Delhi High Court
Gopi Chand vs Geeta Devi & Ors on 29 April, 2020
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 29th April, 2020
+ RSA No.394/2015
GOPI CHAND ..... Appellant
Through: Mr. Prem Kumar Sharma,
Adv.
Versus
GEETA DEVI & ORS. ....Respondents
Through: Mr. Basant Kumar Gupta,
Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Regular Second Appeal under Section 100 of the Code of Civil
Procedure, 1908 (CPC) impugns the judgment and decree [dated 29 th April,
2015 in RCA No. 50/2011 of the Court of Additional District Judge-01 (West)]
of dismissal of First Appeal under Section 96 of the CPC preferred by the
appellant against the judgment and decree [dated 21 st July, 2011 in Suit No.
927/2006 of the Court of Civil Judge (West)-2] of dismissal of suit filed by the
appellant for (i) declaration that the appellant is entitled to 1/4th share in property
bearing no. B-532 Madipur, JJ Colony, New Delhi - 110063; (ii) partition of the
aforesaid property and separation of 1/4th share of the appellant; and (iii)
injunction, restraining the respondents/defendants from alienating any portion or
otherwise creating third party interest in the said property.
2. This Second Appeal came up first before this Court on 17th November,
2015 and thereafter on 12th January, 2016, 8th February, 2016 and 9th February,
2016 when notice hereof was issued, but without indicating / recording the
substantial question of law which arose for adjudication. The order dated 28th
RSA No.394/2015 Page 1 of 12
September, 2016 records that the respondents had been served, and vide the
same order, trial court record was also ordered to be requisitioned. The appeal
was thereafter adjourned from time to time but the orders of none of the said
dates also record the substantial question of law, which is the sine qua non to
the maintainability of the Second Appeal, arising for consideration herein.
3. The appeal came up before the undersigned on 13th July, 2018 when the
counsels were heard and the trial court and first appellate court record received
perused. However the judgment intended to be dictated in open Court on the
same day remained to be dictated as I was called to the Full Bench and the
matter adjourned to 16th July, 2018. However while so adjourning, it was
recorded 'even otherwise, it appears that the appeal is entitled to be allowed and
the counsel for the respondents is granted an opportunity to by the next date,
consider the possibility of settlement'. On 16th July, 2018, the following order
was passed:
"1. None appears for the respondents.
2. However, one lady gets up from the bench at the
rear and states that her advocate Mr. Basant Kumar
Gupta is unwell.
3. On enquiry, she states that her name is Geeta.
4. The counsel for the appellant states that he
recognizes the said lady as respondent no.1.
5. The counsel for the respondent no.1, after the order
dated 13th July, 2018, cannot avoid the hearing.
6. The respondent no.1 has been informed in
vernacular that she should make her advocate appear
RSA No.394/2015 Page 2 of 12
tomorrow i.e. 17th July, 2018, else, this Court will
proceed to decide the appeal.
7. List tomorrow i.e. 17th July, 2018."
On 17th July, 2018, none appeared for the respondents in spite of waiting
and the file sent to the chamber for dictating the judgment which is being
pronounced now.
4. The appellant/plaintiff, on 17th April, 2006 instituted the suit from which
this Second Appeal arises, impleading his brother Hem Chand, sister Meera
Devi and widow of a pre-deceased brother namely Geeta Devi as defendants
thereto. Subsequently children of Geeta Devi namely Yogesh Kumar, Hemant
Kumar and Lokesh Kumar were also impleaded as defendants to the suit. It was
the case of the appellant/plaintiff in the plaint, that (a) his father Sh. Laloo Ram,
vide letter dated 25th November, 1968 of the Delhi Development Authority
(DDA) under the Juggi Jhopri Settlement Scheme was allotted plot of land
admeasuring 25 sq. yards bearing no. B-532, Madipur, JJ Colony, New Delhi -
110063 and raised construction comprising of two rooms etc. thereon and was
residing therein along with his family including the appellant/plaintiff; (b) the
father of the appellant/plaintiff died intestate in 1975 leaving the
appellant/plaintiff and the respondents/defendants as his only heirs; (c) the
appellant/plaintiff subsequently acquired adjoining property no. B-531 and
started residing therein and his brother Hem Chand and his deceased brother's
wife Geeta Devi along with her children continued to reside in property no.B-
532 along with their family; and, (d) the appellant/plaintiff has been requesting
the respondents/defendants for partition but the respondents/defendants had
avoided the same, leading to the appellant/plaintiff issuing notice dated 24th
RSA No.394/2015 Page 3 of 12
November, 2005 to which a false and frivolous reply was got sent by the
respondents/defendants.
