Delhi District Court
Varunpreet Singh vs Smt. Balvinder Kaur on 19 July, 2014
IN THE COURT OF SH. R. B SINGH
ADDITIONAL DISTRICT JUDGE 01 (WEST): DELHI
RCA No. 14/12 ID No. 02401C0105892012
1. Varunpreet Singh
S/o Sh. Onkar Singh
aged about 13 years
2. Navneet Kaur
D/o Sh. Onkar Singh
aged about 11 years
Through their mother Smt. Amarjeet Kaur
W/o Sh. Onkar Singh,
Both resident of House No. 5C/3, Vishnu Garden,
New Delhi - 18 (admeasuring 100 sq. yards) .....Appellants
Versus
1. Smt. Balvinder Kaur
W/o Sh. Jagdish Singh
2. Sh. Onkar Singh
S/o Sh. Jagdish Singh
Both R/o 5C/3, Vishnu Garden,
New Delhi - 18. ....Respondents
Date of Institution : 05.03.2012
Date of arguments heard : 05.06.2014
Date of Decision : 19.07.2014
Varunpreet Singh & Anr. Vs. Balvinder Kaur & Anr. Page 1 of 14
J U D G M E N T
By this judgment I propose to dispose of an appeal filed under Section 96 of CPC for setting aside the judgment / order dated 06.02.2012 passed by Ms. Chhavi Kapoor, ld. Civil Judge, West, Delhi.
2. The brief facts for the disposal of the appeal are as under:
The appellants are assailing order dated 06.02.2012 wherein the Ld. Civil Judge, Tis Hazari Court has dismissed the application under Section 74 read with order 21 Rule 97 & 99 CPC of the appellants in Execution Petition bearing no. 230/2011 entitled as Balvinder Kaur Vs. Onkar Singh & Ors. The appellants are minors and as such are being represented through natural guardian i.e. mother, Smt. Amarjeet Kaur W/o Sh. Onkar Singh, as she does not have any interest adverse to the minor appellants. The appellants no. 1 is the grand son and the appellant no. 2 is the grand daughter of the respondent no.1.
In the year 1974, the grand father of the appellant no. 1 and 2 came to Delhi from Jhansi and settled at 5C/3, Vishnu Garden, New Delhi -
18. The grand father of the appellant no. 1 and 2 purchased the aforesaid plot by paying Rs. 3800/ as sale consideration vide deed of agreement and receipt dated 08.02.1974 from the funds which he received from his father namely Ishwar Singh from the sale proceeds of the Jhansi properties. The father of the appellant i.e. the respondent no. 2 contributing his funds / earnings for the construction of the first floor of the aforesaid plot. There are two electricity Varunpreet Singh & Anr. Vs. Balvinder Kaur & Anr. Page 2 of 14 connections installed, one in the name of the respondent no. 1. and other in the name of the father of the appellant, respondent no. 2. The suit property bearing no. 5C/3, Vishnu Garden, New Delhi - 18 admeasuring 100 sq. yards is an ancestral property which is subject matter of decree dated 05.07.2011. Since 2000, respondent no. 2 started residing at the first floor of the aforesaid property with the mother of the respondent no. 1. The appellants no. 1 and 2 are residing at the first floor and are in possession of the one room and one kitchen alongwith laterine, bathroom at first floor alongwith their mother since 2001. In the month of May, 2004, the altercation between respondent no. 1 and mother of the appellant started. The respondent no. 2 started harassing and beating mother of the appellants at the instance of the respondent no. 1 and the husband of the respondent no. 1 alongwith other family members.
