The main legal point established in the judgment is that the physical demarcation of the land, as per the MOU, had already been completed, making the remittance of the matter back to the Revenue Court unnecessary.

Indermeet Kaur, J.

IA No.2530/2014 (under Section 24 of the CPC by defendant No.1)

1. This is an application filed by defendant No.1 Hans Nagar for transfer of the present proceedings to the Revenue Authorities for the purpose of demarcation/physical division of the lands which are the subject matter of the present proceedings i.e. of the Nagar Estate of Ghadaipur, Mehrauli. This application has been filed under Section 24 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’). Learned counsel for the applicant has placed reliance upon the provisions of Section 54 read with Order 20 Rule 18(1) of the CPC. His submission is that where a partition decree has been passed qua agricultural land, the actual physical division can be effected only by the Collector/SDM. To support this submission, he has placed reliance upon numerous judgment including judgments reported as 183 (2011) DLT 57 Hanso Devi (deceased through LRs) Vs. Chandu (deceased) Through LRs., JT 2009 (11) 583 Shub Karan Bubna Vs. Sita Saran Bubna and Other, AIR (36) 1949 Oudh 37 Abdul Ali & Ors. Vs. Mirza Viqar Ali Beg and Others, AIR 1983 Supreme Court 124 Khemchand Shankar Choudhary & Ors and AIR 1985 Karnataka 82 Ramagouda Rudregouda Patil & Ors Vs. Smt. Lagmavva and Others. Submission being reiterated that the revenue authorities being conversant with matters relating to agricultural land are in fact the proper medium through which this agricultural land can be demarcated; matter be accordingly remanded back to the revenue authorities. Submission being reiterated that although a consent a decree had admittedly been passed by the Civil Court on 12.04.2014 in terms of the Memorandum of Understanding (MOU) executed inter-se the parties on 15.09.2011, the revenue authority being the only authority competent to demarcate and physical divide the agricultural land, the proceedings before this Court are not maintainable and as such all proceedings arising out of the present suit i.e. CS (OS) No.666/2008, TEST CAS No. 40/2007 and CS(OS) No.2019/2007 be transferred to the SDM, Mehrauli to carry out the process of demarcation.

2. Reply has been filed opposing the application. The contention of the plaintiff is that beside the fact that the provisions of Section 24 of the CPC are not applicable to revenue courts, even otherwise on merits, since the land is identifiable and having houses and boundary walls built upon it and the parties having agreed in terms of the consent decree have already decided as to which part of the property has to fall upon which party, the question of demarcation/any further physical division of the property does not arise. This application is frivolous and is liable to be dismissed.

3. On the applicability of Section 24 of the CPC, learned counsel for the plaintiff submits that the High Court under this provision of law can transfer any suit, appeal or other proceedings pending before it “to any Court subordinate to it” and the Court subordinate to it includes the Civil Courts only which are subordinate to it and it does not include the revenue Court and for this proposition reliance has been placed upon Sections 3 & 5 of the CPC. This submission of the learned counsel for the plaintiff is correct. However this by itself may not be reason enough to defeat the application of defendant No.1 as a wrong nomenclature would not defeat the right of a person if otherwise he makes out any such right and in this context, reliance by the learned counsel for defendant No.1 upon JT 2010 (6) Supreme Court 506 Vijaya Bank Vs. Shyamal Kumar Lodh has been noted. Thus this Court while ignoring the nomenclature of the application proceeds to decide as to whether these proceedings pending before it are liable to be transferred to the Revenue Authorities at this stage or not.

4. Arguments have been heard. Record has been perused.

5. Record shows that the three brothers i.e. Ronald Nagar and John Nagar (on the one side) and Hans Nagar (on the other