Delhi District Court
Sh. Lala Ram vs Sh. Rajender Kumar on 22 October, 2020
Lala Ram V. Rajender Kumar
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
RCA NO.: 32/2020
UNIQUE CASE ID NO.: 108/2019
IN THE MATTER OF:
Sh. Lala Ram
S/o Late Sh. Kanhaiya Lal
R/o H. No. 67/78I, Second Floor,
Bapa Nagar, Hardhiyan Singh Road,
Karol Bagh, New Delhi110005. ...Appellant/Defendant
Versus
Sh. Rajender Kumar
S/o Late Sh. Kanhaiya Lal
R/o H. No. 67/78I, Third Floor,
Bapa Nagar, Hardhiyan Singh Road,
Karol Bagh, New Delhi110005. ... Respondent/Plaintiff
APPEAL UNDER SECTION 96 CPC READ WITH ORDER XL1 RULES 1 & 2 CPC AGAINST THE ORDER DATED 06.08.2019 PASSED BY LD. CIVIL JUDGE (CENTRAL), DELHI IN SUIT NO. 1546/2018 TITLED AS RAJENDER KUMAR VS. LALA RAM, WHEREBY THE APPLICATION OF THE RESPONDENT UNDER ORDER XII RULE 6 CPC READ RCA No. 32/2020 Page 1 of 43 Lala Ram V. Rajender Kumar WITH SECTION 151 CPC WAS ALLOWED AND SUIT OF THE RESPONDENT WAS PARTLY DECREED.
Date of institution of the Appeal : 07/09/2019 Date on which Judgment was reserved : 09/10/2020 Date of Judgment : 22/10/2020 :: J U D G M E N T ::
1. The Appellant was defendant and Respondent was plaintiff in the suit. The appellant and respondent are respectively referred in this Judgment according to the original status before the Ld. Trial Court. The Appellant/defendant is dissatisfied with the Judgment and Decree dated 06.08.2019 passed by the Ld. Trial Court. The Ld. Trial Court has allowed the application under Order XII Rule 6 CPC of the Plaintiff/respondent and the suit of the Plaintiff/respondent for possession was decreed.
2. The respondent/plaintiff had filed a suit for possession and recovery of damages/mesne profit against the appellant/defendant, interalia on the following facts:
(i) The plaintiff is the owner of property i.e. shop bearing house no. 16/78I, Bapa Nagar, Hardhiyan Singh Road, Karol Bagh, New Delhi110005 by way of Sale Deed dated 13.01.2000 executed by father of the plaintiff in his favour.
(ii) The said Sale Deed was challenged by the defendant as illegal in civil suit bearing no. 457/2004. The said suit RCA No. 32/2020 Page 2 of 43 Lala Ram V. Rajender Kumar was dismissed and a clear finding was given that the defendant has no right, title or interest in the suit property and relief of declaration of the Sale Deed as null and void was not allowed. The plaintiff, therefore, claimed that he is the owner of the suit property by virtue of the aforesaid Sale Deed. The defendant was the brother of the plaintiff and was in illegal possession of the portion of the suit property i.e. second floor of House No. 16/78I, Bapa Nagar, Hardhiyan Singh Road, Karol Bagh, New Delhi110005.
(iii) A Legal Notice dated 26.10.2017 was given to the defendant to vacate the suit property, however, the possession of the suit property has not been handed over. The present suit has been filed to recover the possession of the second floor of H. No. 16/78I, Bapa Nagar, Hardhiyan Singh Road, Karol Bagh, New Delhi 110005 and also for mesne profits.
3. The defendant/appellant in his written statement has denied that the plaintiff is exclusive owner of the suit property and averred that the suit property is an ancestral property and the defendant is also having right in the suit property. It is further averred that the defendant was residing in the suit property as a matter of right as the suit property is ancestral property.
4. The in exercise of powers under Order 12 Rule 6 CPC, the Ld. Trial Court has passed the impugned order and decree dated RCA No. 32/2020 Page 3 of 43 Lala Ram V. Rajender Kumar 06.08.2019, whereby the suit of the plaintiff for possession was decreed. The appellant/defendant aggrieved from the order and decree dated 06.08.2019 has preferred the present appeal interalia on the following grounds and the same are more or less the arguments of the Appellant/defendant: (A) Because Ld. Trial Court has failed to appreciate that the Courts have discretion to grant relief under Order XII Rule 6 CPC and the relief under the said provision cannot be claimed as a matter of right upon the alleged admissions. A decree under Order XII Rule 6 CPC, the admission must be clear, unambiguous and unequivocal but in the present case, there is no admission of any nature, whatsoever, with respect to the ownership of the respondent and nature of possession of the appellant in the suit property. The appellant has not made admissions, which could enable the respondent to obtain discretionary relief under Order XII Rule 6 CPC. (B) Because the Ld. Trial Court has failed to appreciate that respondent is not the absolute owner of the suit property and hence, the respondent is having no locus standi to file the suit. Further, the appellant has categorically denied the ownership of the respondent and right to sue of the respondent with respect to the suit property.
RCA No. 32/2020 Page 4 of 43 Lala Ram V. Rajender Kumar (C) Because the Ld. Trial Court has failed to appreciate that the issues involved in the present suit are not directly and substantially in issue in a former suit. It is submitted in judgment dated 12.11.2009 no finding with respect to absolute ownership of the respondent upon the suit property was given. The share of the LRs, including appellant and respondent of late Sh. Kanhaiya Lal, was not determined in the former suit. (D) Because the Ld. Trial Court has wrongly held the finding of the previous suit would be binding as resjudicata between the parties as rights of the appellant in the suit property being LRs of Late Shri Kanhaiya Lal are not heard and finally decided by the Court in the previous suit.
(E) Because Ld. Trial Court overlooked that the suit of the respondentplaintiff was timebarred as respondent himself stated in the Written Statement dated 24.01.2005 filed in the previous Civil Suit No. 457/04 "that appellant is in unauthorized and illegal occupant of the suit property". The Ld. Trial Court further ignored that the respondent has filed the suit for possession against the appellant in the year 2018 which was beyond the period of limitation because as per their own case, the possession of the appellant in the suit property becomes adverse to the respondent in the year 200405.
