Madan Lal (Deceased) Legal Heirs ... vs Ram Parshad And Anr.
2000 Latest Caselaw 1143 Del

JUDGMENT

Devinder Gupta, J.

1. This appeal is against the judgement and decree passed on 18.1.1982 by learned Single Judge of this Court dismissing the suit of plaintiff/appellants by which they had sought partition of immovable properties bearing. No. 61-62, I-Block, Lajpat Nagar-I, New Delhi and No. J-77, Srinivaspuri, New Delhi and for rendition of accounts in respect of the rents realised by defendant/respondent No. 1.

2. The facts relevant for decision of the present appeal in brief are that Madan Lal, Manohar Lal and Krishan Gopal plaintiffs 1, 2 and 3 and Ram Parshad-defendant/respondent No. 1 are sons of Munshi Ram. Som Raj was another son of Munshi Ram who expired in the year 1975. On 16.11.1977 the plaintiffs filed a suit claiming partition of the suit property alleging that Ram Parshad, defendant and Madan Lal, plaintiff before partition of the country were in service at Lahore (now in Pakistan) and upon migration came to Delhi in 1947. Plaintiffs Nos. 2 and 3 with their mother and brother Som Raj also came to Delhi. All brothers started living together at Delhi. Plaintiffs and defendant No. 1 constituted a Joint Hindu Family. Whatever was earned by the plaintiffs was given to the defendant being the Karta of the said Joint Hindu Family. Mother died in the year 1973 and brother Som Raj also died in 1975.

3. It was alleged that after partition of the country, in order to rehabilitate refugees, who had come from Pakistan, houses in large scale were constructed by Government of India. The same were allotted to refugees on monthly rent. Criteria for allotment was that if family consisted of 5 members, they were entitled to allotment of one quarter and in case family members exceeded 5, entitlement was for two quarters. In the case of Plaintiffs and defendant No. 1, the family members Being more than 5 and defendant being Karta of the Joint Hindu Family, applied for allotment of refugee accommodation and consequently, quarters Nos. 61-62, I-Block, Lajpat Nagar-I were allotted to them at a monthly rental of Rs. 36/- with stipulation that the ownership rights would be conferred on expiry of 12 years subject to payment of costs of the suit property, on instalment basis. The said property was thus allotted in the beginning of 1952 to the plaintiffs defendant No. 1, their deceased mother and deceased brother for a total cost of Rs. 6,960/- and they shifted to the said property on 15.11.1952. In 1958 a sum of Rs. 5,500/- was payable, being the balance instalment of the total cost of the said property and Rs. 1,000/.- towards arrears of rent.Jn order to save liability of 4.5% yearly interest being charged by Government of India, claim of one Smt. Lali Bai, to the extent of Rs. 6, 140/- was associated at half value for purchasing the property. It was thus alleged that the suit property was purchased with the aid of joint income Joint Hindu Family, but the lease deed was executed by President of India only in the name of Ram Parshad, being the elder brother and head of the family in Delhi. Had the father of the plaintiffs and defendant been in Delhi, the suit property would have been allotted in his name, being Head of the family. But the father was residing in Himachal Pradesh, therefore, the suit property could not be allotted in his name, as Karta of the family.

4. The plaintiffs laid claim to the other property alleging that another built up property bearing No. J-77, at Srinivaspuri, New Delhi was purchased in 1961 with the aid of Joint Hindu Family fund. Thus it was claimed that both the properties at Lajpat Nagar and Srinivaspuri were purchased with the aid of joint income of Joint Hindu Family and, therefore, were joint properties. Defendant, Ram Parshad after purchase of the property at Srinivaspuri shifted from Lajpat Nagar in the year. 1962, but continued supervising the property situate at Lajpat Nagar by letting out the same and exclusively receiving rent, as was done by him earlier. The plaintiffs claimed one fourth share each in the properties and prayed for partition of the property and rendition of the accounts.

