Delhi District Court
Shri Raj Pal vs Shri Bhupinder Singh on 15 October, 2016
RCA DJ-61644/16
IN THE COURT OF MS DEEPALI SHARMA,
ADDL. DISTRICT JUDGE-14 (CENTRAL):
TIS HAZARI COURTS: DELHI
RCA DJ-61644/16
(old RCA-002/16)
Shri Raj Pal
S/o Shri Nand Singh
R/o RZ-E-236. Nihar Vihar,
New Delhi-110041. Appellant/Plaintif
Versus
Shri Bhupinder Singh,
S/o Shri Raj Singh,
C/o Gyanender,
R/o Vill. & P.O.: Nangli Poona,
Delhi.
........ Respondent/Defendant
Date of Institution of Appeal : 28.01.2016
Date when reserved for Judgment : 01.10.2016
Date of announcement of Judgment : 15.10.2016
JUDGMENT:
1. The instant appeal impugns the the judgment and Decree of the Ld. Civil Judge passed on 28.11.2015 whereby the Ld. Civil Judge dismissed the suit of the Appellant (Plaintif). For the sake of reference/ convenience, Appellant and Respondent are referred to with their suit nomenclature as Plaintif and (Raj Pal v. Bhupinder Singh ) ( Page No. 1 of 17) RCA DJ-61644/16 Defendant respectively.
2. The fulcrum of the instant appeal rests on the following facts:
The Plaintif filed the suit against the Defendant for recovery of possession of Plot No.20/25-15, situated at Village: Nangli Poona, Delhi, admeasuring 210 Sq. Yards (herein-after referred to as the suit property). It is averred that the Plaintif has become owner of the estate of late Smt. Nand Kaur w/o Shri Nand Singh vide the decision dated 23.02.1994 of the Court of the then Ld. District Judge, Delhi in a Probate Case No. 115/90 on the basis of a registered Will.
It is averred that brother of the Plaintif, Shri Tara Chand, had sold the suit property during pendency of probate petition between 1990 to 2005. The Defendant had purchased the complete 210 sq. yards plot for a total consideration of Rs.1,80,000/- from late Shri Tara Chand. The Defendant refused to hand over the possession of 210 sq. yards to Plaintif and did not disclose the news to the Plaintif that he had purchased the complete plot from late Shri Tara Chand in December, 2007. Shri Tara Chand, elder brother of the Plaintif, who was arrayed as Respondent, contested the Probate Petition filed by (Raj Pal v. Bhupinder Singh ) ( Page No. 2 of 17) RCA DJ-61644/16 the Plaintif in the year, 1990. Said Shri Tara Chand expired during pendency of the probate petition in 2004. His legal heirs did not come forward to contest the probate petition. Therefore, the Plaintif was granted Probate in the said petition vide Order dated 10.05.2005 passed by the then Ld. District Judge, Delhi.
It is further averred that said Shri Tara Chand had no right, interest and title to sell suit property to the Defendant. After grant of the Probate on 10.05.2005, the possession of the Defendant is illegal and even during the pendency of the Probate Petition, remained illegal as late Shri Tara Chand had no legal authority to sell the suit property on 21.10.1991 and 04.12.1991.
3. On the other hand, the Defendant in the amended Written Statement filed on 01.06.2011 admitted that the suit property, measuring 90 sq. yards was purchased by the Defendant from late Shri Tara Chand (previous owner, Brother of Plaintif) for a consideration of Rs.60,000/- on 21.10.1991 and remaining 120 sq. yards on 04.12.1991 for a consideration of Rs.1,20,000/-.
4. Defendant further contended that the suit is not maintainable as the Plaintif has no right, title or (Raj Pal v. Bhupinder Singh ) ( Page No. 3 of 17) RCA DJ-61644/16 interest in the suit property . It is averred that it is admitted case of the Plaintif that his father late Shri Nand Singh @ Nandu died intestate in the year, 1981, leaving behind his widow, 2 sons and 4 daughters. Accordingly, under the Hindu Succession Act, all the LRs of late Sh. Nand Singh became co-sharers and had succeeded to the rights, title and interest of their late father. It is further averred that mother of the Plaintif never became a sole owner and thus had no right, title or interest to execute any Will. It is also averred that in the year, 1982, a Family Partition took place and the suit property came to the share of late Shri Tara Chand (previous owner). Even the alleged Will admits the factum of Family Partition. The Defendant submitted that probate of a Will does not decide the title of the property nor it confer any right on the property.
