Delhi High Court
Satender Kumar Jain vs Nirmal Jain & Ors on 9 April, 2019
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 9th April, 2019
+ CS(OS) 133/2018 & IAs No.4394/2018 (u/O XXXIX R-1&2
CPC), 4395/2018 (u/O XXVI R-9 CPC) & 10918/2018 (u/O
VIII R-10 CPC)
SATENDER KUMAR JAIN ..... Plaintiff
Through: Mr. A.K. Singla, Sr. Adv. with
Mr. N.K. Kantawala & Mr.
Satyender Chauhan, Advs.
Versus
NIRMAL JAIN & ORS ..... Defendants
Through: Mr. Ankit Jain, Mr. Sarvesh Rai
and Mr. Siddhant Nath, Advs.
for D-1.
Mr. Paritosh, Adv. for D-2 with
D-2 in person.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff has instituted this suit against (i) Nirmal Jain, (ii)
Nikhil Jain, (iii) Seema Jain, and, (iv) Suhani Jain, for (a) recovery of
possession of portion of immovable property No.A-24-A, Kailash
Colony, New Delhi on the basis of title, (b) recovery of mesne profits
in the sum of Rs.5 lacs for the period with effect from 22 nd January,
2018 till the date of institution of the suit, and, (c) recovery of mesne
profits, pendente lite and future.
2. The suit came up before this Court first on 5th April, 2018 when,
while issuing summons / notice thereof, vide ex parte ad-interim order
the defendants directed to maintain status quo with respect to
CS(OS) No.133/2018 Page 1 of 23
possession and title of the property aforesaid and a commission issued
to visit the portion of the property in possession of the defendants and
to submit a status report along with photographs. The commission has
been executed and report dated 23rd May, 2018 has been filed.
3. Separate written statements have been filed by the defendant
no.1 on the one hand and by defendants no.2 to 4 on the other hand.
4. The counsel for the plaintiff, on 20th September, 2018 stated
that "without admitting the allegations of defendants as made in their
written statement, plaintiff does not wish to file replication to the
written statement of defendants".
5. The suit is ripe for framing of issues. The senior counsel for the
plaintiff however states that no issue arises for adjudication from the
written statements of the defendants and the plaintiff is entitled to a
decree forthwith at least qua the relief of possession, under Order XII
Rule 6 and under Order XV Rule 1 of the CPC. The senior counsel
for the plaintiff, the counsel for the defendant no.1 and the counsel for
the defendants no.2 to 4 have been heard on the said aspect.
6. The plaintiff has instituted this suit pleading, that:
(i) the plaintiff Satender Kumar Jain along with his brothers
Devender Kumar Jain and Rakesh Kumar Jain purchased
property No.A-24-A, Kailash Colony, New Delhi from
one Smt. Baldevi Bhagat vide registered Sale Deed dated
30th December, 1975;
CS(OS) No.133/2018 Page 2 of 23
(ii) the plaintiff and his two brothers aforesaid, after the death
of their father Sunder Lal Jain continued to carry on
several businesses acquired by succession and / or
established by them by their own efforts, in various
forms, jointly and / or individually;
(iii) Smt. Phoolwati Jain, mother of the plaintiff and his two
brothers aforesaid, died intestate on 16th April, 2004;
(iv) in the year 2009, the plaintiff and his two brothers
aforesaid, mutually entered into / reached an oral Family
Settlement dividing / partitioning their shares in respect
of movable and immovable properties including various
companies and partnership firms; the said oral Family
Settlement was acted upon and recorded vide registered
Memorandum of Family Settlement dated 31st March,
2009;
(v) in furtherance of the Family Settlement aforesaid, the
entire property No.A-24-A, Kailash Colony, New Delhi
fell to the exclusive share and ownership of plaintiff;
(vi) the two brothers aforesaid of the plaintiff viz. Devender
Kumar Jain and Rakesh Kumar Jain, acting in
consonance with the Family Settlement, relinquished
their share in the property aforesaid in favour of the
plaintiff through registered Relinquishment Deed dated
31st March, 2009 and the property mutated in the
exclusive name of the plaintiff in the records of
CS(OS) No.133/2018 Page 3 of 23
Municipal Corporation of Delhi (MCD) on 10th June,
2010;
(vii) at the time of the Family Settlement aforesaid, the family
of the plaintiff as well as the family of Devender Kumar
Jain, brother of the plaintiff was residing in the said
property, though in separate demarcated portions thereof;
(viii) Devender Kumar Jain, brother of the plaintiff, requested
the plaintiff to allow him and his family to continue
residing in the property aforesaid till they find alternate
suitable accommodation and the plaintiff, on account of
brotherly relations, allowed his brother Devender Kumar
Jain and his family to, notwithstanding the property
having fallen to the exclusive share of the plaintiff under
the Family Settlement, temporarily continue residing in
the property;
(ix) Devender Kumar Jain, brother of the plaintiff died in the
year 2015; and,
(x) the plaintiff, on account of his expanding family
requirements, required the portion of the property in
occupation of the family of his deceased brother
Devender Kumar Jain, in the year 2017 requested them to
vacate the said portion of the property; though they
assured the plaintiff that they would vacate the said
portion in January, 2018 but have not done so.