5. Suit was resisted by the defendant, who besides raising other legal objections denied that there was any Joint Hindu Family or that the properties were purchased jointly with the aid of joint funds. The plaintiffs filed replication but thereafter sought amendment to the plaint, which was vehemently opposed by the defendant on the ground that the plaintiffs were trying to make out a totally new case and wanted to wriggle out the admissions made. Plaintiffs were allowed to amend the plaint and the amended plaint was taken on record. Thus the suit proceeded on the basis of the amended plaint.

6. It will be necessary to extract the case as set up by the plaintiffs in the amended plaint dated 26.5.1978. Narration of the original plaint was necessary in order to highlight the nature of change effected in the original stand, which had been taken by the plaintiffs.

7. The plaintiffs in the amended plaint alleged that-before partition of the country, plaintiff No. 1 and the defendant-Ram Parshad were in service at Lahore and they migrated to India in 1947. After some time other members of the family, namely plaintiffs Nos. 2 and 3, their mother and Som Raj, deceased brother also joined them. Being a Joint Hindu Family whatever was earned by the plaintiffs was given to the defendant, who was the eldest brother. The defendant being the eldest brother as per the scheme of the Government for allotment of refugee accommodation applied for allotment of rolugee accommodation though for all intents and purposes the plaintiffs were also eligible for allotment. Being large family, allotment of two quarters bearing No. 61-62, I Block Lajpat Nagar -I was made. Thus it was a joint allotment of the property made for the benefit of the plaintiffs, their mother and deceased brother along with the defendant. Therefore, they are equally joint transferees of the quarters. It was further alleged that later on claim of one Lali Bai was associated by purchasing her claim at half value. Being the eldest brother, the allotment letter for Lajpat Nagar property was issued as well as lease the deed was executed by the President of India exclusively in the name of the defendant.

8. In 1961, another built up property at Srinivaspuri was purchased with the aid of joint income of the plaintiffs and defendant. Not a single penny was paid to the plaintiffs by the defendant despite the fact that the defendant had been realising rent of the property situate at Lajpat Nagar. Thus the plaintiffs claimed that as the properties were joint, they were entitled to equal share in the suit property with the defendant.

9. The defendant raised a preliminary objection that the suit was barred by limitation. Lajpat Nagar Properties were transferred in his name on 31.10.1964 by a registered lease deed executed by Government of India to the knowledge of plaintiffs. In case they had any grievance, they ought to have sought a declaration before seeking partition of the property and as such, the suit was not within the period of limitation. Another preliminary objection of non-joinder of parties was raised stating that on the allegations of the plaintiffs that all members of the family, for whose benefit allotment was made, were co-allottes. As the wife of defendant was one of the members for whose benefit, according to the plaintiffs, property was allotted, would also be entitled to a share in the property. As such, the suit in absence of the wife of the defendant could not proceed. Another objection was raised that the suit was barred under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1954.

10. On merits the defendant pleaded that before partition he alone lived at Lahore, where he was in Service. Plaintiff No. 1 was hardly 12-13 years only at the time of partition. Plaintiff No. 1 along with other two brothers and his parents was residing at Village Dharamshala-Mahantan in District Una, Himachal Pradesh where they had ancestral property. The defendant and plaintiffs never constituted Joint Hindu Family. The defendant was always separate from his father and brothers. He alone migrated from Pakistan to Delhi and he alone was a refugee. The defendant denied that under the scheme, two units were allotted to him. It was claimed by him that when the defendant got employment in 1950 in Vocational Training Centre, Plaintiff No. 1 came to live & with him and be got him employed. Plaintiff No. 3 lived with his father upto 1960 and got education at Dharamshala-Mahantan. Plaintiff No. 3 came to Delhi in 1961 and was got admitted by the defendant in 111 for training. Plaintiff No. 2 came to Delhi only in 1966. Plaintiffs were living separately from the defendant aud had no jointness with the defendant. On compassionate ground he allowed his brothers to live in Lajpat Nagar property occasionally. Deceased brother Som Raj was a disabled person. Mother and the said brother died in village where they were residing with the father of plaintiffs and defendant.

