Bhupinder Singh vs S. Bhupinder Singh Son Of Kanwar Balbir ... on 31 January, 2012

[Cites 6, Cited by 2]

Punjab-Haryana High Court

Bhupinder Singh vs S. Bhupinder Singh Son Of Kanwar Balbir ... on 31 January, 2012

1. Prayer in the present petition is for setting aside of the order dated 24.2.2010, passed by the learned court below, whereby the application filed by the petitioner under Order 7 Rule 10 CPC for return of the plaint, was dismissed.

2. Briefly, the facts of the case are that respondents No. 1 and 2- plaintiffs filed a suit for declaration to the effect that the plaintiffs and defendant No. 3 (son of respondent No. 1) are the joint owners and in possession of house bearing No. BE-23 (Paschmi), Shalimaar Bagh, New Delhi and are the joint owners of 1/3rd share in House No. 97 measuring 9 marlas, 252 square feet (45' x 60') situated in Janta Colony, Maqsudan, Tehsil and District Jalandhar, comprised in Khasra No. 6/25. Further prayer was made for permanent injunction restraining defendant No. 1 from alienating the suit property and also for separate possession of 1/3rd share belonging to respondents No. 1 and 2-plaintiffs and defendant No. 3 in the suit, pertaining to the property situated at Jalandhar.

Civil Revision No. 3993 of 2010 [2]

3. It is in the said suit that petitioner-defendant No. 1 filed application under Order 7 Rule 10 CPC for return of the plaint raising an objection that the court at Jalandhar does not have the jurisdiction to try the suit in terms of the provisions of Section 16 CPC. It was stated in the application that there is no dispute pertaining to the property at Jalandhar, as petitioner-defendant No. 1 never disputed the claim of respondents No. 1 and 2-plaintiffs to that effect. As far as the property at Delhi is concerned, the same is his self acquired property. The court at Jalandhar does not have the territorial jurisdiction to entertain a suit pertaining to the property situated at Delhi. The application having been rejected, the petitioner-defendant No. 1 is before this court.

4. Learned counsel for the petitioner submitted that the suit was filed at Jalandhar by respondents No. 1 and 2-plaintiffs only because they are residents of Hoshiarpur and it was convenient for them. Two causes of action in the suit have no relation with each other. On the one hand, for a share in the joint family property, for which even if there is any contest, the relevant parties would be sons and daughters of the deceased, whose property is to be inherited. On the other hand, the property located at Delhi is registered in the name of the petitioner and is in his exclusive ownership and possession. If there is any dispute pertaining to its ownership or possession, their sister would not be a necessary party in the lis. In fact, there was no dispute pertaining to the property, which is to be inherited by respondents No. 1 and 2-plaintiffs and defendant No. 3 in the suit, who are the legal heirs of deceased-Kanwar Balbir Singh, and the petitioner and respondent No. 4, who are the other son and daughters of deceased-Kanwar Balbir Singh. The dispute is sought to be raised regarding the property at Delhi. Only with a view to bring the suit within the jurisdiction of the court at Jalandhar, the facts pertaining to the property located at Jalandhar have been pleaded, which should not be permitted. The impugned order passed by the learned court below is erroneous, as this aspect of the matter has been totally ignored.

5. On the other hand, learned counsel for respondents No. 1 and 2-plaintiffs submitted that when there is a dispute pertaining to different properties located at different places within the jurisdiction of different Civil Revision No. 3993 of 2010 [3] courts, the suit can be filed in any court within the jurisdiction of which any of the properties is situated. In the present case, in the suit, relief has been claimed pertaining to the properties located at Jalandhar and Delhi, hence, the court at Jalandhar has the jurisdiction. In the written statement filed, the petitioner has disputed the claim pertaining to the property located at Jalandhar. However, even if the same is admitted, the court has to try the case pertaining to other reliefs claimed. The plaint cannot be returned. In support of his submissions, learned counsel relied upon a judgment of this court in Shri Hans Raj v. Shri Raj Kumar and others, 1973 PLJ 343.

