. In many of the plaints that we will have occasion to examine in the later part of this judgment we shall see that the plaintiff invariably uses the expression ‘holding’ as for instance in the plaint in R.S.A 5-D the plaintiff uses the term ‘holding’ and it is said that the land is part of the plaintiff's holding.

With great respect to the learned single Judge we are unable to concur in his view as recorded in the above noted decisions. In our opinion in none of the cases a civil court will have jurisdiction to entertain the suit, whether the land involved is banjar qadim or ghair mumkin pahad or ghair mumkin khandrat. The aggrieved party must seek his remedy within the four corners of the Act.

In our view the above decisions of Kapur, J. are in conflict with the decisions of the Supreme Court in Hatti's case (supra). At two places in their judgment their Lordships of the Supreme Court are at pains to point out that the Act is a complete Code. At page 847 they say:

“The Act is a complete Code under which it is clear that any one wanting a declaration of his right as a Bhumidar, or aggrieved by a declaration issued without notice to him in favour of another, can approach the Revenue Assistant under Item 4 of the First Schedule and this he is allowed to do without any period of limitation, because he may not be aware of the fact that a declaration has been issued in respect of his holding in favour of another. A declaration by a Gaon Sabha of the right of any person can also be sought without any period of limitation. If there is dispute as to possession of agricultural land, the remedy has to be sought under Section 84, read with Item 19 of the First Schedule.”

Again at page 844 they say:

“Sections 6, 11, 13 and 154 of the Act read together, thus, show that, after the Act came into force, proprietors of agricultural land as such ceased to exist. If any land was part of a holding of a proprietor, he became a Bhumidar of it. If it was part of a holding of some other person, such as a tenant or a sub-tenant etc., he became either a Bhumidar or an Asami, whereupon the rights of the proprietor in that land ceased. Lands, which were not holdings of either the proprietor or any other person, vested in the Gaon Sabha.

In the case of proprietor's, their rights in the land continued to exist only in respect of holdings which, under the definition, must have been either their Sir or Khudkasht at the commencement of the Act. If it was not Sir or Khudkasht of a proprietor, it would not be his holding and, consequently, such land would vest in the Gaon Sabha under Section 154, the result of which would be that the rights of the proprietor would be extinguished. It appears that it was in view of this scheme of the Act that, under Section 84 the right to institute, “a suit for possession was granted only to a Bhumidar, or an Asami, or the Gaon Sabha. The Act envisaged only these three classes of persons who would possess rights in agricultural land after the commencement of the Act. Proprietors as such having ceased to exist could not, therefore, institute a suit for possession. This aspect of the case has been lost sight of by the High Court and the lower courts, because it appears that their attention was not drawn to the provisions of Section 154 of the Act, under which all lands of proprietors, other than those comprised in their holdings, vested in the Gaon Sabha, thus extinguishing their proprietory rights.”

At page 846 their Lordships observed: —

“Khanna J. in the case of Lal Singh v. Sardara and another (ILR (1964) Vol. 17 (2) Pb. 428) (supra correctly interpreted the scope and purpose of the Rules under which forms of declaration of Bhumidari rights are issued, but in our opinion correctly inferred that, since there is effectual adjudication of rights by the revenue authorities while declaring Bhumidari rights, their declaration must be subject to the due adjudication of rights, which in the absence of anything to the contrary, can only be by a civil Court. It is true that the declarations made by the revenue authorities without going through the judicial procedure are subject to due adjudication of rights; but such adjudication must be by an application under Item 4 of Schedule I and not by approach to the Civil Court. The jurisdiction of the Civil Court is clearly barred by Section 185 of the Act read with various items of the First Schedule mentioned above. If a Bhumidar seeks a declaration of his right, he has to approach the Revenue Assistant by an application under Item 4, while, if a Gaon Sabha wants a clarification in respect of any person claiming to be entitled to any right in any land, it can institute a suit for a declaration under Item 28 and the Revenue Assistant can make a declaration of the right of such person. So far as suits for possession are concerned, we have already held earlier that Section 84, read with Item 19 of the First Schedule gives the jurisdiction to the Revenue Assistant to grant decree for possession, and that the suit for possession in respect of agricultural land, after the commencement of the Act, can only be instituted either by a Bhumidar or an Asami or the Gaon Sabha. There can be no suit by any person claiming to be a proprietor, because the Act does not envisage a proprietor as such continuing to have rights after the commencement of the Act. The First Schedule and Section 84 of the Act provide full remedy for suit for possession to persons who can hold rights in agricultural land under the Act.”

Tatachari, J. in R.S.A 166-D of 1964 (Gaon Sabha v. Mange Ram) decided on August, 27, 1971, took the view which we have formulated above. We are in respectful agreement with the opinion of Tatachari, J.