CS(OS) No.133/2018 Page 4 of 23
7. The defendant no.1 contested the suit by filing written
statement, pleading that:
(a) in terms of the Family Settlement dated 31 st March,
2009, property bearing No.6554, Qutab Road, Delhi
which is a joint property was to be used for charitable
purposes; however subsequent to the execution of the
Family Settlement, the plaintiff who is at the helm of
affairs of M/s Mahavir International, Delhi started using
major portion of the Qutab Road property for his personal
use and use of his immediate family members and no
charitable activities were carried out from the major
portion of the Qutab Road property; the charitable
activities being carried out by M/s Mahavir International,
Delhi were restricted to a very small portion of the Qutab
Road property;
(b) the plaintiff continued to use the Qutab Road property for
his own purposes inspite of repeated requests and
reminders of Devender Kumar Jain, husband of defendant
no.1;
(c) in the circumstances, Devender Kumar Jain, husband of
the defendant no.1, in January-February, 2013 requested
the plaintiff to give to Devender Kumar Jain, Devender
Kumar Jain‟s share of Qutab Road property;
(d) as the plaintiff wanted to continue to use the Qutab Road
property for his personal use, he requested Devender
CS(OS) No.133/2018 Page 5 of 23
Kumar Jain that the 1/3rd share of the Qutab Road
property of Devender Kumar Jain be given to the plaintiff
and in lieu thereof Devender Kumar Jain could have the
ownership of 1/3rd share in property No.A-24-A, Kailash
Colony, New Delhi along with portions of the
superstructure that were already in possession of
Devender Kumar Jain and his family members; the
plaintiff also represented that this was beneficial to both
himself and Devender Kumar Jain and that the market
value of 1/3rd share of Devender Kumar Jain in Qutab
Road property and of 1/3rd share of property No.A-24-A,
Kailash Colony, New Delhi was about the same; the said
oral Family Settlement was entered into between the
plaintiff and the said Devender Kumar Jain somewhere in
January-February, 2013;
(e) under the aforesaid oral Family Settlement, the plaintiff
became the owner of Qutab Road property to the extent
of 2/3rd undivided share and Devender Kumar Jain
became the owner of property No.A-24-A, Kailash
Colony, New Delhi to the extent of 1/3rd undivided share
along with portions of superstructure already in
possession of Devender Kumar Jain and his family;
(f) Devender Kumar Jain and his family continued to reside
in property No.A-24-A, Kailash Colony, New Delhi since
CS(OS) No.133/2018 Page 6 of 23
January-February, 2013 under the oral Family Settlement
of January-February, 2013; and,
(g) even otherwise, the defendant no.1 being a widow and
having disputes with her son and daughter-in-law, i.e.
defendants no.2 and 3 respectively, does not have any
other place to go to.