6. Heard learned counsel for the parties and perused the paper book.

7. Before appreciating respective contentions raised by learned counsel for the parties, a reference to the memo of parties, pleadings and the prayer in the suit would be relevant, which are extracted below:

"Memo of parties

1. Smt. Kamal Jaswal widow of Kanwar Jatinder Singh, resident of House No. 91, Model Colony, Hoshiarpur.

2. Randheep Singh son of Kanwar Jatinder Singh, resident of House No. 91, Model Colony, Hoshiarpur.

..Plaintiffs Versus

1. S. Bhupinder Singh son of Kanwar Balbir Singh, resident of House No. BE-23 (Paschmi), Shalimaar Bagh, New Delhi.

2. Mrs. Veena Parmaar wife of S. Lakhwinder Singh Parmaar, resident of 6173, Palahi Road, Duncan, B. C. Canada.

3. Ramnik Singh Jaswal Singh son of Late Kanwar Jatinder Singh, resident of 56-Ist Floor, Lebuk Noordin 10300- Panang- Malaysia.

.. Defendants Civil Revision No. 3993 of 2010 [4] Pleadings

2. That Mrs. Prem Lata during her life time was blessed with two sons namely S. Bhupinder Singh defendant No. 1, Kanwar Jatinder Singh, since deceased and a daughter by the name of Mrs. Veena Parmar. On the death of Kanwar Jatinder Singh, he was succeeded by his widow, and two sons by the name of Randeep Singh and Ramnik Singh. On the death of Mrs. Prem Lata, the above said property had devolved upon the above said legal heirs of Mrs. Prem Lata. The plaintiffs and Ramnik Singh defendant together had acquired 1/3 share in the said property and similarly, S. Bhupinder Singh defendant and Mrs. Veena Parmar had also acquired 1/3 share each in the above said property and as such, the above said persons became the joint owners of the above said house and are in joint possession thereof.

3. That house bearing no. BE-23 (Paschmi), Shalimaar Bagh, New Delhi was originally owned by Shri R. P. Bahri son of Shri Lajpat Rai Bahri, resident of 1-42 Lajpat Nagar, New Delhi. He had contracted to sell the above said house to late Kanwar Jatinder Singh son of Kanwar Balbir Singh who was the husband of plaintiff No. 1 and father of plaintiff No. 2 and defendant No. 3 Ramnik Singh and on the receipt of entire sale consideration for the said house, Shri R. P. Bahri son of Shri Lajpat Rai Bahri, had executed a receipt in favour of Kanwar Jatinder Singh, since deceased which is duly registered in the office of Sub Registrar, New Delhi and had handed over the possession of the property to late Kanwar Jatinder Singh. Simultaneously to the said transaction, Shri R. P. Bahri, had also executed Will dated 20.8.1982 while being possessed of a sound disposing mind bequeathing the aforesaid property in favour of Kanwar Jatinder Singh son of Kanwar Balbir Singh so that there may not be any dispute regarding the ownership of the said property. Copy of the said Will is attached herewith and by the operation of said Will, Civil Revision No. 3993 of 2010 [5] Kanwar Jatinder Singh had become the exclusive owner of the said property and on his death, the plaintiffs and defendant No. 3 become the joint owners of the above said property and all three of them are in joint possession thereof. Prayer It is, therefore, prayed that a decree for declaration to the effect that the plaintiffs and defendant No. 3 are the joint owners and in joint possession of House bearing No. BE-23 (Paschmi), Shalimaar Bagh, New Delhi and defendant No. 1 has no right or interest therein.

AND Are the joint owners of 1/3rd share to the extent of in House No. 97 measuring 9 marlas, 252 Square ft. (45' x 60') situate in Janta Colony, Maqsudan, Tehsil and District Jalandhar, comprised in Khasra No. 6/25, shown red in the site plan and for permanent injunction restraining defendant No. 1 from alienating more than 1/3rd share in the House No. 97, situate in Janta Colonhy, Maqsudan, Tehsil and District Jalandhar and any part of House bearing No. BE-23 situate in (Paschmi), Shalimaar Bagh, New Delhi.

AND For separation of possession of 1/3rd share belonging to the plaintiffs and defendant No. 3 by way of partition of the properties fully detailed in the head note of the plaint, may kindly be passed in favour of the plaintiff and against the defendants with costs."

