Jai Ram Das And Ors. vs Ghanisham Dass And Anr.
1997 Latest Caselaw 795 Del

JUDGMENT

C.M. Nayar, J.

(1) The present suit is filed by the plaintiffs for declaration to the effect that plaintiffs are owners and in possession of the property in dispute to the extent of 3/4th share, bearing No. XIII/ 1533 (Aziz Can) old name) now known as Ashok Gali, Bahadurgarh Rc?d, Delhi, marked 'N, 'B', 'C', and 'D' and shown blue in the plan attached with the plaint and that the agreement to sell dated February 22, 1972 executed between the defendants and the judgment and decree passed in Suit No. 451/77 entitled Ghanisham Dass v. Vehra Mal, decided by Shri V.K. Jain, Sub Judge, Delhi and the decree in Appeal No. RCA8/1979 dtd. 22.9.1980 passed by Shri S.P. Sabharwal, Adj, Delhi are ultra vires, void, illegal, without jurisdiction and nullity and as such are not binding upon the plaintiffs and do not in any way affect the right, title and interest of the plaintiffs in any manner whatsoever, and decree of declaration to the effect be passed in favour of the plaintiff and against the defendants with costs of the suit.

(2) The plaintiffs are the sons of defendant No. 2 and the pedigree table may be reproduced as follows : Shri Chuhar Mal Shri Vehra Mal (defendant No. 2) Sh. Jai Ram Dass Vas Dev Girdhari Lal (Plaintiff No. 1) (Plaintiff No. 2) (Plaintiff No. 3) The relevant paragraphs in the plaint with regard to the facts as alleged are 2,3,4,5 and 6 which may be reproduced as follows :

"2.That the plaintiffs and defendant No. 2 are displaced persons from Sind (now in Pakistan). They left behind joint Hindu family ancestral properties in Shikarpur (Sind), Sibbi and Harnoi (Balachuistan). The Plaintiffs constituted a joint Hindu family with the defendant No. 2 in Pakistan and the properties left behind in Pakistan were Joint hindu family ancestral properties.

3.That on the partition of the country in the year 1947, the plaintiffs and defendant No. 2 migrated to India and since then settled in Delhi. Owing to the exigencies of the situation the joint Hindu family was disrupted and the plaintiffs have been carrying on their business separately in Delhi. The plaintiffs had 3/4th share in the joint Hindu family ancestral properties left by them in Pakistan and the defendant No. 2 had only ¬th share in the said properties.

4.That on reaching India defendant No. 2 filed claims in respect of the Joint Hindu family ancestral properties left by them in Pakistan which claims were duly verified by the Claims Officer (a true copy of the order of the Claims Officer is attached with the plaint). In all these claims were verified for the amount of Rs. 70,000.00 and the plaintiffs and the defendant No. 2 were found eligible for compensation of the amount of more than Rs. 11,000.00 (Rupees eleven thousand only). That the Central Government by its notification under Section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter called "the Act") invited compensation applications from the verified claimants and the defendant No. 2 in pursuance of the above said notification filed application under C.A.F. No. D.G.M./40164 dated - alongwith annexures wherein the defendant No. 2 admitted that the properties left in Pakistan were joint Hindu family ancestral properties and that they constituted a joint Hindu family in Pakistan.

5.That House No. XIII/1533 (Aziz Ganj old name) now known as Ashok Gali, Bahadurgarh Road, Delhi of which the plan is attached herewith, was an evacuee property, vesting in the Custodian of Evacuee Prpoerty, Delhi, was subsequently acquired under Section 12 of the Act and formed part of the compensation pool. The said house was allotted to the defendant No. 2 on rental basis and later on the defendant No. 2 was found eligible for the transfer of the above said property as an owner under the provisions of the Act and the Rules framed thereunder and he was required under the law to pay the cost of the above said property and towards the payment of which cost the compensation due to the plaintiffs and the defendant No. 2 on their verified claims was got adjusted towards the cost of the above said property and therefore, the property in question became ancestral joint Hindu family property. Thereafter a deed of conveyance in respect of said property was also executed in favour of the defendant No. 2 on 10th May, 1976 and the same was duly registered on 9.6.1976.

