Delhi High Court
Gobind Ram Deceased Through His Legal ... vs Jaswant Singh And Ors. on 26 November, 2009
Author: Hima Kohli
Bench: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 260/1982
Date of decision : 26.11.2009
IN THE MATTER OF :
MAHENDER SINGH AND ORS. ..... Appellants
Through: Mr. Ramesh Chandra, Sr. Advocate with
Mr. J.N. Aggarwal, Adv. and Mr. Arun Arora, Adv.
versus
JASWANT SINGH AND ORS. ..... Respondents
Through: Mr. S.C. Nigam, Advocate with
Mr. Arabinda Nayak, Advocate for respondent No. 1.
Mr. H.S. Dhir, Advocate with Mr. Ataul Haque,
Advocate for respondent No. 3 with Mr. Gulzari Lal
Wadhwa, respondent No. 3 in person.
AND
+ RFA No. 281/1982 and CM 5476/2006
& CM 2500/2008
GOBIND RAM DECEASED THROUGH HIS LEGAL HEIR ..... Appellant
Through: Mr. H.S. Dhir, Advocate with Mr. Ataul
Haque, Advocate and Mr. Gulzari Lal Wadhwa, legal
heir of appellant in person.
versus
JASWANT SINGH AND ORS. ..... Respondents
Through: Mr. S.C. Nigam, Advocate with
Mr. Arabinda Nayak, Advocate for respondent No. 1.
CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI
1. Whether Reporters of Local papers may
be allowed to see the Judgment? No.
2. To be referred to the Reporter or not? No.
3. Whether the judgment should be No.
reported in the Digest?
RFA No. 260/1982 & 281/1982 Page 1 of 14
HIMA KOHLI, J. (ORAL)
1. It may be noted at the outset that no paper book has been filed by either of the appellants in the present appeals. However, counsel for the appellants in RFA 260/1982 hands over a paper book in the Court, with a copy to the other side, which is taken on the record. It is agreed by all the parties that the said paper book shall be referred to and relied upon by the parties for hearing both the present appeals.
2. Curtains are sought to be drawn by this common judgment, on a painfully prolonged litigation between the parties spanning a period of over five decades. The case of respondent No. 1 (plaintiff in the trial court), as set out in the plaint was that he purchased land measuring 1100 square yards out of Khewat No.78 according to the Jamabandi of 1947-48 in village Seelampur, abadi Gandhi Nagar, Shahdara, Delhi (hereinafter referred to as the said land), for a sale consideration of Rs.6,500/- by virtue of a sale deed dated 10.02.1954, registered on 11.02.1954. In the year 1957, the respondent No.1/plaintiff instituted a suit for partition of the said land (registered as Suit No. 518/57) claiming inter alia separation of his share in the land and mesne profit from the appellants herein and some other co- defendants, who were in possession of the entire land, in addition to payment of compensation. The trial court dismissed the aforesaid suit of respondent No.1/plaintiff as not maintainable, vide judgment dated 28.12.1960. Aggrieved by the aforesaid dismissal order, respondent No.1/plaintiff preferred an appeal in this Court, registered as RFA35-D/1961 entitled "Jaswant Singh Vs. Santokh Singh & Ors.", which was decided by RFA No. 260/1982 & 281/1982 Page 2 of 14 the Division Bench vide judgment dated 19.08.1971. While setting aside the judgment of the trial court, a preliminary decree was passed by the Division Bench in favour of respondent No. 1, for partition of the suit land.
3. By the aforesaid preliminary decree passed in favour of respondent No. 1/plaintiff (appellant in the aforesaid appeal), the Division Bench held that he was entitled to 36 shares out of 124 shares and it was directed that he be given separate possession of the land falling to his share. The matter was remanded back to the trial court for taking further steps for separating the 36 shares of respondent No.1/plaintiff in the aforesaid lands and for passing of a final decree. It is undisputed that the aforesaid preliminary decree dated 19.08.1971 passed in RFA 35-D/1961 was not challenged by any of the parties to the litigation and the same thus attained finality.