5. The brother and the deceased brother's widow and children, of the
appellant/plaintiff contested the suit by filing a joint written statement pleading
that (i) the suit of the appellant/plaintiff was barred by limitation as cause of
action, if any, had arisen on the death of the father in 1975, but the suit was filed
after 30 years, in 2006; (ii) the father, Sh. Laloo Ram had been allotted two
properties i.e. B-531 and B-532, Madipur, JJ Colony, New Delhi - 110063; (iii)
that the appellant/plaintiff was in exclusive possession of property no. B-531
and the suit property was in possession of the respondents/defendants and
therefore the appellant/plaintiff was not entitled to seek declaration and
partition. It was denied that the property no. B-531 was the self-acquired
property of the appellant/plaintiff; however it was admitted that the allotment of
plot no. B-531 in possession of the appellant/plaintiff was in the name of the
appellant/plaintiff; it was however pleaded that the father Sh. Laloo Ram had
got the said allotment in favor of the appellant/plaintiff as he had attained the
age of majority at that time.
6. Though the appellant/plaintiff filed replication to the written statement
aforesaid but the need to advert thereto is not felt.
7. The defendant No.3 Meera Devi being the sister of the appellant/plaintiff
did not appear before the trial court, and was proceeded against ex parte as
recorded in the orders dated 7th August, 2006 and 16th November, 2006.
8. On the pleadings of the parties, the following issues were framed in the suit
on 16th November, 2016:
RSA No.394/2015 Page 4 of 12
"1. Whether the suit of the plaintiff is barred by
limitation ? OPP
2. Whether the plaintiff is entitled for the relief of
declaration, as prayed? OPP
3. Whether the plaintiff is entitled for the relief of
partition, as prayed? OPP
4. Whether the plaintiff is entitled for the relief of
permanent injunction, as prayed? OPP
5. Relief"
and the parties relegated to evidence.
9. The appellant/plaintiff besides examining himself examined a neighbour.
The respondents/defendants in their evidence examined the defendant Hem
Chand and the defendant Geeta Devi.
10. The Ld. Civil Judge, being the Trial Judge dismissed the suit, reasoning (i)
that though the respondents/defendants had not controverted that property no. B-
532 was owned by the father Sh. Laloo Ram and that on his death had devolved
upon his heirs including the appellant/plaintiff and had contested the suit by
pleading the property no. B-531 in possession of the appellant/plaintiff though
allotted in the name of appellant/plaintiff having also been purchased out of joint
family funds, but a perusal of the letter of allotment of property no. B-532 in the
name of the father of the parties showed the said allotment to be on license
basis; (ii) for succeeding in a partition suit, the appellant/plaintiff has to prove a
right in the property; however the letter of the year 1968 of allotment of land
underneath property no. B-532 showed that the father of the parties only had a
license in respect thereof; (iii) a license is a personal right which does not enure
to the benefit of the heirs of the licensee; (iv) the appellant/plaintiff had failed to
RSA No.394/2015 Page 5 of 12
prove that the said license in favour of his father was heritable and that he had
acquired any right therein; and, (v) the appellant/plaintiff was claiming a right /
share in the property through his father Sh. Laloo Ram but who himself did not
have any right which he could have passed in favour of his heirs.
11. The Ld. Additional District Judge dismissed the appeal of the
appellant/plaintiff, affirming the reasoning of the Civil Judge. The contention of
the counsel for the appellant/plaintiff that had the license granted to the father of
the appellant/plaintiff been personal, the DDA would have taken back
possession of the property after the demise of the father of the parties and would
not have permitted them to continue, was negatived, reasoning that merely
because DDA had not taken back possession did not confer any ownership in
favour of legal representatives of the licensee when the letter of allotment itself
used the term 'license'. It was also reasoned, without there being any issue or
finding of the father of the parties Sh. Laloo Ram being the owner of property
no. B-531 also and the same also forming part of his estate, that the
appellant/plaintiff as one of the four heirs of his father was already in exclusive
possession of one of the said two properties and was being greedy by wanting a
share in the other property also.
12. On the issue of limitation, both the Civil Judge as well as the Additional
District Judge found in favour of the appellant/plaintiff and there is no challenge
to the said finding.