6.That the defendant No. 1 filed a Civil Writ Petition No. 232 of 1966, entitled Ghanisham Dass v. U.O.I. and Shri Vehra Mal, etc., in the Hon'ble High Court of Delhi at New Delhi and during the course of the writ proceedings the defendant No. 2 without the consent of the plaintiffs who were owners of 3/4th share in the property in dispute, by an agreement dated 22.2.1972 agreed to transfer the first floor of the property in dispute marked 'A', 'B', 'C' and 'D' and shown blue on the plan attached with the plaint without cause and reason and without consideration. The said agreement is illegal, void, without any authority or legal necessity and as such cannot Affect the rights of the plaintiffs and is not binding on them."

(3) It is further stated in paragraph 7 that defendant No. 1 filed a suit against defendant No. 2 in the Court of Shri V.K.Jain, Subordinate Judge, First Class, Delhi which was numbered as Suit No. 451/1977 for specific performance of the agreement dated February 22, 1972 which is referred to in paragraph 6 as stated above. This suit was decreed on September 23, 1978 and the necessary relief was granted to defendant No. 1. The appeal against this decree was preferred in the Court of Additional District Judge which was dismissed vide order dated September 22,1980 passed by Shri S.P. Sabharwal, Adj, Delhi. No further appeal was filed against this judgment and the decree was made on September 23, 1978 and subsequently affirmed by the Appellate Court on September 22, 1980 has since become final. Copy of the appellate judgment is filed as Exhibit Dl. The present suit is filed impugning the decree made in favour of defendant No. 1.

(4) Summons in the suit were issued. Defendant No. 2 who is the father of the plaintiffs did not put in appearance and was directed to be proceeded ex-parte vide order dated May 11, 1981.

(5) Defendant No. 1 filed his written statement wherein the following pleas have been taken:

(A)It was wrong to allege that there was any joint Hindu family which was disrupted in the manner as indicated in the plaint. It was also denied that the plaintiffs have 3/4th share in the joint Hindu family ancestral properties left by them in Pakistan or that defendant No. 2 had only 1 / 4th share in the said property. The properties left behind in Pakistan belonged exclusively to defendant No. 2 and the plaintiffs had no shares in them.

(B)Defendant No. 2 filed an application with the Custodian in his own right and he did not admit that the properties were joint Hindu family ancestral properties or that they constituted a joint Hindu family.

(6) Defendant No. 1 in view of the above pleas clearly stated that plaintiffs and defendant No. 2 did not have joint Hindu family properties as alleged in the plaint and therefore, the decree made by the Court of Sub Judge, 1st Class on September 23, 1978 was legal, valid and could not be set aside in the present proceedings.

(7) On the pleadings of the parties, the following issues were framed : (1) Whether the suit is within the time? Opp (2) Whether the suit in the present form is maintainable ? Opp (3) Whether the suit has been properly valued for purposes of court fee and jurisdiction ? Opp (4) Whether the plaintiff has any right or interest in property No. 1533, Aziz Ganj, Delhi ? Opp (5) Whether the decree passed in Suit No. 151 of 1977 by Shri V.K.Jain,Sub Judge, Delhi is liable to be set aside on the ground mentioned in para No. 8 of the plaint ? Opp (6) Whether the suit is barred under Section 281A of the Income Tax Act ? Opd 50 (7) Whether the suit has been filed by the plaintiff in collusion with defendant No. 2 ? Opd (8) Relief. Issue No. 1:

(8) The plaint which is filed in this Court is dated January 21,1981. Reference is made to paragraph 9 of the plaint by learned Counsel for defendant No. 1 to reiterate that the cause of action at best accrued to the plaintiffs on May 30, 1977 when notice was sent to defendant No. 1. This paragraph reads as follows: "9.That the plaintiffs have asked the defendants several times to admit the claim of the plaintiff but the defendants are adamant and have refused to do so inspite of a notice dated 30.5.1977having been served upon the defendant No. I but to no effect. The illegal action of the defendants have cast a cloud on the title of the plaintiff and hence a suit for declaration (copy of the notice, postal receipt, and A.D. are attached with the plaint)." In view of the above the present suit is prima facie barred by time as Article 58 of the Limitation Act prescribes a period of 3 years to the plaintiffs from the date the right to sue first accrued. This issue is, accordingly, decided against the plaintiffs and in favour of the defendant No. 1. Issue Nos. 2 and 3 :

(9) These issues were not pressed by learned Counsel for defendant No. 1 at the time of hearing. Therefore, these are decided in favour of the plaintiffs. Issue No. 4:

