Satpal Singh & Ors. vs Didar Singh & Anr.
2008 Latest Caselaw 2124 Del

12
*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      RFA No.598/2007

                       Date of decision: 02nd December, 2008
%

SATPAL SINGH & ORS.                          ..... Appellants
                   Through : Mr. A.C. Bhasin and
                             Mr. Amit Bhasin, Advs.

                  versus

DIDAR SINGH & ANR.                             ..... Respondents
                        Through : Mr. Rajkumar Sherawat, Adv.
                                  for R-1&2.

CORAM :-
THE HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.       Whether Reporters of Local papers may
         be allowed to see the Judgment?

2.       To be referred to the Reporter or not?

3.       Whether the judgment should be
         reported in the Digest?

Pradeep Nandrajog, J. (Oral)

1. Heard learned counsel for the parties.

2. A frivolous appeal has been filed which merits dismissal

with exemplary costs.

3. Litigation between the parties commenced way back in

the year 1981 when Sardar Didar Singh filed a suit for

declaration and perpetual injunction. Subject matter of the

dispute was property bearing No.F-18 A & B, Moti Nagar, New

Delhi.

4. Case pleaded by Sardar Didar Singh that the father of

the parties, Sardar Sant Singh was a displaced person from

Pakistan and at the time of partition of this country in the

1947 had reached India as a refugee leaving behind

immovable property in West Pakistan. It was alleged that

Sardar Sant Singh was assessed to a compensation claim for

properties left behind in Pakistan. It was averred that Sardar

Sant Singh transferred his compensation claim to his son

Sardar Darshan Singh, impleaded as defendant No.1, in the

said suit. It was pleaded that the Ministry of Rehabilitation

proceeded to convey perpetual leasehold rights in the name

of Sardar Darshan Singh recording him to be the perpetual

lessee of the property in question for which, consideration of

premium towards the compensation assessed in the name of

Sardar Sant Singh was adjusted. Asserting in the plaint that

during his lifetime Sardar Sant Singh got effected a partition

of the property by mutual consent of his three sons i.e. Sardar

Didar Singh, Sardar Darshan Singh and Sardar Surinder Singh

and that since said date the respective sons of Sardar Sant

Singh went into exclusive possession of the respective portion

assigned to them at the partition, evidenced by the fact that

each son started paying house tax separately for his portion

assigned to him at the time of partition and that the

maintenance of the respective portion was by the concerned

owner thereof, decree of declaration that it be declared that a

partition had taken place resulting in the three sons of Sardar

Sant Singh being owners of the respective portion assigned to

him.

5. The defence taken by Sardar Darshan Singh, who alone

disputed the claim was that being the recorded perpetual

lessee of the property he was the owner thereof. He denied

that the property was ever partitioned.

6. On the pleadings of the parties 8 issues were settled in

the said suit. Same are as under:-

"1) Whether the savings and earnings of the plaintiff and defendants 1 to 4 were also invested in respect of the purchase of the property in suit? OPP.

2) Whether there was any family partition between the parties as alleged in paras 9 and 10 of the plaint? If so to what effect? OPP.

3) Whether the plaintiff is entitled to the relief claimed? OPP. Note: This issue is amended vide order dated 30.09.1983.

4) Whether the suit is bad by Sec.80(2) CPC?

OPD.

5) Whether the suit has not been valued for the purposes of court fee and jurisdiction? OPD.

6) Whether this court has no jurisdiction to try the suit? OPD

7) Whether the defendant No.1 is the sole owner of the property in suit? OPD.

       8)        Relief.

7.     Extensive evidence was led by the parties.                  Briefly

noted, PW-2, Shri S.K. Burman, officer from the Land and

Development Office deposed that on 17.02.1956, Ex.PW2/1, a

letter was received from Sardar Sant Singh requesting the

department that compensation claim assessed in his favour in

the sum of Rs.4,855/- be adjusted while conveying the

perpetual leasehold rights in the property in question in

favour of his son and that an asserted claim of one Shri

Chandan Lal in sum of Rs.1064.80, be also adjusted towards

consideration payable. Rs.660/- being the balance

consideration payable for acquisition of the perpetual

leasehold rights was paid in cash. The witness deposed that

acting under the said authorization, the compensation claim

as also cash payment was adjusted towards consideration for

grant of the perpetual leasehold rights in the property and as

per the desire of Sardar Sant Singh, Darshan Singh was

recorded as the perpetual lessee.

