Delhi High Court
Bhagat Singh & Anr vs Paltu Ram & Ors on 16 July, 2018
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 16th July, 2018
+ RSA 51/2018
BHAGAT SINGH & ANR ..... Appellants
Through: Mr. Ashok Tobria & Mr. M.Y. Yadav,
Advs.
Versus
PALTU RAM & ORS ..... Respondents
Through: Mr. K. Venkatraman & Mr. Dinesh
Chawla, Advs. for R-1.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CM No.15318/2018 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
RSA 51/2018, CM No.14261/2018 (for early hearing) & CM
No.15317/2018 (for stay)
3. This Regular Second Appeal under Section 100 of the Code of Civil
Procedure, 1908 (CPC) impugns the judgment and decree [dated 31 st
January, 2018 in RCA No.65/2017 (CNR No.DLST01-006314-2017) of the
Court of Additional District Judge (ADJ), District South, Saket Courts, New
Delhi] of dismissal of First Appeal under Section 96 of the CPC preferred by
the two appellants against the judgment and decree [dated 6 th July, 2017 in
CS No.84545/2016 of the Court of the Civil Judge-02, South District, Saket
Courts, New Delhi] allowing the suit filed by the respondent no.1 / plaintiff
inter alia for mandatory injunction directing the two appellants / defendants
as well as respondents no.2 and 3 / defendants to remove their belongings
RSA 51/2018 Page 1 of 10
RSA No.51/2018 Page 1 of 11
from property No.93 Hauz Rani, Malviya Nagar, New Delhi and to vacate
and handover physical possession thereof to the respondent no.1 / plaintiff
and to also pay mesne profits to the respondent no.1 / plaintiff from 1st
September, 2013 till the date of vacation at the rate of Rs.15,000/- per
month.
4. This appeal came up first before this Court on 4th April, 2018, when on
request of the counsel for the appellant, it was adjourned to 16 th April, 2018.
On 16th April, 2018, the counsel for the appellant sought time to obtain
instructions and to locate the application for stay of the judgment and decree
which was claimed to have been filed and the matter was renotified for 19 th
April, 2018. On 19th April, 2018, though notice of the appeal was ordered to
be issued but without recording or indicating as to what substantial question
of law arises; execution was also stayed vide the same order.
5. All the three respondents are reported to be served.
6. Only the counsel for the respondent no.1 / plaintiff appears. None
appears for respondents no.2 to 3 / defendants.
7. The counsel for the respondent no.1 / plaintiff, on enquiry states that
the respondents no.2 and 3 / defendants did not file any First Appeal against
the judgment and decree insofar as against them.
8. The counsel for the appellants argues, (i) that the appellant no.1 is the
son and the appellant no.2 is the daughter-in-law of the respondent
no.1/plaintiff; (ii) that the property is ancestral property and the appellants
have been residing therein; (iii) that the Courts below have decided in favour
of the respondent no.1 / plaintiff only for the reason of the appellant no.1 /
defendant in his cross-examination having deposed that he was residing in
the property with the permission of his father respondent no.1/plaintiff; (iv)
RSA No.51/2018 Page 2 of 11
however the aforesaid answer in cross-examination was owing to the manner
in which the question was put during cross-examination; else, the property is
ancestral; and, (v) that there is on record a house tax receipt with respect to
the property in the name of the father of the respondent no.1/plaintiff and
which proves that the property is ancestral.
9. No other argument has been urged.
10. After arguing so, the counsel for the appellants seeks adjournment
stating that the adjournment is required for preparing the matter.
11. There is no reason as to why the counsel did not come prepared for
today.
12. Advocates, after obtaining interim order, cannot be permitted to
prolong the proceedings.
13. Though the Suit Court file has not been requisitioned but the
appellants along with this appeal have filed copies of some part of the record
and the counsel for the respondent no.1 / plaintiff has handed over the copies
of the remaining part of the Suit Court record.