The respondent no. 1 in connivance with respondent no. 2 wanted to oust / deprived the appellants from their respective shares in the ancestral property and to fulfill the desire, on 12.08.2010, the respondent no. 1 in collusion with respondent no. 2 filed a civil suit bearing no. 155/2010 titled as Balvinder Kaur Vs. Onkar Singh & ors. for grant of decree of possession and mesne profits / damages on 12.08.2010 against the respondent no. 2 and mother of the appellants without impleading the appellants as parties. The respondent no. 2 made convince the mother of the appellant that she need not to appear in the court because her interest will be taken care of by respondent Varunpreet Singh & Anr. Vs. Balvinder Kaur & Anr. Page 3 of 14 no. 2 before the Court. Vide order dated 05.07.2011 the Court decreed the suit in favour of respondent no. 1 and passed a decree for handing back the possession of the suit property to the respondent no. 1 and the Court further order to pay damages / mesne profits at the rate of Rs. 3500/ per month from the date of filing of the suit till the date of handing over the possession of the suit premises.
On 06.09.2011, the respondent no. 1 filed Execution petition bearing no. 230/2011 entitled as Balvinder Kaur Vs. Onkar Singh & ors before the Court of Ld. Civil Judge Ms. Chhavi Kapoor for execution of the decree / order dated 05.07.2011. On 22.12.2011 the appellants after coming to know about the aforesaid judgment and decree dated 05.07.2011, filed an application under Section 74 read with Order 21 Rule 97 and 99 of CPC. Respondent no. 1 has played a fraud with the appellants and got a collusive decree for possession and damages in her favour by averring that the aforesaid property / plot was purchased by decree holder from her own earning. But in fact the said plot was purchased by the grand father namely Sh. Jagdish Singh by paying Rs. 3800/ which he received in the form of funds from his father Sh. Ishwar Singh from the sale proceeds of Jhansi properties. On 06.02.2012 the aforesaid application was dismissed by ld. Civil Judge, Delhi on dated 06.02.2012. Hence, the appellants are assailing the order dated 06.02.2012 on following grounds :
A. That ld. Civil Judge failed to appreciate the procedure provided for Varunpreet Singh & Anr. Vs. Balvinder Kaur & Anr. Page 4 of 14 deciding an application under Order 21 Rules 97 and 99 CPC. The provisions envisaged, if an application is filed under Order 21 Rules 97 and 99 CPC that application will be treated as a Civil Suit, which requires trial by the Court. B. That Ld. Civil Judge has erred and proceeded on the wrong presumption that the appellants would have raised the issue of their independent rights at the time of trial in the suit. The appellants are minor grand children and have independent rights and title in the joint Hindu Family property, more so when the property was partitioned in the year 2004. Ld. Civil Judge failed to appreciate that the fraud vitiates every thing, when the respondent no. 1 has misrepresented to the court to the extent that she has purchased the suit property from her own earning. The respondent no. 2 has suffered a collusive decree in favour of respondent no. 1 to fulfill their evil motive of ousting the appellants from the aforesaid property. (C) That the plot has been purchased by the grandfather of the appellant namely Sh. Jagdish Singh by paying sale consideration of Rs. 3800/ which he received from his father Sh. Ishwar Singh from the sale proceeds of Jhansi properties. The property was purchased as benami property by the grandfather in the name of respondent no. 1.
(D) That the respondent no. 1 concealed the very facts from the Court that the plot has been partitioned by an oral family settlement in the year 2004 and appellants are residing in their respective portion / share of the aforesaid property since then. The respondent no. 1 has concealed and misrepresented Varunpreet Singh & Anr. Vs. Balvinder Kaur & Anr. Page 5 of 14 the fact that the aforesaid property is a self acquired property of the decree holder.
(E) That the respondent no. 1 concealed the very facts from the Court and the Court has passed the decree ignoring the exhibits PW1/2 and PW1/3 being deed of agreement and receipts in the name of Jagdish Singh. (F) That ld. Trial Court has failed to appreciate that the parties are in possession of one room, one kitchen and bath room and latrine at the first floor of their own rights. The property being a ancestral property, two electricity connections were installed in the aforesaid property in the name of the respondent no. 1 and another in the name of the respondent no. 2 i.e. father of the appellants.