11. As regards allotment, the defendant in the written statement pleaded that 30 quarters were allotted to the Vocational Training Centre by the Housing Department, for accommodating the workers and the staff of Vocational Training Centre, irrespective of the extent of family members. The defendant got allotted two quarters under the scheme. He denied that it was a joint allotment or that the allotment was procured for all or with the help of the joint funds or for the benefit of members of the family. He also denied that Srinivaspuri property was purchased with the aid of joint funds. The defendant pleaded that he was merely a holder of the joint power of attorney for Srinivaspuri property. He claimed that he was absolute owner of the property bearing Nos. 61-62, Lajpat Nagar, having purchased the same with his own funds and resources in the year 1964 in which plaintiffs had no right, title or interest.

12. Plaintiffs filed replication to the written statement to the amended plaint, wherein they reiterated their stand that they were not asserting their right to the properties, being members of the Joint Hindu Family, but were claiming share therein being coallottees or joint transferees and having contributed for purchase of the property in question.

13. The parties were put to trial on the following issues:-

1. Whether the suit is within time?

2. Whether the suit is not maintainable in the present form?

3. Whether the properties in suit are the joint properties of the plaintiffs and the defendant, if so to what effect?

4. Whether the plaintiffs are entitled to rendition of accounts with respect to the properties in suit against the defendants?

5. Whether the suit is bad for non-joinder of the Parties?

6. Whether the suit is barred under the Displaced persons (Compensation & Rehabilitation Act, 1954?

7. Whether the suit is not properly valued for purposes of court fees?

8. Relief.

Besides examining other witnesses, plaintiffs, Madan Lal and Krishan Gopal appeared as PW-2 and PW-3 respectively. They besides other witnesses also examined their father Munshi Ram as PW-6. The defendant appeared as his own witness as DW-1 and examined other evidence. Parties also proved number of documents.

14. Learned trial Court dismissed the suit on findings recorded on issue No. 3. As regards issues Nos. 5 and 7, learned Single Judge observed that the same were not pressed by learned counsel for the defendant. The suit was held to be within the period of limitation and thus issue No. 1 was held in affirmative holding that there was a marked difference between a suit to enforce a right and a suit for mere declaration of existence of the right. The suit, according to learned Single Judge, falls in the first category and would, therefore, be governed by Article 65. Article 113 of Limitation Act had no application. Issued No. 2 was held in negative holding that the suit was maintainable in the present form since no separate relief for declaration of rights was required to be claimed in view of the fact that the plaintiffs had claimed relief of partition, which would include therein also declaration of their rights and title. The suit was held to be maintainable in Civil Court.

15. Under Issue No. 3 learned Single Judge proceeded to examine the question from a different angle than the one as was pleaded on behalf of the plaintiffs. Though the plaintiffs had given up their claim to the suit property being Joint Hindu Family property, learned Single Judge proceeded to record his findings that there was no evidence suggesting that there was any Joint Hindu Family or that the property had been Voluntarily thrown by the defendant into the common stock with the intention of abandoning his separate claim on it. The other aspect though not pleaded, on which learned Single Judge proceeded was about the benami transaction and held that the onus of establishing a transaction to be benami is always on the person asserting benami nature of the transaction. The source from which purchase money came being very important test for determining the benami nature of transaction. It was held that no circumstance had been proved on the basis of which it could be inferred that the intention of the defendant was to purchase three fourth share in Lajpat Nagar property benami in his name for the benefit of the plaintiffs or the real owner being the plaintiffs. On the findings aforementioned, the suit was dismissed. The appeal is against the said judgement and decree.