(10) This issue relates to the right or interest of the plaintiffs, if any, in the suit property. It may be noticed that earlier defendant No. 2 who was represented by Shri D.N. Nijhawan, Advocate had been contesting the litigation against defendant No. I when the suit for specific performance of the agreement dated February 22, 1972 which was executed as a result of the compromise in C.W.P. No. 232/96, Ghanisham Dass v. Union of India and Shri Vehra Mal, was decreed on contest by the Subordinate Judge. The appeal against the order was upheld as has been referred to in the earlier part of the judgment. Subsequently, the present suit has been filed by the same Counsel Mr. D.N. Nijhawan in this Court. Statement of Public Witness Pw 1 Shri N.C. Sagar who was working with the Ministry of Home Affairs, Department of Security and Rehabilitation, New Delhi was recorded wherein this witness stated as follows: "I have brought the file of claim being No. S/SR/13/761. This claims was filed by Vehra Mal, defendant No. 2. The original claim was verified for Rs. 3,010.00 . This claim related to property left in Sikharpur District Sakhar. Col. No. 6 of from-A reads : How the applicant acquired the property (inheritance, purchase, gift etc.). Ext. Public Witness Public Witness 1/1 is the attested copy of Form A. I have compared it with the original. I have also brought the record relating to Caf Registration No.D/GM/40164/ Denf for adjustment of the compensation due on account of claim for purchase of property No. 13/1533. The total amount of the claim was Rs. 56,381 .00 . The assessment was for Rs. 11,280/". The value of the property in dispute was Rs. 9,070.00 . This amount was adjusted for purchase of suit property and the balance was of Rs.2,210.00 ."

The reading of the above testimony will indicate that the claim in respect of the properties left in Pakistan by defendant No. 2 was only filed by the said defendant and not by any other person at that time. Statement of the plaintiff Jai Ram Dass was recorded wherein he reiterated that the property was ancestral and he was about 15-16 years old when the family migrated to India. In cross-examination he did not deny that there was no dispute between the said plaintiff and his father. He has further stated in cross-examination as follows: "\did not object to my father giving possession to any other person. I do not know whether my father has sold the property. My father told me that he is giving on rent. He told this to me when he gave the possession to the other person. My father collects the rent. I do not live with my father. I have seen the sale deed executed by the President of India in favour of my father. It is true that this sale deed is in the name of my father alone. It is true that Ghanisham Dass had filed a suit in respect of the first floor of this property for specific performance. I do not know what happened in the Court. Till date, I do not know what had happened in that case. I do not know whether the sale deed was executed in favour of Ghanisham Dass by the order of Court. For the last 10 or 12 years my father and I are having separate mess. The Huf did not file any income-tax or wealth-tax return. We have never shown this property as Huf anywhere. I do not know about the Court case between Ghanisham Dass and my father. I do not know that the' consideration was paid for this sale by Ghanisham Dass to my father for this property. I do not know if my father contested the proceedings and filed an appeal against the decree."

This witness has further stated in the last paragraph of his testimony that he used to accompany his father in the Court of Shri V.K. Jain and the Court of Shri S.P. Sabharwal, Additional District Judge, Shri Dina Nath Nijhawan, Advocate was their lawyer in both the cases. In view of the above testimony it is clearly established that the plaintiffs were fully aware that defendant No. 2-Vehra Mal had complete interest and control over the property. There was no joint Hindu family interest in respect of the same and this fact is not denied in the evidence of the plaintiffs. It is further stated that plaintiff No. 1 participated in all the proceedings which took place within his knowledge as well as it is also conceded that the alleged Huf did not file any income-tax or wealth-tax returns. The pleadings of the parties as well as the evidence on record would, therefore, establish that defendant No. 2 had right and interest in the property to the exclusion of the plaintiffs and he was well within his legal right to execute an agreement to sell dated February 22, 1972 in favour of defendant No. 1. This issue is decided in favour of defendant No. 1. Issue No. 5:

(11) In view of the findings as recorded on Issue No.4 this issue is also decided in favour of defendant No. 1 as the present suit cannot be entertained due to the fact that the decree passed by Shri V.K. Jain, Subordinate Judge has since become final. Issue No. 6:

(12) This issue was not pressed by the learned Counsel. Issue No. 7:

(13) The present suit on the facts as narrated above is clearly filed in collusion with defendant No. 2 who died during the pendency of the suit on June 9,1993. This defendant did not contest the proceedings and chose to remain absent.

(14) For the aforesaid reasons, the present suit is without merit and is dismissed. The parties shall bear their own costs.