R.S.A 23-D of 1966

The respondent Jage Ram instituted a suit for declaration that inclusion of khasra No. 73 (18 bighas-2 biswas) and an area of 2 bighas — 9 biswas out of khasra No. 132 in L.R Form No. 2 by the Revenue Assistant, Delhi, is illegal, without jurisdiction void and not binding on the plaintiff. The plaintiff-respondent alleged that he was the owner of khasra No. 73 measuring 1 bigha-2 biswas and Khasra No. 132 measuring 4 bighas-17 biswas, situated in Lado Sarai, District Delhi. It was further averred that Khasra No. 73 has always been khudkasht of the plaintiff and has never been a waste land. It was wrongly recorded in Khasra Girdawri for 1953-54 as ghair mumkin dher. The plaintiff also alleged that Khasra No. 132 measuring 4 bighas — 17 biswas was in his khudkasht. It was said that on account of wrong entries in the Khasra Girdawri for the year 1953-54 the Revenue Assistant, Delhi, in implementation of the declaration made by the Deputy Commissioner Delhi, under Section 7 of the Delhi Land Reforms Act included the whole of Khasra No. 73 measuring 1 bigha — 2 biswas and a part of Khasra No. 132 to the extent of 2 bighas — 9 biswas in L.R Form No. 2 and declared this area to have Vested in the Gaon Sabha, appellant. The prayer in the plaint was phrased in the following words: —

“The plaintiff prays that a decree be passed in his favour and against the defendant Gaon Sabha declaring that the inclusion of Khasra No. 73 measuring 1 bigha 2 biswas, and of an area 2 bighas and 9 biswas out of khasra No. 132 situated in village: Lado Sarai, District Delhi in L.R Form: 2 by the Revenue Assistant, Delhi instead of including the above land in the bhumidari of the plaintiff is illegal, without jurisdiction, void and not binding on the plaintiff and as a consequential relief the defendant Gaon Sabha be restrained by means of a permanent injunction from dispossessing the plaintiff from the suit land in any manner whatsoever”

The defendant-appellant contested the suit. One of the issues was “whether the court has no jurisdiction to try the suit ?” By judgment dated November 10, 1964, the trial court held that the civil court had jurisdiction to try the suit. In the result, a decree in favour of the plaintiff was granted by the trial court. The appellant Gaon Sabha appealed to the court of Senior Sub-Judge, Delhi. The first appellate Court by order dated August 31, 1965, dismissed the appeal. Gaon Sabha has come up in second appeal.

In this case the learned counsel for the respondent Shri S.S Dalal conceded that the prayer made in the plaint was covered by item 4 of Schedule I to the Act. It appears to us that in view of the decision of the Supreme Court in the case of Hatti (supra) the civil courts did not have jurisdiction to try this suit. In the result, the second appeal is allowed. The orders of the courts below are set aside and the suit of the plaintiff-respondent is dismissed.

R.S.A 261-D of 1964.

This is a second appeal by the plaintiff appellant. The Plaintiff-appellant instituted a suit for declaration. The plaintiff claimed to be the owner in possession of 39 bighas — 12 biswas of land situated at village Bakhtawarpur, Delhi State. The plaintiff alleged that he was using the above land for the purposes of brick kiln for the last 13 years and had put up huts on the said land for his labourers. The land had recently been recorded as banjar qadim in the revenue records and on the basis of the wrong entries in the revenue records the land in dispute had been declared to have vested in the Gaon Sabha by the Revenue Assistant by his order dated September 15, 1961. This order of the Revenue Assistant declaring that the land had vested in the Gaon Sabha was challenged as illegal, null and void and without jurisdiction on a variety of grounds. The plaint ended/with the prayer as follows: —

“It is, therefore, prayed that a decree to the effect that the order of the Revenue Asstt. dated 15-9-1961 declaring the land in suit as vested in Gaon Sabha is illegal, null and void and without jurisdiction and. the plaintiff is entitled to be declared a bhoomidar of the land in dispute, be passed in favour of the plaintiff and against the defd with costs.”

The suit was contested. One of the issue raised in the suit was “Whether the court has no jurisdiction to try the suit ?” the trial court by judgment dated November 26, 1962, held that the civil court had jurisdiction to try the suit and passed a declaratory decree in favour of the appellant against the respondent to the effect that the order of the Revenue Assistant vesting the land in suit in Gaon Sabha was wrong, illegal and not binding on the appellant.