14. The respondent no.1 /plaintiff instituted the suit, from which this
appeal arises, pleading (a) that he is the absolute owner and in physical
possession of house No.93, Hauz Rani, Malviya Nagar, New Delhi, being his
self-acquired and self-constructed property, having become the owner
thereof by virtue of Family Settlement / Compromise arrived at between the
respondent no.1 / plaintiff and his brothers in Suit No.770/1989 decided on
4th November, 1993; (b) that the appellant no.1 / defendant Bhagat Singh and
the respondent no.2 / defendant Raghvar Dayal are the sons of the
respondent no.1 / plaintiff and the appellant no.2 / defendant Rekha and
respondent no.3 / defendant Geeta are the respective daughters-in-law of the
RSA No.51/2018 Page 3 of 11
respondent no.1 / plaintiff; (c) that the respondent no.1 / plaintiff had
allowed the appellant / defendant no.1 to reside with him in the said house
only as a son and else the appellants / defendants had no right, title and
interest in the property; (d) that since the appellants/defendants and the
respondents no.2 and 3 / defendants were harassing the respondent no.1
/plaintiff and were a threat to his life, he did not desire them to continue
living in his house and had asked them to leave but inspite thereof they failed
to leave; and, (e) that the respondent no.1/plaintiff had thus debarred and
disowned the appellants/defendants and respondents no.2 and 3 / defendants
from inheriting any portion of his estate. Hence, the suit was filed (i) for
mandatory injunction directing the appellants / defendants and the
respondents no.2 and 3 / defendants to vacate the property, (ii) for recovery
of mesne profits, and, (iii) to restrain the appellants / defendants and
respondents no.2 and 3 / defendants from dealing with the property.
15. The appellants / defendants contested the suit by filing the written
statement denying that the respondent no.1/ plaintiff was the absolute owner
of the property or that the property was the self-acquired property of the
respondent no.1 / plaintiff and pleading, (i) that the property was ancestral
property which was undivided and the appellants / defendants had a right to
reside in the same; (ii) that the respondent no.1 / plaintiff was realising the
rent of the shops in the property as karta of the family; and, (iii) that the
appellants / defendants were residing in the property in their own right.
16. On the pleadings aforesaid of the parties, the following issues were
framed in the suit on 23rd December, 2014:
"1. Whether the plaintiff is entitled to decree of mandatory injunction as
prayed in clause A of the prayer? OPP
RSA No.51/2018 Page 4 of 11
2. Whether the plaintiff is entitled to decree of permanent injunction as
prayed in clause B of the prayer? OPP
3. Whether the plaintiff is entitled to damages / mesne profits as prayed in
Clause C of the prayer? OPP
4. Relief, if any."
17. The Suit Court, on the basis of the evidence of the respondent no.1/
plaintiff and five other witnesses examined by the respondent no.1/ plaintiff
and on the basis of deposition of appellant / defendant no.1, allowed the suit
as aforesaid, finding / observing / reasoning (i) that though the respondent
no.1 / plaintiff had failed to produce on record any title documents to show
his ownership of the property but the ownership was not disputed by the
appellant / defendant no.1; rather the appellant no.1 / defendant during his
cross-examination admitted that the respondent no.1 / plaintiff was the owner
of the property and that the appellant no.1 / defendant and the other
defendants were residing in the property with the permission of the
respondent no.1 / plaintiff; (ii) that the appellant no.1 / defendant had also
not disputed that electricity and water connection in the property had been
installed in the name of respondent no.1 / plaintiff and the house tax of the
property has also been paid by the respondent no.1 / plaintiff; (iii) that from
the said evidence / admissions, it was clear that the appellants / defendants
and respondents no.2 and 3 / defendants were in permissive accommodation
of the property; (iv) that the appellants / defendants had claimed the property
to be ancestral but the appellant no.1 / defendant during cross examination
admitted the respondent no.1 / plaintiff to be the owner and further deposed
that he could not show any document to prove that Prabhati Ram i.e. the
father of the respondent no.1 / plaintiff was the owner of the property and
also could not show any document to show the property to be ancestral; (v)
that the appellant no.1 / defendant, in cross-examination also admitted the
RSA No.51/2018 Page 5 of 11
partition between the respondent no.1 / plaintiff and his brothers under which
the said property came to the share of the respondent no.1 / plaintiff. Hence,
the decree for mandatory injunction directing the appellants to vacate the
property, a decree for permanent injunction restraining the appellants /
defendants from dealing with the property and the decree for mesne profits.
