Neelam Bhutani vs Shumita Didi Sandhu on 27 August, 2013

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Delhi High Court

Neelam Bhutani vs Shumita Didi Sandhu on 27 August, 2013

1. This application under Order XII Rule 6 of the Code of Civil Procedure, 1908 ('CPC') filed by the Plaintiff for decreeing the suit in terms of the admissions made by the Defendant in CS(OS) No. 41 of 2005 filed by the Defendant.

2. The background to the present application is that CS No. (OS) 41 of 2005 was filed by the Defendant No.1 against her husband, Mr. Sanjay Singh Sandhu and his parents, Mr. Hardev Singh Sandhu and Mrs. Shiela Sandhu (Defendant No.2 herein) for a permanent injunction restraining them from subjecting her to harassment and intimatdtion and from forcibly dispossessing her from the matrimonial home without the due process of law.

CS(OS) No. 587 of 2008 Page 1 of 9

3. In CS No. (OS) No. 41 of 2005 an interim order was passed on 18th January 2005 directing status quo to be maintained in relation to the suit property till the next date of hearing. On 17th August 2005, the Court passed an order in IA No. 291 of 2005 in the aforementioned suit clarifiying that "the reference to status quo is in respect of the matrimonial home, which is the first floor of property bearing No. 18A, Ring Road, Lajpat Nagar-IV, New Delhi." In an application filed by Defendant No.1 herein (the Plaintiff in the forementioned suit CS No. (OS) No. 41 of 2005) under Order XXXIX Rule 2A an order was passed on 17th August 2005 directing that her husband should not visit the first floor premises in her occupation without leave and liberty of the Court. The Court observed in its order that "There is no doubt that the first floor has been set out as the matrimonial home of the parties as per claim of the plaintiff..."

4. From the averments in the plaint as well as the application filed by the Plaintiff in CS (OS) No. 41 of 2005, it was evident that the parties in that suit proceeded on the basis that the matrimonial home was the first floor of the property A-18, Ring Road, Lajpat Nagar-IV, New Delhi. On that basis, on 14th September 2005, the following issues were framed were framed in CS No. (OS) No. 41 of 2005:

"i)Whether the plaintiff is entitled to use and occupy the first floor of property bearing no.18-A, Ring Road, Lajpat Nagar-IV, New Delhi as the matrimonial home? OPP

ii) Whether the plaintiff is entitled to a decree of permanent injunction against D-2 and D-3? OPP

iii) Whether the plaintiff is entitled to use the first floor of property bearing no.18-A, Ring Road, Lajpat Nagar-IV, New Delhi to the exclusion of Defendant No 1? OPP CS(OS) No. 587 of 2008 Page 2 of 9

iv) Whether suit for relief of injunction alone is maintainable? OPP

v) Relief"

5. On 19th January 2006, the Court recorded the statements of the parties under Order X CPC. Although Defendant No.1 herein stated that "the entire first floor and even the barsati with a roof garden is in my possession", her husband stated "I stayed with my wife on the first floor of the property in different rooms. Barsati floor was not in my possession." In the statement made by the father-in-law of Defendant No.1 herein, he too stated "After my daughter-in-law shifted as a matter of convenience I moved my son and daughter in law to the first floor. They were not occupying the barsati of the said property." The father-in-law further stated: "I have never threatened her to physically dispossess her from the portion that is the first floor of the property. I or my wife have no intention to throw the plaintiff out of the premises in question without due process of law." A learned Single Judge on 2nd July 2007 disposed of the application for interim injunction filed in that suit holding that "there is no dispute that the suit property belongs to Defendants 2 and 3." The Court held that Defendant No.1 herein "cannot claim any such right as the property belongs to her parents-in-law." However, the Court ordered that the husband and mother-in-law would be bound by the statement of the father-in-law recorded earlier by it. It was clarified that "this, however, would not prevent the defendants to take recourse to the law for dispossessing the plaintiff."