Gaon Sabha, respondent, appealed to the court of the Senior Sub-Judge, Delhi. The first appellate Court examined the evidence and by judgment dated August 5, 1964, allowed the appeal and set aside the judgment and decree of the trial court and dismissed the plaintiff's suit with costs throughout.

The plaintiff-appellant Chhotu Ram has come up in second appeal. Shri R.P Bansal, the learned counsel for the appellant, frankly conceded that the second part of the prayer, namely that “the plaintiff is entitled to be declared as bhumidar of the land in dispute” was within the jurisdiction of the Revenue Courts to grant and a Civil suit could not be brought in respect of this prayer. The learned counsel then argued that it was open to him to give up this part of the prayer and to confine his claim only to the first part of the prayer, namely, that the order of the Revenue Assistant, dated September 15, 1961, was illegal and without jurisdiction. We do not agree with the submission of the learned counsel. We have to see what is the claim in substance. On a reading of the plaint it is clear that the main grievance of the plaintiff is that the order of the Revenue Assistance dated September 15, 1961, is erroneous because the land has wrongly been vested in Gaon Sabha and that the plaintiff should be declared a bhumidar of the land in dispute. It is, therefore, impossible to separate the prayer into two parts as was contended before us. We are of the opinion that the civil suit was not maintainable and the courts below were in error in holding otherwise. The result is that the second appeal of the appellant Chhotu Ram is dismissed though for reasons different from those which found favour with the first appellate court.

U.S.A 188-D of 1963.

The plaintiff-respondent instituted a suit for declaration and injunction in the Court of the Subordinate Judge, Delhi. The allegations in the plaint were that land Khasra No. 14/21 (4 bighas — 16 biswas) Khasra No. 22 (1 bigha) Khasra No. 15/25 (4 bighas — 16 biswas) Khasra No. 28/5 (4 bighas — 16 biswas) and Khasra No. 29/1 (4 bighas — 16 biswas) total 20 bighas — 4 biswas situated in Village Tekri Khurd was ordered to have vested in the Gaon Sabha, appellant-defendant, under Section 7 and 154 of the Delhi Land Reforms Act of 1954. The plaintiff challenged this order of vesting of the land in Gaon Sabha on a variety of grounds. One of the grounds was that the suit land was not a waste land because it was in the cultivation, of the plaintiff in 1953-54 and an entry with regard to Khasra No. 14/21, 22 and 29/1 recording it as “ghair mumkin chiragah” was illegal and incorrect. The plaintiff claimed that he was entitled to bhumidari certificate. In para 6 the plaintiff made the following averement” —

“That the order of vesting in favour of the defendant is illegal, and ultra vires, because the plaintiff was in cultivating possession of the land as one of the proprietors legally entitled to occupy the shamlat area, as he had rights in shamlat Deh. In such a case he was entitled to the Bhoomidari Certificate. The plaintiff should have been taken to be enjoying the status of a proprietor in cultivation of a land owned by him.”

The plaintiff made the following prayer in the amended plaint: —

“That the plaintiff prays for the following decree with costs: —

(i) Declaratory decree: —

“That the khasra girdawri entry of the year 1953-54 with regard to khasra No. 15/25 & 28/5 is incorrect to the extent that it does not record the name of the plaintiff in actual cultivating possession, though it records the fact that the land is under cultivation. The khasra girdawri entry of 1953-54, with regard to khasra No. 14/21, 22 and 29/2 is incorrect because it does not record the fact of cultivation and the fact that the plaintiff is cultivating it. It is the land in the possession of plaintiff which he has been actually cultivating and hence the order of vesting of the land in suit in favour of the defendant passed about two years ago is illegal, ultra vires and beyond jurisdiction for the above reasons, as detailed in para 5 and 6 above.

(ii) Permanent injunction restraining the defendant from ejecting the plaintiff from the land in suit.”

The Gaon Sabha contested the suit. One of the issues was whether the court has no jurisdiction to try the suit. The trial court held that the civil court had jurisdiction to try the suit. By order dated December 21, 1961, a decree was granted to the plaintiff in respect of field No. 15/25 and 28/5, but with regard to the remaining land the plaintiff's suit was dismissed.

Both the parties appealed to the court of the Senior Sub-Judge. The plaintiff appealed against that part of the suit which had been dismissed while Gaon Sabha appealed in respect of that part of the suit which had been decreed. The first appellate court, by order dated March 28, 1963, dismissed both the appeals.

The material words in the prayer are that the order of vesting of the land in suit in the Gaon Sabha is illegal, ultra vires and beyond jurisdiction. In essence the plaintiff claims that he is entitled to bhumidari rights since he “has been cultivating the suit land as a part of his holding and, therefore, it could not vest in the Gaon Sabha under Section 154 of the Delhi Land Reforms Act” (para 5 (i) of the plaint). By means of a permanent injunction the plaintiff wanted to restrain the defendant from ejecting him from the said land. This being the substance of the prayer, there is no doubt that the civil Courts have no jurisdiction to try such a suit.

