Delhi District Court
Rajinder Singh vs . Kusum & Ors on 14 January, 2019
IN THE COURT OF MS. VANDANA JAIN, LD. ADDITIONAL DISTRICT
JUDGE-07, SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI
RCA No. 130/17
Rajinder Singh Vs. Kusum & Ors
In the matter of :-
Sh. Rajinder Singh S/o Late Sh. Preetam Singh
R/o J-18, Sriniwas Puri,
New Delhi.
................Appellant
Versus
1. Smt Kusum W/o Sh. Trilok Nath
R/o O-12, J.J. Colony, Sriniwas Puri,
New Delhi-110065
2. Sh Om Prakash S/o Late Sh Govind Ram
R/o C-84, East of Kailash, New Delhi-110065
3. Delhi Urban Shelter Development Board
Govt. of NCT of Delhi
Through its Chief Executive Officer,
Vikas Kutir, New Delhi.
.............Respondents
Date of institution:- 06.11.2017
Date of pronouncement of order : 14.01.2019
Order on Appeal
1. This is an appeal filed by appellant/defendant no. 4 (hereinafter referred to as appellant) against the impugned order dated 19.01.2017 against the respondents (respondent no. 1 is plaintiff, respondent no. 2 is defendant no. 3 and respondent no. 3 is defendant no. 1 before Ld Trial Court.) (hereinafter referred to as respondents)
2. The brief facts as averred in the plaint before Ld Trial Court is that Rajinder Singh Vs. Kusum Page No. 1 of 12 father of the plaintiff/respondent no. 1 and defendant no. 2 namely Hemant (brother of plaintiff) was allotted a plot/property bearing no. O-12 (80 Sq Yds) situated at J.J. Colony, Sriniwaspuri, New Delhi (hereinafter referred to as suit property) on 01.06.1961 under the terms and conditions of the Jhuggi jonpri removal scheme for residential purposes. The father of the plaintiff had expired on 26.12.1975 leaving behind his wife and two sons and three daughters which included plaintiff and defendant no. 2. It is further stated that in the year about 2003, defendant no. 2 who is the brother of the plaintiff tried to raise illegal construction over and the above the roof of the ground floor of the suit property through defendant no. 3 for which plaintiff made various complaints but of no avail and defendant no. 2 succeeded in raising illegal and unauthorized construction on the first floor and thereafter on 12.05.2007, plaintiff came to know that defendant no. 2 sold the first floor of the said premises to the defendant no. 4 through defendant no. 3 and thereafter defendant no. 2 & 3 started harassing the plaintiff to dispossess her from the suit property and threatened her to raise illegal and unauthorized construction. It is further stated that plaintiff has filed a suit CS No 752/2009 titled as Kusum Vs Om Prakash for permanent injunction and declaration against the defendant no. 2, 3 & 4 herein for restraining them from dispossessing the plaintiff from suit property and in that suit defendant no. 2 herein filed the written statement disclosing that he has got mutation of the suit property in his favour on 05.02.2004 and also got executed the perpetual Rajinder Singh Vs. Kusum Page No. 2 of 12 lease deed dated 12.07.2004. It is further stated that defendant no. 2 has no right, title or interest for getting the said mutation and perpetual lease deed executed in his favour from the DDA as the suit property was originally allotted to Late Sh. Sarup Chand, the father of the plaintiff and the defendant no. 2, who had left behind his wife Smt Sanotsh Devi, two sons and three daughters at the time of his death. It is further stated that defendant no. 2 by submitting forged and false documents, had obtained the lease deed mutated in his favour without disclosing the legal heirs of Late Sh. Sarup Chand before concerned authority. It is further stated that Sh Om Prakash (defendant no. 3) also stood as witness to perpetual lease deed in collusion with the defendant no. 2. Thereafter the present suit was filed wherein the impugned order was passed.
3. Written statement/reply was filed by the defendant no. 1 i.e. Delhi Urban Shelter Development Board/respondent no. 3 in appeal wherein it was stated that defendant no. 3 had constructed some portion over the suit plot and mutation was carried out in the year 2004, therefore, suit is barred by limitation. It was further stated that Sh. Hemant Kumar submitted indemnity bond, affidavit, relinquishment deed purportedly issued by Sh Pawan Kumar, Sh Kamlesh Kumar and Ms Neelam in his favour but none of these documents contained the name of the plaintiff as one of the LR of the Late Sh. Sarup Chand Mehta. It is further stated that after receiving the complaints from the plaintiff, defendant no. 2 issued show cause notice dated 28.12.2010 Rajinder Singh Vs. Kusum Page No. 3 of 12 and final show cause notice dated 24.03.2011 to defendant no. 3.
