Delhi District Court
Dr. Ram Narain (Since Deceased) vs Dera Ismail Khan on 10 December, 2012
IN THE COURT OF SH. SANJAY JINDAL
SCJcumRC (NW) : DISTRICT COURTS
ROHINI : DELHI
Unique ID No. 02404C0155942010
RCA No. 01/10
Dr. Ram Narain (Since deceased)
S/o Late Pt. Jait Ram
2252, Frontier Ayurvedic and Yunani Dawakhana
Aziz Building, Chuna Mandi, Paharganj,
New Delhi110055
(Through his LRs)
........Appellant
Versus
1 Dera Ismail Khan
House Building Cooperative Society
Derawal Nagar,
Delhi110009 (Through its President)
2 Shri Pritam Lal(now deceased)
(Through LR's)
i) Smt. Darshna Devi W/o Late Sh. Pritam Lal
5668, Gali No.2, New Chandrawal,
Subzi Mandi, Delhi110007.
ii) Ms. Parveen Kumari D/o Late Sh. Pritam Lal
R/o : BM101, Shalimar Bagh, Delhi110052.
iii) Shri Rajiv Kumar S/o Late Sh. Pritam Lal
R/o : BM101, Shalimar Bagh, Delhi110052.
RCA No. 01/10 Dr. Rem Narain (deceased) Vs. Dera Ismail Khan 1/10
ii) Ms. Neeraj D/o Late Sh. Pritam Lal
R/o : BM101, Shalimar Bagh, Delhi110052.
3 Ms. Charu D/o Late Shri Prem Prakash
R/o : C42, Kalkaji, New Delhi .......Respondents
Date of Institution of the appeal : 09.04.2010
Date of reserving of the order : 10.12.2012
Date of order : 10.12.2012
O R D E R
10.12.2012
1. This is an appeal against judgment dated 26.02.2010 passed in suit No. 381/06 by Ld. Civil Judge (West02), Delhi thereby dismissing the suit filed by the appellant.
2. The facts as per the case of the appellant/ plaintiff are that Pt. Jait Ram father of the appellant/ plaintiff, Sh. Pritamlal, respondent No.2 and defendants no.3 to 5 migrated to India from Dera Ismail Khan (West Pakistan) along with his family members in the year 1947. A society was formed by the migrants from Dera Ismail Khan under the name and style of Dera Ismail Khan Cooperative House Building Society. As per the bylaws of the said society, the father of the appellant and the respondent no.2 became member of the said RCA No. 01/10 Dr. Rem Narain (deceased) Vs. Dera Ismail Khan 2/10 society in lieu of the properties left in his name in Pakistan and he was the only person entitled to allotment of residential unit in the said society. He used to pay subscription of membership and he expired on 25.01.1969. After his death and in the year 1992, the appellant came to know that some plot i.e., the suit property bearing no. B24, Derawal Colony, Delhi was allotted by the society against the membership of his father and the respondent no.2 in collusion with the officials of the respondent no.1 got the documents of title executed in his name by manipulations in the records and thereafter disposed of the property in favour of the defendant no.6. It is alleged that the sale of the suit property by the respondent no.2 is null and void. A prayer for relief for declaration, mandatory and permanent injunction has been made.
3. The suit was contested by the defendant no.2 who is respondent no.2 herein and all the other defendants were proceeded against ex parte vide different orders. The defendant no.2 took certain preliminary objections in his WS and averred that there had been no jointness between the family members of Late Sh. Jait Ram and everyone was independent and living separately before Partition RCA No. 01/10 Dr. Rem Narain (deceased) Vs. Dera Ismail Khan 3/10 of the country. It is denied that Sh. Jait Ram made any payments to the above mentioned society. It is categorically denied that late Sh. Jait Ram was having membership of the society. It is claimed that he was member of the defendant no.1 Society and the plot in question was allotted to him in January, 1978 and sublease was executed in his name in February, 1980 and he paid all the amounts to the society in respect of the allotment out of his self earnings and savings.
4. Replication was filed by the plaintiff and following issues were framed on 15.02.1999 (should be 04.05.1999) :
i) Whether the suit of the plaintiff has been properly valued for the purpose of Curt fee and jurisdiction? OPP
ii) Whether suit is barred by limitation? OPD
iii) Whether the plaintiff is entitled to equitable relief for permanent injunction, as prayed for? OPP
iv) Whether the plaintiff is entitled for a decree of declaration, as prayed for? OPP
v) Whether the plaintiff is entitled to equitable relief for mandatory injunction? OPP
vi) Relief.
RCA No. 01/10 Dr. Rem Narain (deceased) Vs. Dera Ismail Khan 4/10
5. Vide judgment dated 26.02.2010, the Ld. Trial Court decided the Issue No.1 in favour of the plaintiff and Issues No. 2 to 5 against the plaintiff and the suit was accordingly dismissed.
6. Aggrieved by the said judgment, the plaintiff has preferred the present appeal and challenged the impugned order on various grounds. It is contended that the ld. Trial Court has failed to appreciate the facts of the case and the evidence led by the parties in proper prospective. It is contended that findings given by the Ld. Trial Court are incorrect and the impugned Judgment has failed to appreciate specific allegations/ causes of fraud, fabrication, forgery or falsification of the evidence in respect of the execution of the sale deed executed by the respondent no.2. A reference has been made to the statement of DW1 and it is argued that some vital facts have been admitted by him but the Ld. Trial Court has failed to appreciate the same.