13. The undersigned, after the hearing of this Second Appeal on 13 th July, 2018
had observed that the appeal was entitled to be allowed, being of the view that
once the land had been allotted to the father of the parties as far back as in the
RSA No.394/2015 Page 6 of 12
year 1968 and the father of the parties had raised construction of a permanent
nature thereon and continued in occupation thereof till his demise in 1975 and
that further since after his demise his heirs had been allowed to continue in
occupation for 30 years, at least till the institution of the suit and even thereafter,
without any disturbance from the grantor i.e. the DDA, the allotment even if any
by way of a license, was of a right and the license was not of such a nature
which was determinable by demise of the licensee. Even a license with respect
to immovable property, once allowed to continue after the demise of the
licensee, is valuable property even if not immovable property and is partible
among the legal heirs of the licensee. In this context, I have in Shyam Behari
Vs. Ram Kishan (2013 SCC OnLine Del 4110) and Surjit Singh Vs. Ekta
Gulati (2012 SCC OnLine Del 4233, appeal whereagainst was dismissed by
the Supreme Court in its order dated 3rd March, 2016 in Civil Appeal No.
7332/2013 titled " Inderjit Kaur Vs. Ekta Gulati") held that the law of
inheritance / succession covers all assets of the deceased including possessory
rights of the deceased to any movable and immovable property. Parity was also
drawn with tenancy / leasehold rights, which also are determinable by nature
and with respect whereto also it is settled law [Iresh Duggal Vs. Virender
Kumar Seth 2015 (221) DLT 216, Dalip Kumar Vs. Om Prakash 2015 SCC
OnLine Del 11768 Ram Lal Sachdev Vs. Sneh Sinha 1999 SCC OnLine Del
917, UOI Vs. Mohinder Pratap Soni 2016 SCC OnLine Del 2600, Madan Lal
Vs. Kuldeep Kumar 2013 SCC OnLine Del 4008, Pragun Buildtech (P) Ltd.
Vs. Sarla Aggarwal 190 (2012) DLT 164, Surendra Pal Singh Vs. Ravindra
Pal Singh 2014 SCC OnLine Del 2959, Satish Kumar Chojar Vs. Subhasini
Chopra 2014 SCC OnLine Del 3403] that the said rights are partible. It was
also felt that the Trial Court as well as the First Appellate Court had fallen in
RSA No.394/2015 Page 7 of 12
error in dismissing the claim of the appellant/plaintiff for partition for the reason
which was not pleaded by the respondents/defendants in the written statement
and on which no issue had been framed.
14. In this context I may notice that a perusal of the file of the First Appellate
Court shows that the counsel for the appellant/plaintiff had been seeking
adjournments to place a notification before the First Appellate Court, entitling
occupants of jhuggi jhopri colonies developed by the DDA to rights of
permanent nature in the property in their occupation, though did not place such
notification before the First Appellate Court till the pronouncement of the
judgment. Even after the First Appellate Court pronounced the judgment, the
record shows the counsel to have protested in this regard. Though the counsel
for the appellant/plaintiff here also has not placed any notification in this respect
but it is found that the Department of Urban Development of Government of
NCT of Delhi vide Order No. F.234(7)/UD/BSUP/2012/17270-17281 dated 20th
June, 2013 has activated the earlier order dated 9th September, 1998 of
conversion of rights of eligible occupants of 45 Jhuggi Jhopri Resettlement
Colonies developed from 1950 onwards by the DDA, in favour of allottees
thereof. The same also is indicative of the rights of allotment of the plot in
favour of father of the parties constituting a valuable right capable of being
partitioned between the heirs. It is thus evident that both the Courts below have
terribly misdirected themselves.
15. The following substantial questions of law arise for consideration in this
Second Appeal:
RSA No.394/2015 Page 8 of 12
(i) Whether the Courts below could have dismissed the suit
of the appellant/plaintiff for partition, on a ground not
pleaded by the respondents/defendants and or on which
no issue was struck.
(ii) Whether possession of an immovable property by the
common predecessor of the parties, as an allottee /
licensee of a governmental authority is partible?
16. I now proceed to answer the aforesaid substantial questions of law, the law
in which regard as aforesaid is unambiguous.