(G) That Ld. Trial Court has failed to appreciate the fact that the respondent no. 1 i.e. the decree holder is the house wife or in her deposition before the Court she had not disclosed her source of income for purchasing the aforesaid plot.
In view of the facts and circumstances, it is, prayed that this court may setaside the impugned order dated 06.02.2012 passed by Ms. Chhavi Kapoor, ld. Civil Judge, West, Delhi in the execution petition no. 230/11 and allow the present appeal and also pass a decree of permanent injunction in favour of the appellants qua the area shown in red colour in the site plan of the suit property bearing no. 5C/3, Vishnu Garden, New Delhi - 18 or any other relief which this court may deem fit.
Varunpreet Singh & Anr. Vs. Balvinder Kaur & Anr. Page 6 of 14
3. In the reply filed on behalf of the respondent no. 1, it has been submitted that the present appeal is an abuse of process of law as the same has been filed only to harass and pressurize the answering respondents. The respondent no. 1 is the owner of the property. The respondent no.1 is the motherinlaw of the appellant's mother, had filed suit for possession, permanent injunction and mesne profits against her son and daughterinlaw i.e. mother of appellant, because she has been tortured and abused by mother of appellant i.e. Amarjeet Kaur, there has been numerous police complaints made by respondent and her husband i.e. Jagdish Singh. When the answering respondent and her husband lost all their hopes that good sense would prevail upon her daughter in law and son i.e. respondent no. 2 then answering respondent chose to file suit for possession bearing no. 155/2010 against her son and daughter in law i.e. mother of appellant wherein both son and daughter in law i.e. Amarjeet Kaur have been arrayed as defendants and both have duly served but Ms. Amarjeet kaur choses not to appear in to that matter. In the meantime when suit was pending husband of the appellant's mother i.e. Onkar Singh filed divorce petition against mother of appellant i.e. Amarjeet Kaur, then Amarjeet Kaur filed frivolous complaint u/S 406, 498A, application under Section 125 Cr. P. C and complaint in Domestic Violence Act against entire family even didn't spare her sister in law who is well settled and happily married. It is pertinent to mention here that Sh. Jagdish Singh who is grandfather of the appellants, has purchased the suit property in the Varunpreet Singh & Anr. Vs. Balvinder Kaur & Anr. Page 7 of 14 year of 1974 with his own earning and hard work. It is further pertinent to mention herein that Jagdish Singh had been living in Delhi for 1955 and he had resided with his mama i.e. Swaran Singh and had started working in wood khairat machine from age of 1516 years. It is worthy to mention herein that Jagdish Singh saved every bit of penny till 1974 to purchase suit property for Rs. 3800/. However it is worthy to point out that entire family was initially living in kachha house built over the plot purchased. It is further worthy to mention herein that Jagdish Singh went abroad i.e. Sarjahan in 1982 where he worked till 1990 and made good fortune over there and it is that money whereby this suit property has been built nearly three four years after he went abroad. Hence, the present property in question is absolutely self acquired property of Jagdish Singh.
4. It has also been submitted on merits that it is vehemently denied that the grandfather of the appellant came to Delhi from Jhansi in the year of 1974. However, it is submitted that Jagdish Singh had been living in Delhi for 1955. It is vehemently denied that the grand father of the appellant came to Delhi from Jhansi in the year of 1974, however it is submitted that Jagdish Singh had been living in Delhi for 1955, with his mama i.e. Swaran Singh and had started working in wood khairat machine from age of 1516 years and he has saved every bit of penny till 1974 to purchase suit property for Rs. 3800/. It is worthy to mention here that Jagdish Singh went abroad i.e. Sarjahan in 1982 where he worked till 1990 and made good fortune over there and it is Varunpreet Singh & Anr. Vs. Balvinder Kaur & Anr. Page 8 of 14 that money whereby this suit property has been built nearly three four years after he went abroad. It is vehemently denied that the suit property has been purchased from the funds received from the great grand father i.e. Ishwar Singh of the appellants. It is vehemently denied that father of the appellant had contributed in constructing the property, so far as connection of electricity in concerned is a matter of record hence need no reply. It is further vehemently denied that respondent no. 1 in connivance of respondent no.2 wanted to oust / deprived the appellants from their respective shares. It is however submitted that respondent no. 1 is the exclusive owner of the property and status of her son who is respondent no. 2 is of licensee, hence, respondent no. 1 is exercising her right over the suit property. Hence averments of collusive suit is devoid of merit. The mother of the appellants has filed a complaint in CAW Cell under Section 406/498A of IPC, petition under Section 125 Cr. P. C and Domestic Violence Act during pendency of the suit.