RCA No. 32/2020 Page 5 of 43
Lala Ram V. Rajender Kumar
(F) Because the Ld. Trial Court has failed to appreciate that
the Ld. Trial Court was not having pecuniary
jurisdiction to adjudicate the suit as the value of the suit property is more than 3 lacs.
5. In the aforesaid background, the following points for determination arise for the consideration of the present case:
i) Can the order under question be termed as perverse, capricious and arbitrary?
ii) Does the impugned order run against the legal framework operating in and principles enunciated in this sphere?
iii) Does determination of point for determination no.1 or 2 warrants any indulgence or interference of the present Court with the order appealed against?
iv) What order?
ON THE QUESTION WHETHER THE SUIT PROPERTY IS ANCESTRAL PROPERTY AND IF SO ITS EFFECT.
The Ld. Counsel for the Appellant/Defendant has argued that the suit property is an ancestral property and the defendant is having coownership right in the property in question and in view thereof, the present suit is not maintainable until and unless the property is divided by metes and bounds. The Ld. Counsel for the Appellant/Defendant has also argued that in the Judgment and decree dated 12.11.2009, passed by the then Ld. SCJ cum RC West, it was clearly mentioned that defendant has 2.7 RCA No. 32/2020 Page 6 of 43 Lala Ram V. Rajender Kumar sq. yds. share in the entire property i.e. property bearing No. 16/78, Bapa Nagar, Hardhiyan Singh Road, Karol Bagh, New Delhi 110005.
Per Contra, the Ld. Counsel for the Respondent/Plaintiff has argued that the suit property was/is not the ancestral property and the father of the parties had already executed the Sale Deed dated 13.01.2000 in favour of the Plaintiff and the Plaintiff is the absolute owner of the entire property including the suit property. It is also argued that the Defendant has filed suit for declaration and permanent injunction interalia seeking the relief that the Sale Deed dated 13.01.2000 be declared as null and void abinito and further to declare that the plaintiff being coowner/jointowner of the said property, which was dismissed vide Judgment and decree dated 12.11.2009. It is further argued that the said Judgment and decree dated 12.11.2009 has held that the Sale Deed dated 13.01.2000 is valid and legal document and confers the right in the entire property including the suit property in favour of the Plaintiff/Respondent. It is further argued that in the said Judgment the then Ld. Senior Civil Judge, nowhere, held that the defendant is having the share of 2.7 sq. yds. and on the contrary the suit of the plaintiff was dismissed as a whole and he was not even declared as owner/coowner of any portion of the said property. FINDINGS AND CONCLUSIONS OF THE COURT It is relevant to note the pleadings of the Suit for declaration qua Sale Deed dated 13.01.2000 filed by the RCA No. 32/2020 Page 7 of 43 Lala Ram V. Rajender Kumar Appellant/defendant before the Ld. Senior Civil Judge cum RC West, Tis Hazari, Delhi. The Appellant/Defendant had interalia averred to the following effect:
1) The property bearing No.16/78, Bapa Nagar, Hardhiyan Singh Road, Karol Bagh, New Delhi110005 belonged to grandfather of the plaintiff (in the present suit Appellant/defendant) namely Shri Shiv Charan Pandey. After the demise of Shri Shiv Charan Pandey i.e. the grandfather of the parties, the present property came into the hands of their sons namely Kanhaiya Lal and Shri Prem Singh.
2) Shri Prem Singh was unmarried and as such after his death the whole of the property came into the hands of Late Shri Kanhaiya Lal i.e. father of the parties to the suit. The said property is joint Hindu Family property and is an ancestral property.
The issue No.3, Whether the Plaintiff (in the present suit Appellant/defendant) is entitled for the relief of declaration, as prayed for, was framed in the said suit filed by the Appellant/Defendant. The then Ld. Senior Civil Judge cum RC West has decided the said issue and the findings of said Issue No.3 is as follows: "The onus to prove this issue is upon the plaintiff. The plaintiff has sought relief of declaration of Sale Deed dated 13.01.2000 (Ex.DW1/1), executed by the father of the parties in favour of defendant to be null and void. The case set up by the plaintiff is based upon truncated RCA No. 32/2020 Page 8 of 43 Lala Ram V. Rajender Kumar facts, as is borne out from the details of the family members given by him in the plaint. The plaintiff has also concealed the shares of his uncles Shri Kanchi Lal and Shri Mangal Sen and his "bua" Smt. Khazani Devi in the suit property as also shares of his two sisters in the share of his father in respect of suit property. The facts have been moulded to show a cause of action as if the father of the parties had become the sole title holder of the suit property in due course and the plaintiff having been deprived of his share therein by execution of Ex.DW1/1 by the father of the parties. The defendant has duly proved execution of documents of title in respect of 3/4th portion of the suit property by Shri Kanchi Lal, Smt. Khanzani Devi, Smt. Ratno Devi and Shri Kanhiya Lal vide Ex.DW1/2 (dated 08.10.1996) in his favour and further through Sale Deed dated 13.01.2001 (Ex.DW1/1), executed by the father of the parties in his favour. The defendant has further proved on record that after the death of the grandfather of the parties, the father of the parties had only 1/5th share therein, but after the demise of his uncle Shri Prem Singh, who died issueless, the share of the father of the parties became 1/4th and after 08.10.1996 the defendant became owner of 3/4th portion of the suit property in terms of Ex.DW1/2 and after 13.01.2000, the defendant became owner of the entire suit property after execution of Ex.DW1/1. The defendant has stated in his evidence that in February 2000, he got the entire suit property vacated and with the help of loan taken by him from Jawala Coopertaive Society, he constructed three storeys on the suit property. It has been further stated that on the request of the plaintiff, defendant had permitted him to stay in one room on the third floor of the suit property, subject to condition that he would pay electricity consumption charges @ 800/ per month, which the plaintiff failed to pay. In crossexamination, the defendant has stated about raising of construction at the suit property in February 2000. The plaintiff has RCA No. 32/2020 Page 9 of 43 Lala Ram V. Rajender Kumar asked several questions about how the payment towards sale consideration qua Ex.DW1/1 was made by the defendant to the father of the parties, which has been amply explained by the defendant by stating that he had taken Rs. 65,000/ as loan from the father of his friend and the remaining amount was lying with him. In the crossexamination of defendant, it has further come that at or about January 2000, the financial condition of the father of the parties was very poor, as by then he had suffered huge losses in his business.