8. The defendants no.2 to 4 have contested the suit filing a
written statement running into 51 pages but with the facts below-
mentioned once in the preliminary objections and thereafter again in
the reply on merits:
(i) the site plan of the property filed by the plaintiff is
defective and a site plan showing the portions in
occupation of the defendants is being filed with the
written statement;
(ii) defendants no.2 to 4 are living separately from the
defendant no.1 and their relations inter se are strained;
(iii) the suit property has not been valued properly for the
purpose of court fees and jurisdiction;
(iv) Sunder Lal Jain, father of the plaintiff was first married to
Sarjo Devi Jain and had one daughter namely Shakuntla
Mittal and one son namely J.K. Jain from the said
marriage; after the death of Sarjo Devi, Sunder Lal Jain
married Phoolwati Jain and from the said marriage three
sons i.e. the plaintiff, Devender Kumar Jain and Rakesh
CS(OS) No.133/2018 Page 7 of 23
Kumar Jain, three daughters viz. Nirmal Agarwal, Indra
Vaish and Madhu Mittal were born;
(v) Sunder Lal Jain, upon his death in the year 1969, was
thus survived by four sons, four daughters and a widow
and since he died intestate, all the said nine heirs
succeeded to his estate in equal share;
(vi) at the time of purchase of property No.A-24-A, Kailash
Colony New Delhi in the name of plaintiff, Devender
Kumar Jain and Rakesh Kumar Jain, all of them were
living together along with other family members in the
family house at 6549, Qutab Road, Delhi;
(vii) In the sale deed vide which property No.A-24-A, Kailash
Colony, New Delhi was purchased, all the three brothers
i.e. the plaintiff, Devender Kumar Jain and Rakesh
Kumar Jain were described as vendees, without
specifying their individual shares;
(viii) at the time of purchase of property No.A-24-A, Kailash
Colony, New Delhi, Devender Kumar Jain, being the
eldest, had been carrying on the family business since the
lifetime of the father and the plaintiff had joined the
business only four years prior thereto and Rakesh Kumar
Jain was only 24 years of age and had not joined the
business; the only source of earning was the businesses
and properties left behind by Sunder Lal Jain;
CS(OS) No.133/2018 Page 8 of 23
(ix) from the 1983, onwards the family incorporated Victoria
Foods Pvt. Ltd., Tower Leasing and Finance Ltd. and
Rajdhani Nurseries Ltd., Super Quick Holdings Pvt. Ltd.,
Super Prompt Holdings Ltd., Urgent Holdings Ltd. and
Monsoon Finance Ltd.; these companies along with two
other associated companies viz., German Gardens Ltd.
and Rajdhani Securities Ltd., held more than 175 acres of
prime land on the Delhi-Jaipur National Highway;
(x) the defendant no.2 has recently discovered irregularities
and illegalities in the shareholding of Rajdhani Nurseries
Ltd. and has lodged complaint with the police and a
complaint under Section 200 of the Cr.P.C. against the
defendant no.1, plaintiff and Rakesh Kumar Jain;
(xi) on demise of Phoolwati Jain on 16th April, 2004, her three
sons and three daughters succeeded to her estate in equal
share;
(xii) in the year 2006-07, Rakesh Kumar Jain shifted out of
property No.A-24-A, Kailash Colony, New Delhi to
another house in the same locality, again bought from
joint funds succeeded from the estate of Sunder Lal Jain;
(xiii) the present suit is an outcome of the complaints lodged
by defendant no.2 inter alia against the plaintiff of
various irregularities in relation to the companies
aforesaid committed by the plaintiff along with others;
CS(OS) No.133/2018 Page 9 of 23
(xiv) the defendant no.2, only on service of summons of the
present suit, has come to know of the opportunistic and
illegal mutual division and distribution of all common
family businesses, properties, shareholdings, firms etc.
inherited from Sunder Lal Jain and the defendant no.2 has
written a letter to all signatories and witnesses to the
Family Settlement including the plaintiff, asking them to
provide all details and documents with respect to
properties / businesses;
(xv) the defendants no.2 to 4 intend to challenge the
Memorandum of Family Settlement and to have it
cancelled and reserve their right therefor; and,
(xvi) the Relinquishment Deed executed by Devender Kumar
Jain and Rakesh Kumar Jain in favour of the plaintiff
with respect to their shares in property No.A-24-A,
Kailash Colony, New Delhi has also come to the notice
of the defendant no.2 only on receipt of summons of this
case and the said Relinquishment Deed is also liable to be
set aside and the defendants no.2 to 4 reserve their rights
in this respect also; similarly the mutation of the property
No. A-24, Kailash Colony, New Delhi in the sole name
of the plaintiff is also liable to be cancelled; mere
payment of property tax as claimed by the plaintiff does
not vest any right in the plaintiff.
