Delhi District Court
Smt. Bhagwan Devi vs Sh. Din Dayal on 30 March, 2012
IN THE COURT OF AJAY GOEL, SCJ CUM RC (CENTRAL) DELHI.
RCA-265/2000
In the Matter of:
Smt. Bhagwan Devi,
W/o Late Ganga Ram
(Deceased) through her legal heirs,
Sh. Bharat Bhushan,
S/o late Ganga Ram,
R/o D-2773, Lalita Block,
Shastri Nagar, Delhi-110052. .......Appellant.
VERSUS
Sh. Din Dayal,
S/o Late Ganga Ram,
R/o D-2773, First Floor,
Shastri Nagar, Delhi-110052. .......Respondent.
Date of Institution: 22.09.2000
Date of Assignment to this court: 27.02.2009
Date of Arguments: 29.03.2012
Date of Decision: 30.03.2012
JUDGMENT
1. Vide this judgment, I shall dispose off this appeal filed by appellant against the judgment and decree passed by Ld. Trial court dated 19.05.2000 whereby suit of the plaintiff was dismissed.
2. The facts of the case are that plaintiff is owner of property No. D-2273, Lalita Block, Shastri Nagar, Delhi. It was submitted that plaintiff purchased the suit property against sale deed duly registered in her name by S.R. Delhi and the property is also RCA-265/2000 Page No. 1/6 assessed to house tax. It was submitted that defendant is the real son of the plaintiff and is in unauthorised occupation and use of one room and gallery on the 1st floor in suit property. As stated defendant is not in any way providing maintenance to the plaintiff and has become dishonest and with malafide intention is not vacating the suit property in his possession and is interested in grabbing the same without any basis. It was submitted that on account of misbehaviour and cruelty shown towards the plaintiff, the defendant was debarred from inheriting movable or immovable property by the plaintiff and her husband through public notice which was given in News paper and he was also served with a notice dated 15.5.87 to vacate the premises and also to mesne profit. It was submitted that in spite of all efforts made by the plaintiff the defendant did not vacate the premises. As stated plaintiff also got an interim injunction order against defendant from the court of Sh. V.K. Malhotra, SJIC, Delhi restraining the defendant and DESU for separate electricity connection in defendant's name. It was further submitted that a case for possession and recovery of mesne profit was filed in the court of Sh. A.K. Chaturvedi, Ld. S.J, Delhi. It was stated that said suit was dismissed on 30.12.90. It was submitted that defendant has got no right, title and claim in the suit property and he is in unauthorised occupation and is in illegal possession. Hence, the suit was filed.
3. Written statement was filed by defendant to the plaint of plaintiff RCA-265/2000 Page No. 2/6 wherein preliminary objections were raised stating that court has no jurisdiction to try this suit. It was also stated that suit is barred by principles of resjudicata. On merits, it was stated that defendant is the co-owner of the house in question as he had not only contributed the amount in the purchase of the plot but also in the construction of the house. It was stated that plaintiff has no right to debar the defendant from the house in question. It was further submitted that defendant is co-owner of the house in question having full rights and title in the property and is living in the house as co-owner since the defendant had not only contributed sufficient amount for the purchase of the plot and for the construction of the house. Rest of the contents of plaint were denied.
4. Replication was filed by plaintiff to the WS of defendant and contents of plaint were reiterated and reaffirmed and those of WS were denied.
5. On the pleadings of parties, the following issues were framed vide order dated 30.11.1993:-
1)Whether the suit has not been properly valid for purpose of jurisdiction?OPD
2) Whether suit of the plaintiff is barred by resjudicata?OPD
3) Whether the suit of the plaintiff is time barred?OPD
4) Whether the plaintiff is the sole-owner of the property in dispute as claimed in the plaint?OPP
5) Whether the plaintiff is entitled to relief of possession as claimed?RCA-265/2000 Page No. 3/6
OPP
6) Relief.
6. Plaintiff examined two witnesses in support of case i.e. PW-1 Sh. Bharat Bhushan and PW-2 Sh. Om Prakash. On the other hand, defendant was giving sufficient opportunity for evidence but failed to produce the same.
7. The Ld. Trial court dismissed the suit of the plaintiff. Hence, the present appeal was filed.
8. I have heard the arguments of parties and have gone through the records. My finding is given below:-
9. Issue No. 1. Whether the suit has not been properly valid for purpose of jurisdiction?OPD:- Issue No. 1 was decided in favour of plaintiff and against the defendant and there is no cross-objection against same filed by defendant. Hence findings on issue No. 1 are hereby re-affirmed.
10.Issue No. 2. Whether suit of the plaintiff is barred by resjudicata?OPD and Issue No. 3. Whether the suit of the plaintiff is time barred?OPD and Issue No. 4. Whether the plaintiff is the sole-owner of the property in dispute as claimed in the plaint?OPP and Issue No. 5. Whether the plaintiff is entitled to relief of possession as claimed?OPP:-
All these issues are taken up together. Under these issues, the Ld. Trial court has taken the ground for dismissing the suit that earlier suit will act as resjudicata. The earlier suit was dismissed on the RCA-265/2000 Page No. 4/6 ground that suit was not properly valued for want of court fee and jurisdiction. The technical objection was taken and the suit was not decided on merits. It has been held in AIR 1993 Supreme Court 1756 Inacio Martins Vs Narayan Hari Naik that "when earlier suit is dismissed on technical ground then subsequent suit is not barred by resjudicata". Though cause of action and relief in those two suits discussed in above judgment were different but law is clear that when there is no finding on merits then resjudicata does not apply. This is a suit between mother and son and she has sought possession from her son on the ground that he is in unauthorised occupation of the suit premises. The cause of action is continuing and subsequent suit was maintainable. There is no need for issuance of any notice for taking possession from unauthorised occupant or even from licencee. In this case, notice was earlier issued which was not replied. It has been held in AIR 2007 Karnatka 46 title M.C. Mohammed V. Smt. Gowramma & Ors. (which is otherwise, law of land) that once tenancy has been terminated then there is no need of fresh termination unless there is any fresh relationship. The present case is rather on the better footing because here the defendant was not even lessee but was only merely having unauthorised possession or at the most licencee. He was not required for notice first of all and rather was served with notice which was not replied and thus there was no need of any fresh notice as observed above. The defendant has taken the stand RCA-265/2000 Page No. 5/6 that he was true owner but no such evidence has been led and testimony of plaintiff had remained unchallenged and rebutted. There was no need to seek permission from previous court because as stated above, the suit was dismissed on technical ground and plaintiff wants to take back her possession. The sale deed Ex. PW-1/2 in favour of plaintiff is available on record. On the other hand the defendant has failed to show document of ownership. In these circumstances, all these issues are decided in favour of plaintiff and against the defendant and suit is held not barred due to resjudicata and is also not beyond limitation and it is held that plaintiff/appellant is entitled for possession.
11.Relief:- In view of the above finding, the appeal is accepted with costs. The suit of the plaintiff stands decreed. The impugned judgment and decree passed by Ld. Trial court is set-aside. Decree of possession is passed in favour of plaintiff and against the defendant directing the defendant to deliver the possession of the portion of the property bearing No. D-2773, Lalita Block, Shastri Nagar, Delhi within two months from today. Decree sheet be prepared. Copy of this judgment be sent to Ld. Trial court alongwith trial court record. Appeal file be consigned to record room.
Announced in the open court on (AJAY GOEL)
30.03.2012 SCJ CUM RC(Central)Delhi.
RCA-265/2000 Page No. 6/6