Though, DW1, Shri V.P. Nanda, the Manager of Jawala CoOperative Urban Thrift & Credit Society Ltd., Jhandewalan, the defendant has proved the factum of loan he had taken from the said society after the submission of documents of title. On the contrary, the plaintiff has not been able to make any dent in the evidence of the defendant. In crossexamination of the plaintiff, he has admitted that after the demise of the grand father of the parties, all his children were entitled for equal shares, meaning thereby, that he has gone contrary to his stand taken by him in the plaint that only his father succeeded the ownership of the suit property. In his evidence, he has pleaded ignorance about execution of Ex.DW1/1 by his father in favour of the defendant. He has further admitted that as per his legal right, he is entitled only to 1/24th share in the suit property This fact has also been admitted by the defendant. Therefore, the plaintiff at the most can be held to be entitled to 2.7 sq. yards out of the suit property (being 1/24th share of 65 sq. yards), that too in an appropriate proceedings, if he chooses to file one.
The declaration is an equitable relief. One who seeks equity from the court, must do equity himself. The plaintiff has deliberately concealed the details of his uncles, "bua" and sisters in the suit. He has not made RCA No. 32/2020 Page 10 of 43 Lala Ram V. Rajender Kumar his other brothers and sisters as parties in this suit, whereas the defendant has been able to categorically prove his ownership of the suit property by virtue of Ex.DW1/1 and Ex.DW1/2. As regards the 3/4th share of the defendant in the suit property, which he got from his other relatives, who had legal right therein, there is no doubt that he has the absolute right. As regards the 1/4th share of the father of the parties, each sibling of the defendant should have had 1/24th share therein. The entire suit property being admeasuring 65 sq. yards, the plaintiff has share of 2.7 sq. yards therein. This is the only legal entitlement of the plaintiff, even if it is presumed that the father of the parties could not have executed Ex.DW1/1 without considering the right of the plaintiff. The stand taken by the defendant in the matter is that the father of the parties had sold his share in the suit property to the defendant for the family needs, as he had to arrange money for performing the marriages of his two daughters and had to repay to his creditors. A suggestion to this effect was also given to the plaintiff in crossexamination, which he has denied. The fact remains that the plaintiff has not been able to prove that Ex.DW1/1 to be bad in law. On the contrary, by concealing material facts from this court, he has attempted to obtain a decree in his favour which is not permissible in law. The issue is accordingly decided against the plaintiff and in favour of the defendant."
The perusal of the aforesaid Judgment clearly shows that the said Court has nowhere held that Appellant/Defendant being owner of 2.7 sq. yds. in the entire property and the said RCA No. 32/2020 Page 11 of 43 Lala Ram V. Rajender Kumar observation was on the presumption that at best the plaintiff can claim the said share in the entire property and that too in the appropriate proceedings, if the Appellant/defendant intends to file. Per Contra, the ld. Senior Civil Judge has categorically held that the Sale Deed dated 13.01.2000 is valid and legal document. It is also held that the plaintiff became the owner of the entire property bearing property bearing No.16/78, Bapa Nagar, Hardhiyan Singh Road, Karol Bagh, New Delhi110005 by way documents as mentioned in the findings of issue No.3. The entire suit of the Defendant/Appellant was dismissed including the relief of declaration sought by the Appellant/Defendant that he is coowner of the said property. As per Explanation IV of Section 11 CPC, if any relief sought is not granted then the same will be deemed to be rejected. The said Judgment and decree dated 12.11.2009 was not challenged by Defendant/Appellant and the same has attained finality qua the parties.
Now, coming into the question of Ancestral property as alleged in the earlier proceedings as well as in the present proceedings. The Ld. Senior Civil Judge has nowhere held that the said property is an ancestral property. There is no magic in the word of "ancestral property". The foundation has to be laid down for branding any property as "Ancestral property". It is admitted position that entire property was the property of the grandfather of the parties.
I have profit to reproduce relevant portion of Paras No.1 and 8 to 13 passed in the Judgment passed by our Hon'ble High RCA No. 32/2020 Page 12 of 43 Lala Ram V. Rajender Kumar Court in CS (OS) No.283/2010 titled as Shri Gurnam Singh & Anr. Vs. Manohar Singh and Ors. (with Connected Suit) decided on 15.2.2013: "1. The two plaintiffs, of which plaintiff No.2 Ms. Nainpreet Kaur was at the time of filing of the suit, stated to be a minor, are the only children of defendant No.1 Sh. Manohar Singh. They have filed this suit for partition of property No.43/43A, Punjabi Bagh, New Delhi and for declaration that the Sale Deed dated 11.08.2006 executed by the defendant No.1 of the said property in favour of defendant No.2 Sh. Gulshan Chanana is null and void. Declaration is also sought that the Sale Deed dated 08.06.2007 executed by the defendant No.2 Sh. Gulshan Chanana of the said property in favour of the defendant No.3 / applicant Sh. Deepansh Malhotra is also null and void."
"8. It is unfortunate that inspite of the coming into force of the Hindu Succession Act, 1956 (HSA) more than half a century ago, the concepts of the ancient Hindu law, as prevalent prior to the coming into force of the said Act, continue to form the basis for a large number of litigations. What has been argued by the counsel for the plaintiffs may have been good law prior to the coming into force of the HSA. The said Act made a significant change and under Section 8 thereof as interpreted by the Supreme Court in Commissioner of Wealth Tax, Kanpur, Vs. Chander Sen (1986) 3 SCC RCA No. 32/2020 Page 13 of 43 Lala Ram V. Rajender Kumar 567 and Yudhister Vs. Ashok Kumar (1987) 1 SCC 204 the property inherited by a male after the coming into force of the HSA from his father is held by the said male, as his personal individual property and in which his sons have no right. The counsel for the plaintiffs himself has given the date of demise of the father of defendant No.1 Sh.Manohar Singh as of 21.08.1995. Thus the property inherited by defendant No.1 Sh. Manohar Singh from his father would be personal individual property of defendant No.1 Sh.
