* HIGH COURT OF DELHI AT NEW DELHI
+ R.S.A.55/2007
Decided on : 13th March, 2015
RAJESH KUMAR PANDEY ..... Appellant
Through: Mr.J.K.Singh, Adv.
versus
SHANTI DEVI & ANR. ..... Respondent
Through: Mr.Sugreev Dubey, Adv.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is a regular second appeal filed by the appellant/Rajesh Kumar Pandey.
2. I have heard the learned counsel for the appellant as well as the learned counsel for the respondents.
3. This court on 08.07.2013 had formulated a question as to whether the finding returned by the first appellate court is perverse or not. Although the aforesaid question was framed by the court, however, the learned counsel for the appellant during the course of the submission has failed to show to the court as to how the finding of the first appellate court suffers from any perversity. Before closing the matter, it would be R.S.A. No.55/2007 Page 1 of 6 pertinent here to mention that the appellant had filed suit for partition and permanent injunction against his brother Sh.Ram Milan Pandey.
4. The case which was set up by him was that their father Sh.Jagdish Prasad Pandey was the owner of property bearing No.230/22-E, Gali No.8, Railway Colony, Mandawali, Delhi - 110092 and it was his self acquired property. Sh.Jagdish Prasad Pandey died in the year 1996 as a consequence of which both Rajesh Kumar Pandey and Ram Milan Pandey became co-owners of the suit property and consequently the appellant had requested his brother to partition the property a number of times, but the same was not done. It was alleged that Sh.Ram Milan Pandey wanted to grab the entire property as a consequence of which a suit had to be filed by the appellant claiming his share. The respondents contested the claim of the appellant for partition and permanent injunction and claimed that Smt.Shanti Devi w/o Sh.Ram Milan Pandey was a necessary party because out of the 62 square yards of land, 42 square yards was purchased by her from Sh.Jagdish Prasad Pandey on 13.12.1995 and the balance which was left out was only 20 square yards which only was to be co-shared by both Rajesh Kumar Pandey and Ram Milan Pandey.
R.S.A. No.55/2007 Page 2 of 6
5. On the pleadings of the parties, the following issues were framed:
i) Whether the plaintiff is entitled to the half share in the suit property as claimed? OPP.
ii) Whether the defendant No.2 has become the owner of 42 square yards by virtue of purchase from Jagdish Prasad Pandey? OPD.
iii) Whether the suit of the plaintiff has not been properly valued for the purposes of court fees and jurisdiction? OPD.
iv) Relief.
6. The parties were permitted to adduce their evidence and the court granted a decree of partition of half of the suit property bearing No.230/22-E, Gali No.8, Railway Colony, Mandawali, Delhi in favour of the appellant and passed a preliminary decree and also directed that the aforesaid property be subject matter of partition and for that purpose it appointed a local commissioner to suggest as to how the property be partitioned.
7. Sh. Ram Milan Pandey and Smt.Shanti Devi, the respondents herein, feeling aggrieved by the aforesaid judgment and decree, preferred an appeal and the first appellate court modified the decree declaring that R.S.A. No.55/2007 Page 3 of 6 Smt.Shanti Devi, wife of Sh.Ram Milan Pandey had purchased 42 square yards of land vide GPA and other connected documents from Sh.Jagdish Prasad Pandey, father of Sh.Ram Milan Pandey, and also directed that the judgment and decree passed by the trial court be accordingly modified to the extent that instead of parties sharing the entire suit property in proportion of ½ each, the two sons of Sh.Jagdish Prasad Pandey, Sh.Rajesh Kumar Pandey (appellant herein) and Sh.Ram Milan Pandey (Respondent No.1) shall have a equal share in the remaining 20 square yards of the property with respect to which Sh.Jagdish Prasad Pandey did not make any testamentary disposition.
8. Sh.Rajesh Kumar Pandey, feeling aggrieved, has preferred the present regular second appeal. During the pendency of the present appeal, the apex court in Suraj Lamp & Industries Pvt. Limited v. State of Haryana & Anr. (2011) 11 SCALE 438 has clearly laid down that before a right, title or interest in any immovable property is deemed to have been created, the same has to be done by a registered document and not by an unregistered document and similarly a person who is basing his claim on the documents of such a nature, the first and foremost principle is that he must prove his title by filing a suit for specific performance against the R.S.A. No.55/2007 Page 4 of 6 vendor. In the instant case, there is no dispute about the fact that the suit property measuring 62 square yards of land was owned by the Sh.Jagdish Prasad Pandey who died leaving behind two sons namely the present Sh.Rajesh Kumar Pandey and Sh.Ram Milan Pandey. The learned Civil Judge has rightly disbelieved the version of Sh.Ram Milan Pandey that his wife is purported to have purchased 42 square yards of the aforesaid parcel of land by a document like general power of attorney and, therefore, she has become the owner of 42 square yards of land. It is totally strange that in case Sh.Jagdish Prasad Pandey wanted to sell a portion of the suit property to the wife of one of his sons or to his daughter in law, then why he would not sell the entire parcel of land but only half of that land or slightly well over half the land. All these factors have been considered by the learned Civil Judge in the light of the evidence which has been produced before it. I do not agree with the judgment of the first appellate court with regard to holding that the land was validly purchased by Smt.Shanti Devi, wife of Sh.Ram Milan Pandey to the extent of 42 square yards is suffering from perversity especially in the light of the fact that the respondent/Smt.Shanti Devi in the light of the judgment of the Apex Court in Suraj Lamp's case (supra) has not proved R.S.A. No.55/2007 Page 5 of 6 all such documents as documents of genuine transactions with regard to conferment of right, title or interest in any immovable property. If that be so, obviously it could not be considered to be a valid sale and the finding returned by the learned Civil Judge is perfectly valid that Sh.Rajesh Kumar Pandey has ½ share in the self acquired property of late Sh.Jagdish Prasad Pandey. Accordingly, the judgment of the first appellate court suffers from perversity and the same is set aside and the judgment and decree passed by the trial court is upheld. The matter is remanded back to the trial court to apportion the shares in case the property is divisible as may be suggested by the local commissioner failing which the same will be disposed of and the sale proceeds partitioned.
9. With these observations, the appeal is allowed and the order dated 18.11.2006 is set aside.
V.K. SHALI, J.
MARCH 13, 2015 dm R.S.A. No.55/2007 Page 6 of 6