The result is that the appeal of the Gaon Sabha is allowed and the plaintiff's suit is dismissed.

R.S.A 36-D of 1966.

In this case on March 6, 1964, the plaintiff-appellant instituted a suit for injunction restraining the defendant from interfering with the possession of the plaintiff of land bearing Khasra No. 89 measuring 1 bigha 18 biswas situated in village Maharpur, Delhi. In the plaint the plaintiff alleged that he was a co-sharer in Khewat No. 39 situated in Village Maharpur and was in exclusive possession of a part of the said Khewat measuring 1 bigha — 18 biswas. It was further alleged that the entries in the revenue, records for the years from 1951 to 1955 showing the suit land as ‘ghair mumkin hadwari’ are wrong and illegal. On the basis of these wrong entries the plaintiff stated that the defendant was threatening to dispossess him of the suit land. In paragraph 5 of the plaint the plaintiff alleged that the defendant had no right, title or interest in the suit land and had no right or authority to interfere with the possession of the plaintiff and disposes him therefrom. A number of grounds were stated. In this respect ground No. (c) is worthy of attention. It reads as follows: —

“That as the plaintiff was in cultivatory possession of the suit land in the relevant year 1953-54 and the same was comprised in the holding of the plaintiff and was not a waste land, hence the plaintiff on the commencement of the D.L.R Act, 1954, became Bhumidar of the same under law.”

In the end the plaintiff made the following prayer: —

“That the plaintiff prays that a decree for permanent injunction, restraining the defendant from interfering with the possession of the plaintiff of the suit land and dispossessing him therefrom in any manner whatsoever be passed in favour of the plaintiff and against the defendant, with costs. Any other relief which this Hon'ble Court deems just and equitable be also granted to the pltf.”

The suit was contested by the Gaon Sabha. One of the issues raised was “whether the court has no jurisdiction to try the suit”. The trial court by judgment dated April 19, 1965, held that the jurisdiction of the civil court was not barred. On merits the court came to the conclusion that the order of the Deputy Commissioner vesting the land in Gaon Sabha was wrong and illegal. A declaratory decree was, therefore, made in favour of the plaintiff that the order vesting the land in Gaon Sabha was illegal and ultra vires and not binding on the plaintiff.

Gaon Sabah appealed to the court of the Senior Sub-Judge. The first appellate Court by order dated August 4, 1965, allowed the appeal and dismissed the suit of the plaintiff with costs throughout. The plaintiff-appellant has preferred this second appeal to this court. The suit in substance is for declaration of bhumidari rights. The Supreme Court ruling governs this case.

In the result, the appeal is dismissed on the ground that the plaintiffs' suit is not cognizable by a civil court.

R.S.A 5-D of 1966

On August 3, 1964, that plaintiff Bahadur instituted a suit for declaration that the inclusion in L.R Form No. 2, by the Revenue Assistant on January 29, 1929, of 1 bigha — 17 biswas of land out of Khasra No. 3 M in situated in village Lado Sarai, Delhi was illegal, ultra vires and void and did not affect the rights of the plaintiff in the suit land. It was alleged in the plaint that the plaintiff and defendants 2 to 8 were co-sharers in a joint Khewat in village Lado Sarai and had by mutual agreement partitioned the joint Khewat, for purposes of cultivation. Khasra No. 3 Min measuring 5 bighas fell to the share of the plaintiff and the plaintiff was declared bhumidar of an area of 3 bighas — 3 biswas out of the said Khasra No. 3 Min and the remaining area of 1 bigha — 17 biswas was included in L.R Form No. 2. The plaintiff claimed that the suit land formed part of the plaintiff's holding on the commencement of the Delhi Land Reforms Act and was in his exclusive possession since the time of the partition.

Next it was alleged that the suit land was recorded in the revenue records as ‘ghair mumkin kote’ for the year 1953-54 and was included in L.R Form No. 2 by the Revenue Assistant, Delhi on January 29, 1959, on the assumption that it was a waste land. It was averred that the Revenue Assistant acted without jurisdiction in assuming that the suit land was waste land and was not included in the holding of any proprietor. It will be appropriate to set out paragraph 4 of the plaint verbatim: —

“That the suit land which was recorded in the revenue records as ghair Mumkin Dher and Ghair Mumkin Kote, in the years 1953-54 was included in L.R Form: 2 by the Revenue Assistant, Delhi on 29-1-1959 on the assumption that it was waste land. The Revenue Assistant acted wholly without jurisdiction in presuming that the suit land is waste land or is land which is not included in the holding of any proprietor and thus the action of the Revenue Assistant Delhi is ultra vires and void.”