Manohar Singh and his children viz. the plaintiffs would not have any right therein, as is sought to have been made out. The Supreme Court in Bhanwar Singh Vs. Puran (2008) 3 SCC 87 held that having regard to Sections 8 and 19 of HSA, the properties cease to be joint family properties. Similarly, in Makhan Singh Vs. Kulwant Singh (2007) 10 SCC 602 it was held that a son who inherits his fathers assets under Section 8 of HSA, does so in his individual capacity and not as Karta of HUF."
"9. This Court has also thereafter followed the said judgment in Master Daljit Singh Vs. S. Dara Singh AIR 2000 Delhi 292, Bharat Bhushan Maggon Vs. Joginder Lal MANU/DE/5332/2012 and Pratap Vs. Shiv Shanker 164 (2009) DLT 479. Another Single Judge recently in Mrs. Premwati Vs. Mrs. Bhagwati Devi MANU/DE/4784/2012 has specifically held that no HUF comes into existence upon a Hindu male inheriting the RCA No. 32/2020 Page 14 of 43 Lala Ram V. Rajender Kumar property on the demise of his father after the coming into force of the HSA."
"10. In this regard, it may be noticed that though the plaintiffs have described themselves as coparceners and the defendant No.1 Sh. Manohar Singh as the Karta but from the pleadings and the arguments addressed, it is clear that the HUF / coparcenary is stated to have come into existence only for the reason of the property having been inherited by defendant No.1 Sh. Manohar Singh from his father and not otherwise."
"11. There is yet another important factor. It is the case of the plaintiffs themselves that after the demise of the father of defendant No.1 Sh. Manohar Singh, the sisters of defendant No.1 Sh. Manohar Singh released the share inherited by them from the father in favour of defendant No.1 Sh.Manohar Singh. If there was any HUF/coparcenary since the life time of father of defendant No.1 Sh. Manohar Singh, the question of the sisters of defendant No.1 Sh. Manohar Singh inheriting any share in the property or relinquishing the same in favour of defendant No.1 Sh. Manohar Singh did not arise. The right of the daughters in an HUF came into existence only pursuant to the amendment of the year 2005 to the HSA and at the time of demise of the father on 21.08.1995, had there been any HUF there would have been no question of execution of the registered Relinquishment Deeds. It is in any case the case of the plaintiffs that the RCA No. 32/2020 Page 15 of 43 Lala Ram V. Rajender Kumar property was the self acquired property of the father of defendant No.1 Sh. Manohar Singh."
"12. Thus from the averments made in the plaint, the plaintiffs have failed to make out any cause of action."
"13. The suit is accordingly dismissed."
(Portions bolded in order to highlight).
The concept of the "Ancestral Property" has also been dealt in detail by the our Hon'ble High Court of Delhi, after discussing various Judgments of Hon'ble Supreme Court, in CS (OS) No.22/2010 dated 4th April, 2016 titled as Shri Ravinder Singh Sur Versus Shri Balvinder Singh & Anr. and the relevant paras are reproduced as under: "5. The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, (1986) 3 SCC 567, held that after passing of the Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956. This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed by the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming RCA No. 32/2020 Page 16 of 43 Lala Ram V. Rajender Kumar into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property."
"6. In view of the ratios of the judgments in the cases of Chander Sen (supra) and Yudhishter (supra), in law ancestral property can only become an HUF property if inheritance is before 1956, and such HUF property therefore which came into existence before 1956 continues as such even after 1956. In such a case, since an HUF already existed prior to 1956, thereafter, since the same HUF with its properties continues, the status of joint Hindu family/HUF properties continues, and only in such a case, members of such joint Hindu family are coparceners entitling them to a share in the HUF properties."
"7. On the legal position which emerges pre 1956 i.e before passing of the Hindu Succession Act, 1956 and post 1956 i.e after passing of the Hindu Succession Act, 1956, the same has been considered by me recently in the judgment in the case of Sunny (Minor) & Anr. vs. Sh. Raj Singh & Ors., CS(OS) No.431/2006 decided on 17.11.2015. In this judgment, I have referred to and relied upon the ratio of the judgment of the Supreme Court in the case of Yudhishter (supra) and have essentially arrived at the following conclusions: "(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a RCA No. 32/2020 Page 17 of 43 Lala Ram V. Rajender Kumar person by his successorsininterest is no doubt inheritance of an ancestral‟ property but the inheritance is as a selfacquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits "ancestral" property i.e a property belonging to his paternal ancestor.
"(ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individual‟s property is thrown into a common hotchpotch. Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc of creation of an HUF for the first time by throwing a property into a common hotchpotch have to be clearly pleaded and mentioned and which requirement is a legal requirement because of Order VI Rule 4 CPC which provides that all necessary factual details of the cause of action must be clearly stated. Thus, if an HUF property exists because of its such creation by throwing of selfacquired property by a person in the common hotchpotch, consequently there is entitlement in coparceners etc to a share in such HUF property."
"(iii) An HUF can also exist if paternal ancestral properties are inherited prior to 1956, and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 1956 from paternal ancestors. Once that status and position continues even after 1956; of the HUF and of its properties existing; a coparcener etc will have a right to seek partition of the properties."
RCA No. 32/2020 Page 18 of 43 Lala Ram V. Rajender Kumar "(iv) Even before 1956, an HUF can come into existence even without inheritance of ancestral property from paternal ancestors, as HUF could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such an HUF continues even after 1956, then in such a case a coparcener etc of an HUF was entitled to partition of the HUF property."
"8. The relevant paragraphs of the judgment in the case of Sunny (Minor) (supra) are paragraphs 6 to 8 and which paras read as under: "6. At the outset, it is necessary to refer to the ratio of the judgment of the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 and in para 10 of the said judgment the Supreme Court has made the necessary observations with respect to when HUF properties can be said to exist before passing of the Hindu Succession Act, 1956 or after passing of the Act in 1956. This para reads as under: "10. This question has been considered by this Court in Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors.