5. In the replication it is submitted that late Shri Nand Singh also owned properties at Sultan Shahi, Hyderabad (A.P.) where late Shri Tara Chand used to live with his family and it was decided by their late father that after his death, Tara Chand would be the owner of the properties at Hyderabad (A.P.). Therefore, their mother was the owner of all the property situated at Delhi and during life time of her husband, late Shri Nand Singh, she executed a Will in (Raj Pal v. Bhupinder Singh ) ( Page No. 4 of 17) RCA DJ-61644/16 respect of the properties at Delhi. It is denied that their mother became co-sharer with other legal heirs of late Shri Nand Singh after his death. It is further denied that Probate of a Will does not decide the question of the title of the property.
6. On the basis of pleadings and documents, following issues were framed by the Ld. Civil Judge with the matter:
(1) Whether the the Plaintif is entitled for the relief as prayed in the suit ? OPP. (2) Whether the suit is barred by Limitation ? OPD.
(3) Whether the sufficient court fee is not paid ? OPD.
(4) Whether this Court has pecuniary jurisdiction in the present suit ? OPD (sic. OPP).
(5) Whether the Plaintif e Plaintif (sic. Plaint) is hit by Section 34 of Specific Relief Act ? OPD.
(6) Relief.
7. In order to prove its case, the Plaintif entered the Witness Box as PW1 and tendered his evidence by way of affidavit Ex.P1. He has relied upon the documents i.e. site plan Ex.PW1/1; certified copy of (Raj Pal v. Bhupinder Singh ) ( Page No. 5 of 17) RCA DJ-61644/16 the judgment/ ordersheets in the petition U/s 263 of Indian Succession Act for Revocation of Probate/ Letter of Administration (colly.) Ex.PW1/2; Certified copy of the Will dated 13.03.1989 purported to be executed by late Smt. Nand Kaur Ex.PW1/3; Certified copy of Letters of Administration dated 23.02.1994 (colly.); Certified copy of SCHEDULE 'A' of the property; and copy of Karyawahi register in respect of village Nangli Poona, Delhi Ex.PW1/6. Thereafter, the Plaintif closed its evidence.
8. On the other hand, Defendant appeared as DW1 and tendered his affidavit in evidence Ex.DW1/A. He has relied upon the documents viz. original General Power of Attorney, original Agreement to Sale, Original Affidavit, original Money Receipt all dated 21.10.1991, Ex.DW1/1 to Ex.DW1/4 respectively. He has also relied upon the original handwritten money receipt dated 04.12.1991, Ex.DW1/5, all stated to have been executed in his favour by Shri Tara Chand s/o Shri Nandu.
9. Defendant has also produced Shri Davinder Singh as DW-2 who was a witnesses to the execution of documents of sale and purchase between Raj Pal and Bhupinder Singh.
10. Shri Gyandeep Singh was examined as DW3 who (Raj Pal v. Bhupinder Singh ) ( Page No. 6 of 17) RCA DJ-61644/16 was a witness to the sale-purchase dated 21.10.1991 and 04.12.1991 which took place between Shri Tara Chand and Bhupender Singh.
11. Arguments heard and record perused.
12. The suit was dismissed by the Ld. Civil Judge who held that the Probate Court does not decide any question of title or of the existence of the property itself and accordingly, it cannot be said that the Plaintif got ownership/ title in the suit property by way of probate which was granted in its favour. Ld. Civil Judge has also made clear that the right, title or interest of the Plaintif over the suit property was under cloud and he chooses to file simple suit for possession without seeking declaration with respect to the right, title or interest over the suit property. Ld. Civil Judge has further held that the averments of the Plaintif in the plaint, amended plaint, replication evidence by way of affidavit and cross-examination are marred with material contradictions which raises some serious doubt over veracity of the Plaintif.
13. The Appellant has assailed the impugned judgment on the ground that issue no. 1 and 5 have been erroneously decided against the Plaintif (the Plaintif has referred to issue no. 5 as issue no. 4 and has assailed the finding thereon, however, on reading of (Raj Pal v. Bhupinder Singh ) ( Page No. 7 of 17) RCA DJ-61644/16 the Appeal, it is revealed that in essence the Plaintif has impugned the findings on issue no. 5 and not 4 as has been erroneously referred to in the Appeal).
