Delhi District Court
Smt. Subhadra vs Shri Vijender Singh on 4 April, 2015
IN THE COURT OF SH. SATISH KUMAR
ADDITIONAL DISTRICT JUDGE2, (NORTH)
ROHINI COURTS, DELHI.
RCA NO.59/14
Smt. Subhadra
D/o Late Sh. Tek Chand
W/o Sh. Anil Kumar
R/o Village & PO Naya Bass
Delhi110082. ......Appellant
Vs.
1. Shri Vijender Singh
S/o Late Sh. Tek Chand
R/o H.No.159, New LD Block, Pitampura
Delhi110034.
2. Sh. Surender Singh
S/o Late Sh. Tek Chand
R/o H.No.159, New LD Block, Pitampura
Delhi110034.
Second address:
2, Broone Street,
Surburb, Nedland, Perth,
Western Australia,
Post Code 6009
Service to be effected on second address through Indian
Embassy at Australia.
3. Sh. Ravinder Singh
S/o Late Sh. Tek Chand
RCA NO.59/14 Smt. Subhadra Vs Shri Vijender Singh Etc. Page No. 1 of 14
R/o Village & PO Naya Bass
Delhi110082.
4. Smt. Chameli
W/o Late Sh. Tek Chand
R/o Village & PO Naya Bass
Delhi110082.
5. Smt. Nirmal Rana
D/o Late Sh. Tek Chand
W/o Sh. Sudhir Chaudhury,
R/o H.No.821, Govt. Quarters, Timarpur
Delhi110054.
6. Smt. Rajesh
D/o Late Sh. Tek Chand
W/o Sh. Sudhir Chaudhury,
R/o H.No.821, Govt. Quarters, Timarpur,
Delhi110054.
Second Address:
5/1B, MCNEIL Street,
Peppermint Grove,
Perth, Western Australia,
Post Code 6011.
Service to be effected on second address through Indian
Embassy at Australia.
.......Respondents
APPEAL U/o 41 RULE 1 CPC AGAINST THE JUDGMENT AND DECREE DATED 14.08.2014 IN CASE BEARING NO. 300/2011, TITLED SMT. SUBHADRA VS SH. VIJENDER SINGH & ORS. PASSED BY THE COURT OF SH. SUMIT DASS, SCJCUMRC, (NORTH), DELHI.
RCA NO.59/14 Smt. Subhadra Vs Shri Vijender Singh Etc. Page No. 2 of 14 Date of institution : 23.09.14 Date of order reserved : 04.04.15 Date of Order/Judgment : 04.04.15 Final order : Appeal Dismissed.
Sh. M.S. Pawar Ld. counsel for the appellant. Sh. B.S. Mathur Ld. counsel for the respondents. ORDER ON APPEAL AGAINST THE IMPUGNED JUDGMENT AND DECREE DATED 14.08.2014:
1. By this order, I shall decide the appeal against the impugned judgment dtd.14.08.2014 passed by Ld. SCJCUM RC, (NORTH), DELHI whereby the Ld. Trial Court dismissed the suit bearing No.298/11 U/O 7 Rule 11 of CPC of the appellant/plaintiff and against that impugned judgment/decree the appellant/plaintiff has preferred the instant appeal.
2. That the brief material fact to decide the instant appeal are that the appellant/plaintiff filed the suit for declaration and permanent injunction against the defendant No.16 stated therein that the appellant/plaintiff and defendants are in blood relations and from same lineal descendants as the respondent No.1,2 and 3 are real brother of the appellant, respondent No.4 is mother of appellant and respondent No.5 and 6 are real sisters of the RCA NO.59/14 Smt. Subhadra Vs Shri Vijender Singh Etc. Page No. 3 of 14 appellant/plaintiff in relation.