MANU/SC/0265/1986MANU/ SC/0265/1986:
[1986] 161 ITR 370 (SC) where one of us (Sabyasachi Mukharji, J) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and become part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his RCA No. 32/2020 Page 19 of 43 Lala Ram V. Rajender Kumar son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Karta of his own undivided family but takes it in his individual capacity. At pages 577 to 578 of the report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn. pages 924 926 as well as Mayne's on Hindu Law 12th Edition pages 918919. Shri Banerji relied on the said observations of Mayne on 'Hindu Law', 12th Edn. at pages 918919. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and was unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th Edn.
page 919. In that view of the matter, it would be difficult to hold that property which developed on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand visavis his own sons. If that be the position then the property which developed upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent RCA No. 32/2020 Page 20 of 43 Lala Ram V. Rajender Kumar was a licensee of his father in respect of the ancestral house." (emphasis is mine) "7 (i). As per the ratio of the Supreme Court in the case of Yudhishter (supra) after passing of the Hindu Succession Act, 1956 the position which traditionally existed with respect to an automatic right of a person in properties inherited by his paternal predecessorsininterest from the latter's paternal ancestors upto three degrees above, has come to an end. Under the traditional Hindu Law whenever a male ancestor inherited any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him had a right in that property equal to that of the person who inherited the same. Putting it in other words when a person, A‟ inherited property from his father or grandfather or great grandfather then the property in his hand was not to be treated as a selfacquired property but was to be treated as an HUF property in which his son, grandson and great grandson had a right equal to „A‟. After passing of the Hindu Succession Act, 1956, this position has undergone a change and if a person after 1956 inherits a property from his paternal ancestors, the said property is not an HUF property in his hands and the property is to be taken as a selfacquired property of the person who inherits the same. There are two exceptions to a property inherited by such a person being and remaining selfacquired in his hands, and which will be either an HUF and its properties was existing even prior to the passing of the Hindu Succession Act, 1956 and which Hindu Undivided Family continued even after passing of the Hindu Succession Act, 1956, and in which case since HUF existed and continued before and after 1956, the RCA No. 32/2020 Page 21 of 43 Lala Ram V. Rajender Kumar property inherited by a member of an HUF even after 1956 would be HUF property in his hands to which his paternal successorsininterest upto the three degrees would have a right. The second exception to the property in the hands of a person being not selfacquired property but an HUF property is if after 1956 a person who owns a self acquired property throws the selfacquired property into a common hotchpotch whereby such property or properties thrown into a common hotchpotch become Joint Hindu Family properties/HUF properties. In order to claim the properties in this second exception position as being HUF/Joint Hindu Family properties/properties, a plaintiff has to establish to the satisfaction of the court that when (i.e date and year) was a particular property or properties thrown in common hotchpotch and hence HUF/Joint Hindu Family created."
"(ii) This position of law alongwith facts as to how the properties are HUF properties was required to be stated as a positive statement in the plaint of the present case, but it is seen that except uttering a mantra of the properties inherited by defendant no.1 being „ancestral‟ properties and thus the existence of HUF, there is no statement or a single averment in the plaint as to when was this HUF which is stated to own the HUF properties came into existence or was created ie whether it existed even before 1956 or it was created for the first time after 1956 by throwing the property/properties into a common hotchpotch."
In law there is a difference between the ancestral property/properties and the Hindu Undivided Family property/properties for the pre 1956 and post 1956 position as stated above RCA No. 32/2020 Page 22 of 43 Lala Ram V. Rajender Kumar because inheritance of ancestral properties prior to 1956 made such properties HUF properties in the hands of the person who inherits them, but if ancestral properties are inherited by a person after 1956, such inheritance in the latter case is as self acquired properties unless of course it is shown in the latter case that HUF existed prior to 1956 and continued thereafter. It is nowhere pleaded in the plaint that when did Sh. Tek Chand father of Sh. Gugan Singh expire because it is only if Sh. Tek Chand father of Sh. Gugan Singh/defendant no.1 had expired before 1956 only then the property which was inherited by Sh. Gugan Singh from his father Sh. Tek Chand would bear the character of HUF property in the hands of Sh. Gugan Singh so that his paternal successorsininterest became coparceners in an HUF. Even in the evidence led on behalf of the plaintiffs, and which is a single affidavit by way of evidence filed by the mother of the plaintiffs Smt. Poonam as PW1, no date is given of the death of Sh. Tek Chand the great grandfather of the plaintiffs. In the plaint even the date of the death of the grandfather of the plaintiffs Sh. Gugan Singh is missing. As already stated above, the dates/years of the death of Sh. Tek Chand and Sh. Gugan Singh were very material and crucial to determine the automatic creation of HUF because it is only if Sh. Tek Chand died before 1956 and Sh. Gugan Singh inherited the properties from Sh. Tek Chand before 1956 that the properties in the hands of Sh. Gugan Singh would have the stamp of HUF properties. Therefore, in the absence of any pleading or evidence as to the date of the death of Sh. Tek Chand and consequently inheriting of the properties of Sh. Tek Chand by Sh. Gugan Singh, it cannot be held that Sh. Gugan Singh inherited the properties of Sh. Tek Chand prior to 1956."
RCA No. 32/2020 Page 23 of 43 Lala Ram V. Rajender Kumar (Portions bolded in order to highlight).
The perusal of the written statement reveals that except word "ancestral property" the defendant/Appellant has not pleaded anything. The perusal the Judgment and decree dated 12.11.2009 passed by Ld. Senior Civil Judge, it clearly reveals that originally property belongs to the grandfather of the parties and after his death it devolve upon his class I heirs. It is also borne out that the father of the parties has executed sale deed dated 13.01.2000 to the plaintiff for his bonafide requirements. The findings of issues No.3 have already been incorporated and the same are not repeated herein for the sake of brevity. The aforesaid Judgments of our Hon'ble High Court are squarely applicable to the facts and circumstances of the present case. The property in the hands of Class I heirs of the grandfather of the parties was selfacquired property and in the Judgment and decree dated 12.11.2009, the Ld. SCJ Cum RC West has held that the property was sold by the father of the parties for bonafide requirements and the same has attained finality. The said defence of "Ancestral Property" of the defendant is totally vague, sham and frivolous defence and the same sans merit and is hereby rejected.
ON THE QUESTION OF ADVERSE POSSESSION The Ld. Counsel for the defendant/Appellant has argued that as per written statement of the Plaintiff/Respondent, in earlier suit filed by the defendant/Appellant, the plaintiff/respondent has himself submitted that the defendant/appellant is in unauthorized RCA No. 32/2020 Page 24 of 43 Lala Ram V. Rajender Kumar and illegal occupant of the property in question. It is argued that the said written statement was filed in January, 2005, therefore, defendant/Appellant became owner by adverse possession as the present suit has been filed by the Plaintiff/Respondent in the year 2018 i.e. after 12 years and therefore, the suit is liable to dismissed on this ground itself.