6. The above order was taken in appeal by the Defendant No.1 herein (who was the Plaintiff in CS (OS) No. 41 of 2005) by filing FAO(OS) No. 341 of CS(OS) No. 587 of 2008 Page 3 of 9 2007. The said appeal was dismissed by a detailed judgment dated 26th October 2010 of the Division Bench ('DB'). It was held that "the property which exclusively belongs to the father-in-law or the mother-in-law or to them both, in which the husband has no right, title or interest, cannot be called "shared household." The DB further held that the right of residence with the wife does not translate "into a right to reside in a particular property." It was further observed that "it is only in that property in which the husband has a right, title or interest that the wife can claim residence and that, too, if no commensurate alternative is provided by the husband." The above order attained finality.

7. During the pendency of CS (OS) No. 41 of 2005, two different sale deeds were executed by the husband and mother-in-law of Defendant No. 1 herein in respect of different portions of the property at 18 A, Ring Road, Lajpat Nagar-IV, New Delhi. The purchaser of the second floor along with terrace and garage was the Plaintiff herein i.e. Mrs. Neelam Bhutani. IA No.12913 of 2008 filed in that suit by Defendant No.1 herein under Order XXXIX Rule 2A CPC alleging that the said sale was in violation of the status quo order was dismissed as "wholly misconceived" by an order dated 24th August 2012. The application filed by Defendant No.1 herein to amend the plaint in that suit was dismissed by an order dated 3rd September 2012.

8. The present suit has been filed by the Plaintiff for recovery of possession and mesne profits and damages in respect of second floor and garage portion of the suit property at No. 18-A, Ring Road, Lajpat Nagar-IV, New Delhi (moré particularly shown in red colour in the site plaint) and for damages etc. CS(OS) No. 587 of 2008 Page 4 of 9 The case of the Plaintiff here is that Smt. Shiela Sandhu (Defedant No.2 and the mother-in-law of Defendant No.1), purchased the property at 18-A, Ring Road, Lajpat Nagar-IV, New Delhi out of her own funds by a registered Sale Deed dated 12th January 1961 registered on 23rd August 1961. After obtaining requisite sanctions, Defendant No.2 constructed the basement, ground floor, first floor and the barsati floor with terrace and a separate garage and annexe on the plot. The property was converted from leasehold to freehold in the name of Defendant No.2 on 2nd March 2000 by means of a Conveyance Deed.

9. The case of the Plaintiff is that in view of the admissions made by Defendant No.1 herein in CS (OS) No. 41 of 2005, she cannot claim possession of the second floor and garage. The order dated 26th October 2010 passed by the Division Bench in FAO (OS) No. 341 of 2007 made it clear that that Defendant No.1 never claimed any possession or ownership rights in any floor other than the first floor and was never in possession of the second floor or the garage block of the property. She had unauthorisedlytaken possession of the second floor and the garage block of the property. When the Plaintiff sought to take possession of the second floor, she was prevented from doing so by Defendant No.1. It is also pointed out that Defendant No.1 is neither an owner nor tenant nor a licensee in the property, and more particularly of the second floor or the garage porition shown in the red colour in the site plan.

10. In the present application IA No. 997 of 2012 under Order XII Rule 6 CPC, the Plaintiff states that an earlier IA No. 14153 of 2008 filed by the Plaintiff under Order XII Rule 6 CPC was dismissed on 12th July 2010 as premature awaiting the order of the DB in FAO(OS) No. 341 of 2007. The CS(OS) No. 587 of 2008 Page 5 of 9 present application has been filed after disposal of the aforementioned appeal by the DB on 26th October 2010.

11. The case of Defendant No.1 was that the present suit cannot proceed till the disposal of IA No. 8442 of 2005 filed by her in CS(OS) No. 41 of 2005 for amendment of the plaint. Mr. K.R. Chawla, learned counsel for Defendant No.1, urged that although the said amendment application has been dismissed by the Court by a detailed order on 3rd September 2012, since the appeal filed by Defendant No.1 against the said order was pending, the present application should not be proceeded with.

12. As far as the above submission is concerned, the Court finds that no notice has yet been issued by the DB in the said appeal stated to have been filed by Defendant No.1. Much less is there any order staying the present proceedings. The Court sees no reason why it should not proceed to decide the present application on the basis of the pleadings, as they stand at present.