4. Pursuant to the preliminary decree dated 19.08.1971, the trial court appointed a Local Commissioner to demarcate the portion of land falling to the share of respondent No.1/plaintiff and to assess the mesne profit payable by each of the defendants. The Local Commissioner took three years to determine the mesne profits and demarcate the portion of land to be given to respondent No.1/plaintiff by recording the evidence of all the concerned parties, making spot visits and local enquiries stretching over a period of three years and finally submitted his report on 25.02.1976. Alongwith his report, spreading to over 53 pages, the Local Commissioner submitted a site plan (Ex.C-1) suggesting the portions to be given to respondent No. 1/plaintiff in accordance with his 36 shares. He also determined the mesne profit payable by different defendants to the RFA No. 260/1982 & 281/1982 Page 3 of 14 respondent No.1/plaintiff for the period ending 31.1.1976, amounting to Rs.87,257/-.
5. Objections were filed against the report of the Local Commissioner by defendants No.1, 2, 3, 3A and 10 on the one hand and defendants No. 7 and 8 on the other hand. In view of the objections filed by the aforesaid parties, vide order dated 06.09.1979, the trial court ordered that the plan prepared by the Local Commissioner be compared with the Field Book and another plan was directed to be prepared. Accordingly, the Local Commissioner prepared another site plan (Ex.C-1/A) by taking the assistance of a retired Tehsildar and he reiterated the old report submitted by him earlier. Objections were filed to this report as well. Defendant No. 7 (appellant in RFA 281/1982) and defendant No. 8 had admitted in the course of the suit proceedings that they did not have any objection to the allocation of separate possession of land as demarcated in the site plan Ex.C-1, to be given to respondent No. 1/plaintiff. They however objected to paying any damages to him. As per the report of the Local Commissioner, the defendant No.7 (appellant in RFA No.281/1982) was required to pay mesne profit to the tune of Rs. 14,928/- to the respondent No.1/plaintiff, whereas defendant No. 8 was required to pay him damages of a sum of Rs.3,135/-, from the date of institution of the suit, i.e., from the year 1957 to 31.01.1976.
6. Defendants No. 1, 2, 3, 3A (contesting appellants in RFA 260/1982) and defendant No.10 objected to the report of the Local Commissioner on the ground that the property in question was impartible and could not be partitioned and that, since it was an agricultural land, the RFA No. 260/1982 & 281/1982 Page 4 of 14 Civil Court had no jurisdiction to pass the preliminary decree. The trial court rejected the objections raised by the defendants No. 1, 2, 3, 3A and 10 by holding that a preliminary decree had already been passed by the High Court and the trial court could not go behind the said decree. Further, it was observed that the report of the Local Commissioner suggested that the property was partible. The trial court thus ruled out the objections raised by the aforesaid defendants No. 1, 2, 3, 3A and 10 that the mesne profits had been assessed at a higher rate, by observing that the counsel for the objectors was unable to point out as to how the damages were assessed at a higher rate than that the land or the building would have fetched for the period during which they were in possession.
7. The report of the Local Commissioner was accepted by the trial court. A final decree of possession of the property demarcated as "ABCD" and "EFGH" in the site plan, Ex.C-1 as well as Ex.C-1/A, prepared by the Local Commissioner, was passed. A decree of mesne profits was also passed against the defendants. The LRs of late Shri Santokh Singh were called upon to pay to respondent No.1/plaintiff a sum of Rs.9,591/- as mesne profits upto 31.01.1976. A decree for recovery of Rs.9,987/- was passed as mesne profits payable upto 31.1.1976, by appellant No. 1 in RFA No.260/1982/defendant No. 3A, Shri Mahender Singh. A decree for recovery of Rs.14,928/- as mesne profits payable upto 31.01.1976 was passed against the appellant in RFA NO.281/1982/defendant No.7, Shri Gobind Ram.