Per Contra, the Ld. Counsel for Plaintiff/Respondent submits that Defendant/Appellant has filed the suit for declaration qua the Sale Deed dated 13.01.2000 and the said suit was decided by Judgment and decree dated 12.11.2009. It is argued that rights of the Plaintiff/Respondent was crystalized after passing of the said Judgment and decree dated 12.11.2009. It is also argued that in the entire written statement of defendant/Appellant there is no pleading of adverse possession and the possession of the defendant was not hostile but was of a permissive user and the same has been specifically pleaded in the plaint.
FINDINGS AND CONCLUSIONS OF THE COURT The Ld. Counsel for the Appellant/defendant has argued regarding "Adverse Possession" without even pleading the same in the written statement. The adverse possession is again not the magical word but the defendant has laid down the foundation of the same in the written statement, however, the defendant/Appellant has not even taken the said defence in the entire written statement. Dehors that I have also profit to refer Paras no.15 to 21 of Hon'ble RCA No. 32/2020 Page 25 of 43 Lala Ram V. Rajender Kumar Supreme Court of India in the case of Bangalore Development Authority Versus N. Jayamma decided on MARCH 10, 2016 in CIVIL APPEAL NO. 2238 OF 2016: "15. Coming then to the question whether the plaintiffs respondents could claim adverse possession, we need to hardly mention the well known and oft quoted maxim nec vi, nec clam, nec precario meaning thereby that adverse possession is proved only when possession is peaceful, open, continuous and hostile. The essentials of adverse possession were succinctly summedup by this Court in Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 in the following words:
"11.In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Nonuse of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a wellsettled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the RCA No. 32/2020 Page 26 of 43 Lala Ram V. Rajender Kumar statutory period. (See S.M. Karim v. Bibi Sakina (AIR 1964 SC 1254), Parsinni v. Sukhi (1993) 4 SCC 375 and D.N. Venkatarayappa v.
State of Karnataka (1997) 7 SCC 567).
Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma (1996) 8 SCC 128)."
"16. Reference may also be made to the decision of this Court in Saroop Singh v. Banto (2005) 8 SCC 330, where this Court emphasised the importance of animus possidendi and observed:
"29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the RCA No. 32/2020 Page 27 of 43 Lala Ram V. Rajender Kumar defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak (2004) 3 SCC 376).
30. "Animus possidendi" is one of the ingredients of adverse possession. Unless the person possessing the land has the requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita (2004) 1 SCC 371, SCC para 21.)"
"17. Also noteworthy is the decision of this Court in Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639, where this Court held that claim of title to the property and adverse possession are in terms contradictory. This Court observed:
"4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53A, it goes without RCA No. 32/2020 Page 28 of 43 Lala Ram V. Rajender Kumar saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."
"18. To the same effect is the decision of this Court in Annasaheb Bapusaheb Patil v. Balwant (1995) 2 SCC 543, where this Court elaborated the significance of a claim to title viz.aviz. the claim to adverse possession over the same property. The Court said:
"15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all."
"19) After taking note of the principle of law relating to adverse possession in the aforesaid manner, this Court commented about the erroneous approach of the High Court in the following manner:
"19. The Courts below have not seen the plaintiff respondent's claim from the above perspectives.
RCA No. 32/2020 Page 29 of 43 Lala Ram V. Rajender Kumar The High Court has, in particular, remained oblivious of the principle enunciated in the decisions to which we have referred herein above. All that the High Court has found in favour of the plaintiffs is that their possession is established. That, however, does not conclude the controversy. The question is not just whether the plaintiffs were in possession, but whether they had by being in adverse possession for the statutory period of 12 years perfected their title. That question has neither been adverted to nor answered in the judgment impugned in this appeal. Such being the case the High Court, in our opinion, erred in dismissing the appeal filed by the appellantBDA. The fact that the plaintiffs had not and could not possibly establish their adverse possession over the suit property should have resulted in dismissal of the suit for an unauthorised occupant had no right to claim relief that would perpetuate his illegal and unauthorized occupation of property that stood vested in the BDA."
"20) In addition to the discussion contained in M. Venkatesh case noted above, we may also add what was held in P.T. Munichikkanna Reddy & Ors. v.
Revamma & Ors. 15 (2007) 6 SCC 59:
"5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and RCA No. 32/2020 Page 30 of 43 Lala Ram V. Rajender Kumar hostile. (See Downing v. Bird; Arkansas Commemorative Commission v. City of Little Rock; Monnot v. Murphy; and City of Rock Springs v. Sturm)."
"21) In Rama Shankar & Anr. v. Om Prakash Likhdhari & Ors. 16 (2013) 6 ADJ 119, the Allahabad High Court has observed as under:
"21. The principle of adverse possession and its consequences wherever attracted has been recognized in the statute dealing with limitation. The first codified statute dealing with limitation came to be enacted in 1840. The Act 14 of 1840 in fact was an enactment applicable in England but it was extended to the territory of Indian continent which was under the reign of East India Company, by an authority of Privy Council in the East India Company v. Oditchurn Paul, 1849 (Cases in the Privy Council on Appeal from the East Indies) 43.
"23. The law of Prescription prescribes the period at the expiry of which not only the judicial remedy is barred but a substantive right is acquired or extinguished. A prescription, by which a right is acquired, is called an 'acquisitive prescription'. A prescription by which a right is extinguished is called 'extinctive prescription'. The distinction between the two is not of much practical importance or substance. The extinction of right of one party is often the mode of acquiring it by another. The right extinguished is virtually transferred to the person who claims it by prescription.
RCA No. 32/2020 Page 31 of 43 Lala Ram V. Rajender Kumar Prescription implies with the thing prescribed for is the property of another and that it is enjoyed adversely to that other. In this respect it must be distinguished from acquisition by mere occupation as in the case of res nullius. The acquisition in such cases does not depend upon occupation for any particular length of time."