4. Defendant no. 2 was Hemant, brother of plaintiff who expired during the pendency of the present case and Ld Trial Court vide its order dated 28.05.2015 observed that plaintiff is exempted from substituting LR of defendant no. 2 Hemant as no relief was sought against him and his defence was already struck off. An application under Order XII Rule 6 CPC was moved against defendant no. 1 for passing decree on admission and another application under Order VIII Rule 10 CPC was moved qua defendant no. 2, 3 & 4 i.e. appellant for pronouncing judgment on non-filing of written statement. Vide impugned order, Ld Trial Court passed decree on admission qua defendant no. 1 and pronounced judgment qua appellant and respondent no. 2.
5. Ld counsel for appellant has argued that Ld Trial Court has failed to take into account the legal submissions of the appellant that plaintiff/respondent no. 1 had no legal right in the suit property in view of Hindu Succession (amendment) Act, 2005 as its effects were prospective and not retrospective. The amendment was not applicable to the claim of the daughter when her father died prior to 09.09.2005. The father of the plaintiff/respondent no. 1 had expired in the year 1975 and thus it was on that day that succession to his property was open and, therefore, Ld Trial Court has committed an error in not discussing this issue.
6. It is further argued that Ld Trial Court has not discussed that there were Rajinder Singh Vs. Kusum Page No. 4 of 12 any clear, unequivocal and unambiguous admissions warranting passing of judgment under Order XII Rule 6 CPC.
7. It is further argued that it cannot be said that since the defendants no. 2, 3 & 4 had not filed any written statement they had admitted the claims of plaintiffs. In this regard, they have relied upon judgments i.e. Debendra Nath Dutt Vs. Smt. Satyabala Dasi & Ors AIR 1950 Cal 217, Basalingappa Cfflnnappa Goudar Vs. Shantawa, ILR 2002 KAR 260 (2001 (6) KarLJ
460).
8. It is further argued that Ld Trial Court has failed to consider the issue on limitation raised by respondent no. 3 and it was a mixed question of fact and law and could have only be proved by way of evidence.
9. It is further argued that plaintiff had challenged the mutation letter dated 05.02.2004 and perpetual lease on 12.07.2004 by filing suit on 30.04.2011 submitting by plaintiff that she came to know about these documents only on 20.08.2009 when the written statement alongwith these documents were filed in suit no. 752/09 and thus claim suit is within the period of limitation whereas respondent no. 3 in its written statement had strongly opposed the same which is reflected in preliminary objection of para no. 2 and para no. 4 and 20 of reply on merits of written statement.
10. It is argued that there is nothing on record to show that plaintiff/respondent no.1 did not have knowledge of the said mutation letter Rajinder Singh Vs. Kusum Page No. 5 of 12 prior to 20.08.2009 and this was question of fact to be proved by respondent no. 1/plaintiff, however, without taking any evidence on record. Ld Trial Court hold the suit to be within limitation.
11. It is further argued that Ld Trial Court had wrongly observed that bar of Order II Rule 2 CPC cannot be applicable to the suit. It is argued that plea of Order II Rule 2 CPC was taken with respect to previous suit filed by plaintiff bearing no. 849/10 titled as Kusum Vs SDMC and not suit no. 752/09 as discussed by Ld Trial Court. Plaintiff had come to know as per her own version about the said mutation letter and perpetual lease dated 20.08.2009 whereas suit bearing no. 849/10 was filed on 26.08.2010 and, therefore, order Rule II Rule 2 CPC clearly applies. He has relied upon judgment State Bank of India Vs. Gracure Pharmaceuticals Ltd (2014) 3 SCC 595 in support of his arguments on Order II Rule 2 CPC.
12. It is submitted that there is no admission on behalf of either party and, therefore, impugned order under Order XII Rule 6 CPC and Rule 8 Rule 10 CPC is liable to be set aside.