5. It is worthy to mention that decree holder may invoke this provision provided in Rule 97 and so far as Rule 99 is concerned it is only when third party claiming right over the suit property / objector is dispossessed then only objector may invoke this rule. The mother of the appellants Smt. Amarjeet Kaur was the defendant no. 2 in the suit, still mother of the appellant i.e. Amarjeet Kaur chose not to appear in the said suit and now present application is nothing but tool of harassment to delay the Varunpreet Singh & Anr. Vs. Balvinder Kaur & Anr. Page 9 of 14 execution proceedings. It is denied that any collusive decree have passed, however it is worthy to mention herein, respondent no. 1 is absolute owner of the property, therefore hardly any question arise of collusive decree. So far as motive of ousting the appellant is concerned, it is well settled exclusive owner of the property carry unfettered discretion over the property and he / she may decide to allow or disallow any person to live in its property and such power emanate from his legal right, and power is absolute. Hence question of collusion doesn't arise or hardly has bearing on decision of the case. The electricity connection have no bearing over issue involved in the case but character of the property is absolutely as self acquired property and there was opportunity available both with respondent no. 2 and mother of the appellant to raise this issue before the Court before passing of the decree now this appeal is nothing but abuse of process of law.
In the facts and circumstances of the case, it is, prayed that appeal being devoid of any merits may be dismissed with costs.
6. I have heard ld. counsel for the parties and perused entire material on record including ld. trial court record and executing court record carefully. Ld. counsel for the appellant has relied on the case namely :
1. Noorduddin Vs. Dr. K. L Anand (1995) 1 Supreme Court Cases 242,
2. Bhanwar Lal Vs. Satyanarain and Anr., (1995) 1 Supreme Court Cases 6 and I have perused them also carefully.
7. Upon hearing arguments and on the perusal of the material on Varunpreet Singh & Anr. Vs. Balvinder Kaur & Anr. Page 10 of 14 record reveals that the appellants through their mother Smt. Amarjeet Kaur has filed this appeal for setting aside the order and judgment dated 06.02.2012 passed by Ms. Chhavi Kapoor, ld. Civil Judge, Delhi with the submissions that the property bearing no. 5C/3, Vishnu Garden, New Delhi - 18 is an ancestral property which has been purchased by the grand father of the appellants namely Sh. Jagdish Singh by paying Rs. 3800/ which he has received from his funds from his father from the sale proceed of Jhansi property. On the contrary the submissions on behalf of the respondent no. 1 is that the respondent no. 1 is the owner of the property. Sh. Jagdish Singh who is the grand father of the appellant has purchased the suit property in the year 1974 with his own earnings and hard work as Sh. Jagdish Singh was living in Delhi since 1955, has been residing with his mama i.e. Swaran Singh and started working in wood khairat machine from age of 1516 years. Sh. Jagdish Singh has also went abroad i.e. Sarjahan in 1982 where he worked till 1990 and had made good fortune over there and it is that money whereby this suit property has been built nearly three four years after he went abroad. Hence the property in question is self acquired of Sh. Jagdish Singh who validly purchased in the name of respondent no. 1.