3. It is also stated in the suit that Sh. Tek Chand was owner/bhumidhar in respect of a land comprised in Khasra No.5/22/2(23), 17/2(416), 3(415), 8(414), 9(416), 12(416), 26(02), 48/13(416), 14(416), 16(318), 17(416), 18/1(118), 66/5/2(38), 6(110), 4/2(04), 66/7/1(02), 239(13), 267(019) total land measuring 53 bighas 2 biswas situated in the revenue estate of village Iradat Nagar @ Naya Bass, Delhi82.
4. That, Sh. Tek Chand had inherited the said land from his father Sh. Bhim Singh being son of Bhim Singh and he was having physical and cultivatory possession of the above said land till his death and Sh. Tek Chand died intestate and had not executed any will in favour of any person during his life time.
5. It is also stated that the defendant No.1,2 and 3 played a foul play with the plaintiff and got mutated the complete agricultural land in their own name on the basis of forged sale deeds in their favour alleged to be executed by Sh. Tek Chand in favour of respondents
6. By way of that suit it is prayed that: A decree for declaration and permanent injunction RCA NO.59/14 Smt. Subhadra Vs Shri Vijender Singh Etc. Page No. 4 of 14 may kindly be passed in favour of the plaintiff and against the defendants thereby:
(1) Declaring the sale deed dtd.18.01.2000 alleged to be executed by Sh. Tek Chand in favour of defendant No.1 in respect of land bearing Khasra No.48/13min.(08), 18/1(18), 48/14(416), 48/16(318), 48/17(416) total land measuring 15 bighas 6 biswas situated in the revenue estate of village Iradat Nagar @ Naya Baas, Delhi which is registered as registration No.715, Addl. Book No.1, Vol. No.931 on pages 3033 registered on 21.01.2000 in the office of SubRegistrar VIA, Pitampura, Delhi as Null & Void being having no effect upon the right of the plaintiff.
(ii) Declaring the mutation report bearing No.M1048/992000 dated 03.04.2000 effected on 26.05.2000 and Mutation Report No.M1026/200304 dated 26.05.2004 effected on 10.06.2004 as illegal and null & void being having no effect upon the right of the plaintiff.
(iii) Restraining the defendant No.1 his agents, associates from disposeoff/sale and to create third party interest in respect of the land measuring No.48/13min.(08), 18/1(18), 48/14(416), 48/16(318), 48/17(416) total land measuring 15 bighas 6 biswas situated in the revenue estate RCA NO.59/14 Smt. Subhadra Vs Shri Vijender Singh Etc. Page No. 5 of 14 of village Iradat Nagar @ Naya Baas, Delhi and Khasra No.239 (13) and 267 (019) situated in the lal dora of Village Iradat Nagar @ Naya Baas, Delhi being joint property of the plaintiff and defendants.
7. That after notice of that suit the defendant has appeared and moved an application U/o 7 rule 11 r.w.s. 151 of CPC and stated that the sale deed was executed in favour of defendant No.1,2 and 3 in the year 2000 by Tek Chand and revenue authority has also registered in the name of defendant No.1,2 and 3 in the year 2000 itself. And the suit of the plaintiff is not maintainable as the court has no jurisdiction and is barred by the Delhi Land Reforms Act.
8. That, Ld. Trial court has dismissed the suit of the appellant/plaintiff on the ground that there is no cause of action in favour of the appellant/plaintiff and against any of the defendants and the suit of the plaintiff is also barred by the Law of Limitation.
9. And aggrieved by that impugned order dtd. 14.08.14 the instant appeal has been filed on the following grounds:
1. That the impugned judgment and decree of the Ld. Trial RCA NO.59/14 Smt. Subhadra Vs Shri Vijender Singh Etc. Page No. 6 of 14 Court is badinlaw and against the facts of the case and material on record.
2. That the Ld. Trial court has wrongly opined that the present case in had is a case of General Succession and Governed under the Provisions of Section 50 of the Delhi Land Reforms Act.