16. At the behest of the plaintiffs ad-interim injunction, as prayed for was had been issued by the trial Court restraining the defendant from alienating the property. Ram Parshad, defendant in December, 1977 gave an undertaking that he would not alienate the property. During pendencey of the appeal by order dated 1.2.1996 respondent No. 2 was permitted to be added as a party to the appeal, since a part of Lajpat Nagar property, namely property bearing No. 61, I Block, Lajpat Nagar-I, New Delhi had been transferred by Ram Parshad, defendant in favour of respondent No. 2 pursuant to a decree obtained by respondent No. 2 against Ram Parshad, in R.F.A. No. 243/85 titled as Jai Kishan Metha v. Ram Parshad.

17. The plaintiffs have also filed CM 1258/99 Under Order 41 Rule 27 C.P.C. seeking leave of the Court to produce some documents, which according to them, despite exercise of due diligence were not within their knowledge during trial or at the time of filing of the appeal and came to their notice subsequently. These documents are alleged to have come to their knowledge and possession only in April, 1998 and are alleged to be material documents going to the root of the matter, production whereof is necessary, in order to do complete justice between the parties. This application has also been vehemently opposed on behalf of respondent No. 1.

18. We heard learned counsel for the parties at length and were taken through the entire record. The main question on merits arising for determination is that whether the plaintiffs have been able to prove that it was a joint allotment of two units (of Lajpat Nagar property) though in the name of defendant, Ram Parshad, but for the benefit of the members of his family. Or in other words whether defendant, Ram Parshad having obtained the allotment on the ground that his family was large enough, would the other member of the family be entitled to claim any right, title or interest therein. During the course of arguments, learned counsel for the plaintiff/appellants frankly and rightly so conceded that though a claim was laid with respect to Srinivaspuri property also, but because of lack of evidence, the appellants were not pressing their claim to that property.

19. None of the plaintiffs had been able to produce on record and document or a certificate in support of their plea that like defendant- Ram Parshad, they were also "refugees" having migrated from Pakistan during disturbances in 1947. Ram Parshad did prove on record documents (Exhibit D7), a certificate of registration issued by . Government of India, Ministry of Relief and Rehabilitation, certifying that he had been duly registered as a 'refugee'. This certificate dated 16.12.1947 had been issued under Section 5 of Delhi Refugees Registration Ordinance, 1947 (Ordinance No. XXIV of 1947). As ar result of communal disturbances in March, 1947 and the partition of Punjab province, number of persons migrated to India from West Punjab, North West Frontier province, Sindh, Baluchistan and the states adjoining thereto and acceeding to the dominion of Pakistan. On 10.10.1947 Ordinance No. 44 was promulgated by Governor General in exercise of powers conferred by Section 42 of the Government of India Act, 1935 providing for registration of refugees. The certificate required details to be furnished about the name of refugee, size of the family residing with refugee. This certificate (Exhibit D7) only records the name of Ram Parshad as a refugee with no other family member. Therefore, the only legitimate inference, which can be drawn from Exhibit D7, is that as on the date of registration, Ram Parshad alone was the sole member of his family and there was no other person residing with him and that he alone migrated to India from Pakistan. It has come in evidence and is also an admitted fact that the father of the plaintiffs and defendant Ram Parshad was residing at Village Dharamshala-Mahantan in District Una, Himachal Pradesh where the other members of the family were also residing. The only case set up by the plaintiffs was that plaintiff No. 1 was also in employment in Lahore and migrated to India along with defendant Ram Parshad. Statement to that effect was made by PW-2 Madan Lal. In the absence of any certificate of his being refugee or non-inclusion of his name or of any other person in the certificate of registration (Exhibit D-7), which required the number of members of the family to be recorded therein, the only legitimate inference that can be drawn is that plaintiff No. 1 did not migrate with defendant from Lahore to India. From the evidence, it appears that at a later stage, when allotment of houses was being made to refugees, defendant-Ram Parshad appears to have taken under advantage. Instead of getting allotted one unit, he thought of having more than one unit in his name on the ground that the family members were more. This circumstance alone in our view will not, in any manner, adversely affect his rights in the property in question. Instead of making reference of the evidence at this stage, relevant evidence has been extracted in later part of the judgement.