8. After hearing arguments and on the perusal of the material on record this court is of the considered opinion that this appeal is liable to be dismissed, as the respondent no. 1 Smt. Balvinder Kaur has filed a suit no. 155/10 for possession and recovery of unliquidated damages / future mesne Varunpreet Singh & Anr. Vs. Balvinder Kaur & Anr. Page 11 of 14 profits against the defendant no. 2 Smt. Amarjeet Kaur i.e. the mother of the appellants and wife of the defendant no. 1 Sh. Onkar Singh. The summons were duly served upon the mother of the appellants but she choses not to appear in the court and not to contest the case. The position of the minors are the same i.e. at the time of filing of appeal as well as during the pendency of the main suit in which the mother of the appellants was a defendant no. 2. The defendant no. 2 i.e. the mother of the appellants herein, should have watched her interest as well as should have watched the interest of the appellants i.e. the minor children. But she choses to stay away from the proceedings of the main suit and the mother of the appellants has awakened regarding the rights of her children i.e. appellants only after the dismissal of the main suit on merits. The defendant no. 1 who is the father of the appellant could not prove in the ld. Trial Court that he is the joint owner of the demised premises and also could not prove that he is not residing in the demised premises as licensee being the son of the respondent. The license has been terminated by the respondents vide public notice dated 14.06.2005 Ex. PW1/5. Once the father of the appellants was living in the suit premises as licensee, the status of the appellants who are the minor children of the defendant no. 1, cannot be treated better then their father / defendant no. 1. The ownership of the respondent no. 1 of the demised premises has not been disputed by the defendant no. 1 in the main suit but he has only claimed that he has assisted his parents in building the house and also contributed in suit premises. The Varunpreet Singh & Anr. Vs. Balvinder Kaur & Anr. Page 12 of 14 submissions of the mother of the appellants to the effect that the respondent has obtained a collusive decree is not convincing as the mother of the appellants has not contested the main suit, though, she was the defendant no. 2 in the main suit and she could have raises her grievances before ld. Trial Court but she has taken the proceedings of the Court very lightly and choses to stay away from the proceedings of the main suit. To curb the multiplicity of the proceedings between the parties is also the bounden duty of the Courts. If the mother of the appellant, who was the defendant no. 2 in the main suit, could have joined the proceedings, the multiplicity of the proceedings between the parties could have been avoided and the grievances which the appellants are raising in this appeal now could have been settled in the main suit itself. The mother of the appellant was having ample opportunities during the trial and she has not utilized the opportunities. Now, since the rights of the parties have already been settled, the same issues cannot not be reagitated through the application under Order 21 Rule 97 and 99 CPC.
9. Even further the appellants do not have independent rights except derived through their father only and the rights of the father of the appellants has already been decided on merits. The position would have been different if the mother of the appellants would not have been a party in the main suit. But since the mother of the appellant was a party, now she cannot reopen the case in the name of the minor children i.e. the appellants herein. The submissions of the appellants that respondent no. 2 made convince the mother of the Varunpreet Singh & Anr. Vs. Balvinder Kaur & Anr. Page 13 of 14 appellants that she need not to appear in the Court because her interest will be taken care of by the respondent no. 2 before the ld. Trial Court, is not convincing as the parties were already allegedly having strained relationship and the mother of the appellants was allegedly being harassed and given beating by the respondent no. 2 at the instance of his family members. In this scenario the mother of the appellant should not have taken the persuation of the defendant no. 1 / respondent no. 2 in right perspectives and she should have taken care of her rights as well as the rights of the appellants. Hence, Ld. Executing Court has rightly dismissed the application under Order 21 Rule 97 and 99 CPC. I have highest regard for the case law cited on behalf of the appellants but same have been pronounced in different context.
10. In view of the aforesaid discussions, the appeal is consequently, dismissed. A copy of this judgment alongwith ld. Trial Court record and ld. Executing Court record be sent back to the concerned Courts and appeal file be consigned to the record room.
Announced in Open Court
on 19th of July, 2014 ( R. B SINGH )
Additional District Judge01(West)
Tis Hazari Courts, Delhi
Varunpreet Singh & Anr. Vs. Balvinder Kaur & Anr. Page 14 of 14