8. The father of the parties, Sardar Sant Singh who was

alive when the earlier litigation was fought, appear as PW-5

and supported the claim of his son that at an oral family

settlement the property was partitioned. He stated that it was

with his consent that his eldest son Sardar Darshan Singh was

treated as the perpetual lessee of the property. PW-6, Amar

Singh an Inspector from the House Tax Department proved

Ex.PW6/A to Ex.PW6/E being certified copies of the extract of

demand and collection register which showed that for

purposes of house tax collection the house was sub-divided

into three different portions and assessed in the name of

Sardar Darshan Singh, Sardar Didar Singh and Sardar Surinder

Singh sons of Sardar Sant Singh as the persons primarily liable

to pay property tax for the respective portions. The witness

also proved a letter Ex.PW6/F and another letter PW-6/A which

established that the three sons of Sardar Sant Singh had

addressed communications to the MCD referring to a family

partition in which the subject property was partitioned and

three different portions were assigned exclusively to the three

sons of Sardar Sant Singh.

9. Sardar Darshan Singh who appeared as his own witness

admitted that the house was separately assessed in the name

of the three brothers but stated that he had no knowledge as

to how this was done. He admitted not having paid property

tax for the entire property and that for two portions his

brothers were paying the property tax.

10. Commenting upon the said admissions of Sardar

Darshan Singh, in para 53 of the judgment dated 31.07.2001

passed by the learned Civil Judge disposing of the suit which

was filed in the year 1981, learned Trial Judge has held that it

is unnatural conduct for an owner of a property to have

knowledge that somebody else is paying property tax for two

portions of his property and yet the person keeps quiet about

the same.

11. A Special Power of Attorney, Ex.PW1/9, also became the

subject matter of consideration by the learned Trial Judge in

the said suit.

12. The said Power of Attorney was in favour of Sardar Didar

Singh and was ostensibly signed by Sardar Darshan Singh.

Since Sardar Darshan Singh had denied his signatures on the

Power of Attorney which we note was used by the father to

interact with the Municipal Authorities when request for

separate assessment of three different portions of the

property was made to the Municipal Corporation of Delhi. The

learned Trial Judge returned a finding in para 54 as under:-

"54. Defendant no.1 has denied that he had written to MCD that he had given a power of attorney in favour of S. Didar Singh on the basis of which he wrongly got the property mutated in his name. When he was shown the said letter dated 29.02.1980 he gave evasive answer. In his testimony he said that he did not give any special power of attorney Ex.PW1/9 to the plaintiff so the question of getting the same cancelled does not arise. Documents on record belie the testimony of DW1 as on record there is registered special power of attorney in favour of S. Didar Singh Ex.PW1/9 and cancellation of special power of attorney by S. Darshan Singh of the year 1979 which is also a registered document. According to defendant No.1, he came to know about the mutation in 1980 so why the necessity arose for getting the special power of attorney cancelled in 1979. No satisfactory reply came from the mouth of defendant No.1 in this regard. From the evidence and the documents, it is inferred that defendant No.1 was well aware that the property was mutated in the records of MCD since 1962-63 and plaintiff and defendant No.3 have been paying the house tax. The documents Ex.PW6/A to E also support the case of the plaintiff which are the extract of demands and collection register of the year 1972-73, 1976-77, 1980-81, the extract of inspection register 1965- 66 and 30.9.1970 showing the house tax being charged from the plaintiff, defendants no.1 and

3."