18. The First Appellate Court has dismissed the appeal preferred by the
appellants / defendants, recording / reasoning (a) that the respondent no.1 /
plaintiff had proved his ownership by proving the settlement arrived at in the
suit instituted by his two brothers against him; the said compromise arrived
at on 4th November, 1993 recited that the respondent no.1 / plaintiff was the
sole owner of the property with his brothers having no concern therewith; (b)
that the respondent no.1 / plaintiff, in his cross-examination also, deposed
that the property was purchased by him but the deed of purchase was in
possession of his brother; (c) that the witness from the House Tax
Department examined by the respondent no.1 / plaintiff deposed about
deposit of property tax by the respondent no.1 / plaintiff since the year 1996
and proved the house tax receipt; in cross-examination, he admitted receipt
of house tax for the year 1966-67 to be in favour of Prabhati Ram and
admitted that there was no ownership document on record; (iv) that the
witness from the electricity supplier examined by the respondent no.1 /
plaintiff proved the electricity connection in the property to be in the name of
the respondent no.1 / plaintiff; (v) that the witness from the Jal Board also
proved the water connection to be in the name of the respondent no.1 /
plaintiff; (vi) that thus all the witnesses examined by the respondent no.1 /
plaintiff had deposed of all documents with respect to the property being in
the name of the respondent no.1 / plaintiff; (vi) that the appellant no.1 /
RSA No.51/2018 Page 6 of 11
defendant in his cross-examination admitted respondent no.1 / plaintiff to be
the owner and clearly stated that he was not in possession of any record or
document that the property was ancestral or that his parental grandfather was
ever the owner thereof and that further admitted he was residing in the
property with the permission of the respondent no.1 / plaintiff ; and, (vii) that
it was thus evident that the respondent no.1 / plaintiff had a better title to the
property than the appellants / defendants. However, the First Appellate
Court reduced the rate at which the Suit Court had awarded the mesne
profits. Else, the decree of the Suit Court was confirmed.
19. It is evident from a perusal of the contents of the written statement of
the appellants / defendants enumerated hereinabove, that the appellants /
defendants did not controvert the ownership of the respondent no.1 /
plaintiff; they only claim that the appellant no.1 / defendant also had a share
therein, by virtue of the property being ancestral.
20. In Neelam Vs. Sada Ram 2013 SCC OnLine Del 384 and thereafter
again in Kamlesh Devi Vs. Shyam Sunder Tyagi 2017 SCC OnLine Del
12701 and in Saurabh Sharma Vs. Om Wati 2018 SCC OnLine Del 9186, it
has been held that inspite of the ancient Hindu Law, in which the concept of
ancestral property was prevalent, having been abrogated by the Hindu
Succession Act, 1956, more than half a century ago, citizens including
advocates continue to take pleas in the Court, of the grandson having a share
in the property of his paternal grandfather. Need for an elaborate discussion
is not felt since it has been thrashed out in detail in Surender Kumar Vs.
Dhani Ram 2016 SCC OnLine Del 333.
21. A perusal of the written statement of the appellants / defendants does
not show any pleas of the appellant no.1 / defendant having acquired a right
RSA No.51/2018 Page 7 of 11
by birth in the property. Neither was the existence of a Hindu Undivided
Family or Coparcenary pleaded nor was the date of demise of the father of
the respondent no.1 / plaintiff and parental grandfather of the appellant no.1 /
defendant pleaded. If the father of the respondent no.1 / plaintiff and parental
grandfather of the appellant / defendant no.1 died after the coming into force
of the Hindu Succession Act, 1956, the inheritance of his property by the
respondent no.1 / plaintiff would be thereunder and in his personal individual
capacity and in which the appellant no.1 / defendant as the son of the
respondent no.1 / plaintiff would have no share.