3. That the Ld. Trial Court has failed to consider this fact that the respondent No.14 themselves says in para No.1 of preliminary objections that Sh. Tek Chand Mann had no right, title or interest in respect of the suit property.
4. That, the Ld. Trial Court has wrongly opined and given its finding totally off the record about presumption to acquire of knowledge of the execution of sale deed and wrongly presumed that the suit of the appellant is time barred. And the Trial court has failed to consider and appreciate the citation of law referred and relied by the appellant. And the Ld. Trial Court has wrongly opined and even given a wrong calculation of dates while computing the limitation to file the suit before the Ld. Trial Court. RCA NO.59/14 Smt. Subhadra Vs Shri Vijender Singh Etc. Page No. 7 of 14
5. And the other miscellaneous grounds as mentioned in Para No. A to M.
10. That, upon notice of this appeal, the respondent/defendant appeared and filed the reply of the appeal.
11. Having heard the arguments at length advanced by Sh. M.S. Pawar and Sh. B.S. Mathur Ld. counsel for the parties and after gone through the appeal file as well as the Ld. Trial Court Record as well as the ground of the appeal as taken by the appellant, this court is of the considered view that there is no illegality or infirmity in the impugned order dtd.14.08.14 passed by the Ld. Trial Court.
12. The main arguments of the Ld. counsel for the appellant is that the respondent No.13 got mutated the land in their name fraudulently and in the WS filed by the respondent before the Ld. Trial Court the relationship of the plaintiff with the defendants is not disputed and the sale deed which was alleged to have been executed infavour of the defendant No.1,2 and 3 by Tek Chand who died on 13.10.02 has been executed. This argument of the Ld. counsel for the appellant is immaterial and cannot be substantiated in the RCA NO.59/14 Smt. Subhadra Vs Shri Vijender Singh Etc. Page No. 8 of 14 eyes of law. Inasmuch as it is no whereby mentioned that on 18.01.00 when the sale deed was executed by Tek Chand he was of unsound mind. As per the provisions of Delhi Land Reforms Act admittedly Tek Chand was the owner /Bhumidhar of the suit land and Sec.185 of Delhi Land Reforms Act is not applicable.
13. It is also argued by the Ld. counsel for the appellant that a calculated fraud made by the brothers of the appellant/plaintiff with their father Tek Chand and in collusion they fraudulently got the sale deed executed and also fraudulently got the mutation of the suit property. This argument of the counsel for the appellant is also immaterial and cannot be substantiated in the eyes of law. Inasmuch as before amendment in the Hindu Succession Act in the year 2005 the Hindu Succession Act 1956 was applicable and there is no retrospective effect of the amendment of the Hindu Succession Act of the year 2005 and as per the law laid down in the Mukesh and Ors. Vs. Bharat Singh and Ors.", 2008(101)DRJ 362. Categorically it has been held as thereunder: "8. Primafacie, the Amending Act of 2006 cannot be read retrospectively as the Amending Act has not been given a retrospective operation. RCA NO.59/14 Smt. Subhadra Vs Shri Vijender Singh Etc. Page No. 9 of 14 Meaning thereby, succession, which had taken place prior to the promulgation of the Amendment Act of 2005 cannot be disturbed.
9. Section 3 of the Amending Act has substituted the existing Section 6 of the Hindu Succession Act. One gets a clue of the legislative intent when one looks at SubSection 3 of Section 6, as amended. It stipulates that where (Amendment) Act, 2005 his interest in the property of a joint family governed by Mitakshra Law shall devolve by testamentary or intestate succession and not by survivorship. A daughter is given a share equal to that of a son.
10. In respect of the coparcenery property the right of a daughter to receive a share equal to that of a son applies only if the death of male Hindu is after commencement of the Amendment Act, 2005.
