Lila Devi And Ors. vs Raj Kumari And Ors.
1993 Latest Caselaw 616 Del

JUDGMENT

P.K. Bahri, J.

(1) This is a second appeal arising from the concurrent findings of the two courts below that the appellants have miserably failed to prove that the house in question bearing No. F-11/106, Lajpat Nagar, New Delhi, which was purchased in the name of Sh. Hira Nand, predecessor-in interest of the respondents, is the joint property of the parties.

(2) Facts, in brief, are that Hira Nand and his two younger brothers Arjan Dass and Daulat Ram with their families had shifted on partition of the country to Delhi and Hira Nand and Arjan Dass and their wives and children lived together in the house in question. The lease deed, copy of which is Ex. PW1/1 and conveyance deed, copy of which is Ex. FW1/2, were issued in favor of Hira Nand. These documents of title.clearly show that it is only Hira Nand who had purchased this property and consideration had been paid by him. Both Hira Nand and Arjan Dass had died in the year 1971. After about two years of their death, the respondents in this appeal, i.e. widow and three sons of Hira Nand brought at first an eviction petition under the Delhi Rent Control Act with the averments that Arjan Dass was the tenant in the portion of the said house and eviction was sought on various grounds mentioned in the eviction petition. The appellant Smt. Lila Devi, widow of Arjan Dass and her two minor sons took up the plea in fact Arjan Dass was never a tenant in the house in question and the house was, in fact, purchased by Arjan Dass and Hira Nand and thus, they were living in the house as coowners. On this plea being taken by the appellants the respondents filed the present suit seeking possession from the appellants on the averments that Hira Nand was the exclusive owner of the property in question and on his death the property has been inherited by the respondents and the appellants had no legal right to continue to live in the house in question. In contesting the suit same plea was taken by the appellants as was taken in the eviction proceedings that the appellants were living in the said premises as co-owners.

(3) So, the only question which arose for decision in this matter was whether the appellants are living in the house in question as co-owners or not? It is not out of place to mention here that after the suit had been decreed against the appellants, one of the appellants, namely, Radhey Shyam had filed a civil suit and sought injunction on the pleas that in fact, Arjan Dass was the tenant in the said portion of the house and tenancy rights had been inherited by him. It appears that his effort to obtain any injunction restraining the respondents from executing the decree proved futile.

(4) However, the question to be decided by this Court is whether the concurrent finding of fact given by the two courts below that appellants have failed to prove that they are the co-owners of the property in question is liable to be interfered by this Court in the second appeal or not?

(5) I have been taken through the record of the Trial Court and I have gone through the pleadings as well as the evidence and find that it is not even mentioned either in the written statement or in the evidence of the appellants as to what was the status of Arjan Dass in life and as to what sort of income he was having, if any and whether he was employed or was working somewhere privately. The only suggestion given to Smt. Raj Kumari, plaintiff, when she appeared as PW2-in cross-examination was that Arjan Dass and Hira Nand being the real brothers were living together and they were having their joint income and mess together which suggestion, of course, was denied by Smt.Raj Kumari. The appellants examined one Behari Lal who claimed to be known to the family having come from the same place in Pakistan as the parties and has been Secretary of some association of the Biradari. He made a statement that the two brothers and their families were living together after they came from Pakistan but in cross-examination he admitted that the payment of the price of the house was not made in his presence and he was not aware whether the families were having one ration-card or separate ration card. He was not aware when the house in question was actually allotted. So, his testimony was not of any importance in showing that as to what income Arjan Dass had and whether he contributed any specific amount towards the purchase of the house in question. Mere saying that both the families were living together and having joint income and expense does not lead to any inference that in fact, Arjan Dass was having sufficient funds from which contribution could have been made towards the price of the house.

(6) Kishori Lal, DW2, is the first cousin of Arjan Dass and Hira Nand. He also made similar statement that Hira Nand and Arjan Dass were living together and Hira Nand was head of the family and they were having joint mess and joint funds. He is also silent as to the income of Arjan Dass in his lifetime. Then we have the statement of Smt. Lila Devi-appellant and she also made a similar statement without giving any details as to the income of her husband. It is admitted by Smt. Lila Devi as well as by DW2 that certain portions of the house were let out by Hira Nand and it was Hira Nand who realised the rent and after the death of Hira Nand the respondent-Smt. Raj Kumari widow of Hira Nand had been Realizing the rent from the said tenants. It is mentioned that at one point of time she asked Smt. Raj Kumari to give a portion of the rent but no such rent was shared. In case,the applicants and the respondents were co-owners of the property in question at least after the death of Hira Nand the appellants would have asserted their co-owners right in the house. At least they could have filed some suit when Raj Kumari did not agree to share the rental income with the appellants. No such steps were taken by the appellants at any time.

(7) The learned Counsel for the appellants has strongly relied upon documents Ex. D1 to D3. Ex. D1 is the copy of the application made by Hira Nand addressed to the Housing and Rent Officer in which he had mentioned that he had been allotted a quarter F-II/106 in Lajpat Nagar and he is married and his real younger brother is also married and has four children and they are residing in that quarter for many years and his brother had not been allotted any accommodation from any authority of the Government and they are ten members and all of them are living in this quarter and thus, a request was made that another quarter may be allotted either in the name of Hira Nand or in the name of his brother whose name was mentioned as Daulat Ram and then it was mentioned that one quarter No. F-II/68 was lying vacant and the said quarter was sought to be got allotted by Hira Nand either in his own name or in the name of his brother Daulat Ram. At the Bar Counsel for the appellants has stated that Daulat Ram was allotted a separate quarter and it is not the case of the parties that the said quarter is the joint property of the. brothers. This document would not go to show that the quarter in question was required by Hira Nand jointly with his brother Arjan Dass. This letter was written on February 15, 1955, i.e. much after the allotment of the quarter in question in favor of Hira Nand by the authorities. There is no reference that this quarter has been allotted to Hira Nand as head of the family or has been allotted to the Joint Hindu Family of Hira Nand and his brother and their children.

(8) The next document Ex. D2 is a proforma filled by Hira Nand wherein he had given names of ten family members and one of the family members mentioned in this document is Nana Ram, uncle. This is dated September 20, 1956 and in case it is the case of the appellants that there was Joint Hindu Family living together, then obviously Hira Nand could not have been the head of the family. Nana Ram, uncle, could have been the head of the family. Then, there is a document Ex. D3 again dated September 20,1956, which only shows that there were about ten family members living in this quarter. This document also does not show that Hira Nand is occupying this house as head of the family or on behalf of the Undivided Hindu Family.

(9) Mere fact that members of his family including families of Daulat Ram and Arjan Dass have been living with Hira Nand, may be jointly, would not have led to inference that Hira Nand had acquired this quarter as head of the family for the benefit of all the family members or Arjan Dass and Hira Nand had acquired this quarter jointly. So, these documents, do not, in my view, help in discharging the heavy onus which was on the appellants to prove that the house in question which has been acquired in the name of Hira Nand was joint property of the parties.

(10) As a matter of fact the concurrent finding of fact on this point, in my opinion, is not liable to be interfered with in the second appeal. The lower courts have also relied upon one affidavit of Arjan Dass Ex. P6 but I find from the evidence that this document was not properly proved. I am not taking into consideration this particular document for endorsing the finding of the two courts below on the question of fact that the house in question was not joint property of the appellants and the respondents.

(11) No other point arises for decision in this appeal.

(12) I dismiss the appeal but in view of the relationship between the parties, I leave the parties to bear their own costs. The appellants are given one month time to vacate the premises.