* HIGH COURT OF DELHI : NEW DELHI
+ O.A. No. 4/2009 and I.A. No. 8144/2009 in CS (OS) No.
1746/2007
Reserved on: October 28, 2009
% Decided on: November 26, 2009
Sh. Ram Saran & Ors. ...Plaintiffs
Through : Mr. Jagdeep Kumar Sharma, Adv.
Versus
Sh. Ram Kumar & Ors. ...Defendants
Through : Mr. Chetan Sharma, Sr. Adv. with
Mr. Ajit Nair and Mr.Sushil K.
Pandey, Advs.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? No
MANMOHAN SINGH, J.
1. This order shall dispose of an appeal being O.A. No. 4/2009 and an application being I.A. No. 8144/2009 filed by the defendants herein under Rule 4 of Chapter II of the Delhi High Court (Original Side) Rules, 1967 against the order dated 2nd September, 2009 passed in the review application being I.A. No. 7995/2009 and under Order XII Rule 6 read with Section 151 of the Code of Civil Procedure, 1908 respectively.
CS (OS) No. 1746/2007 Page 1 of 11
2. Brief facts of the case are as follows. The plaintiffs assert themselves to be the owners/inheritors of land measuring 1864 sq. yds., situated at Khasra No. 261 min (1-3) (Municipal No. WZ-T-1) and 250 min (2-19) in the revenue estate of Village Naraina, New Delhi, now known as W.H.S., Kirti Nagar, New Delhi-110015 (hereinafter referred to as the „suit property‟). The said property was co-owned by father of plaintiff no. 1 Sh. Dharam Singh along with father of the defendants Sh. Ram Kishan. When Sh. Dharam Singh passed away in 1964 the plaintiffs inherited his share of the suit property. In 1962, the Government issued a notification for acquisition of the suit property and in 1983, the constructed structure thereon was demolished by the DDA.
3. In 1984, an oral family partition took place between the parties whereby certain portions of the entire property were taken by the plaintiffs and certain portions were taken by the defendants and the said oral partition was acted upon by them. Since 1984, both parties have been using their respective shares of the entire property. In September 2004, 350 sq. yds. were let out by the plaintiffs to one Sh. Raj Kumar. It is the plaintiffs‟ allegation that on 25th August, 2007 the afore-mentioned tenant was threatened with death by the defendants and was told to vacate the tenanted portion of the suit property.
4. A report was filed with the police but as per the plaintiffs, they were hand in glove with the defendants and carried out no action whatsoever. Thus the present suit was filed for declaration that the plaintiffs are the absolute and exclusive owners in possession of the suit CS (OS) No. 1746/2007 Page 2 of 11 property and for permanent injunction restraining the defendants and their servants etc. from dispossessing the plaintiffs and from alienating, selling or creating any third party interest thereon.
5. The defendants have filed their written statement as well as a counter claim. It is the defendants‟ case that no oral partition took place in 1984 as claimed by the plaintiffs. However, a family arrangement was prepared in writing on 10th September, 1986 wherein all of the properties of Late Sh. Dharam Singh were mentioned. After the demise of Sh. Dharam Singh, by mutual agreement the parties decided that Khasra No. 261 (1-3) and (0-10) of Khasra No. 250 were to be owned by the defendants and property no. 244 (0-12) and the remaining part would belong to the plaintiffs.
I.A. No. 8144/2009
6. In the application under Order XII Rule 6 read with Section 151 of CPC the defendants have submitted that in the plaint, the plaintiffs have contended that after the oral family partition of 1984, the defendants were left with no right, title or interest in the suit property. In fact, in paras 29 and 30, the plaintiffs have mentioned time and again that they are in exclusive possession of the suit property and that they have enjoyed exclusive possession of the same without any interference from any corner etc. However, it has been stated in various places in the plaint that the plaintiffs and defendants are co-owners of the suit property and hence, a judgment may be passed having regard to the plaintiffs‟ admissions. Further, the defendants have submitted that in the CS (OS) No. 1746/2007 Page 3 of 11 following three documents, there is admission of facts :
(i) Certified copy of amended plaint dated 2nd September, 1992 in CS (OS) No. 245/02/83 titled as Ram Kishan (Deceased through his LRs) & Ram Saran Vs. DDA;
(ii) Certified copy of judgment dated 30th August, 2005 in CS (OS) No. 245/02/83 titled as Ram Kishan (Deceased through his LRs) & Ram Saran Vs. DDA; and
(iii) Certified copy of plaint dated 8th July, 2000 in CS(OS) No. 343/2000 titled Ram Saran & Ors. (Deceased through his LRs) Vs. Govt. of NCT of Delhi & Ors.
7. It is the defendants‟ contention that the admissions of the plaintiffs clearly show that the parties are co-owners of the suit property hence there is no question of any declaration or permanent injunction to the contrary. In keeping with the contentions, the defendants have prayed that the plaintiffs‟ suit with respect to the suit property be dismissed and heavy cost be imposed on the plaintiffs for filing a frivolous and patently false case as they are stopped from taking a contradictory stand in their pleadings.