20. Exhibit PW-1/1 is copy of the application dated 6.11.1952 of defendant Ram Parshad seeking allotment of two dwelling units stating therein that he was a displaced person and his family comprised of himself, his wife, his mother and four brothers and that neither he, nor any other member was in possession of any shop or business premises, house or plot through Rehabilitation Ministry/Custodian of Evacuee Property/private owner in Delhi. While giving description of the family members, he also mentioned ration card numbers of each member, of the family. Exhibit PW-1/B is a copy of form appended to the application showing eligibility of Ram Parshad for allotment. Document sought to be produced by plaintiffs/appellants by way of additional evidence are directly relatable to the allotment. Considering the other material on record, though we do not accept at to what has been stated in the application or has been urged at the Bar that the plaintiffs were not aware of such evidence, we are of the view that the evidence sought to be produced is of such a nature, which otherwise will be necessary for us to take on record for complete adjudication of the rights of the parties. Accordingly, we allow the application of the plaintiffs (C.M. No. 1258/99) and take the documents on record. The documents being true and attested copies from the official records, formal proof thereof is dispensed with and we propose the read to said documents as evidence in the case.

21. The first document is a letter dated 6.6.1964 from the Joint Secretary to Government of India, Ministry of Works and Housing to the Land and Development Officer, New Delhi, wherein reference is made of the past practice with the Ministry of Rehabilitation that it had been allotting one housing unit to a family of less than five members and two housing units to a large family. This letter lends support the plaintiffs/appellants' version that two units were being allotted in case of a large family having more than five members.

22. The next document is the undertaking of the defendant dated 6.11.1952 that on allotment of two units, he will continue to abide by the conditions mentioned therein. This undertaking apparently is a part of application (Exhibit PW-1/1). Next document is photocopy of the office noting from the file of the office of Settlement Commissioner dealing with the application (Exhibit PW-1/1) and it reflects that eligibility of Ram Parshad for allotment of two units was confirmed because of the number of family members being his four brothers his wife, mother and himself.

23. Defedant Ram Parshad has not been able to substantiate his stand that the allotment was made by his department and not by the Settlement Commissioner. From the evidence on record, one fact becomes clear that Ram Parshad as a refugee and a displaced person, took advantage of the practice prevalent in the concerned department and projected that the members residing with him were more and he was entitled to two units. Otherwise none of them had migrated with him from Pakistan. Ram Parshad thus obtained allotment of two dwelling units, namely 61 and 62, 1-Block, Lajpat Nagar-I, New Delhi. Can this circumstance alone of obtaining allotment in his name falsely projecting largeness of the family, will make the other members of the family entitled to lay a claim for right, title or interest therein? The answer obviously has to be in the negative. We are not supposed to decide in this appeal about the right of the plaintiffs to continue occupying or residing in a portion the property, which they are presently occupying since a dispute to that effect will have to be decided in appropriate proceedings. We are supposed to decide only the question of entitlement of the plaintiffs to seek partition of the property and hold that whether the plaintiffs acquired any right, title or interest in Lajpat Nagar property because allotment was made in favour of Ram Parshad in the manner aforementioned.