This inclusion of the suit land in L.R Form No. 2 by the Revenue Assistant was challenged as illegal Ultra vires without jurisdiction and void for a variety of reasons, two of which may here be noticed. One of these reasons was that the suit land was not a waste land within the meaning of Section 7 of Delhi Land Reform Act. The Second reason was that the suit land could not be declared to have vested in the Gaon Sabha under Section 154 of the Act as it was included in the holding of the plaintiff on the commencement of the Delhi Land Reforms Act.

In para 7 of the plaint the plaintiff made the following averments: —

“That the suit land has always been and still is in the possession of the plaintiff and the plaintiff is entitled to continue in possession as its sole owner.”

In conclusion the plaintiff made the following prayer: —

The plaintiff prays that a declaratory decree be passed in his favour and against the defendant along with the costs of this suit declaring that the inclusion in L.R Form: 2 by the Revenue Assistant, Delhi on 29-1-1959 of 1 bigha 17 biswas of land out of khasra No. 3 Min situated in village Lado Sarai, District Delhi is illegal, ultra vires, and void and does not affect the rights of the plaintiff in the suit land.”

The suit was contested by the Gaon Sabha. The trial court by order dated January 30, 1965, granted a decree for declaration to the plaintiff to the effect that the order of the Revenue Assent dated January 29, 1959, relating to 1 bigha — 17 biswas of land out of khasra No. 3 Min village Lado Sarai was illegal, ultra vires and void and did not affect the rights of the plaintiff in the suit land.

Gaon Sabaha appealed to the court of the Senior Sub-Judge. The first appellate court by order dated August 4, 1965, dismissed the appeal. Gaon Sabah has now appealed to this court.

The substance of the claim as made in the plaint is that there has been a wrong declaration by the Revenue Assistant. The plaintiff says that he should have been granted bhumidari rights in respect of the suit land. If this is so, then the suit is clearly hit by the rule laid down by the Supreme Court. The result is that the appeal of Gaon Sabha is accepted. The judgment and decree of the courts are set aside and the suit of the plaintiff-respondent is dismissed.

R.S.A 69-D of 1968

On February, 2, 1967, the plaintiff instituted a suit for declaration that the inclusion in L.R No. 2 of the land bearing Khasra No. 2703/1328/1 (10 bighas — 4 biswas), 2703/1328/4 (0 — 7 biswas) 2703/1328/5 (0 — 13 biswas), 2712/1608/8 (57 bighas — 9 biswas) 1739 (21 bighas — 8 biswas) and 1740/1 (31 bighas — 9 biswas) in all 121 bighas — 10 biswas of village Mehrauli is illegal and without jurisdiction and against the proprietory interest of the plaintiff. It was further averred that the plaintiff “is entitled to bhumidari rights under Section 11 of the Act or entitled to remain in possession and enjoyment of the suit land as proprietor thereof”.

The allegations in the plaint were that the plaintiff was proprietor of the above khasra numbers as the land had been allotted to him in partition and he was in possession thereof. The plaintiff further alleged that its inclusion in L.R Form No. 2 was illegal and the land could not vest in the Gaon Sabha. The plaintiff asserted that he was “entitled to the declaration of bhumidar thereof under Section 11 of the Delhi Land Reforms Act or to remain in possession thereof as proprietor” on a number of grounds. One of the grounds was that the “Land in suit is not land and was not banjar (waste) and does not fall within Section 7 or 154 of the Act.” The plaintiff said that he grows fuel wood and partly uses it as ghatwars and uses stone for building purposes. It was also alleged that the suit land was also included in the proprietory holding of the plaintiff. In paragraph 9 of the plaint it was averred that the cause of action arose to the plaintiff on September 30, 1959 when the Revenue Assistant while implementing the declaration of the Deputy Commissioner included the land in suit in L.R Form No. 2 “and deprived the plaintiff of her proprietory rights in respect thereof finally in April, 1966 when the plaintiff came to know of the impugned declaration and inclusion.” The following prayer was made at the end of the plaint: —

“Accordingly it is prayed that a declaratory decree as prayed for in the subject heading above be passed in favour of the plaintiff against the defendants with costs of the suit. Any other relief deemed proper be also granted.”