8. In their reply to the defendants‟ application, the plaintiffs have contended that the averments made therein are different from the averments made in the written statement and the application is only an attempt to mislead the court. The plaintiffs have denied that they and the defendants are co-owners of the suit property. Further, they have denied that the documents as submitted by the defendants prove the factum of CS (OS) No. 1746/2007 Page 4 of 11 co-ownership of the parties and aver that evidence shall have to be led in order to arrive at a decision as regards the suit property.
9. In fact, as regards the documents submitted by the defendants to emphasize the admissions made by the plaintiffs, counsel for the plaintiffs has contended that since there was no dispute between the parties prior to August, 2007, the two litigations referred to by the defendants were being contested jointly so that both parties could obtain the benefit of the suit property though both had different shares of the same and were not co-owners. In reliance of this justification, the plaintiffs have submitted a mutual agreement dated 10th September, 1986 between the late father of the defendants and plaintiff no. 1 wherein all properties of late Sh. Dharam Singh have been mentioned except the suit property, implying that the same had already been partitioned orally in 1984. The relevant portion of the said document is reproduced hereunder (on page 15 of the additional reply on behalf of the plaintiffs) :
" Sh. Ram Kishan S/o Sh. Dharam Singh and Sh. Ram Saran S/o Sh. Dharam Singh had also agreed that all the pending court cases pertaining to land as well as houses would be dealt jointly till the cases conclude (sic) and the expenses would be borne (sic) by both brothers equally. ...Here co- operation means (sic) expenditure incurred only.
All the cases pertaining to land and property from today i.e. dated 10.09.1986 onwards would be solely faced by the concerned person."
10. The plaintiffs have pointed out a contradiction in the counter claim and the present application which is that in the counter claim, the defendants claimed that partition of the suit property had been affected after the death of Sh. Dharam Singh though in the application their claim CS (OS) No. 1746/2007 Page 5 of 11 is that they are co-owners of the property along with the plaintiffs.
11. I have perused the rival submissions of both parties. After going through the plaint and the alleged admissions of the plaintiffs, it seems to me that certain paras need to be read more closely than others. In para 10 it has been stated that the plaintiffs had 1864 sq. yds. out of a total of 4700 sq. yds. after the oral family partition and the defendants had 2386 sq. yds. In subsequent paragraphs, the plaintiffs have established usage of the suit property by giving details of certificates issued by Government authorities and shop names etc. Further, in para 29 it is stated that the plaintiffs are the rightful, absolute and exclusive owners in possession of the suit property after the family partition in 1984 and that the defendants have no right, title or interest in the same. Para 30 also mentions that the plaintiffs occupied and used the suit premises exclusively without any interference from any corner whatsoever. However, in para 7 it is stated that the plaintiffs and defendants continued to be owners and in joint possession of the entire land.
12. Further, as regards the documents referred by the defendants‟ counsel mentioned herein in para 6 and the plaintiffs‟ justification for the same stated herein in para 8, in Gautam Sarup v. Leela Jetly, (2008) 7 SCC 85 it has been observed that though a party cannot be allowed to resile from or retract an admission, it is permissible to explain under what circumstances the same was made or to state that it was made under a mistaken belief or to clarify one‟s stand with regard to the extent CS (OS) No. 1746/2007 Page 6 of 11 or effect of such admission.
13. The plaintiffs have asserted that they have been the exclusive owners of the suit property since 1984, which assertion is yet to be examined. Counsel for the plaintiffs has referred to Express Towers P. Ltd. & Anr. V. Mohan Singh & Ors., 2007 (97) DRJ 687 (DB) wherein as regards Order XII Rule 6, the following has been observed :
"14. Under Order XII, Rule 6 of the Code, a decree can be passed or a suit can be dismissed when admissions are clear and unambiguous and no other interpretation is possible. The Court also is vested with a right to ask for independent corroboration of facts, even when denial in the pleadings is not specific. Right to pass a judgment or order under Order XII, Rule 6 of the Code is discretionary and not mandatory. It may not be safe and correct to pass a judgment under Order XII, Rule 6 of the Code when a case involves disputed questions of fact and law which require adjudication and decision. Even when a party has made an admission, the Court need not dismiss or allow the suit. Judgment on the basis of admissions is not a matter of right but a matter of discretion for the Court. Similarly relief of specific performance is a discretionary relief. The discretion, whether or not a decree for specific performance of an immovable property should be passed, is to be exercised or rejected by taking into account several factors and circumstances. Conduct of the parties is also to be examined."
14. In Sh. Rajeev Mehra Vs. Sh. Sudhir Kumar Sachdev, MANU/DE/0150/2009 leraned Single Judge of this court, while dismissing an application under Order XII Rule 6 observed that under Order XII Rule 6 CPC it is the discretion of the court, even where admissions of facts have been made, whether to decree the suit or not. The court even in the face of admission is empowered to make such order as may be deemed fit.
