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Sunday, March 6, 2016

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.

                                                              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.

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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