14. Issue No.1 "Whether the Plaintif is entitled to the relief as prayed in the suit ? OPP."
15. The Appellant/Plaintif has filed the instant suit seeking a decree of possession in favour of the Plaintif in respect of the suit property. The Appellant/Plaintif has sought mesne profits with respect to 100 sq. yards of the suit property. It is pleaded that the Plaintif became the owner of the properties of his mother, Late Smt. Nand Kaur, w/o Sh Nanad Singh by virtue of the Will executed by his mother, the Probate of which was granted in his favour. In its written statement, the Respondent /Defendant has averred that the father of Appellant/Plaintif Sh. Nand Singh died intestate in the year 1981 and therefore all the legal heirs of Sh. Nand Singh became co-shareres and succeeded to the right, title and interest of their late father. It is therefore, pleaded that the mother of the Appellant/Plaintif never became the sole owner and had no right to execute the Will relied on by the Appellant/Plaintif to claim title to the suit property. In its replication, the (Raj Pal v. Bhupinder Singh ) ( Page No. 8 of 17) RCA DJ-61644/16 Appellant/Plaintif not denied the factum that the father of the Appellant/Plaintif died intestate. It is pleaded that it was decided by late father that Tara Chand, brother of the Appellant/Plaintif from whom the Respondent/ Defendant purchased the property would be the owner of all the properties at Hyderabad after his father's death. It is pleaded that therefore, the mother was owner of all the properties at Delhi even during the lifetime of her husband Sh. Nand Singh and since the mother executed a Will in favour of the Appellant/Plaintif with respect to properties at Delhi and therefore, the Appellant/Plaintif is the owner of the suit property.
16. The Will dated 13.3.1989 executed by the mother of the Plaintif Ex PW1/3 records that she became the sole owner of the immovable and movable property of her deceased husband after his demise and by the said Will the suit property was bequeathed upon the Plaintif. The said Will also records that since the matter is already settled and decided after the death of her husband, therefore, her elder son Tara Chand will not have any claim in the immovable properties situated at Delhi. These contents reflect that there was a settlement entered between the parties as regards the immovable properties.
(Raj Pal v. Bhupinder Singh ) ( Page No. 9 of 17) RCA DJ-61644/16
17. PW-1 has deposed that Sh. Nand Singh never executed any Will, Sale Deed, Gift Deed or any such document of his property in favour of his mother. It is therefore an admitted position on record that Sh. Nand Singh father of Appellant/Plaintif died intestate. PW- 1 has also stated that the after the death of their father, partition of the property took place between his mother, his brother and Appellant/Plaintif and it was a verbal partition. PW-1 has also deposed that the suit property in Delhi came to his share pursuant to the said partition. Accordingly, it is evident from above that the Appellant/Plaintif has contradicted the plea taken in the plaint that he got the suit property by virtue of the Will executed by his mother whereas in its deposition PW-1 has stated that he got the suit property pursuant to a partition that took place between his mother, elder brother and he himself.
18. It has nowhere been brought on record that the mother was given the suit property by virtue of any document in her favour by the father. The Plaintif has himself deposed that he got the suit property at the time of partition that took place between his mother, elder brother and the Plaintif himself. Accordingly, it is evident from the testimony of PW-1 and also the documents on record that mother was never the (Raj Pal v. Bhupinder Singh ) ( Page No. 10 of 17) RCA DJ-61644/16 owner of the suit property enabling her to execute a Will in favour of the Plaintif in as much as neither she received the suit property by way of any document executed in her favour by Sh. Nand Singh, father of the Plaintif nor by virtue of the partition that took place between Plaintif, his brother and his mother (by virtue of which the Plaintif is claiming to have become the owner).
19. It is also note worthy that on the demise of Hindu male the succession is governed by Section 6 and 8 of Hindu Succession Act as per which the wife and the sons would have equal shares in the property, being his class- I heirs. Therefore, Appellant/Plaintif , his brother and mother would be entitled to equal share in the suit property on the demise of Sh Nand Singh.
20. The Plaintif has pleaded in the plaint that it became the owner of the suit property by virtue of the Will executed by his mother and the said Will has been probated in favour of the Plaintif by the competent court. However, in absence of any title to the suit property the mother was not competent to execute the Will in respect of suit property.
21. It is also a settled law that a probate petition does not decide any question of title or of the existence of the property itself and it does no more than establish (Raj Pal v. Bhupinder Singh ) ( Page No. 11 of 17) RCA DJ-61644/16 the factum of the Will and the legal character of the executor (Kanwaljeet Singh Dhillon v. Hardayal Singh Dhillon & Ors., AIR 2008 SC 306 referred to). Accordingly, the Plaintif cannot claim ownership/title to the suit property on the basis of probate granted in its favour owing to the fact that the mother of the Plaintif did not have the title to the suit property to enable her to execute the Will in favour of the Plaintif.