7. Notice of the appeal was sent to the respondents. Names of respondent no.3 to 10 were deleted vide order dated 14.09.2010 in RCA No. 01/10 Dr. Rem Narain (deceased) Vs. Dera Ismail Khan 5/10 view of the fact that they have already expired and they were ex parte during the trial. The respondent no.2 expired during pendency of the appeal and his LR's were brought on record. Subsequently the appellant also expired and his LR's were brought on record. No formal reply has been filed on behalf of any of the respondents.
8. I have heard the counsel for the parties and carefully perused the record in the light of the submissions made before me. Written arguments have also been filed by the appellant.
9. There were total five issues framed in the case. The Ld. Trial court decided the issue no. 1 regarding valuation of the suit in favour of plaintiff, hence, the same is not being discussed herewith. So far as issue no. 2 regarding bar of limitation is concerned the same has been decided against the plaintiff and in favour of defendants. The case of the plaintiff is that he has come to know about allotment of the suit property in the name of defendant no. 2 in the year 1991. The suit has been filed in the year 1993. Although it has come on record that the father of the plaintiff expired in the year 1969 and the suit property was alloted in the name of defendant RCA No. 01/10 Dr. Rem Narain (deceased) Vs. Dera Ismail Khan 6/10 no. 2 in the year 1977/78 but there is nothing on record to show that the plaintiff was aware about such allotment prior to 1991. Admittedly, the plaintiff has not made any inquiry from 1977 to 1991/92 but at the same time, it is also to be kept in mind that there was no such circumstances, which could have made the plaintiff inquire about such allotment. In my opinion, the period from the year 1977 to 1991 can not be imposed on the plaintiff for the purpose of calculation of the period of limitation. Membership of the society is one thing and the allotment of plot is other. Since, the suit has been filed within three years from the date of alleged knowledge of the allotment, it can not be said that the same is barred by limitation. Hence, the finding of issue no. 2 is reversed and the same is now decided in favour of plaintiff and against the defendants.
10. The issue no. 3, 4 & 5 dealt with the entitlement of the plaintiff qua relief of permanent injunction, declaration and mandatory injunction. In this regard, the case of the plaintiff/appellant is that the father of the plaintiff and defendant no. 2 to 5 Late Sh. Jait Ram was the member of defendant no. 1 society and dues of the society were used to be paid out of joint family RCA No. 01/10 Dr. Rem Narain (deceased) Vs. Dera Ismail Khan 7/10 income, so the allotment of suit property in name of defendant no. 2 alone is illegal, null and void. The relief of mandatory and permanent injunction are the consequential relief finding their origin in the relief of declaration. In this regard, the plaintiff has examined PW1, who is a witness from the office of defendant no. 1 society. During his crossexamination, the said witness has categorically deposed that as per the record available with them, Pt. Jait Ram (Father of the plaintiff and defendants no. 2 to 5) has never been a member of group housing society. Similarly, PW2, who is the plaintiff himself, has also failed to bring on record any reliable document or oral information regarding membership of Late Sh. Jait Ram in the defendant no. 1 society. It is clear from testimony of PW2 that he is deposing regarding membership of society on the basis of hearsay without any proof. He has stated that he came to know about the membership (of his father) from the document and that he has seen the document with his father, but he has failed to show any such document. The testimony of PW2 is quite general in nature in respect of other facts as well and there is serious lack of specification, particularly regarding the amount and mode of payment qua membership fees.
RCA No. 01/10 Dr. Rem Narain (deceased) Vs. Dera Ismail Khan 8/10
11. The case of the defendant no. 2 is that most of the family members migrated from Pakistan separately at different times and there was no jointness of the family or family income at the the time of partition. The case of defendant no. 2 is duly corroborated by the facts deposed by the plaintiff himself during his crossexamination. It is clear from his crossexamination that different family members migrated to Delhi at different times and some of them were already in Delhi before partition. The plaintiff himself had come to Delhi in the year 1944 i.e before partition. It is also clear from the record that the different family members were residing separately having their separate sources of lively hood. The plaintiff has miserably failed to connect the allotment of suit property with his father Late Sh. Jait Ram or the joint family income. The allotment of the suit property in the name of defendant no. 2 seems to be quite different and independent fact having no concern with joint family property or Pt. Jait Ram or even the issue of migration/partition. The plaintiff has also failed to show that the suit property was alloted to Pt. Jait Ram in lieu of the property left by him in Pakistan before migration. The plaintiff has further failed to prove that defendant no. 2 was a minor at the time of the allotment of property as RCA No. 01/10 Dr. Rem Narain (deceased) Vs. Dera Ismail Khan 9/10 alleged. There is no evidence to show connivance between officials of defendant no. 1 and defendant no. 2 to the detriment of the plaintiff.
12. In view of above discussions, I am of the view that the plaintiff/appellant has failed to prove a case before the trial court for the relief of declaration, permanent injunction and mandatory injunction as per law and the findings given by the Ld. trial court in issue no. 3, 4 & 5 are correct. In my opinion in view of the outcome of issue no. 3, 4 & 5 the judgment dt. 26.02.2010 does not require any further interference. All the grounds of appeal are found to be devoid of merits in view of above discussion.
13. With these observations, the appeal is disallowed.
TCR be sent back with a copy of this order.
The appeal file be consigned to the Record Room.
Announced in the open Court Today on 10th day of December, 2012.
(SANJAY JINDAL) SCJcumRC(NW)/ROHINI : DELHI RCA No. 01/10 Dr. Rem Narain (deceased) Vs. Dera Ismail Khan 10/10