17. The judgment in a Civil Suit is to be returned on findings on issues framed
in a suit and which issues in turn arise from the pleadings of the parties. The
finding of the Trial Court as well as the First Appellate Court, that the rights of
which partition was sought were impartible, is de hors any plea or issue and
could not have been permitted to defeat the claim of the appellant/plaintiff to
partition and which claim was not really opposed by the respondents/defendants,
as noted in the two judgments of the Courts below also. It was not the plea of the
respondents/defendants in their written statement that property no.B-532 of
which partition was sought was impartible or that no rights with respect thereto
had devolved to any of the heirs of the common predecessor. Significantly it
was the DDA alone which could have taken the said plea and which was not a
party. No issue in this respect was struck in the suit. No finding with respect to
the same could have been returned in the absence of DDA. The Courts below
have failed to notice that their reasoning, of no rights in property no.B-532
having devolved in favour of heirs of Laloo Ram, has resulted in the
RSA No.394/2015 Page 9 of 12
respondents/defendants only being entitled to enjoy the property and the
appellant/plaintiff inspite of being one of the heirs of Laloo Ram having been
deprived of the same. The judgments impugned in this appeal are liable to be set
aside on this short ground alone.
18. The proceedings in a civil suit are governed by the procedure laid down in
the CPC and which provides for pleadings by the adversarial parties, framing of
issues on the substantial questions of law and facts arising thereon, evidence
being confined to the issues and findings in the judgment and decree in the suit
being confined to the issues framed. A suit is not entitled to succeed or liable to
be dismissed on a reasoning which has no foundation in pleadings and/or on
which no issue has been struck. In Maria Margarida Sequeira Fernandes Vs.
Erasmo Jack De Sequeira (2012) 5 SCC 370 it was held that if pleadings do not
give sufficient details, they will not raise an issue and the Court can reject the
claim or pass a decree on admission. It was further held that on vague pleadings,
no issue arises. I have also dealt with this aspect in Modicare Limited Vs.
Gautam Bali 2019 SCC OnLine Del 10511.
19. As far as the second substantial question of law as aforesaid is concerned, I
have already hereinabove noticed the position in law and the judgments of the
Courts below are in ignorance thereof and without adverting thereto. The Courts
below also erred in not noticing that the respondents/defendants who were
admittedly not the only heirs, for more than 30 years since the demise of the
common predecessor were in exclusive use and enjoyment of the property
admittedly allotted to the common ancestor and which fact alone was enough to
forthwith grant a decree for partition. Even if DDA as the grantor of the license
with respect to the land in favour of the common ancestor were to repossess the
RSA No.394/2015 Page 10 of 12
said land, till it was so repossessed, none of the heirs could be deprived of
benefit thereof as part of the estate of the common ancestor.
20. As far as the additional reasoning by the First Appellate Court, of the
appellant/plaintiff being greedy, is concerned, the same is again without regard
to law or procedure prescribed by law. Howsoever well off one of the heirs of a
common ancestor may be, the same does not defeat the right of that heir to a
share in the estate of the common ancestor. Significantly the First Appellate
Court has not returned any finding, as indeed it could not have in the absence of
any issue, of the property no. B-531 in occupation of the appellant/plaintiff
being part of the estate of the common ancestor. Without any such finding, the
appellant/plaintiff could not in law have been denied of his rights by calling him
greedy. Again no issue with respect to property no.B-531 was even struck.
21. Resultantly the appeal succeeds.
22. The judgment of the Trial Court as well as the First Appellate Court of
dismissal of the suit are set aside.
23. The appellant/plaintiff is held entitled to a preliminary decree of partition
of property no. B-532 Madipur, JJ Colony, New Delhi - 110063. A preliminary
decree for partition of property no.B-532 Madipur, JJ Colony, New Delhi -
110063 is passed, declaring (i) the appellant/plaintiff Gopi Chand, (ii) the
Defendant No. 1 Hem Chand, (iii) the respondents/defendants Geeta Devi,
Yogesh Kumar, Hemant Kumar together and (iv) the respondent/defendant No.3
Meera Devi, to be having 1/4th undivided share each in the property. A decree
for permanent injunction is also passed, restraining all parties from alienating
encumbering or parting with possession of property no. B-532 Madipur, JJ
RSA No.394/2015 Page 11 of 12
Colony, New Delhi - 110063 till the final decree for partition is passed by the
Trial Court.
24. Preliminary decree for partition be drawn up.
25. List the suit before the Civil Judge (West-2) or other appropriate Court, on
16th June, 2020 for further proceedings. The Trial Court files be returned
forthwith.
26. No costs.
Decree Sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
APRIL 29, 2020 'pp' RSA No.394/2015 Page 12 of 12