22. Recently in A.N. Kaul Vs. Neerja Kaul 2018 SCC OnLine Del 959
again, it was held:
"13. The concept of ancestral property, as existed under the ancient Hindu
Law, was done away with on coming into force of the Hindu Succession
Act, 1956. Thereafter, the ancient Hindu Law survived only under Section
6 of the Hindu Succession Act and not otherwise. The ancient Hindu Law
discriminated between the male descendants and the female
descendants. Section 6 provided that when a male Hindu dies after the
commencement of the Succession Act, having at the time of his death an
interest in a Mitakshara coparcenary property, his interest in the property
shall devolve by survivorship upon the surviving members of the
coparcenary and not in accordance with the Succession Act. Under the
ancient Hindu Law only the male descendant could be the members of the
coparcenary. Section 6, so preserving ancient Hindu Law, was however
amended by the Hindu Succession (Amendment) Act, 2005, to do away with
the discrimination as existed under ancient Hindu Law, between grandsons
and granddaughters. Section 6 as amended provides that with effect from
the Hindu Succession (Amendment) Act, 2005, in a joint Hindu family,
governed by Mitakshara law, the daughter of a coparcener shall by birth,
RSA No.51/2018 Page 8 of 11
become a coparcener in her own right in the same manner as the son and
have the same rights in the coparcenary property as she would have had if
she had been a son."
Nothing of the sort was pleaded and pleas sought to be taken were
merely of the property being 'ancestral'. It is not the case that the property
was acquired by any ancestor prior to Prabhati Ram being the father of the
respondent no.1 / plaintiff and the parental grandfather of the appellant no.1 /
defendant. Rather, from the argument of the counsel for the appellants /
defendants, of the house tax for the year 1966 having been paid by Prabhati
Ram and from the argument that the respondent no.1 / plaintiff was 15 years
of age at that time and could not have had an income, it is evident that the
said Prabhati Ram was alive at least till 1966 and even if the respondent no.1
/ plaintiff, inherited the property aforesaid from the Prabhati Ram, the
appellant no.1 / defendant as the son of the respondent no.1 / plaintiff, under
the provisions of the Hindu Succession Act, would not have any right, title or
share therein.
23. In fact, a perusal of the certified copy of the suit, in which settlement
dated 4th November, 1993 aforesaid was arrived at, shows that Prabhati Ram
was a party thereto and alive on 4th November, 1993 and had also made a
statement to the effect that the respondent no.1 / plaintiff was the exclusive
owner of the said property and that the brothers of the respondent no.1 /
plaintiff who had filed the suit had withdrawn the suit.
24. Form the documents also, the title of the respondent no.1 / plaintiff
stands proved.
25. The onus of proving the property to be ancestral and/or of the
appellant no.1 / defendant having any right therein was on the appellants /
RSA No.51/2018 Page 9 of 11
defendants and which appellants / defendants have failed to discharge. So
much so, the appellants / defendants did not even seek framing of an issue on
their said plea.
26. In the facts aforesaid no question of law, lest substantial question of
law arises. Supreme Court, in Veerayee Ammal Vs. Seeni Ammal (2002) 1
SCC 134 held that merely because on appreciation of evidence another view
is also possible would not clothe the High Court to assume jurisdiction on
issue of fact framed by the Trial Court by terming the question as substantial
question of law. As far back as in Sir Chunilal V. Mehta Vs. Century
Spinning and Manufacturing Co. Ltd. AIR 1962 SC 1314 reiterated in
Kashmir Singh Vs. Harnam Singh (2008) 12 SCC 796, it was held that the
proper test for determining whether a question of law raised in a case is
substantial, is whether it is of general public importance or whether it
directly and substantially affects the rights of the parties and if so whether it
is an open question in the sense it is not finally settled or is not far from
difficulty or calls for discussion of alternative views; if the question is settled
by the highest Court or the general principles to be applied in determining
the question are well settled and there is a mere question of applying those
principles, it would not be a substantial question of law. It was further held
that it is not within the domain of the High Court to investigate the grounds
on which the findings were arrived at by the last Court of fact being the first
Appellate Court. Mere appreciation of facts, documentary evidence was held
to be not raising a question of law. Even in Santosh Hazari Vs. Purushottam
Tiwari (2001) 3 SCC 179 it was held:
"To be "substantial" a question of law must be debatable, not previously
settled by law of the land or a binding precedent, and must have a material
RSA No.51/2018 Page 10 of 11
bearing on the decision of the case, if answered either way, insofar as the
rights of the parties before it are concerned."
27. Hence, the Second Appeal cannot be entertained.
Dismissed.
No costs.
Decree sheet be prepared.
RAJIV SAHAI ENDLAW, J.
JULY 16, 2018 'gsr'..
RSA No.51/2018 Page 11 of 11