13. Mr. Chawla relied on Sarvinder Singh v. Dalip Singh 1996 (6) SCALE 59 to urge that transfer of the property during the pendency of the suit would be contrary to Section 52 of the Transfer of Property Act 1882 and, therefore, the Sale Deed dated 5th May 2005 executed in favour of the Plaintff was illegal and void. As already noted above, this contention has already been rejected by the Court in its order dated 24th August 2012 in IA No. 12193 of 2008 filed by Defendant No.1 herein under Order XXXIX Rule 2A CPC in CS(OS) No. 41 of 2005. The application seeking to amend the said plaint to challenge the validity of the Sale Deed dated 5th May 2005 has also been CS(OS) No. 587 of 2008 Page 6 of 9 dismissed. As of date, there is no surviving challenge by Defendant No.1 to the validity of the Sale Deed dated 5th May 2005.

14. Reliance is next placed by Mr. Chawla on the decisions in Kanti Singh v. Project & Equipment Corporation of India Ltd. 70 (1997) DLT 419, State Bank of India v. M/s Midland Industries AIR 1988 Delhi 153 and Manisha Commercial Ltd. v. N.R. Dongre AIR 2000 Delhi 176 to urge that the admissions made by the Plaintiff must be clear and unequivocal. He urged that there is no admission whatsoever in CS OS No. 41 of 2005 by Defendant No.1 herein (i.e. by the Plaintiff in CS (OS) No. 41 of 2005) that Defendant No.2 herein was the absolute owner of the property and that the Plaintiff did not have any right, title or interest in any portion other than the first floor in the said property. He also referred to the documents filed by Defendant No.1 in the present suit which includes a police complaint made in 2004, the insurance policy taken and certain other documents which according to him go to show that Defendant No.1 was in fact occupying the second floor and not just the first floor.

15. It is clear from the order passed by the learned Single Judge and the DB in the application under Order XXXIX Rules 1 and 2 CPC in CS(OS) No. 41 of 2005 that the above averments have already been negatived. The order passed by the DB on 26th April 2010 has attained finality. That apart, the attempt by Defendant No.1 herein to incorporate averments by way of amendments to the plaint in CS (OS) No. 41 of 2005 to the effect that the property was an ancestral one and that she has a right, title or interest in the second floor and barsati floor thereof has been negatived. The statements by Defendant No.1 CS(OS) No. 587 of 2008 Page 7 of 9 herein (the Plaintiff in CS (OS) No. 41 of 2005) as noted by the Court in its order dated 3rd September 2012 in CS (OS) No. 41 of 2005 stand and constitute an admission that she is claiming only the first floor of the property. As explained by the Court in SCJ Plastics Ltd. v. Creative Wares Ltd. (2012) VII AD (Del) 237, the admissions made by a party in the connected proceedings can be relied upon for the purposes of Order XII Rule 6 CPC. In the said case, the admission made before the Board for Industrial and Financial Construction in proceedings initiated by the Defendant was taken to be sufficient for the purposes of decreeing the suit under Order XII Rule 6 CPC. In that view of the matter, this Court negatives the plea of Defendant No.1 that there is no unequivocal admission by her that the suit property was owned by Defendant No.2 or that Defendant No.1 has been in possession of only the first floor of the suit property.

16. For the aforementioned reasons, the application is allowed and a decree of possession is granted in favour of the Plaintiff and against Defendant No.1 in respect of the second floor, terrace and garage portion of the property at 18-A, Ring Road, Lajpat Nagar-IV, New Delhi, shown in red colour in the site plan. Defendant No.1 is directed to handover the peaceful and vacant possession of the aforementioned premises to the Plaintiff within eight weeks, failing which it will be open to the Plaintiff to seek execution of the decree in accordance with law.

CS(OS) No. 587 of 2008

17. In view of the above order, prayers (a) and (c) of the suit do not survive. The suit will proceed, however, as regards prayers (b) and (d).

CS(OS) No. 587 of 2008 Page 8 of 9

18. For recording the evidence of the Plaintiff, list before the Joint Registrar on 22nd October 2013.

S. MURALIDHAR, J.

August 27, 2013 tp CS(OS) No. 587 of 2008 Page 9 of 9

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