8. Insofar as the claim of respondent No. 1/plaintiff for passing a decree of mesne profits from 01.02.1976 till the date of delivery of the RFA No. 260/1982 & 281/1982 Page 5 of 14 possession of the property was concerned, the trial court held that as the delivery of possession of the property demarcated and allocated to the respondent No.1/plaintiff was yet to be made and an enquiry was required to be conducted under the provisions of Order 20 Rule 12 CPC, as to the rate of mesne profit from the date of institution of the suit till the date of delivery of possession to the decree holder, the decree in respect of the said mesne profit could only be passed after holding such an enquiry. Accordingly, a Local Commissioner was appointed to make an enquiry and find out the mesne profit payable by each of the defendants from 01.02.1976, till delivery of possession of the demarcated property to the respondent No.1/plaintiff.
9. Aggrieved by the aforesaid judgment and decree dated 09.08.1982, the present appeals were filed. RFA 260/1982 was filed by 10 appellants. While appellants No. 1 to 7 are the legal heirs of late Shri Santokh Singh (defendant No. 1 in the trial court), appellant No.1(defendant No.3A) has also instituted the present appeal in his own right and as the legal heir of the deceased defendant No.1. Appellant No. 8 (defendant No.
2), appellant No. 9 (defendant No. 3) and appellant No. 10 (defendant No. 10A) have also filed the present appeal. However, counsel for the appellants states that he is appearing only for appellant No. 1 now as the appellants No. 7, 8 and 9 have expired and their legal heirs have not bothered to contact him. It may be relevant to note that as the appellants No.2 & 10 did not appear in the appeal proceedings, the appeal qua them was dismissed, vide order dated 29.11.2002. The said order also noted that appellants No.8 & 9 had expired but their legal heirs were not brought on RFA No. 260/1982 & 281/1982 Page 6 of 14 the record and therefore the appeal qua them was dismissed as having abated. RFA 281/1982 has been instituted by Shri Gobind Ram (defendant No. 7 in the suit proceedings). Shri Gobind Ram expired during the pendency of the present appeal and his sole legal heir, Sh.Gulzari Lal Wadhwa was brought on the record and an amended memo of parties was filed.
10. The appellants in RFA 260/1982 have assailed the impugned judgment and decree on the ground that there was no question of demarcation of the land as respondent No. 1/plaintiff had claimed that he had possession of the land in question. Learned counsel for the appellants Mr. Ramesh Chandra, Sr. Advocate urges that the trial court ought to have rejected the report of the Local Commissioner as respondent No. 1/plaintiff was already in possession of 1100 square yards of land, which he had claimed in the suit proceedings. In support of the said submission, he draws the attention of this Court to para 2 of the amended plaint wherein, respondent No. 1/plaintiff in the suit had stated as below:-
"2. That in pursuance of the sale in favour of the plaintiff, he obtained actual and constructive possession of the same and since then is in possession in his own right as an owner."
11. The aforesaid submission made on behalf of the appellants is falsified by their own stand as taken by them in their written statement. In the corresponding para of their written statement, they stated as below:-
"2. Para 2 of the plaint is denied. Plaintiff has never been in possession of any land in Khasra No. 333/40 referred to by him, nor does the plaintiff now possess any 1100 sq. yds. in the said Khasra, nor does he possess any part thereof."RFA No. 260/1982 & 281/1982 Page 7 of 14
12. Similarly, in para 2 of their preliminary objections, the appellants/defendants No.1 to 3 in the trial court, stated as below:-
"2. Plaintiff is not in possession of the land in suit and in particular over the land purchased by these defendants. Suit as framed is not maintainable and is barred by proviso to Section 42 Specific Relief Act."
13. In view of the aforesaid clear, categorical and unequivocal denial on the part of the appellants that respondent No.1/plaintiff was never in possession of the suit land, they cannot be permitted to change their stand which is at complete variance to their averments in the written statement. It does not lie in their mouth to allege at this belated stage that respondent No.1/plaintiff could not claim demarcation in the suit proceedings as he was in possession of the land in question. Doctrine of approbation and reprobation is applicable against the appellants. The aforesaid argument is held to be devoid of merits and is rejected.