The subject he adding referred to in the prayer clause runs as under: —

“Suit for declaration that inclusion in ‘L.R 2 of the land bearing Khasra Nos. 2703/1328/1 (10 big — 4bis), 2703/1328/4 (0 big — 7 bis), 2703/1328/5 (0 big — 13 bis), 2712/1660/8 (57 big — 9 bis) 1739 (21 big-8 bis) and 1740/1 (31 big-9 bis) in all 121 bighas — 10 biswas of village Mehrauli, is wrong illegal without jurisdiction, ultra vires void, ineffective, nullity against the proprietory interest of the plaintiff, who is entitled to bhumidari rights u/s 11 of D.L.R Act or entitled to remain in possession and enjoyment of the suit land as proprietor thereof.”

Gaon Sabha contested the suit. The trial court by judgment dated July 21, 1967, granted a decree of declaration to the plaintiff to the effect that the vesting of the suit land in Gaon Sabha was wrong, illegal and without jurisdiction and not binding on the plaintiff.

Gaon Sabha appealed to the court of the Senior Sub-Judge, Delhi. By order dated December 11, 1967, the first appellate court dismissed the appeal. Gaon Sabha has now come up in second appeal to this court.

A reading of the prayer in the subject heading of the plaint set out above leaves no manner of doubt that the plaintiff's claim is that she is entitled to the bhumidari rights in the suit land and that the inclusion of her land by the Revenue Assistant in L.R Form No. 2 is illegal. In fact the plaintiff expressly says that she is entitled to bhumidari rights under Section 11 of the Act. This being the nature of the claim there is no doubt that the suit was not competent and the civil court had no jurisdiction to try such a suit. The result is that the appeal succeeds. We set aside the decrees and the judgments of the courts below and dismiss the suit of the plaintiff-respondent.

R.S.A 71 of 1968

On February 2, 1967, the plaintiff instituted a suit for declaration that he was the proprietor in possession of the land measuring 44 bighas 15 biswas situated in village Mehrauli, Delhi in 1953-54. The said land was wrongly included in L.R Form No. 2 in pursuance of the general declaration of the Deputy Commissioner under Section 7 (2) of the Act. The plaintiff alleged that the said land could not vest in the Gaon Sabha and its inclusion in L.R Form No. 2 was wrong, without jurisdiction and against the proprietory interest of the plaintiff. The plaintiff claimed that he was the proprietor and as such was “entitled to the declaration of Bhumidar thereof under Section 11 of the Delhi Land Reforms Act, or remain in possession thereof as proprietor.” Inclusion of the land in L.R Form No. 2 was challenged on a variety of grounds. One of the grounds was that the land was not banjar (waste) and did not fall within Section 7 or 154 of the Act. The plaintiff alleged that the land in suit was included in proprietary holding of the plaintiff. In paragraph 9 the plaintiff alleged that the cause of action arose on September 30, 1959, when the Revenue Assistant while implementing the said declaration of the Deputy Commissioner included the said land in L.R Form No. 2 and deprived, the plaintiff of proprietory rights in respect thereof. The prayer clause was worded as follows: —

“Accordingly it is prayed that a declaratory decree as prayed for in the subject heading above be passed in favour of the plaintiff against the defendants with costs of the suit. Any other relief deemed proper be also granted.”

The subject heading of the plaint runs as follows: —

“Suit for declaration that inclusion in LR 2 of the land bearing khasra Nos. 2712/1660/13 (6 bighas — 15 biswas), 2742/2077/1679/2 (4 bighas — bis) 1249 (33 bighas — 19 bis) in all 44 big — 15 bis. village Mehrauli, Delhi, is wrong, illegal without jurisdiction, ultra vires, void, ineffective, nullity, against the proprietory interest of the plaintiff, who is entitled to Bhumidari rights u/s-11 of D.L.R Act or entitled to remain in possession, and enjoyment of the suit land as proprietor thereof.”

It will be seen that the plaint in Suit No. 70 of 1967 out of which R.S.A 69-D of 1968 arose was in identical terms as the plaint in this suit.

The Gaon Sabha contested the suit. The trial court by judgement, dated July 24, 1967, granted a decree of declaration to the plaintiff to the effect that the vesting of the suit land in Gaon Sabha was illegal and without jurisdiction and did not affect plaintiff's rights.

Gaon Sabha carried an appeal to the court of the Senior Sub-Judge who by order, dated December 23, 1967, dismissed the appeal. Gaon Sabha has now come up in second appeal to this court. For reasons given in R.S.A 69-D of 1968, we allow the second appeal and set aside the decrees of the courts below and dismiss the suit of the plaintiff-respondent.