CS(OS) No.133/2018 Page 10 of 23
9. The plaintiff, along with the plaint has inter alia filed (a)
photocopy of the registered Sale Deed dated 30st December, 1975
executed by Smt. Baldevi Bhagat in favour of Devender Kumar Jain,
plaintiff and Rakesh Kumar Jain, of land ad-measuring 1004.90 sq.
yds. bearing No.A-24-A, Kailash Colony, New Delhi, (b) photocopy
of the registered Memorandum of Family Settlement dated 31 st March,
2009 executed by (i) Devender Kumar Jain, (ii) plaintiff, and, (iii)
Rakesh Kumar Jain; (c) photocopy of Registered Relinquishment
Deed dated 31st March, 2009 executed by Devender Kumar Jain in
favour of plaintiff of his share in property No.A-24-A, Kailash
Colony, New Delhi; and, (d) photocopy of the letter dated 10th June,
2010 of Municipal Corporation of Delhi to the plaintiff, of mutation of
property in the name of the plaintiff.
10. As would be evident from the narration above of the defence of
the defendants, neither of the defendants have denied the documents
aforesaid and defendants no.2 to 4 have rather stated that they intend
to institute proceedings for cancellation of the said documents.
11. The defendants no.2 to 4, along with their written statement,
besides the site plan of the property, have filed screen shots of website
www.rajdhanigroup.com and certificates of incorporation of various
companies mentioned in their written statement.
12. Per Order XIV Rule 1 of the CPC, issues arise (i) when a
material proposition of fact or law is affirmed by one party and
denied by the other; and, (ii) material propositions are those
propositions of law or fact which a plaintiff must allege in order to
CS(OS) No.133/2018 Page 11 of 23
show a right to sue or a defendant must allege in order to constitute his
defence.
13. Per Order XV Rule 1 of the CPC, where at the first hearing of
the suit, it appears that the parties are not at issue on any questions of
law or fact, the Court may at once pronounce judgment.
14. The contention of the senior counsel for the plaintiff is, that
none of the defences in the written statement of the defendants invite
framing of any issue. Of course, the counsels for the defendants
controvert, referring to the pleas in their written statement and also
contending that the suit has been filed belatedly, after nine years from
the date when the plaintiff claims to have acquired exclusive title to
the property.
15. I have in Kawal Sachdeva Vs. Madhu Bala Rana 2013 SCC
OnLine Del 1479 and Abott Healthcare Pvt. Ltd. Vs. Raj Kumar
Prasad (2018) 249 DLT 220 dealt at length with what constitutes
material proposition of law or fact, which a defendant must allege in
order to constitute his defence and need to reiterate the same is not
felt. Suffice it is to state that if plea taken in the defence does not
constitute a defence in law, it is not a material proposition on which an
issue arises or is to be framed.
16. In my opinion, none of the pleas, neither in the written
statement of the defendant no.1 nor in the written statement of the
defendants no.2 to 4, constitute a defence to the suit for recovery of
possession on the basis of title, as filed by the plaintiff.
CS(OS) No.133/2018 Page 12 of 23
17. My reasons therefor qua the written statement of the defendant
no.1 are:
A. The only plea in the written statement of the defendant
no.1 is of a subsequent oral settlement of January-
February, 2013 between the plaintiff on the one hand and
the Devender Kumar Jain on the other hand and
whereunder the 1/3rd share of Devender Kumar Jain in the
Qutab Road property vested in the plaintiff in lieu of 1/3rd
share of Kailash Colony property which vested in
Devender Kumar Jain.
B. The test to be applied is, whether the said plea in the
written statement, in law entitles the defendants no.1 to
defeat the claim of the plaintiff for recovery of possession
of immovable property on the basis of title.