24. Pursuant to his application and the allotment, document (Exhibit D-1) was issued in favour of Ram Parshad by which the Housing and Rent Officer, Delhi on 11.11.1952 certified that Ram Parshad was the allottee liable to pay rent and other charges. This allotment ultimately culminated in conferring a title in favour of defendant Ram Parshad through title deed (Exhibit D-32) dated 31.10.1964, which is a deed of conveyance in format Appendix - XXV with respect to 'Government built and evacuee properties in Delhi State, built as leasehold sites'. This format is prescribed under provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and the Rules framed thereunder. This deed was executed for and on behalf of the President of India declaring that whereas Section 8 of Displaced Persons (Compensation and Rehabilitation) Act, 1954 provides that a displaced person shall be paid, out of compensation pool, the amount of net compensation determined under Sub-section (3) of Section 7 of the said Act, as being payable to him under the Sub-rules that may be made under the Act and the Settlement Commissioner or authority may make such payment in any of the forms mentioned therein, i.e. partly in one and partly in another form and whereas Ram "Parsad had paid a sum of Rs. 3,000/- only being the purchase money having paid a sum of Rs. 1,392/- as cash and Rs. 1,608/- by adjustment against compensation, he is declared to be the owner of full proprietary rights in property bearing No. 61-62, I-Block, Lajpat Nagar -1 New Delhi. Thus the title deed (Exhibit D-32) declared only Ram Parshad to be the owner of the property. This deed was issued pursuant to Rule 91(8) of the Rules framed Under the Displaced Persons (Compensation and Rehabilitation) Act, 1954.

25. The entire oral and documentary evidence was read before us and reference was also made to letters, Exhibits P-1 to P-26 Madan Lal while appearing as P.W.2 stated that the money that was paid for allotment of Lajpat Nagar Property was contributed jointly by brothers. Some part was sent by the father also and the allotment was in fact meant for all the brothers and not for defendant only, Krishan Gopal while appearing as P.W.3 stated that his share in the business, which was disposed of by Ram Parshad came to Rs. 3,750/-, which he gave to Ram Parshad and in turn Ram Parshad purchased a room on a plot of land in Srinivaspuri with that money. Munshi Ram, father of plaintiffs and defendants appearing as P.W.6 stated that Ram Parshad was joined with his brothers and they were residing together. A sum of Rs. 1,000/- was sent to Ram Parshad by him and another sum of Rs. 800/- was given to Ram Parshad when he came to village and that the money spent for obtaining allotment of Lajpat Nagar Property was paid by the parties. Defendant Ram Parshad while appearing as D.W.I denied that there was any arrangement or an agreement for procuring joint allotment and even denied the suggestions that any amount paid by the plaintiffs or by his father to him was spent by him in procuring the allotment.

26. The letters written by Ram Parshad to his father were tendered in evidence by the plaintiffs and as regards the payment of the amount for procuring allotment in Concerned, following reference can be found in those letters: -

Extract of Exhibit P-1 dated 17.6.1951

27. I wrote to the Government about the houses. The land and houses which are available in Delhi costs Rs. 6000/- to 18,000/- I have received the forms also. I have applied through the Centre. Full costs of the two houses is to be deposited before April -May. Please inform me about this. I have got a house having paid Pugree 3' of Rs. 500/- through the Baratuti wals. If you desire I can arrange for a shop to Shri Madan Gopal.

Extract of Exhibit P-2 dated 8.3.1952

28. Perhaps, the allotment of Government quarter might be made by the next month. I was getting it earlier but I declined the offer. Mother has been pressing and due to certain other reasons such as that I have shown 10 persons and before allotment proper checking is done. I have tp physically produce at least six members so mother had advised that Rameshwari and Nirmala may be asked to come to Delhi. Your reply must reach by 26.3.52 because the allotment is likely to be made by 28.3.52.

Extract of Exhibit P-3 dated 10.3.1952

29. The house has been allotted today subject to the condition that we are ten or more than ten members.

30. The situation of the house is very attractive. Mother is pressing me to go and bring Rameshwari Dev. With great difficulty. I have got 3-4 days leave sanctioned. You kindly send Krishan Gopal to bring Rameshwari Dev before or by Saturday.

Extract of Exhibit P-4 dated 19.3.1952

31. I have not yet taken possession of the quarter. I am thinking of getting the possession within 2-3 days. On my arrival, I would have taken possession of the quarter, but I came to know that the costs Rs. 5,000/- and its monthly rent is Rs. 36/-. After 12 years we will be the owners of the house. I and other brothers are thinking of shifting to the house by 1.4.52.