13. On the other hand, Ld counsel for respondent no. 1 has argued that respondent no. 1/plaintiff being the class-I legal heir had a right title and interest in the suit property and even otherwise no partition has ever been effected amongst the LRs in respect of suit property and moreover Section 6 is applicable to the ancestral property and not to self acquired property. It is further submitted that father of the plaintiff died intestate and, therefore, Rajinder Singh Vs. Kusum Page No. 6 of 12 property had to devolve in accordance with Section 8 of Hindu Succession Act and, therefore, arguments of the appellant's counsel is misconceived.
14. It is further argued that there are clear and unequivocal admission in the written statement of the respondent no. 3 and despite various opportunities, the other defendants did not file any written statement resulting in striking off their defence. It is argued that Ld Trial Court has legally passed judgment under Order VIII Rule 10 CPC against appellant and respondent no. 2 and under Order XII Rule 6 CPC against respondent no. 3 as defendant no. 2 before Ld Trial Court had submitted indemnity bond, affidavit and also relinquishment deed purportedly to have issued by other LR namely Pawan Kumar, Kamlesh, Neelam in his favour as well as their affidavits but none of these documents contain the name of respondent no. 1/plaintiff and there was a concealment in the name of respondent no. 1/plaintiff in those documents.
15. It is stated that judgments filed by appellant are not applicable to the circumstances of this case and plaintiff's case without any evidence is unimpeachable. It is further argued that there is no bar in pronouncing the judgment under Order VIII Rule 10 CPC when the defence of the defendant is struck off and it is also a matter of record that none of the defendants have been challenged the orders of striking off their defence and said order has attained finality. It is further argued that issue on limitation was clearly a legal issue and no evidence was required on the same.
Rajinder Singh Vs. Kusum Page No. 7 of 12
16. It is further argued that on impleading DDA and MCD as a party, two months notice was to be given to them before instituting a suit and, therefore, this relief of cancellation could not have been sought in any other suit before giving notice and, therefore, Order II Rule 2 CPC does not apply in view of judgment (2015) 11 SCC 12 Inbasagaran & Anr Vs. S. Natarajan (D) through Lrs, (2015) 5 SCC 223 Rathnavathi & Anr Vs. Kavita Ganashamdas and AIR 1982 Delhi 520 Nanak Chand & ors Vs. Chander Kishore & Ors (2004) 3 SCC 277, Kunjan Nair Sivaraman Nair Vs. Narayan Nair & Ors.
17. It is submitted that order passed by Trial court is perfectly legal and appeal is liable to be dismissed.
18. I have heard the arguments and have perused the record carefully.
19. Defendant no. 2 in the suit before Ld Trial Court and plaintiff/respondent no. 1 were real brother and sister. The grievance of the respondent no. 1/plaintiff is that defendant no. 2 (since deceased) had got the suit property mutated on 05.02.2004 in his favour and got the perpetual lease deed executed on 12.07.2004 without even informing her.
20. It is pertinent to mention here that appellant and respondent no. 2 were defendant no. 4 & 3 there and one was property dealer and another one was subsequent purchaser. None of the defendant no. 2, 3 & 4 filed their written statement before Ld Trial Court. DUSBC filed its written statement. The Ld Rajinder Singh Vs. Kusum Page No. 8 of 12 Trial Court has passed a decree on basis of admissions under Order XII Rule 6 CPC against DUSBC and under Order VIII Rule 10 CPC against other defendants, two which are appellants herein under two separate appeals.
21. Therefore, it has to be seen whether there were unequivocal and clear admissions on the part of defendant no. 1 i.e. respondent no. 3 herein so as to suffer a decree under Order XII Rule 6 CPC. The Ld Trial Court has given a finding on the issue of limitation raised by defendant no. 1/respondent no. 3 solely on the basis of averments made by plaintiff/respondent no. 1 wherein she stated that she had come to know about this mutation and perpetual lease deed from the written statement of his brother i.e. defendant no. 2 in suit no. 752/09 on 20.08.2009 and she filed the suit within limitation period thereafter.
22. Since defendant no. 1/respondent no. 3 had raised this specific defence on bar of limitation, the averments of the plaintiff/respondent no. 1 could not be taken to be true on the face of it and under no circumstances, could be said to be an admission on the part of defendant no. 1/respondent no. 3. Therefore, this finding of Ld Trial Court under Order XII Rule 6 CPC qua defendant no. 1/respondent no. 3 is erroneous and is liable to be set aside.