C. Needless to state that the aforesaid plea of the defendant
no.1 is in admission of the registered Memorandum of
Family Settlement dated 31st March, 2009 and the
Relinquishment Deed also dated 31st March, 2009,
executed by Devender Kumar Jain, predecessor in
interest of defendant no.1, of his share in Kailash Colony
property in favour of the plaintiff.
D. Clause 5 of the registered Memorandum of Family
Settlement dated 31st March, 2009, in which Devender
Kumar Jain is described as Group-I, plaintiff as Group-II
and Rakesh Kumar Jain as Group-III, is as under:
CS(OS) No.133/2018 Page 13 of 23
"5. Group-II Will look after the property
listed at D-2 namely property bearing
Nos.6549 to 6554, Qutab Road, Delhi
which is a family property meant to be and
being used for charitable purpose only
and presently given to and is in possession
of M/s Mahavir International Delhi, an
NGO. If this property is not used for
charitable purposes than the same shall be
the matter of joint property owned by the
Group-I, Group-II and Group-III and they
will remain solely the beneficiaries."
E. It is thus evident that Qutab Road property described in
Clause 5 aforesaid, was left joint by plaintiff and his two
brothers, with the agreement that either the same be used
for charitable purpose and if not so used, all three will be
beneficiaries thereof.
F. What has to be seen is whether there could be exchange in
law of 1/3rd share in Kailash Colony property, of which
the plaintiff was the sole owner under the Memorandum
of Family Settlement and Relinquishment Deed, and of
1/3rd share of Devender Kumar Jain in Qutab Road
property jointly held by the plaintiff, Devender Kumar
Jain and Rakesh Kumar Jain, without any registered
instrument.
G. Section 54 of the Transfer of Property Act, 1882 is clear,
that such transfer/exchange of immovable property can be
made only by a registered instrument and without a
registered instrument there is no transfer / exchange.
CS(OS) No.133/2018 Page 14 of 23
H. Though members of a family are entitled to settle /
partition / distribute the family properties between
themselves even without a registered instrument but in
January-February, 2013 i.e. after the registered
Memorandum of Family Settlement dated 31st March,
2009, neither were the plaintiff and Devender Kumar Jain
members of any joint family nor could they by a family
settlement so exchange their immovable properties. It
cannot also be lost sight of, that the plaintiff, Devender
Kumar Jain and Rakesh Kumar Jain even when were
members of a joint family having joint businesses and
joint residence, though entitled to in law to effectuate a
Family Settlement without a registered document, took
care to register the memorandum of Family Settlement
executed by them as well as execute and register
Relinquishment Deeds with respect to immovable
properties, share wherein was being relinquished in
favour of other family members. Ordinarily such persons
can be imputed with the knowledge and understanding in
effect of a registered document and would not be
expected to, with the said knowledge and understanding,
thereafter not act in consonance therewith.
I. The law in this respect is clear. It was held by me,
speaking for the Division Bench in Harvinder Singh
Chadha Vs. Saran Kaur Chadha 2014 SCC OnLine Del
3413 that there can be no transfer of properties or shares
CS(OS) No.133/2018 Page 15 of 23
in immovable properties between siblings, under the garb
of Memorandum of Family Settlement and the Supreme
Court in Yellapu Uma Maheshwari Vs. Buddha
Jagadheeswararao (2015) 16 SCC 787 also followed the
said line of reasoning as discussed by me subsequently in
Vijay Kumar Taneja Vs. Raj Kumar Taneja (2017) 236
DLT 601.
J. Thus, the plea in the written statement of defendant no.1,
of oral Family Settlement of January-February, 2013
whereunder Devender Kumar Jain became the owner of
1/3rd undivided share with portions already in his
possession of the property No.A-24-A, Kailash Colony,
New Delhi is not a material proposition on which the suit
of the plaintiff can be defeated.
K. The plea of the defendant no.1, of being a widow and
having no other accommodation, also does not entitle her
to defeat the suit.
L. If at all the Qutab Road property is not being used for
charitable purpose whether for reasons attributable to the
plaintiff or for any other reasons, it is always open to the
defendant no.1 as an heir of Devender Kumar Jain to
claim beneficial interest therein. However, in such an
action, the other heirs of Devender Kumar Jain as well as
Rakesh Kumar Jain would have to be made a party.