R.S.A 26 of 1968

On February 16, 1967, Richpal and others instituted a suit against the Gaon Sabha and the Union of India for a declaration that the inclusion of Khasra Nos. 2 (3 bighas — 14 biswas) 3 (4 bighas — 16 biswas, 4 (4 bighas — 16 biswas), 5/1 (0-11 biswas) of Rectangle No. 4 of Village Najafgarh, Delhi, in L.R Form No. 2 as the property vesting in Gaon Sabha by the Revenue Assistant, Delhi, was wrong, illegal, without jurisdiction and against the interest of the plaintiffs who claimed that they “are entitled to bhumidari rights under Section 11 of the Act or entitled to remain in possession thereof as proprietors.” The plaintiffs further alleged that they were in the possession of the suit land. The suit land had been included in L.R Form No. 2 by the Revenue Assistant. The order vesting the land in the Gaon Sabha was challenged as illegal and without jurisdiction by the plaintiffs. The plaintiffs asserted in paragraph 4 of the plaint that they were “entitled to the declaration of bhumidari rights under Section 11 (1) (a) of the Delhi Land Reforms Act”. The vesting order was challenged on a variety of grounds. Two of these grounds may be mentioned here. One of these grounds is that the land in question was not banjar (waste) land and did not fall within Section 7 or 154 of the Act. The land was alleged to be in actual cultivatory possession of the plaintiffs and their predecessor-in-interest. The second ground was that the land in suit was included in the proprietary holdings of the plaintiffs at the commencement of the Act.

The prayer in the plaint is as follows: —

“Accordingly it is prayed that a declaratory decree as prayed for in the subject-heading above be passed in favour of the plaintiffs Nos. 1 to 5 or all the plaintiffs against the defendants with costs of the suit. Any other relief deemed proper be also awarded.”

The subject heading referred to in the prayer clause runs as follows:

“Suit for declaration that the inclusion of Khasra Nos. 2 (3-14), 2 (4-16), 4 (4-16), 5/1 (11 biswas) of Rectangle No. 4 of village Najafgarh in Gaon Sabha by the Revenue Assistant, Delhi is wrong, illegal, without jurisdiction, ultra vires, void, nullity and against the interest of the plaintiffs who are entitled to Bhumidari rights under Sec. 11 of D.L.R Act or entitled to remain in possession thereof as proprietors.”

The Gaon Sabha contested the suit. The trial Court by order dated June 3, 1967, granted a decree of declaration to the plaintiff to the effect that the vesting order was illegal and without jurisdiction.

Gaon Sabha carried an appeal to the court of the Senior Sub-Judge, Delhi, who by his order dated October 20 1967, dismissed the appeal with costs. Gaon Sabha has come up in second appeal to this court.

The allegations in the plaint leave no doubt that the claim in question is for the declaration of bhumidari rights. This being so, the suit in a civil court did not lie. Allegations in the plaint are similar to the allegations made in plaints which we have considered in R.S.A 69 and R.S.A 71 of 1968. The result is that the appeal of Gaon Sabha succeeds. Accordingly we set aside the decrees of the courts below and dismiss the suit of the plaintiffs-respondents.

R.S.A 135. D. of 1965

On December 11, 1963 the plaintiff-respondent instituted a suit for a declaration against Gaon Sabha. The claim of the plaintiff in the plaint was that he was a proprietor in shamla patti Aal Kala of Mauza Palam, and was in self cultivation as owner of land measuring 4 bighas-6 biswas bearing Khasra No. 57/13/1 (2 bighas-3 biswas) and 57/13/2 (2 bighas-3 biswas). This land, the plaintiff alleged, was under his Khudcast on the commencement of the Act and thereafter no portion thereof was waste land as denned in Section 7 of the Act. It was further alleged that the plaintiff was issued bhumidari certificate dated February 28, 1959, by the Revenue assistant, Delhi but the land mentioned above had not been included in the said certificate L.R Form No. 5. The Revenue Assistant, the plaintiff alleged, by order dated February 28, 1959, had included the said land in L.R Form No. 2 wrongly and had declared the same to be vested in the Gaon Sabha. The plaintiff alleged that this action of the Revenue Assistant had deprived him (the plaintiff) “of bhumidari rights in respect thereof” (para 3 of the plaint). In paragraph 4 of the plaint the plaintiff says that the order of vesting of the land in Gaon Sabha by the Revenue Assistant is wrong, without jurisdiction and against the interest of the plaintiff “who is entitled to the bhumidari rights under Section 11 of the Act.” A number of grounds of attack were taken in the plaint. One of the grounds was that the land was in the cultivation of the plaintiff and, therefore, Section 7 of the Act had no application as the said land formed part of the plaintiff's proprietory holding. Again in paragraph 6 the plaintiff says that the order of the Revenue Assistant including the suit land in L.R Form No. 2 “deprived the plaintiff of the bhumidari rights in respect thereof.” In the end the prayer was made as follows: —

