Sheela Rani (Deceased) Through ... vs Jagdish Chander Sharma
2003 Latest Caselaw 825 Del

JUDGMENT

R.S. Sodhi, J.

1. R.S.A. 115 of 2002 is directed against the judgment and order dated 23.7.2002 of the learned Additional District Judge in R.C.A. No. 11/1997, arising out of judgment and decree dated 26.2.1997 of the learned Civil Judge, Delhi in Suit No. 124/1986. The learned Appellate Court vide judgment dated 23.7.2002 dismissed the appeal while concurring with findings of the trial court.

2. Brief facts of the case, as noted by the trial court, are :-

" That the plaintiff is the absolute licensee of land underneath and owner of the super-structure of property No. A/2-A/226, Janakpuri, New Delhi, which was purchased by him from Delhi Development Authority under its Cash Down Scheme, in the year 1971 on execution of document of title in favor of the plaintiff. The defendant No.1 is the wife of the plaintiff, defendant No. 2 is the son, defendant No. 4 is his daughter and defendant No. 3 is the wife of defendant No. 2. The said property was in the tenancy of a tenant who surrendered the peaceful possession of the house in suit on 4.2.1979 to the plaintiff. The plaintiff has strained relation with defendant No. 1 who has been living and residing separately along with other defendants for the last fourteen years. There had been strained relation with defendant No. 1 who has been living and residing separately along with other defendants for the last fourteen years. There had been litigations between the plaintiff and defendant No. 1 regarding the matrimonial relations. The defendants have been residing in Kingsway Camp for last fourteen years and there is no reconciliation between the parties. It is alleged that on 18.3.1979 when the plaintiff went to his property in suit along with the prospective tenant, he found the lock of the property and the defendant stealthily entered in the said house by trespassers and breaking open the lock of the house in suit. It is alleged that the defendants illegally, wrongfully and unauthorisedly broke open the lock and trespassed in the property in suit. Sometime between 4.2.1979 and 18.3.1979 in the absence of plaintiff without his consent and against his wishes. The plaintiff reported the matter to the police but no action was taken by police as they were in connivance with the defendants. The defendants are in illegal and unauthorised possession of the property in suit and despite repeated demand of the plaintiff they have failed to deliver the possession of the property in dispute to the plaintiff. The defendants are also liable to pay damages for the use and occupation of the property at least w.e.f. 18.3.1979 till the plaintiff came about the trespass. The property in dispute had been let out at Rs. 225/- per month and the defendants are liable to pay the damages at the said rate. The amount of damages for the period from 18.3.1979 to 17.7.1979 comes to Rs. 1,100/-. The plaintiff also claimed future damages at the said rate till the defendants delivered the possession of the suit property to the plaintiff and he undertakes to pay further court fees at the future damages. It is averred that if the defendants could be said to be licensees in the suit property, their possession was permissive and that stands canceled. Hence, this suit for a decree of possession of the suit property in favor of the plaintiff and against the defendants along with a decree for damages for Rs. 1,100/- and also for future damages.

2. The defendants were served. However, defendants No. 2 to 4 did not appear in court and were proceeded ex parte vide order dated 10.10.1979. The defendant No. 1 has contested the suit and has filed her written statement. In the written statement, it is alleged that the plot was purchased from the Hindu Undivided Family of which plaintiff and defendant No. 1 along with the father of the plaintiff, and a brother of plaintiff are members. The defendants also have a share in the super structure of the disputed property. It is also stated that House No. H-46, Garhwali Mohalla, Laxmi Nagar is also a Joint Hindu Undivided Family property. The defendant No. 1 does not know about the renting out of the suit property by the plaintiff, however, the defendant entered the suit property on 26.2.1979, the property was lying vacant. It is admitted that the relations between the parties were strained. It is stated that the relations between the parties were patched up when the defendants entered the suit property, collusion between the defendants and police is denied. The defendants have legal right to stay in the property. The defendant No. 1 is the legally wedded wife and other defendants are sons and daughter and daughter-in-law of the plaintiff. The defendant No.1 under the provisions of law has a right of maintenance, residence clothes and all necessities from the husband of the defendant and the defendants have a right to stay in the suit property. The defendants were accommodated by the plaintiff himself in the suit property and they are living as such near relatives of the plaintiff being further rights to live therein. It has also been denied that the license stood cancelled and revoked since the plaintiff demanded from the defendant to vacate the property in dispute. It is also denied that the defendants are liable to surrender the possession of the suit property and to pay the damages for use and occupation. He did not contribute to the marriage of their daughters. The defendants are not trespassers in the suit property. It is stated that the suit is false and is liable to be dismissed. Some additional pleas have also been taken pleading that the plaint is liable to be rejected as particulars of the immovable property have not been filed as required by the law. Defendant Nos. 2 to 4 who are living in the suit property did not appear in the court under the false assurance of the plaintiff. It is also alleged that the plaintiff deserved the defendant and her children, he is living with another lady. The plaintiff also accused the defendant No. 1 of having affairs with his own young brother. The defendant No. 1 also filed an application for maintenance against the plaintiff. The plaintiff filed a petition for dissolution of of the marriage. It is further alleged that the plaintiff occasionally gets fits of sanity and insanity, the conscience of the plaintiff must have pricked him and he approached the defendant No. 1 with other persons and it was agreed that the parties shall forget the past and plaintiff will put the defendant No. 1 and his family in possession of the suit property with right to live therein. The defendant accepted the arrangement and family was actually inducted in the suit property by the plaintiff on 26.2.1979 in the presence of various persons of the locality. It is also alleged that it appears that plaintiff again got a fit of insanity or sanity and wanted to back out from the arrangement and filed a false report against defendant. The plaintiff has committed bigamy as he is living with one Veena Rani. Other allegations contained in the plaint have also been denied and it is prayed that the suit be dismissed with costs.

