Delhi District Court
Sh.Hari Singh vs Sh. Shiv Charan on 1 October, 2008
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IN THE COURT OF SH. DAYA PRAKASH :
ADDITIONAL DISTRICT JUDGE : DELHI
RCA No.1/2007
Sh.Hari Singh
s/o. Late Sh. Hira Lal
r/o.Pucca House Tin Shade
Near House no.57-A, DDA Flats
Mata Sundari Road, New Delhi-2.
...Appellant
VERSUS
1. Sh. Shiv Charan
s/o. Late Sh.Hira Lal
2. Sh.Nand Kishore
s/o. Late Sh.Hira Lal
(a)Smt.Saroj, w/o.Late Nand Kishore, (widow)
(b)Sh.Nitin Kumar, s/o.Late Nand Kishore, (son)
(c)Kumari Jyoti Rani, d/o.Late Nand Kishore, (daughter)
(d)Kumari Pooja Rani, d/o.Late Nand Kishore, (daughter)
b,c,d,e minors, through their natural guardian Smt. Saroj
3. Sh.Raj Kumar, s/o. Late Sh.Hiral Lal
4. Sh.Daryal Lal, s/o. Late Sh.Hiral Lal
all residents of Pucca House tin Shade
Near H. No.57-A, DDA Flats,
Mata Sundari Road, New Delhi-2.
...Respondents
Date of Institution of the Appeal : 09.01.2007
Date on which the judgment has been reserved: 26.08.2008
Date of delivery of judgment: 01.10.2008
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JUDGMENT
1. This appeal is directed against the judgment/decree dt.04.12.2006 passed by the Ld. Civil Judge by which the Ld. Civil Judge on the basis of findings given on issues no.1, 3 and 4 had decreed the suit filed by the plaintiffs/respondents against the defendant/appellant.
2. Aggrieved by the judgment/decree of the Ld. Civil Judge dt.04.12.2006 the appellant/defendant has preferred the present appeal.
3. Facts relevant for the disposal of the appeal are that:-
a) Respondents/plaintiffs had filed the suit for permanent injunction, declaration and partition against the defendant/ appellant claiming themselves to be permanent resident and to be absolute and exclusive owners of Pucca House Tin Shade, Near House no.57-B, DDA Flats, Mata Sundari Road, New Delhi-2 since 1975. It is stated that in the year 1970, when the father of plaintiffs 2/17 //3// and defendant died, defendant become the Karta/Manager of HUF.
It is further stated that in the year 1975, the defendant had taken Rs.1,00,000/- cash and all ornaments from plaintiffs and handed over the peaceful possession to the plaintiffs of the suit property and since then the defendant has no right, interest, claims etc. in the suit property. It is stated that suit property was alloted on account of rehabilitation scheme, when the house at Sheesh Mahal, Near Delite Cinema was demolished by the Govt./DDA and the receipts were issued/given only by the name of defendant as the father of parties had died in 1970. Since the defendant attempted to dispossess the plaintiffs from the suit property, the present suit was filed.
b) On the other hand defendant submitted that plaintiffs have no locus standi to file the present suit. Defendant further submitted that plaintiffs were allowed by the defendant to use the premises as a licensee being brother, otherwise they do not have any right, title or interest in the suit property and thus, defendant is 3/17 //4// alone the owner of the suit property as it was alloted by DDA. Defendant submitted that whole of the amount was paid by the defendant and plaintiffs are residing in the suit property just as licensee. Defendant denied that after the death of father of the parties, any ornaments were given to him.
c) After completion of pleadings following issues were framed by the Ld. Civil Judge:-
1. Whether the suit is maintainable as presented?OPP
2. Whether the plaintiff is entitled for the relief of declaration as prayed for?OPP
3. Whether the plaintiff is entitled for the relief of partition as prayed for? OPP
4. Whether the plaintiff is entitled for the relief of injunction as prayed for?OPP
5. Relief.
d) In the evidence, plaintiffs examined Sh.Shiv Charan as PW1; Smt. Saroj as PW2; Sh.Raj Kumar as PW3, Sh.Daryai Lal as 4/17 //5// PW4; Sh.Kalu Ram as PW5, Smt. Chandra Kala as PW6 and Smt.Heera Devi as PW7. The defendant cross examined only PW5, PW6 and PW7 and thereafter, defendant was proceeded exparte vide order dt.28.02.2006.
e) The Ld. Civil Judge vide judgment/decree dt.04.12.2006, decided issue no.1 in favour of the plaintiffs and against the defendant on the grounds that suit is properly valued as far as suit for declaration is concerned as plaintiffs are in possession of the suit property; that the suit is also properly valued as far as relief of injunction is concerned and that no such question was asked regarding this issue by the defendant during the cross examination of PW's.