Extract of Exhibit P-5 dated 2.4.1952

32. Received an insured letter amounting to Rs. 1000/- yesterday. I am looking for the shop as and when I find a suitable location. I shall try a shop. I have deposited Rs. 1000/- in the Punjab National Bank. An enquiry is being made. I hope that house will be allotted within 2-3 days. We have to deposit Rs. 6000/- at the rate of Rs. 36/- per month, thereafter the house will be ours. The house is 60x30 ft. and it is an enough space.

Extract of Exhibit P-6 dated 5.4.1952

33. Till date no decision has been taken about the shop. They are demanding higher Pagri. However, 1 have not tried for the same. Wherever I got the opportunity I shall start the work. The possession of the house has not been given so far, but the allotment has been made. The possession will be given within this month.

Extract of Exhibit P-8 dated 12.11.1952

34. Yesterday a sum of Rs. 80/- has been deposited as advance rent and today the possession has been taken. The address of the house is I-I/61-62. Lajpat Nagar, New Delhi. Please accept my Namaskar and also on behalf of Som Raj, Madan Gopal, Krishan Gopal and also to the mother. In ease you give your assent I shall send Madan Gopal to Dharamshalla by the Ist of the next month as one of the family member must be present all the time in the house.

Extract of Exhibit P-10 dated 15.9.1958

35. Temporary registration of the house has been made. If we arrange for the payment of balance amount of Rs. 5500/- and also Rs. 1000/- pertaining to rent, there would be saving of Rs. 1200/-. The Government charges compound interest @ Rs. 4-1/2% per annum. They have now worked out the cost including interest to about Rs. 7000/- which is to be deposited in seven equal instalments. But I am now thinking of association of somebody's claim which would be available for about Rs. 3500/-. If you arrange for a help of Rs. 2000/-, I will be able to arrange for Rs. 1500/-. Thus there will be saving of Rs. 3500/-. If 1 find a suitable person for associating his claim, there would be saving of full interest and in the association of claims, you are, therefore, requested to arrange Rs. 2000/-.

Extract of Exhibit P-11 dated 3.1.1959

36. We have still to pay to the Government a sum of Rs. 7500/- for the house. If we associate some one's claim, we will be saving about half of the amount. Please inform me whether you can arrange Rs. 1500/-

Extract of Exhibit P-12 dated 3.2.1959

37. I have already informed you that we have to pay about Rs. 7300/- as full cost of the house including interest. If we purchase some one's claim or bond, we will have to pay in all about Rs. 3000/-. I have Rs. 3000/- with me of Madan Gopal, Manohar Lal, As such I have to borrow only Rs. 800/-. If you can arrange for this amount, it would be better.

Extract of Exhibit P-13 dated 11.2.1959

38. I am acting as per your advice and as such will get the Registry of the house in the name of Madan Gopal. Had you been here, the registry of the house would have been made in your name. But I will definitely get registry of the house in the name of Madan Gopal. Kindly send me Rs. 800/- more.

Extract of Exhibit P-14 dated 10.3.1959

39. I will be sending money to you in the month of April. I have received a notice from the Government for depositing the cost of the house.

40. No doubt on going through various letters, which defendant wrote to his father, he appears to have at one stage sought assistance from his father with a view to have title deed got registered in his name. However, there is no evidence or material on record nor any plea has been raised or any evidence has been adduced by the plaintiffs that any agreement was entered into that allotment would be obtained by the defendant with the intention that on obtaining allotment, the defendant would share the allotted property with the plaintiffs. In the absence of such a plea and evidence the only inference that has to be drawn is that the defendant, Ram Parshad alone acquired right, tile and interest in the property individually in his own name. There is no reason for us to disagree with the conclusions recorded by learned Single Judge that no reliable and cogent evidence has been produced on record to even suggest that any contribution was made by the plaintiffs or was utilised by the defendant for acquiring the property.