CS(OS) No.133/2018 Page 16 of 23
18. Thus, the pleas taken by the defendant no.1 do not invite
framing of any issue.
19. My reasons qua the written statement of the defendants no.2 to
4 are as under:
(A) Mere skillful and lengthy drafting of a written statement
and filling the same with pleas which have no relevance
to the entitlement of the plaintiff to the relief, cannot be
permitted to create a semblance of a defence and to have
issues framed thereon and to abuse the process of the
Court by delaying the trial to defer the evil day. It is the
duty of the Court to tear through such written statement
and verbose pleadings and to find out whether they
constitute material propositions of fact or law. In the
judgments referred to in para 15 hereinabove it was held,
i) that it is a notorious fact that to drag the case, a litigant
often takes all sorts of false or legally untenable process
but the legal process should not be allowed to be misused
by such person and only such defence as gives rise to
clear and bonafide dispute or triable issues should be put
to trial and not illusory or unnecessary or mala fide or
based on false or untenable pleas to delay the suit; (ii)
that an issue need not be framed on a point of law which
is perfectly clear; (iii) that the Court is required to apply
its mind and understand the facts before framing the
issue; (iv) that if the plea is mala fide or preposterous or
CS(OS) No.133/2018 Page 17 of 23
vexatious and can be disposed of without going into the
facts, or is contrary to law or the settled legal position,
the Court will not be justified in adopting a hands off
policy and allow the game of the defendant to have its
sway; (v) that the Courts are not bound to frame an issue
on unnecessary or baseless pleas, thereby causing
unnecessary and avoidable inconvenience to the parties
and waste of valuable Court time; (vi) that it is also
necessary to see whether there is sufficient material
placed on record to frame an issue; (vii) that the Court is
not under any obligation to frame and remit the issue
mechanically, merely on the same being raised in the
written statement, without judicial satisfaction of its
necessity and justification; (viii) that the Court has a duty
to examine the substance and refuse to frame and remit
any issue if the same appears to be demonstrably
frivolous and mala fide; (ix) that the Court should
hesitate to frame an issue on a vague plea, unless the
party is able to give particulars in support of the plea;
and, (x) that it cannot be lost sight of, that framing of an
unnecessary issue invites unnecessary evidence and
arguments and which protracts disposal of the suits.
CS(OS) No.133/2018 Page 18 of 23
(B) The defendants no.2 to 4 also as aforesaid, admit
Memorandum of Family Settlement and Relinquishment
Deed executed by Devender Kumar Jain of his 1/3rd share
in the Kailash Colony property in favour of the plaintiff,
and though they claim the same to be irregular / illegal
and liable to be cancelled, have not sought the relief of
cancellation and have merely reserved their rights
therefor. Though correction and release of this judgment
after hearing the counsels on 9th April, 2019 also took
sometime but in the said interregnum also, no
information of having taken any steps for declaration of
the said Memorandum of Family Settlement and
Relinquishment Deed, on the basis whereof the plaintiff
admittedly is the sole and absolute owner of the Kailash
Colony property, has been intimated. The reason is quite
obvious. A perusal of the registered Memorandum of
Family Settlement shows substantial properties and
businesses to have fallen to the share of Devender Kumar
Jain and whose son and daughter-in-law and
granddaughter, the defendants no.2 to 4 are, and must be
beneficiaries of. It is quite obvious that the defendants
no.2 to 4, while disputing the entitlement of the plaintiff
to what had fallen to the exclusive share of the plaintiff
under the Family Settlement, are reluctant to put the
entire Family Settlement into dispute and jeopardy and
which will deprive the defendants no.2 to 4 also of what
CS(OS) No.133/2018 Page 19 of 23
had fallen to the exclusive share of their predecessor in
interest Devender Kumar Jain. Though from the
averments in their written statement, I am also unable to
decipher any ground pleaded for challenging the
Memorandum of Family Settlement and Relinquishment
Deed, but refrain from stating more lest the same
prejudices the action in this respect if any taken by the
defendants no.2 to 4 in future.
(C) On the documents as existing today and to which no
challenge is made in this proceeding, the plaintiff has title
to the property and the defendants no.2 to 4 have no right
thereto. A decree for possession is thus to follow.