The Ld. Civil Judge decided issues no.3 & 4 in favour of the plaintiffs and against the defendant and issue no.2 against the plaintiffs on the grounds that it is proved by the pleadings as well as from the admission of defendant that plaintiffs are residing in the suit property; that no cross examination was done on PW1 to 5/17 //6// PW4 to this aspect and hence this aspect has gone unrebutted; that the deposition of PW1 to PW4 to the effect that the suit property is a partiable property in which they have 4/5th share also goes unrebutted; that defendant failed to led any evidence to prove that he is owner of the suit property; that the suggestion which was put by defendant to PW7 that ''it is correct that defendant is also co-owner of the suit property'' clearly shows that defendant re-siding from his stand of absolute ownership to that of co-ownership qua the suit property; that the factum of giving of certain amount and gold ornaments in lieu of suit property has not been established by the plaintiffs; that the plaintiffs proved from the pleadings as well as from the evidence the fact that they are entitled for partition of the property in 5 equal shares and that the fact of dispossession on behalf of defendant qua the suit property goes unrebutted.
On the basis of findings given on all issues, the Ld. Civil Judge vide judgment/decree dt.04.12.2006 dismissed the suit of the plaintiffs for declaration holding that defendant was given 6/17 //7// Rs.1,00,000/- and other gold ornaments qua his share in the suit property. The Ld.Civil Judge decreed the suit of plaintiffs restraining the defendants permanently from dispossessing the plaintiffs except through due process of law. The Ld. Civil Judge also decreed the suit of plaintiff for partition whereby each of the plaintiffs and defendant is declared co-owner of 1/5th share of the suit property.
4. On the receipt of appeal, summons were directed to serve upon the respondents. The respondents refused to accept the summons sent through RC as well as by Process Server and they also prevented the Process Server from affixing the summons, hence vide order dt.10.04.2007, respondents declared served and proceeded exparte.
5. Accordingly, arguments on behalf of appellant heard.
6. In the arguments advocate of appellant argued that 7/17 //8// plaint is not signed by plaintiff no.1 and is stated to have been signed by Smt.Saroj. It is submitted that no document has been produced to show that plaintiff no.2 Sh.Nand Kishore was mentally retarded and no application was filed u/o.32 Rule 15 for appointment of a guardian of plaintiff no.2. Hence, it is argued that in the absence of an order u/o.32 Rule 15 CPC, Smt.Saroj had no locus standi to file the suit and the suit is bad for mis joinder and non joinder of parties. It is further argued that even after the death of plaintiff no.2, his children who were minors were impleaded as LR's, however no application for appointment of guardian was filed nor the statutory declaration was given. Hence, in the absence of same, the suit was not maintainable and liable to be dismissed. It is further argued that Ld. Civil Judge failed to appreciate that even otherwise the suit was bad for mis joinder and non joinder of parties as the plaintiffs themselves state in their plaint that Late Sh.Hira Lal left behind one daughter Smt.Omwati has not been made a party to the suit. Hence, it is argued that a suit for partition and declaration without impleading all the legal heirs is not 8/17 //9// maintainable.
It is stated by advocate of appellant that before decreeing the suit of plaintiff for partition, the Ld. Civil Judge should first determine as to who is the owner of the property while no issue with respect to ownership has been framed by the Ld. Trial Court. It is submitted that without framing an issue no evidence can be led and in the absence of an issue having been framed no finding could have been given on the same. Hence it is stated that the impugned judgment/decree in the absence of finding on that particular issue is not sustainable in the eyes of law and is liable to be set aside.
It is further stated that suit property is alloted in the name of the appellant and this fact is admitted by the plaintiffs in the plaint. Hence, it is argued by the advocate of appellant/ defendant that since the suit property was taken benami in the name of defendant/appellant, the same is directly hit by Section 4 of the Benami Transaction (Prohibition) Act, 1988 and accordingly, suit of plaintiffs be dismissed.
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//10// It is further argued that the relief of declaration as sought by plaintiffs was barred by limitation as plaintiffs themselves have asserted that they became the owners of the suit property in the year 1975 and suit property was alloted in the name of defendant in the year 1975. Hence, filing of the suit in the year 2000 was hopelessly time barred.
It is stated that Ld. Trial Court erred in passing the decree of partition without ascertaining as to on what basis the plaintiffs were entitled for partition. No issue was framed on the dispute as to whether the property was HUF property or not. Accordingly, it is stated by the advocate of appellant that since no issue was framed no finding has been given that the property is the HUF property and hence, no decree of partition could be passed. It is further argued that Ld. Trial Court passed the decree of partition only on the ground that plaintiffs were residing in the suit property without considering that residence can be on account of various reasons and the same does not create title to the property.
It is stated that Ld. Trial Court erred in deciding the suit 10/17 //11// in favour of plaintiffs only on the ground that a suggestion was given to one of PW's that defendant is also a co-owner of the suit property. It is submitted that giving of a wrong suggestion or a wrong recording of suggestion will not create a title where none exists.
It is further stated that when plaintiffs themselves admit that allotment is in the name of defendant and the documentation is in the name of defendant, then any oral evidence which is contrary to documentary evidence is not admissible in evidence and is hit by Section 58 of the Indian Evidence Act.
Accordingly, it is prayed by the advocate of appellant/defendant that the impugned judgment/decree dt.04.12.2006 passed by the Ld. Civil Judge be set aside and the suit of plaintiffs/respondents be dismissed.
