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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  2522 OF 2016 (ARISING OUT OF S.L.P. (CIVIL) NO. 15358 OF 2011)

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

VERSUS

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

J U D G M E N T

A.K. SIKRI, J.

Leave granted.

2) 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  

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(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  

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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.

3) 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  

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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.

4) 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.

5) 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.”

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6) 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.

7) 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.

8) When the matter was, thus, remanded back to the Consolidation  

Officer  at  the  instance  of  Respondent  No.  26,  the  aforesaid  

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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.   

9) 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  12 th 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  

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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.

10) 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.

11) 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.

12) 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  

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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.  

13) The  appellants  filed  Letters  Patent  Appeal  No.  128  of  2011  

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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.  

14) It is this order which is in appeal before us.   

15) 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  

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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:

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“...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.”

16) 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  

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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.”

17) 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.

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18) 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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