8. In the written statement filed by the petitioner as well as by Veena Parmaar, his sister, to paragraphs No. 2 and 3 of the plaint, it was pleaded as under:

"Para No. 2. That in reply to para no. 2, it may be submitted that it is correct that Prem Lata was blessed with two sons, i.e., defendant No. 1 and late Kanwar Jatinder Singh (now deceased) and daughter, Veena Parmar Civil Revision No. 3993 of 2010 [6] defendant No. 2. Mrs. Prem Lata expired on 12.4.1992. It is correct that the plaintiffs and Ramnik Singh defendant are entitled to 1/3rd share being the wife and children of late Kanwar Jatinder Singh. Similarly, the answering defendants are also having the rights, title and interest in the property as co- owners to the extent of 1/3 each as averred by the plaintiffs themselves. There is no dispute even on this aspect of the matter. The answering defendants have neither denied earlier nor they are denying now.

Para No. 3 That the contents of para No. 3 of the plaint are denied. It is incorrect that R. P. Bahri contracted late Kanwar Jatinder Singh husband of plaintiff no. 1 to sell the house bearing no. BE-23 (Pashmi), Shalimaar Bagh, New Delhi. It is also denied that the possession was handed over to late Kanwar Jatinder Singh. It is also denied that R. P. Bahri also excecuted the will dated 20.8.82 in favour of late Kanwar Jatinder Singh in the same transaction. It is specifically denied that at any point of time, late Kanwar Jatinder Singh had become the owner of the said property and thereafter, the plaintiffs and defendant No. 3. The real facts are that on 20.8.1982, an agreement to sell was executed at Delhi between Sh. R. P. Bahri s/o Sh. Lajpat Rai Bahri and Shri Kanwar Bhupinder Singh defendant no. 1 regarding House No. BE-23 (Paschimi), Shalimar Bagh, Delhi for a consideration of Rs. 1,60,000/-. On the same day, General Power of Attorneys were also Civil Revision No. 3993 of 2010 [7] executed by R. P. Bahri in favour of Kanwar Bhupinder Singh answering defendant No. 1. The physical actual possession along with all original papers were also handed over to defendant no. 1 by the said R. P. Bahri. The actual physical possession of the house is still with answering defendant No. 1 as the complete interest, right was transferred in favour of defendant No. 1. Neither, late Kanwar Jatinder Singh occupied the said house during his life time nor claimed any right or share in the said house. Late Kanwar Jatinder Singh died on 24.10.1986. Now, after the death of late Kanwar Jatinder Singh, his widow plaintiff no. 1, has started claiming right in the property out of greed though she or her children have no right in any manner in the said property. Simpliciter on the basis of the alleged receipt mentioned in the corresponding para of the plaint do not give any right in the property in favour of the plaintiffs and defendant no. 3. The transaction with the answering defendant no. 1 qua the house had taken place in the year 1982 and upto the filing of the present suit, nothing was asserted even during the life time of late Kanwar Jatinder Singh, the husband of plaintiff no. 1 and father of plaintiff no. 2 and defendant no. 3. Though the answering defendants deny the execution of the will as alleged in the plaint but even otherwise, the said will is also meaningless in view of the interest and right created by the said R. P. Bahri in favour of answering defendant no. 1 Civil Revision No. 3993 of 2010 [8] by executing number of documents like GPAs etc. and handing over the physical possession of the property in dispute forever. It may be pointed out here that all rights and interest already transferred in favour of answering defendant no. 1 before the alleged will became operative. Now that will, if any, is a dead letter in the eyes of law. All amenities like electricity, water, sewerage etc. are being used by the answering defendants since 20.8.1982-- the day of taking possession by answering defendant no. 1. It may also be mentioned here that since 20.8.1982, defendant no. 1 has been enjoying possession and other rights of this property peacefully as owner in possession and without any interruption or interference in the peaceful enjoyment of the property from any quarter including the plaintiffs and defendant no. 3. Even the peaceful continuous enjoyment of the property was never disturbed or interfered by late Kanwar Jatinder Singh brother of answering defendant no. 1 and husband of plaintiff no. 1 and father of plaintiff no. 2 and defendant no. 3. The Property Tax of Municipal Corporation of Delhi qua the house in dispute is also being paid by the answering defendant no. 1. The property tax was also paid by the answering defendants on 20.3.1988. Not only this, even the mutation of property in dispute was also sanctioned in favour of Kanwar Bhupinder Singh answering defendant no. 1 by the Municipal Corporation of Delhi. Further, the answering defendant no.