(Portions bolded in order to highlight) I have also profit to refer paras No.20 to 23 of the Judgment passed by the Hon'ble Supreme Court in CIVIL APPEAL No.83 OF 2008 in case titled as Dagadabai(Dead) by L.Rs. VERSUS Abbas @ Gulab decided on April 18, 2017: "20) Fourth, the High Court erred fundamentally in observing in Para 7 that, "it was not necessary for him (defendant) to first admit the ownership of the plaintiff before raising such a plea".
"21) In our considered opinion, these observations of the High Court are against the law of adverse possession. It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to RCA No. 32/2020 Page 32 of 43 Lala Ram V. Rajender Kumar the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.
"22) It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, a case of adverse possession can be held to be made out which, in turn, results in depriving the true owner of his ownership rights in the property and vests ownership rights of the property in the person who claims it.
"23) In this case, we find that the defendant did not admit the plaintiff's ownership over the suit land and, therefore, the issue of adverse possession, in our opinion, could not have been tried successfully at the instance of the defendant as against the plaintiff. That apart, the defendant having claimed the ownership over the suit land by inheritance as an adopted son of Rustum and having failed to prove this ground, he was not entitled to claim the title by adverse possession against the plaintiff."
(Portions bolded in order to highlight) The Hon'ble Supreme Court has categorically held that claiming of ownership in the property and adverse possession are RCA No. 32/2020 Page 33 of 43 Lala Ram V. Rajender Kumar contradictory to each other. The perusal of the written statement reveals that defendant is claiming the ownership in the suit property by alleging that the suit property is an ancestral property and the said aspect has already been dealt, hereinabove, in detail. When defendant is claiming independent ownership of the suit property, then the question of adverse possession does not arise as no person can be allowed to claim the adverse possession against himself/herself. This would be totally against the fundamental principles of the adverse possession. The Appellant/defendant, in terms of the aforesaid Judgment of Apex Court, has not even pleaded the basic fundamental principles of adverse possession. In terms of Article65 of the Schedule appended to the Limitation Act, 1963, the time runs to begin only when the possession of defendant becomes adverse to the plaintiff and in this case, the defendant has neither pleaded nor able to utter even the basic and fundamental principles of adverse possession. In terms of the aforesaid Judgment of the Hon'ble Apex Courts the defendant cannot be said to be in adverse possession of the suit property. Accordingly, the suit filed by the plaintiff is well within the period of Limitation. The argument of the Ld. Counsel for the Appellant/Defendant qua adverse possession also sans merit and the same is hereby rejected.
ON THE QUESTION OF PECUNIARY JURISDICTION The Ld. Counsel for the Appellant/Defendant has argued that suit has not been correctly valued for the purpose of RCA No. 32/2020 Page 34 of 43 Lala Ram V. Rajender Kumar jurisdiction. The relief of possession has been valued only for Rs.200/. It is argued that Ld. Civil Judge has not even considered the said aspect and the property is more than Rs.3,00,000/.
FINDINGS AND CONCLUSIONS OF THE COURT The perusal of the written statement of the appellant/defendant reveals that the defendant has not even challenged the pecuniary jurisdiction of the Ld. Trial Court and on the contrary has admitted the pecuniary jurisdiction of the Ld. Trial Court. In para No.11 of the plaint, the Plaintiff has done the valuation and in reply to the said para the defendant has first of all denied simply and thereafter submitted that the suit has properly valued for the purpose of court fee and jurisdiction. Thus, the defendant has not challenged the jurisdiction of the Ld. Trial Court. The appellant/defendant has also not challenged the same during the arguments on the application under Order 12 Rule 6 CPC. It is apposite to reproduce Section 21 of CPC: "21. Objections to jurisdiction. --(1)] No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. (2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues RCA No. 32/2020 Page 35 of 43 Lala Ram V. Rajender Kumar are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.
In view of the aforesaid provision, specifically Section 21(2) of CPC, the defendant/Appellant cannot be allowed to challenge the pecuniary jurisdiction of the Ld. Trial Court before this Court and more particularly when the defendant/Appellant has not challenged the same before the Ld. Trial Court. Furthermore, there are important facts which are borne out from Judgment and decree dated 12.11.2009. As per the Judgment and decree dated 12.11.2009, the then Ld. SCJ cum RC West has observed to the effect that Plaintiff/Respondent has stated in his evidence that in February,2000, he got the entire suit property vacated and with the help of loan taken by him from Jawala Cooperative Society, he constructed three storeys on the suit property. It has further been observed that the Plaintiff/Respondent has further stated that on the request of the Appellant/defendant, Respondent/Plaintiff had permitted him to stay in one room on the third floor of the suit property subject to condition that he would pay electricity consumption charges @ Rs.800/ per month. The said aspect was dealt in while deciding issue no.3 and the findings of issue no.3 are incorporated hereinabove. The perusal of the said findings reveals RCA No. 32/2020 Page 36 of 43 Lala Ram V. Rajender Kumar that the then Ld. SCJ cum RC West has basically upheld the contention of the Plaintiff/Respondent that defendant is basically permissive user.
In para No.6 of the plaint of the present suit it is averred that plaintiff/Respondent has made numerous requests to the defendant for vacating his portion or otherwise to pay the prevalent market rent and on this defendant kept requesting the plaintiff to give some time on humanity ground and particularly, he is his elder brother. It is further pleaded that taking into consideration the said relation of brother and also the defendant has large family to support, plaintiff allowed him to reside subject to another accommodation and vacate his portion. In reply to the said para, the defendant has denied the said para and submitted that defendant has been residing and in possession of the suit property as it is an ancestral property. The defence of the "Ancestral Property" has been dealt hereinabove and findings of the same are not reproduced herein.
There is no dispute the defendant is elder brother of the plaintiff/respondent. The Appellant/defendant at best was the permissive user or Licencee and the same was revoked by the Plaintiff/Respondent. It is also well settled that in the facts and circumstances of the present case even the suit for mandatory injunction is maintainable. The Ld. Counsel for the Plaintiff/Respondent submitted that although, the plaintiff has sought the relief of possession, but infact it is relief of mandatory injunction and therefore the suit has been valued accordingly.