14. It is also argued by the Ld. counsel for the appellant/plaintiff that the land in question falls within the Laldora and Sec.185 of Delhi Land Reforms Act is application and the Ld. Trial Court without applying judicial mind dismissed the suit of the appellant/plaintiff and an opportunity has to be granted to the plaintiff to lead their evidence and to prove their case. This arguments of the counsel for the appellant/plaintiff is immaterial and without any force of law inasmuch as Order 7 rule 11 of CPC reads as under:
11. Rejection of plaint.The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action RCA NO.59/14 Smt. Subhadra Vs Shri Vijender Singh Etc. Page No. 10 of 14
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamppaper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaintiff to be barred by any law;
15. That the law related to the rejection of the plaint U/o 7 rule 11 of CPC is well settled and the court can exercise U/o 7 rule 11 of CPC at any stage of the suit before registering the plaint of after issuance of the summons at any time. Order 7 rule 11 of CPC interalia, mandates rejection of plaint when it does not disclose a cause of action. An application under this provisions is to be decided entirely on a perusal of plaint and documents filed along with it. Defence of the defendant is not relevant for the purpose of Order 7 rule 11 of RCA NO.59/14 Smt. Subhadra Vs Shri Vijender Singh Etc. Page No. 11 of 14 CPC nor can it be looked into. The court has to peruse the plaint as a whole to find out whether it discloses a cause of action or not. If the plaint discloses cause of action it cannot be rejected by the court exercising the powers under Order 7 rule 11 of CPC. Whether the plaint discloses cause of action is a question of fact which has to be gathered on the basis of averments made in the plaint and taking those averments to be correct as a whole together with the documents filed along with the plaint. If the case is based on the document the same have also to be read along with the averments made in the plaint to find out if there is any cause of action for filing the suit. Reliance is place upon M/s Texem Engineering vs. M/s. Texcomash Export, 179 (2011 Delhi Law Times 963, a Division Bench of this Court has held, thus, "There can be no gainsaying that an application under Order VII rule 11 of CPC for rejection of the plaint has to be decided entirely on a perusal of the plaint and documents filed along with it.
16. A suit which is without any cause of action inasmuch as, is frivolous, vexatious and meritless has to be thrown out at the nascent stage since its continuance will not only burden the already overburdened judicial infrastructure RCA NO.59/14 Smt. Subhadra Vs Shri Vijender Singh Etc. Page No. 12 of 14 but will also result in harassment of the opposite party which has to face rigmarole of full trial. Reliance is placed upon I.T.C. Ltd. Vs. Debts Recovery Appellate Tribunal, AIR 1998 SC 634 wherein it has been held that "question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with the view to get out of Order 7 Rule 11 CPC. Clever drafting creating illusions are not permitted in law and a clear right to sue should be shown in the plaint".
17. In view of the aforesaid discussion, this court is of the considered view that there is no illegality or irregularity in the impugned judgment dtd. 14.08.14 of Ld. Trial Court and there is no substance in the appeal, as per the law laid down by Hon'ble Apex Court of India in Hari Dass Mandal Vs Sahadeb Mandal AIR 1980 Kalkatta 140 wherein it was held that the court in appeal would not interfere unless there is an application of wrong principles and the Ld. Trial Court has consciously and with complete application of mind has passed the impugned order and this court has no reason to interfere with the impugned order of Ld. Trial Court in any manner. Hence, this court has no reason to RCA NO.59/14 Smt. Subhadra Vs Shri Vijender Singh Etc. Page No. 13 of 14 interfere with the impugned order/judgment passed by the Ld. Trial Court and appeal is devoid of merit, hence the same is dismissed.
18. Appeal file be consigned to record room after due compliance. Trial court record be sent back with a copy of this order.
Announced in the open (Satish Kumar)
Court on 04/04/15 ADJ02, North, Rohini Courts,
Delhi/04.04.15
Every page of this order is signed by me.
(Satish Kumar)
ADJ02, North, Rohini Courts,
Delhi/04.04.15.
RCA NO.59/14 Smt. Subhadra Vs Shri Vijender Singh Etc. Page No. 14 of 14