14. The other ground taken to assail the report of the Local Commissioner is that respondent No.1/plaintiff is entitled to claim a total sum of Rs.47,500/- only as mesne profit. In support of the said submission, counsel for the appellants draws the attention of this Court to ground No.9 taken in the Grounds of Appeal. In the aforesaid ground, it is stated on behalf of the appellants that the counsel for respondent No. 1 had made a statement on 31.01.1979, restricting the total payment of mesne profits to a maximum sum of Rs.43,500/-. Repeated requests have been made to the counsel for the appellants to show the relevant statement made on behalf of respondent No. 1/plaintiff. However, he has not been able to point out the RFA No. 260/1982 & 281/1982 Page 8 of 14 said statement either from the appeal paper book or from the trial court record. In the absence of any document to establish that such a statement was made on behalf of respondent No. 1/plaintiff before the trial court on 31.1.1979, this Court has no option but to turn down the aforesaid objection.
15. It is next urged on behalf of the appellants that the mesne profits ought to have been fixed by the Local Commissioner only for the open space and not for the constructed portion. It is stated that such a submission was made before the Local Commissioner, but was not taken into consideration. A perusal of the report of the Local Commissioner belies the said stand. There is a detailed discussion in that regard in para 50 of the said report wherein, after taking into consideration the objection raised by the objectors/appellants, the Local Commissioner turned the same down by holding that the suit was filed by the respondent No.1/plaintiff in the year 1957 and the entire construction on the land was made by the defendants after the said date and that if a co-sharer makes construction of his own free will and accord and without the express consent of the other co-sharer on the common land, there is risk of the other co-sharer demanding partition of the property constructed by him and in such case, such a party would also be entitled to rents and other realizations from constructions carried out on the common land. This Court finds no reason to differ with the view expressed by the Local Commissioner in his report. Pertinently, the said plea does not appear to have been raised by the appellants before the trial court, as no mention is made in the impugned judgment of such an objection taken on the part of the appellants. Rather, the only ground taken before RFA No. 260/1982 & 281/1982 Page 9 of 14 the trial court was with regard to mesne profit and the plea that the amount assessed as damages was on the higher side, which was duly considered and rejected.
16. Lastly, it is urged by the counsel for the appellants that while assessing the damages, the property tax and other expenses incurred by the appellants on the built up portion ought to have been excluded by the Local Commissioner. Upon being asked as to whether the said objection was taken by the appellants before the Trial Court, the reply is in the negative. The appellants cannot be permitted to urge a ground to assail the impugned judgment, which was never taken by them while arguing the objections taken by them to the report of the Local Commissioner, before the trial court.
17. In so far as Mr. Govind Ram, defendant No. 7 in the trial court, appellant in RFA No.281/82 is concerned, it is pertinent to note that in para 5 of the impugned judgment, a statement was made by his counsel on his behalf and on behalf of defendant No. 8 that they had no objection to the allocation of separate possession of the land demarcated by mark "ABCD" & "EFGH", to the respondent No.1/plaintiff and that his objection was that his clients should not be asked to pay any damages. The Local Commissioner had assessed the mesne profits of Rs.14,928/- as payable by the appellant, from the date of institution of the suit, i.e., from the year 1957 to 31.1.1976.
18. The other objection taken on behalf of the appellant/defendant No.7 was that as he was not in possession of any part of the suit property, his clients could not be asked to pay any mesne profits. The said submission RFA No. 260/1982 & 281/1982 Page 10 of 14 was duly taken note of by the trial court and it was recorded that when the appellant/defendant No.7 and defendant No.8, Sh Mool Chand Mistry as also their counsel were called upon to give a statement to the effect that they were not in possession of any part of the suit property at any time, so that they may not claim any part of the land, out of which the respondent No.1/plaintiff had been given the demarcated portion in accordance with his share, the aforesaid defendants declined to do so. The trial court rightly observed that it was clear from the demeanour of the aforesaid parties that they were in possession of the suit property and that their objection that they were not in possession of any part of the total land, out of which respondent No.1/plaintiff had been allocated the demarcated land, was frivolous. The learned ADJ was justified in overruling the objections raised by the appellant/defendant No.7 to the report of the Local Commissioner. Had the appellant/defendant No. 7 genuinely not been in possession of any part of the suit property, he ought to have agreed to make a statement to the said effect before the trial court. Having declined to do so, the trial court cannot be faulted in drawing an adverse inference against him.