“That the plaintiff, therefore, prays that a decree for declaration with costs be passed in his favour against the defendant to the effect that the land measuring 4 bighas — 6 biswas as described and detailed in para no. 1 of the plaint does not vest in the Defendant Gaon Sabha and the order (declaration) of the Deputy Commissioner published in the official Gazette on 23-5-57 and the consequent inclusion of the said land in L.R Form No. 2 by Ch. Harphul Singh, Revenue Assistant, Delhi on the assumption that the same is vested in the Gaon Sabha and thereby depriving the plaintiff of bhumidari rights in respect thereof is wrong illegal, ultra vires, without jurisdiction and null and void, and is not binding on the plaintiff who is entitled to the bhoomidari rights in the said land.”

Gaon Sabha contested the suit. The trial Court by order dated May 12, 1964 dismissed the suit of the plaintiff respondent. On the issue whether the court had jurisdiction to try the suit, the trial court came to the conclusion that the civil court had jurisdiction to try the suit. This issue was decided in favour of the plaintiff-respondent though in the result his suit was dismissed.

The plaintiff-respondent appealed to the court of the Senior Sub-Judge. The first appellate court by order dated January 2, 1965, allowed the appeal in part and granted a partial decree to the plaintiff declaring that the order of vesting of the land in dispute in the Gaon Sabha was void. The plaintiffs claim that he was a bhumidar of the land was not accepted in its entirety. The first appellate court declared that the bhumidari rights vested in Patti Aal Kalan and the plaintiff-respondent was entitled to hold this land as one of the bhumidars.

Against the judgment of the first appellate court Gaon Sabha has come up in second appeal. The allegations made in the plaint clearly show that what the plaintiff-respondent claims in the suit are the bhumidari rights in the land and nothing more and nothing less. This being so, such a suit was not competent and could not be entertained by a civil court. The result is that the appeal succeeds and we set aside the decrees of the courts below and dismiss the suit of the plaintiff respondent.

R.S.A 38 — D of 1966.

On July 21, 1964, the plaintiff instituted a suit for declaration that the inclusion in L.R Form No. 2 by the Revenue Assistant, Delhi, on January 29, 1959 of land bearing Khasra No. 367 measuring 3 bighas — 10 biswas situated in village Lado Sarai, District Delhi was illegal, ultra vires, without jurisdiction and did not affect the rights of the plaintiff in the suit land. The plaintiff alleged that the land was his private property and was included in his holding. It was further alleged that the Revenue Assistant on the basis of the suit land having been recorded as “ghair mumkin johar” and “ghair mumkin Dehr” in the revenue records for the years 1953-54, treated the suit land as waste land and included the suit land in L.R Form No. 2 and declared it to have vested in the defendant Gaon Sabha. This inclusion of the suit land in L.R Form No. 2 was challenged as illegal and without jurisdiction on a number of grounds. One ground was that the suit land was not a waste land within the meaning of section 7 of the Act and, therefore, its inclusion in L.R Form No. 2 was without jurisdiction. Secondly, it was alleged that the suit land could not be declared to have vested in the defendant Gaon Sabha under Section 154 the Act as it was included in the holding of the plaintiff's predecessor-in-interest on the commencement of the Act. In the end prayer as made in the amended plaint was as follows: —

“The plaintiff prays that a declaratory decree be passed in his favour and against the defendant along with the costs of this suit declaring that the inclusion in L.R Form No. 2 by the Revenue Asstt., Delhi on 19-1-59 of land bearing khasra No. 367, measuring 3 bighas 10 bis. situated in village Lado Sarai, District Delhi is illegal, ultra vires, without jurisdiction and void and does not affect the rights of the plaintiff in the suit land.”

By order dated April 19, 1965, the trial Court granted a declaratory decree to the plaintiff to the effect that the order of the Revenue Assistant was illegal and was not binding on the plaintiff.

The Gaon Sabha appealed to the court of the Senior Sub Judge, Delhi. By order dated October, 4, 1965, the appeal of the Gaon Sabha was dismissed. Gaon Sabha has now come up in second appeal to this court.

On the allegations made in the plaint it is abundantly clear that the plaintiff's claim in substance is that he has bhumidari rights in the suit land and the vesting order is contrary to law. As such, such a suit could not be brought in the civil court by reason of section 185 (1) of the Act. In the result, the appeal of Gaon Sabha is allowed. The judgements and decrees of the courts below are set aside. The suit of the plaintiff-respondent is dismissed as being incompetent. In view of the fact that the question involved in all the ten appeals was one relating to jurisdiction, we think that the proper order will be to leave the parties to bear their own costs throughout in all the appeals.

Order accordingly