23. The other argument is with respect to the issue of Order II Rule 2 CPC. Ld counsel for appellant has argued that finding of Ld Trial Court is incorrect with respect to this issue as it is based on the suit no. 752/09 whereas appellant relied upon suit no. 849/10 to address argument on this issue. It is Rajinder Singh Vs. Kusum Page No. 9 of 12 argued that the suit no. 849/10, was filed by plaintiff after allegedly coming to know about this mutation letter and perpetual lease deed from the written statement of defendant no. 2 filed on 20.08.2009, but even in a subsequent suit, these reliefs were not sought, hence, the suit was barred under Order II Rule 2 CPC.
24. As far as this argument is concerned, the perusal of suit no. 849/10, reveals that it was filed to restrain the defendants from raising unauthorized construction. It was not necessary to mix two separate cause of action in one suit. The provision of Order II Rule 2 CPC are applied to those reliefs which arise out of a same cause of action and in respect of that cause of action, plaintiff was entitled to more than one relief, and being so entitled to more than one relief, omitted to sue for the relief for which second suit was filed without seeking leave of the court. Coming to case in hand, the suit bearing no. 849/10, was for restraining the defendant from raising unauthorized construction whereas the subject suit is for declaration of cancellation of mutation and perpetual lease deed. Both cannot be said to be same cause of action. This rule does not contemplate unity of distinct and separate cause of action. The judgment relied upon by appellant on this issue are squarely applicable to case in hand. This argument is misconceived and is turned down.
25. As far as judgment under Order VIII Rule 10 CPC is that though the appellant has not filed the written statement but he should have been given Rajinder Singh Vs. Kusum Page No. 10 of 12 an opportunity to cross examine the plaintiff/respondent no. 1 so that truth could have been elicited. Certain judgments have been relied upon by the Ld counsel for appellant, though, it is not necessary in all case to await trial, in case written statement is not filed, however, it depends upon the peculiar facts and circumstances of the case. In the case in hand, no reply on merits by any of the affecting parties was filed on record. Though, the mutation is of year 2004 but plaintiff/respondent no. 1 had alleged that she came to know about it in the year 2009. The issue of limitation did not remain the pure question of law, the moment the plaintiff/respondent no. 1 pleaded her knowledge about mutation on a subsequent date. It became a mixed question of fact and law, for which she ought to have entered the witness box and proved it. At the same time, defendant no. 2, 3 & 4, two of which are appellants herein could have cross-examined her on that aspect. After going through the severe test of cross-examination, the testimony could have been evaluated so as to adjudicate fairly. The Ld Trial Court ought to have listed the matter for trial.
26. There are other arguments with respect to daughter having no right in the property before year 2005. Since the matter has to be listed again for trial, so there is no need of giving direct finding on it, however, this court would like to point out that defendant no. 2 (brother, since deceased) had filed the no objection certificate/affidavit of another sister before the authority, so this argument, even if applicable, cannot be applied in the event of his waiver to Rajinder Singh Vs. Kusum Page No. 11 of 12 plead the same. Both the sisters were at the equal footing. So either the provision had to apply to both or to none. Legally this argument is not touched so as to save the rights of the parties to press it before Ld Trial Court.
27. In view of these observations, the impugned judgment dated 19.01.2017 is set aside and case is remanded back with a direction to Ld Trial Court to proceed as per law. It is clarified that appellant and respondent no. 2 herein shall have a restricted right to cross examine the plaintiff's witness/respondent no. 1 without putting their defence to the witness. Defendant no. 1/respondent no. 3 shall continue its suit ordinarily.
28. Parties are directed to appear before Ld Trial Court on 21.01.2019 at 02:00 PM.
29. Appeal file be consigned to Record Room. TCR be sent back to concerned court.
Announced in the open court Digitally signed by
VANDANA VANDANA JAIN
on 14.01.2019 JAIN Date: 2019.01.16
14:12:49 +0530
(VANDANA JAIN)
ADDITIONAL DISTRICT JUDGE-07/
SOUTH EAST DISTRICT/SAKET COURTS/
NEW DELHI/14.01.2019
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