Smt. Parmeshwari vs Jai Singh And Ors.
2005 Latest Caselaw 1441 Del

ORDER

J.P. Singh, J.

1. This petition under Article 227 of the Constitution of India is directed against the order dated 4.4.2005 passed by the Civil Judge, Delhi dismissing an application of petitioner-plaintiff under Order XXII Rule 4 of Code of Civil Procedure read with Section 151 of Code of Civil Procedure and also dismissing the suit being not maintainable.

2. I have heard Mr. Krishan Kumar, learned Counsel for the petitioner and Mr. R.K. Sharma, learned Counsel for respondents and have gone through the impugned order as also copies of the documents placed on the file.

3. Briefly the facts are that the petitioner herein (plaintiff in the trial Court hereinafter referred to as plaintiff) filed a suit for perpetual injunction against late Shri Ratan Lal, who expired during pendency of the suit and application for bringing his LRs on record was moved. The LRs are arrayed as respondent Nos. 1 to 4 in this petition. The case of the plaintiff is that she was lawfully wedded wife of defendant Rattan Lal (since expired) and was residing with him in a house situated on a plot of land measuring 300 sq. yards. Comprising four rooms and three shops in khasra No. 319 Village Jonapur, Mehrauli, New Delhi.

4. It is pleaded that earlier the plaintiff was married to late Piyare Lal real younger brother of the defendant. Piyare Lal expired on 10.5.1995 leaving behind three sons and four daughters. Thereafter as per custom in the Beragi community of Hindu religion she was remarried to the defendant on 18.8.1976 according the "Karewa" ceremony. At that time the defendant was bachelor. The marriage is recognized under Section 7 the Hindu Marriage Act, 1955. But she could not beget any children from the defendant as the plaintiff had already undergone birth control operation during the lifetime of her former husband Shri Piyare Lal. But soon after marriage, the defendant started harassing her and used to abuse and beat her. On 20.11.2000 she was mercilessly beaten up and the defendant declared that he would not treat her as wife and would sell the house. Again there was a quarrel on 24.11.2000 and she was again beaten up mercilessly and threat to sell the property was given. She was told to leave the house and reside with her sons. But she did not leave the house and told the defendant that she would not allow him to sell the suit property because she too had a right to the same.

5. It is further averred that oh 27.11.2000 the defendant called some property dealer and again the plaintiff protested. On 30.11.2000 she complained to her son and respectable persons of the society as to what defendant was intending to do and a Panchayat was convened. But the defendant did not turn up at the Panchayat despite request. The Panchayat therefore, advised the plaintiff to go to the Court of law. Then the present suit was filed praying that the defendant and his associates or attorney be restrained from selling or alienating the suit property or any part thereof.

6. The defendant filed a written statement raising preliminary objections that the plaintiff had not come to the Court with clean hands. She had concealed material facts. The suit was barred under Section 50, 11 of the Delhi Land Reforms Act. He denied that she was his lawfully wedded wife or she was residing with him. He stated that he was a bachelor and aged about 80 years. He was residing in the house since his birth and even after the death of parents he was residing alone. He admitted that plaintiff was married to his younger brother. He submitted that no documentary proof of marriage was placed by the plaintiff on the file, and she had not mentioned that as to who were present at the said marriage, though they were six brothers. He denied that any such custom prevailed in Beragi community and denied the ceremony of "Karewa". He submitted that she had not placed any documents on record that she had undergone operation of sterilization. He submitted that the plaintiff had not shown any complaints about beating by the defendant to the plaintiff. He averred that he was bhumidar of the land in dispute and has all rights, title and interest in the said property as per Delhi Land Reforms Act. It is pleaded that after the death of Piyare Lal the plaintiff was residing separately in her own house. He denied about convening of any Panchayat and stated that all his brothers were ready to file affidavits in his support.

7. The trial Judge had appointed a local commissioner Smt. Rashmi Sharma, Advocate who reported that as per her enquiry from ladies of the village, the plaintiff was residing with the defendant as his wife and at the time of her visit plaintiff was sitting in the verandah of the house in question and categorically reported that plaintiff was in possession of the suit property along with the defendant. As per report of the Local Commissioner, the learned Civil Judge granted interim injunction in plaintiff's favor. Defendant Shri Ratan Lal expired on 14.7.2004. The matter was fixed for final arguments. The application under Order XXII Rule 4 read with Section 151, CPC moved by the plaintiff as widow of the defendant and sought impleadment of brothers and sisters of defendant because the defendant No. 4 Smt. Reshma niece of Ratan Lal was propounding a Will executed by the defendant and stated that right to suit survived.

8. In the reply, it was stated that LRs of the deceased were his all brothers and sisters but only two brothers and on sister are alive and names of other LRs have not been given. A large number of names were given as LRs of the defendant.

9. In the impugned order, the learned trial Judge after referring to the contentions of both the parties observed that it was a simplictor suit for perpetual injunction and because cause of action does not survive, the right to sue also does not survive against the proposed LRs. The plaintiff herself is a class one legal heir because she is alleging to be wife of the defendant. The learned Civil Judge opined that the proposed LRs could not be brought on record and if the application be permitted then the question of declaration about her marriage with the defendant will have to be gone into, which relief cannot be given unless declaration is sought and categorically held that plaintiff was the only legal representative of the deceased defendant being the sole class one heir to represent the estate of the deceased and accordingly the application for bringing the LRs on record was dismissed being not maintainable and also dismissed the suit. Aggrieved, the plaintiff filed this petition.

10. Considering all the facts and circumstances, I am of the view that learned Civil Judge has made observations in favor of the plaintiff that she is class-I legal heir and the only legal representative of the deceased defendant and since as per local commissioner's report and pleadings of the plaintiff, she was in possession of the property and her only apprehension was from the defendant who has expired, nothing survives in the suit. No other relative of the defendant is at present threatening to dispossess her and nor can they do so without due process of law because prima facie she is in possession and prima facie she was married to the defendant under "Karewa" custom. In any future litigation at the instance of the relatives of the defendant or the one who is propounding a Will, the plaintiff herein will be a defendant. There is no necessity for her to invite the LRs for a legal contest when her title, right and interest in the suit property is not in jeopardy. The only modification that I would like to make in the impugned order is that instead of dismissing the suit, it should have been rejected because the learned Civil Judge did not decide the suit on merits. The suit has been dismissed while dealing with the application under order XXII Rule 4 CPC.

11. In these facts and circumstances, in my view, the suit should not be dismissed but be rejected leaving the option to the plaintiff to file a suit again if and as and when she apprehends danger to the property from the other relatives of the deceased defendant. If any of the relatives of the deceased is propounding a Will then she will have to go for probate/letters of administration on the said Will or seek possession of the property from the plaintiff, in accordance with law.

12. With these observation, the petition is disposed of.