CS (OS) No. 1746/2007 Page 7 of 11
15. Further, a Local Commissioner was appointed by this court vide order dated 25th September, 2007 to ascertain the extent of physical possession of the parties over the suit property. As per the local commissioner‟s report, the plaintiffs had the keys of the property situated in Khasra 261 min (1-3) and were in control of the entrance and exit of the same. However, it was the defendants who had the keys to the cupboards and almirahs within the property as well as a key to the front gate, which had been stated to be a fixed gate. In such circumstances, neither party could be said to be in exclusive possession of the property. In the property at Khasra No. 250 min (2-19), the plaintiffs were in possession of approximately 700-750 sq. yds. and the defendants of about 400 sq. yds. respectively. No dispute as to possession seemed to exist as regards this property, even though the defendants had no separate entrance and had to reach their portion through a passage stated to be in the plaintiffs‟ possession.
16. Having scrutinized the plaint and in view of the observation in para 13 of this order as well as the local commissioner‟s report and the case law on the subject, I believe that this case requires a trial. There is no admission in the plaint as regards the allegation of co-ownership of the defendants in so far as the suit property is concerned. With regard to the documents wherein there is alleged admission, the plaintiffs have prima facie tried to give a justification by referring a signed document, the validity of which cannot be determined at this stage.
17. An order as to decreeing the suit based on contradictory CS (OS) No. 1746/2007 Page 8 of 11 statements made by the plaintiffs would cause hardship to them, unless a trial is conducted in the matter. Thus, without deciding the dispute in hand on merit, due to the facts and circumstances mentioned in the pleadings of the parties, it is my opinion that such an order would be hasty and might prejudice the rights of the parties. In view of all these facts, I hereby dismiss the application of the defendants. The dismissal of the same shall have no bearing on the final outcome of the suit and shall not prejudice the rights or contentions on merit of either party. Application disposed of accordingly.
O.A. No. 4/2009
18. The present appeal has been filed by the defendants against the order dated 2nd September, 2009 passed by the Joint Registrar. It appears from the order dated 24th April, 2009, that when the matter was listed for admission/denial of the documents, no one appeared on behalf of the defendants, therefore, the documents filed by the plaintiffs were ordered to be deemed to have been admitted.
19. Thereafter the defendants filed the application being I.A. No.7995/2009 under Order 47 Rule 1 read with Section 151 CPC for review of the order dated 24th April, 2009. The said review application was dismissed by order dated 2nd September, 2009 on merit. The present appeal has been filed against the said order.
20. The main grievance of the appellants in the present appeal is that when the matter was listed before the Joint Registrar for admission/denial on 24th April, 2009 the learned counsel for the CS (OS) No. 1746/2007 Page 9 of 11 defendants appeared before the Joint Registrar, however, the room of the Joint Registrar was jam-packed with a number of counsel and it was informed by the court that pending cases would be taken up in the post lunch session. During the lunch hour the defendants No.3 and 4 went to the chamber of their counsel and found that the counsel for the plaintiffs along with plaintiffs were sitting and discussing the matter in the absence of the defendants. The defendants, who could not bear the said scene, left the chamber of their counsel and subsequently took back the files of the case from the said counsel and due to this incident the defendants could not appear after lunch before the Joint Registrar, as a consequence of which the order under Order 12 Rule 2-A of the Code of Civil Procedure was passed by the Joint Registrar.
21. It is the further grievance of the appellants that some of the documents filed by the plaintiffs are photostat copies, therefore, the same could not have been admitted by the order dated 24th April, 2009.
22. Learned counsel for the plaintiffs, on the other hand, denies the allegations of the appellants.
23. It appears that, firstly, the defendants have challenged the order dated 24th April, 2009 against which a review petition has already been dismissed. Secondly, the appeal challenging the order dated 24 th April, 2009 has been filed beyond time and the appeal itself is not maintainable and no valid justification has been given to condone the delay, however, during the course of hearing, it was agreed by the learned counsel for the parties that the present appeal may be disposed of CS (OS) No. 1746/2007 Page 10 of 11 with the following directions:-
(a) Learned counsel for the defendants has agreed to withdraw all the allegations made against the learned counsel for the plaintiffs;
(b) The plaintiffs have no objection if the original documents filed by the defendants subsequently are taken on record and they are prepared to complete the admisison/denial of the said documents;
(c) The plaintiffs are agreeable that only the original documents may be given exhibit numbers and not the photocopies as those need to be proved by the plaintiffs in accordance with law.
24. Ordered accordingly. The O.A. is disposed of in view of the above-mentioned terms as agreed between the parties.
List the matter before the Joint Registrar on 15th January, 2010 for completion of admission/denial of documents.
MANMOHAN SINGH, J.
NOVEMBER 26, 2009 CS (OS) No. 1746/2007 Page 11 of 11