RCA No. 32/2020 Page 37 of 43 Lala Ram V. Rajender Kumar It is apposite to mention here the dictums of the Hon'ble Apex Court reported as "A.Shanmugam Vs. Ariya Kshatriya Rajakula Vasathu Mudalaya Nandhavana Paripalanai Sangam AIR 2012 SC 2010" & "Maria Margarida Sequeria Fernandes and Ors. Vs. Erasmo Jack De Sequeria AIR 2012 SC 1727" which has dealt the principles of permissive user. The Three Judge Bench Judgment of "Maria Margarida Sequeria Fernandes" of the Hon'ble Apex Court has held to the following effect in paras no.70 and 101: "70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.
(a) who is or are the owner or owners of the property;
(b) title of the property;
(c) who is in possession of the title documents;
(d) identity of the claimant or claimants to possession;
(e) the date of entry into possession;
(f) how he came into possession whether he purchased the property or inherited or got the same in gift or by any other method;
(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;
RCA No. 32/2020 Page 38 of 43 Lala Ram V. Rajender Kumar
(h) If taken on rent, license fee or lease - then insist on rent deed, license deed or lease deed;
(i) who are the persons in possession/ occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;
(j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and
(k) basis of his claim that not to deliver possession but continue in possession.
"101. Principles of law which emerge in this case are crystallized as under: No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
1. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.
2. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
3. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or li cense agreement in his favour.
RCA No. 32/2020 Page 39 of 43 Lala Ram V. Rajender Kumar
4. The caretaker or agent holds property of the principal only on behalf of the principal. He ac quires no right or interest whatsoever for himself in such property irrespective of his long stay or possession."
The Appellant/defendant has not challenged the pecuniary jurisdiction and in the facts and circumstances of the present case even the suit for mandatory injunction was also maintainable. In view of, detailed discussions hereinabove, the arguments of the Ld. Counsel for defendant/Appellant regarding pecuniary jurisdiction also sans merit and the same is hereby rejected.
ON THE QUESTION OF PRINCIPLES OF ORDER 12 RULE 6 CPC The Ld. Counsel for the Appellant/defendant has assiduously argued that for a decree under Order XII Rule 6 CPC, the admission must be clear, unambiguous and unequivocal but in the present case, there is no admission of any nature, whatsoever, with respect to the ownership of the respondent and nature of possession of the appellant in the suit property. It is further argued that the appellant/defendant has not made admissions, which could enable the respondent/plaintiff to obtain discretionary relief under Order XII Rule 6 CPC.
RCA No. 32/2020 Page 40 of 43 Lala Ram V. Rajender Kumar It is also apt to reproduce paras No.10,11 and 19 of Judgment passed in RFA 926/2016 titled as GUDDI DEVI & ORS versus NEELAM DEVAL decided on 11.04.2017 : "10. In several judicial pronouncements, courts have had the occasion to examine the object of Order XII Rule 6 CPC and have held that the said provision confers a wide discretion upon Courts to pass a judgment on the basis of admissions made by the parties, at any stage of the suit. The scope and ambit of Order XII Rule 6 CPC was examined by the Supreme Court in the oft quoted case of Uttam Singh Duggal and Co. Ltd. vs. Union Bank of India reported as AIR 2000 SC 2740, where the following observations were made : "12. As to the object of the Order 12 Rule 6, we need not say anything more than what the Legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that 'where a claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled.' We should not unduly narrow down the meaning of this rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed." (emphasis added) ".....11. The underlying object of Order XII Rule 6 CPC is to ensure that a party can obtain a speedy judgment RCA No. 32/2020 Page 41 of 43 Lala Ram V. Rajender Kumar where an admission has been made by the other side. While passing an order under Order XII Rule 6 CPC, Courts have not only to scan the pleadings of the parties, but also take into consideration any document or statement on record, which can even be de hors the pleadings. [Refer: Shikharchand and Ors. vs. Mst. Bari Bai and Ors.; AIR 1974 MP 475, I.T.D.C. Ltd. vs. Chander Pal Sood and Son; 84 (2000) DLT 337 (DB), K.N. Construction vs. JVG Finance Ltd.; 111 (2004) DLT 437, Rajiv Srivastava vs. Sanjiv Tuli and Anr.; AIR 2005 Delhi 319 and Harish Relan vs. Kaushal Kumari Relan; 237 (2017) DLT 282]"
"....19. There are a catena of judicial pronouncements wherein it has been held that if the defence raised by the defendants is extremely vague, opaque and ambiguous, then it is the duty of the court to turn down the said defence and based on admitted documents, pass a judgment on admissions. [Refer: Delhi Jal Board vs. Surendera P. Malik; 104 (2003) DLT 151, Vijay Myne vs. Satya Bhushan Kaur; 142 (2007) DLT 483, Shri Vimal Khanna vs. Shri Kishan Chand Khanna; DRJ 116 (2010) 251, P.P.A. Impex Pvt. Ltd vs. Mangal Sain Mittal; 166 (2010) DLT 84 and Tirath Ram Shah Charitable Trust and Ors. vs. Sugra Bi @ Sughra Begum (Decd.); 225 (2015) DLT 666] (Portions are bolded in order to highlight) This court is of considered opinion that the aforesaid Judgments are squarely applicable to the facts and circumstances of the present case. The defences of the Appellant/defendant are extremely vague, sham, opaque and ambiguous. There is no dispute RCA No. 32/2020 Page 42 of 43 Lala Ram V. Rajender Kumar regarding passing of the Judgment and decree dated 12.11.2009 by the then Ld. SCJ cum RC West. The Judgment and decree dated 12.11.2009 has attained finality for all intents and purposes. The ld. Trial Court has rightly exercised the powers under Order 12 Rule 6 CPC in decreeing the suit.
RELIEF:
In view of the discussions, as adumbrated above, I hereby pass the following :: FINAL ORDER ::
1. The appeal of the Appellant is dismissed.
2. The impugned Judgment and decree dated 06.08.2019 is hereby confirmed.
3. The Parties shall bear their own respective costs in the present appeal.
4. The copy of this Judgment may kindly be sent forthwith to the Ld. Trial Court.
Decreesheet in the Appeal be prepared accordingly, in terms of this Judgment.
Appeal file be consigned to record room after due compliance.
Announced through video conferencing on this 22nd day of October,2020.
(ARUN SUKHIJA)
ADJ07 (Central)
Tis Hazari Courts, Delhi
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