41. Under the allotment scheme also Ram Parshad alone could have been conferred ownership rights as a displaced person since it is not proved on record by the plaintiffs that anyone out of them was a refugee or a displaced person, as defined in the Or dinance and under the Act referred to above. The mere fact that the plaintiffs during their stay with the defendant in Delhi might have contributed some amount out of their earnings or might have handed over their entire earnings to the defendant, will not make any difference since the plaintiffs' case is not that they constituted Joint Hindu Family. Their case is that it is a case of joint allotment in the name of the defen dant for the benefit of the plaintiffs also. None of the plaintiffs could have been al lotted accommodation since none of them was a 'refugee'. There is no evidence on record even to suggest that it was a joint allotment or that there was any intention on the part of the defendant to treat it a joint allotment.

42. It has come in evidence and has been admitted by the plaintiff, Madan Lal, while appearing as P.W. 2 that dispute arose amongst the plaintiffs and the defendant in the year 1962 as regards sharing of the rent of the property. P.W.2 Madan Lal staled that in 1962, defendant separated from them and they tried to prevail upon him to give their share in the property, but without any result. As a matter of fact there was no tenant in the property till 1962. After Ram Parshad shifter to Srinivaspuri, he let out portion of the property, to two tenants and continued realising rents exclusively to the exclusion of the plaintiffs. According to the plaintiffs, the defendant denied in the year 1962 the alleged right of the plaintiffs to any share in the property asserting that it was his own exclusive property. In case the plaintiffs were duly made aware by the defendant, in the year 1962, that it was his exclusive property and in assertion of his right in the year 1964, the title deed of the property was also executed exclusively in the name of the defendant, admittedly to the knowledge of the plaintiffs and deposit the fact that the defendant had earlier shifted to Srinivaspuri properly and had exclusively been realising rent of the Lajpat Nagar property, the plaintiffs took no action in seeking a declaration of their rights within the period of limitation as prescribed under Article 113 of the Limitation Act, 1963. The suit was filed only in the year 1977, i.e. 15 years after the date when even according to plaintiffs. The dispute had arisen.

43. The title deed of the property was not executed in plaintiffs' name. Their title had also been denied. In order (o claim partition, it was necessary for the plaintiffs firstly to have claimed a decree for declaration of their rights. Assuming that in a suit seeking decree for partition, relief of declaration of right is included therein, even in that case, it was necessary for the plaintiffs to show the existence of their right, which in the absence of any document of title, they have not been able to do. Denial by the defendant of the plaintiffs' right to a share in the property in the year 1962 necessitated a legal obligation on them to claim declaration of their title within three years from the date of accrual of cause of action, which if it had not arisen in 1962 definitely arose at least in the year 1964 when title deed was executed. The suit filed by the plaintiff in 1972 was not within period of limitation.

44. The learned Single Judge proceeded on an erroneous basis that claim on the basis of benami transaction is not proved, but we are of the view that even on the basis of the claim, as laid by the plaintiffs and asserted on the basis of averments made in replication, no case is made out for seeking right, title or interest in the property. The suit was rightly dismissed by the trial Court.

45. Admittedly, property bearing No. 61, I-Block, Lajpat Nagar has already been sold by the defendant No. 1 respondent No. 2. Part of the other property, i.e. 62, I-Block, Lajpat Nagar is in possession of the plaintiffs. The defendant has already filed a suit for possession against them, being Suit No. 47/92, which was filed in the year 1992. Irrespective of any title lo claim partition of the property, whether the plaintiffs have any right to continue occupying the said portion of the property at Lajpat Nagar, being brothers or their heirs or otherwise is not being adjudicated upon by us. It will have to be decided in.accordance with law in the said pending suit.

46. In view of the above discussion, we find no merit in the appeal. The same is accordingly dismissed with costs.