Civil Revision No. 3993 of 2010 [9]

1 has also deposited the charges for conversion with the DDA. The plaintiff no. 1 also sought information from DDA of the documents of answering defendant no. 1 in relation to the property in question by moving application. DDA asked for the consent of the answering defendant no. 1 regarding it vide letter dated 6.1.2009 as the answering defendant no. 1 was in occupation of the property in dispute. All these patent facts show that late Kanwar Jatinder Singh was not having any right or interest in the property."

9. Along with the written statement, application under Order 7 Rule 10 CPC for return of the plaint was filed. It was pleaded in the application that there is no dispute pertaining to the property at Jalandhar as the answering defendants in the suit never disputed the right or claim of the plaintiffs and the relief claimed in the suit pertaining to that is futile and infructuous. Regarding the property situated at Delhi, the suit could not be instituted at Jalandhar. The learned court below, while observing that as the claim in the suit has been made pertaining to two properties, one of them being within the jurisdiction of the court, dismissed the application.

10. A perusal of the memo of parties and the pleadings, as referred to above, shows that pertaining to the property at Jalandhar, claim to the extent of 1/3rd share therein was made on the basis of the fact that it was purchased by late Mrs. Prem Lata widow of Kanwar Balbir Singh way back on 8.6.1979. She had two sons and one daughter. The petitioner is one son. Respondents No. 1 to 3 are the legal heirs of a pre-deceased son late Kanwar Jatinder Singh and respondent No. 4 is the daughter. It is claimed that after the death of Prem Lata widow of Kanwar Balbir Singh, one son, one daughter and the family of another pre-deceased son are entitled to inherit 1/3rd share each in the property.

Civil Revision No. 3993 of 2010 [10]

11. As far as the house at Delhi is concerned, it is sought to be claimed that the property in dispute was agreed to be sold by R. P. Bahri to late Kanwar Jatinder Singh. A receipt for entire sale consideration was also executed in favour of late Kanwar Jatinder Singh and its possession was also handed over. R. P. Bahri had also executed a Will in favour of Kanwar Jatinder Singh on 20.8.1982. On the basis thereof, it is claimed that respondents No. 1 to 3, being the legal heirs of deceased-Kanwar Jatinder Singh are in fact the exclusive owners in possession thereof. Respondent No. 4, namely, the sister has no concern pertaining to the property at Delhi as there is no claim against her in the suit filed. In the written statement, it has been specifically averred by the petitioner and respondent No. 4 (brother and sister) that after the death of Prem Lata, their mother, on 12.4.1992, one son, one daughter and family of a pre- deceased son had become co-owners to the extent of 1/3rd share each in the property and neither there was nor there is any dispute pertaining to that. The answering defendants never denied the claim to that effect. Disputing the claim pertaining to the property at Delhi, the factum of alleged agreement to sell, receipt or handing over of possession thereof to deceased-Kanwar Jatinder Singh or even execution of the Will dated 20.8.1982 in his favour was denied, rather, it was claimed that an agreement to sell was executed by R. P. Bahri on 20.8.1982 in favour of the petitioner. On that very day, a general power of attorney was also executed. Actual physical possession was handed over to him and the petitioner is residing in the house since then. Late Kanwar Jatinder Singh never occupied the house in question during his life time. He died on 24.10.1986. The petitioner is recorded as owner in Municipal Corporation, Delhi and is paying the property tax. The suit in the present case was filed on 19.1.2009.

12. As far as the property at Jalandhar is concerned, the claim is for declaring the plaintiffs as joint owners to the extent of 1/3rd share each, whereas pertaining to the property at Delhi, the claim is of exclusive ownership thereof and possession.