3. The plaintiff has filed replication to the written statement denying the allegations therein and reasserting the allegations in the plaint.

4. On the pleading of the parties, the following issues were settled for trial on 9.9.1980 :

ISSUES

(1) Is the suit property valued for the purpose of court fee and jurisdiction? OPP.

(2) Whether the plaint is bad for particulars for immovable property? I so, to what effect?

(3) Whether the property in dispute is a property of Hindu Undivided Family? I so, to what effect?

(4) Whether the defendant No. 1 and her children were inducted into the property on 26.2.1979 as alleged in para 22 under the additional pleas? If so, to what effect?

(5) If the previous issues were answered in negative, whether the defendants are trespassers in suit property? OPP

(6) Is the plaintiff entitled to any damages? If so, at what rate and for what period?

(7) Relief

5. One more additional issue was framed on 27.7.1995 which has been recasted as under :

"Whether the suit is barred by Section 18 of the Hindu Adoption and Maintenance Act, as alleged by the defendant?"

3. The trial court by its judgment and order dated 26.2.1997 passed a decree in the following terms :

"That suit of the plaintiff is decreed against the defendant for possession of property No. A/2-A/226, Janakpuri, New Delhi and for damages at the rate of Rs. 225/- per month w.e.f. 18.3.1979 to 17.7.1979 amounting to Rs. 1,100/- and also for future damages subject to the conditions that the plaintiff would pay appropriate court fees during execution proceeding. In view of the facts of the case no orders as to costs. Decree sheet be prepared and file thereafter be consigned to record room. Announced in open court on 26.2.1997".

3. Being aggrieved thereof, Smt. Sheela Rani and Smt. Prem Lata filed an appeal being R.C.A. No. 11/1993.

4. During the course of the appeal, Smt. Sheela Rani died. The question that arose was whether the right of residence of the wife was also inheritable? The learned appellate court while dealing with this issue found that :

"In the present case, the right of residence of wife of the initial appellant/defendant No.1 (since deceased) claimed by her at the most can be said to be a personal right to her. So, the same ended due to the death of the appellant/defendant No.1. The appeal filed by her, therefore, has become infructuous on account of her death. Yallawwa case (supra) is distinguishable on facts as in that case, the right of inheritance/proprietary rights and the status of the wife as divorcee or legally wedded wife of deceased/husband was in question, so the right to sue survived to her but in the present case keeping in view the relief claimed by the respondent/plaintiff in the suit, the right of residence claimed by initial appellant/defendant No.1 did not survive. There is no proprietary right or status involved in the present suit like in Yallawwa's case (supra). Thus, Yallawwa's case (supra) is not applicable to the present appeal.'

The learned appellate court ultimately dismissed the appeal finding no merit in the same.

5. Learned counsel for the appellant argued that the legal representatives of Smt. Sheela Rani have vested interest in the matter and could continue with the appeal. He also submitted that the right vested in the deceased-appellant was not a personal right but was inheritable.

6. Having heard learned counsel for the parties and given my careful consideration to the matter, I am of the view that the right of residence ceased with the deceased and the appellate court was right in returning its findings, I find no ground to interfere in the Regular Second Appeal. R.S.A. 115 of 2002 and C.M. 321 of 2002 are dismissed.