During the course of arguments advocate of appellant cited AIR 2007 SUPREME COURT 2191 and AIR 1992 SUPREME COURT 885.
7. I have seen the trial court records, all documents, 11/17 //12// grounds of appeal, citations filed by the appellant and the impugned judgment/decree and feel that there is no infirmity in the judgment/decree dt.04.12.2006 of the Ld. Civil Judge and appeal of the appellant deserves to be dismissed on the following grounds:
firstly, the first issue "Whether the suit is maintainable as presented?", was framed on a preliminary objection taken by the defendant that the suit is not maintainable in law or facts. However more than this no fact was given by the defendant/appellant. During the course of the trial, defendant has further not elaborated as to under which law on what facts the suit is not maintainable. All suits are usually presumed to be maintainable except whether it is demonstratively not maintainable or the objection was taken by defendant and proved. The Ld. Civil Judge noted that the defendant is in possession and seeking declaration or partition and then came to conclusion that the suit is maintainable. It was further noted that defendant has not brought any fact on record showing that the suit is not maintainable. By 12/17 //13// plaintiff's evidence as per Ld. Civil Judge shows that the suit is maintainable.
Secondly, it is argued during the course of arguments by advocate of appellant that the suit is hit by Benami Transaction (Prohibition) Act, 1988 as the suit property was alloted by the DDA in the name of Sh.Hari Singh. It is a fact that the suit property was alloted by DDA to Sh.Hari Singh however, plaintiff had established during course of trial that earlier plaintiff's father used to reside at Sheesh Mahal, Near Delite Cinema, Daryaganj from where they were evicted and in lieu of that DDA alloted the present house no.57-B, DDA Flats, Mata Sundari Road, New Delhi-2. Since all persons were residing there and at that time Sh.Heera Lal was the head of the family and after that Sh.Hari Singh being senior person was alloted. The suit property was allotted in lieu of the residence at Sheesh Mahal, Near Delite Cinema, Daryaganj. I feel that plaintiff during the trial sufficiently established this fact. So far as the ground that the suit is hit by Benami Transaction (Prohibition) 13/17 //14// Act, 1988 is concerned when defendant/appellant himself admitted the suit property to be joint then the suit shall not be hit by the Benami Transaction (Prohibition) Act, 1988. The Ld. Civil Judge noted this fact when advocate of defendant/appellant gave the suggestion to PW Heera Devi that "it is correct that defendant is also co owner of the suit property" and this suggestion itself shows that the defendant/appellant admits the suit property is co owned by all L.R's.of Late Sh.Hira Lal . Under Section 17 of Indian Evidence Act admission goes against the maker and this statement goes against the defendant/appellant. Hence the suit is not hit by Benami Transaction (Prohibition) Act, 1988.
Thirdly, appellant in the appeal has also argued that the suit is hit by limitation, still the Ld.Trial Court decreed the suit. It is well established that the suits for partition are never time barred. Till the property is partitioned, the cause of action remains and subsists. Even in a remote case where the suit was dismissed again the suit of partition can be filed as cause of action continues 14/17 //15// till the partition of the suit property.
Fourthly, advocate of appellant has further argued that no guardian u/s.32 was appointed to plaintiff no.2 Nand Kishore and Smt.Saroj continues to sue on behalf of Nand Kishore. Perusal of the file shows that Nand Kishore alleged to be mentally retarded and the suit on behalf of mentally retarded person can always filed by next friend and who else can be next friend better then wife.
Fifthly, Advocate of appellant further argued that the suit was finally decided while in the suit for partition usually the preliminary decree is passed but that is usually the court does merely because the court decided the share of the party and also declared his share that does not mean that the suit was wrongly decided.
Sixthly, advocate of appellant further argued that no 15/17 //16// issue with respect to the ownership was framed. I do not think that is necessary. The suit property was allotted in the name of Hari Singh in lieu of their residence at Sheesh Mahal, Near Delite Cinema, Daryaganj and appellant has himself admitted that the suit property is joint. There was no need for any issue nor the decision nor the judgment is fatal on this point.
Sevently, advocate of appellant further argued that so far as relief of declaration is concerned, that is time barred. Usually the relief of declaration can be claimed within three years but the limitation starts from the date of denial. Till the parties were living happily in the suit property there was no problem, the moment ownership was claimed from that day limitation starts. On the basis of it there is no delay in filing of the suit.
Eighthly & lastly, advocate of appellant argued that there is documentary evidence of title in favour of appellant and ignoring this oral evidence contrary to the documentary evidence 16/17 //17// was taken and proved. When appellant himself gives contrary facts to the documents that goes against the appellant.
8. In view of above, I find no error in the judgment/decree dt.04.12.2006 of the Ld. Civil Judge. Accordingly the appeal of the appellant is hereby dismissed with no order as to cost.
9. Decree in appeal be prepared accordingly.
10. TCR be sent back to the concerned Ld.Trial Court with the copy of this judgment.
11. Appeal file be consigned to Record Room.
Announced in open court DAYA PRAKASH
today on dated 01.10.2008 ADDITIONAL DISTRICT JUDGE
DELHI
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