19. Mr. H.S. Dhir, counsel for the appellant/defendant No.7 submits that the trial court ought not to have accepted the recommendations of the Local Commissioner for assessment of the mesne profits particularly since the area was in their personal occupation and was never let out and hence, there was no question of their being called upon to pay any mesne profits. The aforesaid objection was also taken by the appellant along with other defendants before the Local Commissioner. The Local Commissioner, in para 49 of his report, had categorically mentioned the details of the tenants of RFA No. 260/1982 & 281/1982 Page 11 of 14 appellant/defendant No. 7 and the respective rents received and had very well assessed the reasonable rate of rent that the particular portion would fetch. Though it was contended that mesne profit in this case should be assessed only in respect of the land and not the building thereof, the Local Commissioner observed that in case of co-sharers, rents and other realizations have to be accounted for, and that if a co-sharer makes construction of his free will and accord and without the express consent of the other co-sharer on the common land, he runs the risk of the other co- sharers demanding partition and the property constructed by him going to the share of the other co-sharer. It was also observed by the Local Commissioner in para 56 of his report that when a co-sharer himself carries out improvements on the common land during the pendency of a suit, he does so at his own peril and even if the construction is made within the knowledge of the co-sharer, it does not alter the legal position. Fact remains that the appellants were in occupation of portion of the land to which the respondent No.1/plaintiff was entitled and that they had carried out constructions in the said portion which they were enjoying. Having constructed on common land and enjoyed possession thereof to the exclusion of the respondent No.1/plaintiff, the latter was entitled to being compensated monetarily as well. This Court therefore concurs with the decision of the trial court, which ruled out the aforesaid objection of the appellant.
20. The only other plea raised on behalf of the appellant/defendant No.7 is that the damages assessed by the Local Commissioner were on the higher side. The trial court examined the report of the Local Commissioner RFA No. 260/1982 & 281/1982 Page 12 of 14 and observed that he had assessed the damages on cogent evidence and that they were rather on the lower side. Even in the case of the appellant/defendant No.7 herein, the damages in respect of a particular portion in his occupation was assessed @ Rs.75 p.m., as against @ Rs.125 p.m. claimed by the respondent No.1/plaintiff. As the counsel for the appellant/defendant No.7 has failed to fortify this submission by pointing out the basis on which it is contended that the damages assessed by the Local Commissioner in his report as upheld by the trial court, were on a higher side, the said plea is also turned down. No other ground has been taken by the appellants in both the appeals, to assail the impugned judgment.
21. In view of the aforesaid facts and circumstances, the impugned judgment and decree dated 9.8.1982 are affirmed. The appeals, along with the pending applications are dismissed with costs quantified at Rs.10,000/- in each case.
22. In view of the fact that mesne profits payable by the appellants/defendants in the suit from 01.02.1976, till the delivery of possession of the demarcated property to the respondent No.1/plaintiff have yet to be finalized and an enquiry in that regard has yet to be undertaken despite order dated 22.11.1982 passed in RFA No.260/1982, permitting the Local Commissioner to continue the task of assessing the mesne profits payable by each of the defendants in the suit proceedings from 1.2.1976 onwards, the Registry is directed to release the trial court record forthwith and remit the same to the District Judge, who shall assign the matter to the appropriate court for undertaking further enquiries, in terms of the judgment dated 9.8.1982, and for further proceedings in that regard. Considering the RFA No. 260/1982 & 281/1982 Page 13 of 14 vintage of the present litigation, the trial court is requested to complete the enquiry as expeditiously as possible.
23. The parties are directed to appear before the District Judge, Delhi on 14.12.2009.
(HIMA KOHLI)
NOVEMBER 26, 2009 JUDGE
rkb/mk
RFA No. 260/1982 & 281/1982 Page 14 of 14