(D) The entitlement today of the plaintiff to a decree for
possession against the defendants cannot be kept in
abeyance owing to the action threatened by the
defendants no.2 to 4 and which is not even initiated till
now and on initiation whereof the merits therein will
have to be judged before entertaining the same.
(E) The errors, even if any in the site plan filed by the
plaintiff, cannot come in the way of decree for possession
being passed forthwith with respect to whichever portion
of the property is in possession of the defendants.
(F) The other heirs of Sh. Sunder Lal Jain, father of the
plaintiff, to whom reference is made, have no concern
with the property in as much as it is not disputed that the
CS(OS) No.133/2018 Page 20 of 23
subject property was purchased vide sale deed in the
name of the plaintiff, predecessor of the defendants and
Rakesh Kumar Jain only.
(G) Similarly, it is not relevant for the present purposes as to
what were the shares of the plaintiff, predecessor of the
defendants and Rakesh Kumar Jain in the subject
property in as much as the predecessor of the defendants
admittedly vide registered relinquishment deed, released
all his right, title and interest in favour of the plaintiff.
(H) The irregularities even if any qua the shareholding of the
companies, again have no bearing to the right asserted by
the plaintiff in this suit and the defendants no.2 to 4 are
free to take any action with respect thereto.
20. As far as the plea of the counsels for the defendants, of the suit
having been filed after nine years from the date when the plaintiff
became the exclusive owner of the property is concerned, on enquiry
as to which Article of the Schedule to the Limitation Act, 1963 are the
defendants invoking, no answer is forthcoming. However, on further
enquiry, whether either of the two sets of defendants were claiming
adverse possession and if so from which date, it was stated they are
not claiming adverse possession as indeed they cannot along with the
plea of legal title / possession, as held in Anasaheb Bapusaheb Patil
vs. Balwant @ Balasaheb Bapusaheb Patel (1995) 2 SCC 543,
Mohan Lal vs. Mirza Abdul Gaffar (1996) 1 SCC 639, Karnataka
Board of Waqf vs. Government of India (2004) 10 SCC 779, T.
CS(OS) No.133/2018 Page 21 of 23
Ajanappa vs. Somalingappa (2006) 7 SCC 570, L.N. Aswathama vs.
P. Prakash (2009) 13 SCC 229.
21. The plaintiff is thus entitled to a decree for possession
forthwith.
22. Since the defendants have disputed the portion of the property
in their possession as shown in the site plan filed by the plaintiff, it is
deemed appropriate to pass a decree for possession with respect to
whichsoever portion the property No.A-24-A, Kailash Colony, New
Delhi is in possession of the defendants.
23. A decree is thus passed, in favour of the plaintiff and jointly and
severally against the defendants, of (i) recovery of possession of
ground floor, one room in the basement, two rooms in terrace in main
block and basement, ground and first floor of the rear block of built up
house No.A-24-A, Kailash Colony, New Delhi shown in red colour in
the site plan annexed with the plaint and / or of whatsoever portion of
property No.A-24-A, Kailash Colony, New Delhi is in possession,
control and occupation of the defendants or any of them; and, (ii)
recovery of costs qua the relief of possession, comprising of court fee
paid of Rs.2,95,144 and litigation expenses including counsels fee
assessed at Rs.1,00,000/-.
24. As far as the relief claimed by the plaintiff of mesne profits is
concerned, considering the relationship of the parties and further
considering that the plaintiff notwithstanding having become the
exclusive owner of the property in the year 2009 allowed the
defendants to graciously reside in the property till institution of this
CS(OS) No.133/2018 Page 22 of 23
suit on 23rd March, 2018 and further considering that the decree for
possession has been passed in little over more than a year therefrom, it
is deemed appropriate to not order an enquiry with respect thereto.
However, if the defendants fail to vacate the property within three
months herefrom, it shall be open to the plaintiff to apply for issuance
of a commission for enquiry into the mesne profits due to the plaintiff
from the defendants.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
April 09, 2019 „gsr‟..
(Corrected and released on 4th May, 2019).
CS(OS) No.133/2018 Page 23 of 23