22. The deposition of PW-1 that it got the suit property pursuant to the partition that took place between him, his mother and his brother is dehors his averments in the plaint and contrary to his pleading that the property was bequeathed upon him by virtue of the Will executed by his mother. Accordingly, the testimony of PW-1 being contradictory to his averments in the plaint is not reliable and therefore, the contention of the Plaintif that he became the owner of the suit property by virtue of the partition that took place between him, his mother and his brother is not acceptable.
23. The Plaintif is, therefore, not entitled to possession of the suit property, as prayed. Issue no. 1 is accordingly, decided against the plaintif. I concur with the finding of the Ld. Trial Court on said issue.
(Raj Pal v. Bhupinder Singh ) ( Page No. 12 of 17) RCA DJ-61644/16
24. Issue no. 5 "Whether the Plaint is hit by Section 34 of Specific Relief Act ? OPD."
25. In view of the discussion in issue no 1 hereinabove, it is evident that the Defendant raised a cloud over the title of the plaintif over the suit property which was based upon the Will executed by Late Smt. Nand Kaur. It was further asserted by the Defendant that after the demise of Late Sh. Nand Singh i.e. husband of late Smt. Nand Kaur, all his legal heirs became co-sharers and succeeded to right, title and interest of their father. It is also averred that in the year 1982 a family partition took place and the suit property came to share of Sh. Tara Chand, brother of the Plaintif, from whom the Defendant purchased the suit property. In such circumstances, it is pleaded that the Plaintif is not the owner of the suit property in as much as the title of the suit property never devolved upon late Smt. Nand Kaur who executed the Will in respect of the suit property. Accordingly, it is manifest that the the Defendants disputed the title of the Plaintif qua the suit property based on the decision in the Probate case on 23.02.1994.
26. In the regard, the judgment of Hon'ble Supreme Court in the matter of "Anathula Sudharkar v.
(Raj Pal v. Bhupinder Singh ) ( Page No. 13 of 17) RCA DJ-61644/16 P.Buchi Reddy, AIR 2008, SCC 594" is referred to wherein in para-21, the Hon'ble Supreme Court has held as follows:
"To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over the plaintiff's title and he does not have possession , a suit for declaration and possession, with or without a consequential injunction, is the remedy.
Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.(emphasis supplied).
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c)But a finding on title cannot be recorded (Raj Pal v. Bhupinder Singh ) ( Page No. 14 of 17) RCA DJ-61644/16 in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a (Raj Pal v. Bhupinder Singh ) ( Page No. 15 of 17) RCA DJ-61644/16 more comprehensive declaratory suit, depending upon the facts of the case."
27. Accordingly, it emerges from the above that where the Plaintif is not in possession and a cloud is raised over the Plaintif's title, a suit for declaration and possession with or without a consequential injunction is the remedy. the Hon'ble Supreme Court has further clarified that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintif's title raises a cloud on the title of the plaintif to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration is the remedy to remove the cloud on the title to the property.
28. In the present case, the Plaintif has asserted that the Defendant is in the possession of the suit property and a cloud over the title of the Plaintif has been raised by the Defendant as the mother of the Plaintif was not the owner of the suit property. In such circumstances, since the title of the mother qua the suit property was disputed therefore, it is asserted that she could not have executed any Will in respect thereof in favour of the Plaintif. The said facts were (Raj Pal v. Bhupinder Singh ) ( Page No. 16 of 17) RCA DJ-61644/16 pleaded by the Defendant in the written statement, however, despite the aforesaid the Plaintif did not seek declaration qua the suit property in its favour, therefore, in light of the decision of the Hon'ble Supreme Court, the instant suit simplicitor seeking possession without seeking any declaration as to title is not maintainable.
29. Issue no. 5 is accordingly decided against the Appellant/Plaintif. I concur with the finding of the Ld. Trial court.
30. In view of the aforesaid, I do not find any infirmity or illegality in the judgment of Ld Trial Court below. The present Appeal filed against the impugned judgment is devoid of merit and hence same is hereby dismissed.
31. Parties are left to bear their own costs.
32. Let copy of the Judgment be transmitted to the Ld. Trial Court below/ its successor Court for intimation along with Trial Court Record.
File of appeal be consigned to Record Room after due compliance.
Announced in open court on 15.10.2016 (DEEPALI SHARMA) Addl.District Judge-14 (Central):
Tis Hazari Courts, Delhi.
(Raj Pal v. Bhupinder Singh ) ( Page No. 17 of 17)