JUDGMENT

V.K. Shali, J. (Oral)

1. This is an appeal under Section 100 CPC against the order dated 21.8.2006 passed by the learned Additional District Judge dismissing the appeal of the appellant bearing R.C.A. No.10/2006 titled Madan Mohan vs. Antro Devi & Ors.

2. Briefly stated the facts of the case are that the appellant filed a suit bearing No.29/2005 against the respondents claiming that one Chotu Ram, maternal grandfather of the appellant, was residing in Akbarpur Majra, Delhi and was bhumidhar of land bearing Khasra No.13/18/3 (3-12), 23 (3-10), 34/9 (4-16), 11 (4-16), 44/5/2 (3-4), 45/10 (4-4) measuring 24 bighas 2 biswa in the Revenue Estate of Village Akbarpur Majra, Delhi. It was alleged that Chotu Ram died on 14.8.1966 and the property was inherited by his widow, namely, Bhoori Devi and thereafter, the property was devolved in favour of Antro Devi (respondent No.1 herein through LRs) on the basis of the Will. It was further alleged that the land has been mutated in the name of Antro Devi after demise of Bhoori Devi on 8.2.1982. Reliance was placed on Section 50 (a) of the Delhi Land Reforms Act to aver that the mutation/transfer of the property in favour of Antro Devi was illegal and unlawful because as per Section 50 sub-clause (a) read with Clause (p) of the aforesaid provision, only the male descendent could inherit the property. It is pertinent here to reproduce Section 50 of the Delhi Land Reforms Act, which reads as under:

"50. General order of succession from males - Subject to the provisions of section 48 and 52, when a Bhumidhar or Asami being a male dies, his interest in his holding shall devolve in accordance with the order of the succession given below :

(a) male lineal descendants in the male line of the descent:

Provided that no member of this class shall inherit if any male descendant between him and the deceased is alive:

Provided further that the son or sons of a predeceased son howsoever low shall inherit the share which would have devolved upon the deceased if he had been then alive;

(b) widow;

(c) father;

(d) mother, being a widow;

(e) step mother, being a widow;

(f) father's father;

(g) father's mother, being a widow;

(h) widow of a male lineal descendant in the male line of descent;

(i) unmarried daughter;

(j) brother being the son of same father as the deceased;

(k) unmarried sister;

(l) brother's son, the brother having been son of the same father as the deceased;

(m) father's father's son;

(n) brother's son's, son;

(o) father's father's son's son;

(p) daughter's son.

3. It was further alleged in the plaint that Antro Devi, w/o Laxman Singh, had executed four sale deeds in respect of the aforesaid suit property in favour of her sons, namely, Krishan Kumar, Jai Bhagwan, Harish Chander and one Chandro Devi, w/o Jai Bhagwan, who were impleaded as defendants in the suit and are respondents in the present appeal also. On the basis of the aforesaid fact, a declaration and permanent injunction was sought to the effect that the appellant has inherited the bhumidhari rights in respect of the suit land. The cancellation of sale deeds purported to have been executed by Antro Devi was also sought. The defendants appeared and filed their written statement and reply to the application. Various pleas were taken including that the suit is barred under Order II Rule 2 CPC as the previous suit bearing No.233/2001 had been filed by the appellant with various reliefs but the present reliefs were not claimed in the said suit. It was also alleged that the present suit is barred under Section 185 of the Delhi Land Reforms Act as only the Revenue Court has the jurisdiction to entertain the suit for declaration and relief of cancellation of the sale deed was an incidental relief to the relief of declaration. The learned Judge, after hearing the arguments of the parties, dismissed the application under Order 39 Rules 1 & 2 CPC on the ground that the appellant has not been able to make out a prima facie case. T