13. The aforesaid pleadings pertaining to the property at Delhi shows that the claim for ownership thereof has been made entirely on a Civil Revision No. 3993 of 2010 [11] different premise as compared to the grounds on which the relief pertaining to the property located at Jalandhar has been made. It was not disputed at the time of hearing that the daughter, namely, respondent No. 4 is not a necessary party with reference to the claim pertaining to the property situated at Delhi. Apparently to bring the suit within the territorial jurisdiction of the court at Jalandhar, claim pertaining to the property located at Jalandhar was made which, in fact, does not exist as is evident from the pleadings.

14. For the purpose of appreciating the case sought to be set up by the parties, complete reading of plaint in a meaningful manner is required to find out the real intention behind the suit. Any illusion created by clever drafting of the plaint is to be buried at the very beginning. Following observations of Hon'ble the Supreme Court in Begum Sabiha Sultan v. Nawab Mohd. Mansur Ali Khan and others, 2007(4) SCC 343 are relevant for the purpose. The same are extracted below:

"10. There is no doubt that at the stage of consideration of the return of the plaint under Order 7 Rule 10 of the Code, what is to be looked into is the plaint and the averments therein. At the same time, it is also necessary to read the plaint in a meaningful manner to find out the real intention behind the suit. In Messrs Moolji Jaitha & Co. v. The Khandesh Spinning & Weaving Mills Co. Ltd. [AIR 1950 Federal Courts 83], the Federal Court observed that:

"The nature of the suit and its purpose have to be determined by reading the plaint as a whole."

It was further observed:

"The inclusion or absence of a prayer is not decisive of the true nature of the suit, nor is the order in which the prayers are arrayed in the plaint. The substance or object of the suit has to be gathered from the averments made in the plaint and on which the reliefs asked in the prayers are based."

It was further observed :

"It must be borne in mind that the function of a Civil Revision No. 3993 of 2010 [12] pleading is only to state material facts and it is for the court to determine the legal result of those facts and to mould the relief in accordance with that result."

This position was reiterated by this court in T. Arivandandam v. T. V. Satyapal & Anr. [(1978) 1 SCR 742] by stating that what was called for was a meaningful- not formal- reading of the plaint and any illusion created by clever drafting of the plaint should be buried then and there..."

15. The judgment in Hans Raj's case (supra) relied upon by learned counsel for respondents No. 1 and 2-plaintiffs does not come to his rescue as it was opined therein that option of selecting a forum is available to the plaintiff only if the suit is otherwise to be brought in that form and the right to relief arises out of the same act or transaction or series of acts or transactions and common questions of law or facts would arise. Relevant paragraph 13 thereof is extracted below:

"13. This section is evidently intended for the benefit of suitors and to avoid multiplicity of suits. The option of selecting the forum under this section is, however, available to the plaintiff, only if the suit is otherwise permissible to be brought in that form, being not contrary to the provisions of Order 1, rule 3 and Order 2, rule 3, Civil Procedure Code, and the right to relief arises out of the same act or transaction or series of acts or transactions, and common questions of law or facts would arise. This means, either the suit should be based on a single cause of action, or if it is grounded on two or more causes of action, the plaintiff can take advantage of the provisions of Section 17 only if the suit would not be otherwise bad on account of multifariousness. This is, broadly speaking, the ratio of the authorities cited by the learned counsel on either side."

16. As has been noticed above, from the pleaded facts, it transpires that causes of action for claiming relief pertaining to the properties situated at Delhi and Jalandhar are altogether different and Civil Revision No. 3993 of 2010 [13] have nothing in common. Questions of law and facts to be decided are also different.

17. For the reasons mentioned above, in my opinion, the impugned order passed by the learned court below deserves to be set aside. Ordered accordingly. The plaint is directed to be returned to respondents No. 1 and 2-plaintiffs to be presented in the court of competent jurisdiction for the relief pertaining to the property located at Delhi, as there is no dispute between the parties pertaining to the property at Jalandhar.

The petition stands disposed of.

(Rajesh Bindal) Judge 31.1.2012 mk

Unlock Advanced Research with PRISMAI

Punjab-Haryana High Court