Raj Khurana vs Bhagwan Dass
1997 Latest Caselaw 909 Del

ORDER

K.S.Gupta, J.

1. Plaintiff filed the suit inter alia alleging that property bearing No. C-1/19, Lajpat Nagar-1, New Delhi was acquired by his grand father Goda Ram against the claims of the properties left in Pakistan. Goda Ram expired on July 1, 1961 intestate leaving behind his widow Smt. Bhagwanti Devi (defendant No.2) and three sons Bhagat Raj Khurana, Bhagwan Dass and Hari Krishan Khurana, (defendants 1 and 3). Plaintiff is the son of Bhagat Raj Khurana, who died in 1990. He has thus 1/4th share in the aforesaid property. Defendants have refused to partition the property by metes and bounds.

It was prayed that a decree of partition in respect of the aforementioned property may be passed. By a decree of permanent injunction defendants are further sought to be restrained from disposing of the property and dispossessing the plaintiff from the portion shown in red colour in the site plan annexed with the plaint.

2. Alongwith the plaint I.A. 7951/95 under Order 39 Rules 1 and 2 read with Section 151 CPC was filed seeking to restrain the defendants from disposing of the aforesaid property and to dispossessing the plaintiff from the portion of the property in his occupation.

3. Yet another I.A.319/96 under Section 151 CPC was filed on January 8, 1996 by the plaintiff for seeking reliefs identical to that claimed in I.A.No. 7951/95. It is these two I.As. which I propose to dispose of by this order.

4. In their joint written statement defendants 1 and 2 have not disputed that Goda Ram died intestate leaving behind three sons and the widow. However, it is alleged that in January, 1950 Government of India granted tenancy of a shed constructed on a plot at a monthly rent of Rs. 10/- to Goda Ram. Goda Ram paid rent for the month of January, 1950 only and he continued to use and occupy the shed. Subsequently, in or about the year 1961, Government of India evolved a policy of rehabilitation of refugees by allotting the properties let out to them earlier against lumpsum payment either in cash or in adjustment of their claims against the properties left in Pakistan. Office of the Settlement Commissioner, New Delhi sent a letter to Goda Ram in 1961 demanding a total sum of Rs. 3700/- for the suit property in addition to the Rs. 590/- towards the outstanding rent and the water charges. Goda Ram being unemployed and aged did not have the means of making the payment. He also apprehended that if the dues were not paid the tenancy will be revoked and he would be on the road. In 1952, defendant No.3 shifted out of the shed and settled in his own property bearing No.16/26, Tilak Nagar, New Delhi. It is alleged that in the circumstances, in April, 1961 Goda Ram gifted his right and interest in the said allotment in favour of defendant No.1. After the death of Goda Ram on July 1, 1961 in terms of the disposition of Goda Ram, in December, 1961 each of the other family members furnished to the Settlement Commissioner, New Delhi no objection in the form of affidavit inter-alia stating that they did not have any objection to the transfer of allotment of the suit property exclusively to defendant No.1. Pursuant to no objections, the Commissioner mutated the suit property exclusively in the name of defendant No.1. Thereafter, out of his personal funds defendant No.1 paid Rs.2,795.50 in cash against receipt/challan dated June 19, 1964. Part of the dues was adjusted against the admitted claim of a third person. It is also alleged that the President of India executed on September 30, 1966 a lease deed thereby granting to the defendant No.1 perpetual leasehold rights in the suit property. Since then defendant No.1 has been recorded as the owner of the suit property in the records of Municipal Corporation of Delhi. Defendant No.1 further got converted the suit property from leasehold to free hold by paying a sum of Rs. 10,080/-. It is pleaded that defendant No.1 allowed Bhagat Raj Khurana to use and occupy a part of the suit property out of love and affection for him. It is emphatically denied that the suit property was acquired against the claims of the properties left in Pakistan or that the Plaintiff has 1/4th share therein as alleged.

5. On April 17, 1996, statement was made by defendants' counsel that he did not propose to file replies to I.As. 7951/95 and 319/96 and the written statement jointly filed by defendants 1 and 2, be treated as replies to these I.As.

6. I heard the learned counsel for the parties and had been taken through the record.

7. In support of the case set up in the plaint, the plaintiff has filed photostat copies of the letter No. SC (GBP) MO/AG/6650 dated June 5, 1961 issued by the office of the Settlement Commissioner, New Delhi, affidavit of Girdhari Lal and also an application dated March 28, 1961 jointly filed by Goda Ram and Girdhari Lal before the Settlement Commissioner, New Delhi. As against this, contesting defendants 1 and 2 have filed lease deed and conveyance deed both dated September 30, 1966 in respect of the suit property, conveyance deed dated February 21, 1994, letter dated December 26, 1961 sent by defendant No.1 to the Settlement Commissioner for transfer of allotment of the aforesaid property, affidavits dated February 22, 1962 of defendant No.3, dated December 22, 1961 of defendant No.2, again of defendant No.2 dated December 29, 1961 letter dated October 11, 1966 issued by the Managing Officer, Regional Settlement Commissioner's Office to the Sub-Registrar (Nazul) for making entry of allotment of the suit property in the name of defendant No.1, letter dated August 13, 1966 issued by the Assistant Assessor and Collector, MCD, informing defendant No.1, that the suit property stands mutated in his name and the receipts dated June 19, 1964 in regard to payment of Rs. 2795.50 towards cost of the suit property and Rs. 56/- towards water charges. above said documents filed by defendants 1 and 2 clearly go to show that after the death of Goda Ram, on furnishing of affidavit by defendant No.3, defendant No.2 on her behalf and on behalf of minor Bhagat Raj Khurana, father of the plaintiff and defendant No.1, the allotment of suit property was transferred in the name of defendant No.1 from that of deceased Goda Ram by the Settlement Commissioner, new Delhi and on making payment of cost of the suit property by defendant No.1, lease deed and conveyance deed dated September 30, 1966 in respect thereof were executed in his favour by the President of India. Not only that, the suit property was mutated in municipal record in the name of defendant No.1 and he also got it converted from leasehold to freehold by paying a sum of Rs. 10,080/-. It may be noticed that the documents filed by the plaintiff referred to above only indicate that a demand for payment of cost of the suit property was made by the Settlement Commissioner, New Delhi on Goda Ram and application by one Girdhari Lal for adjustment of his claim to the tune of Rs. 1450/- in favour of Goda Ram was made to the Settlement Commissioner. In their written statement defendants I and 2 also admit of the offer of allotment of the suit property being made in the name of Goda Ram and adjustment of a part of the dues against the claim of aforesaid Gird-hari Lal. However, according to them later on the offer of allotment of the suit property as per the wishes of Goda Ram was got transferred in the name of defendant No.1 who after making payment of balance cost etc. got executed the lease deed/conveyance deed of the suit property by the President of India in his favour. Needless to repeat that in the plaint case of the plaintiff is that the suit property was acquired by Goda Ram against the claims of the properties left behind him in Pakistan but the aforesaid documents filed by the plaintiff fall short of proving that plea. Thus I have no hesitation in holding that the plaintiff has not even been able to make out a prima facie case for grant of ad interim injunctions, prayed for.

8. Both the I.As. 7951/95 and 319/96 are, therefore, dismissed and the order dated April 17, 1996 is hereby vacated. No order as to costs.