13. While considering further documentary evidence,

learned Trial Judge proceeded to consider Ex.DW1/X3 and

DW1/X4, being letters under the signatures of Sardar Darshan

Singh addressed to the Municipal Corporation of Delhi. Noting

that Sardar Darshan Singh denied his signatures on the said

letters, with reference to his conduct and in particular

payment of property taxes of two portions of the two

properties by his two brothers, learned Trial Judge opined, in

para 62 as under:-

"62. PW1 in his testimony stated that after the partition he raised some construction on the portion of the suit property from his own funds. The defendant no.1 did not cross-examine on this point. Even DW1 in his testimony sometimes stated that plaintiff raised some construction and sometimes he denied that plaintiff had raised the construction. During arguments plea was taken by the defendant that construction, if any, does not confer the plaintiff the right of ownership. Further the defendant no.1 did not dispute the site plan Ex.PW1/1, extent of construction at present, the construction at the time of allotment of the suit property. Considering these facts, it is inferred that plaintiff had raised construction over the suit property after getting portion of it. The question arises when the defendant No.1 laid his exclusive right/title in the suit property why he not intervened and not stopped the plaintiff from raising the construction. There is nothing of this sort in this regard. Further PW6 has stated that the suit property is in the name of plaintiff and defendants since 1965-66 till 1980-81. He also referred a statement i.e. demand notice sent to defendant no.1 dated 5.3.1976. The records show that the defendant no.1 did not raise any objection regarding mutation in favour of the plaintiff till 1980. In this case the defendant denied his signatures on the documents Ex.DW1/X3 and DW1/X4, the letter corresponded by defendant no.1 with MCD which are of the year 1982 i.e. after filing of the present suit. I fail to understand why the plaintiff will forge the signature of defendant no.1 after filing of present suit after the dispute."

14. Noting that mutation in the municipal records is not a

proof of a partition itself, view taken by the learned Trial Judge

was that it is a good evidence of conduct wherefrom an

inference of how the family settled its affairs can be drawn.

The conclusion arrived at by the learned Trial Judge is that an

oral family partition stood established and thus the suit filed

seeking a declaration that there was a family settlement

under which the property was partitioned was decreed.

Injunction prayed for was granted.

15. The said judgment and decree dated 31.07.2001 was

challenged by way of a first appeal being RCA No.12/2001.

The said appeal was dismissed vide judgment and decree

dated 24.12.2002.

16. Second appeal filed before this court being RSA

No.11/2003 was dismissed vide order dated.24.12.2002.

17. Petition for Special Leave to Appeal No.5625/2006 filed

before the Hon'ble Supreme Court challenging the decision

dismissing the Regular Second Appeal was turned down vide

order dated 07.04.2006.

18. Sardar Darshan Singh having died in the meanwhile, his

heirs, the appellants, commenced a second round of litigation

when they filed a suit registered as Suit No.170/2007 seeking

a declaration that the decree passed in the earlier suit which

was affirmed right throughout was a nullity. The claim for

decree to be declared a nullity was founded on Sections 22,

24 and 36 of the Displaced Persons (Compensation and

Rehabilitation) Act, 1954. It was also alleged that the decree

was obtained by playing fraud and concealment of material

facts.

19. The second suit suffered a summary rejection in as

much as the application filed under Order 7 Rule 11 by the

defendants succeeded vide impugned order dated 23rd

October, 2007.

20. The principal reason which can be culled from the

impugned order is that the parties litigated on the issue of

partition and finding returned that the property was

partitioned way back in the year 1963 and the three sons of

Late Sardar Sant Singh went into exclusive possession of their

respective shares assigned at the partition having attained

finality, the issue could not be re-agitated.

21. Though not stated in the impugned order, we note that

there are no allegations as to what fraud was committed and

what was the concealment of fact made when claim was

predicated in the earlier suit.

22. At the hearing today, the sole contention urged by

learned counsel for the appellants is that in view of Section

22, 24 and 36 of the Displaced Persons (Compensation and

Rehabilitation) Act, 1954, the jurisdiction of the Civil Court

was barred and hence the decree passed by the Civil Court is

a nullity because it is settled law that where a court lacks

jurisdiction over the subject matter of the dispute the decree

is a nullity.

23. We are afraid, the contention urged by learned counsel

for the appellants is totally misplaced and cannot be

accepted. The reason is obvious. The suit filed in the year

1981 by Sardar Didar Singh did not challenge any order

passed by any authority under the Displaced Persons

(Compensation and Rehabilitation) Act, 1954. The foundation

of the suit, as noted above was that Sardar Darshan Singh

was a mere benamidar and that was evidenced by the manner

in which the compensation claims were adjusted as

consideration for grant of the perpetual leasehold rights. The

real owner of the property was Late Sardar Sant Singh, who

during his lifetime got effected a partition of the property with

the consent of his three sons i.e. Sardar Didar Singh, Sardar

Darshan Singh and Sardar Surinder Singh. The battle was

fought on the issue of partition being effected or not.

Evidence was led and decision went in favour of Sardar Didar

Singh.

24. Neither a dispute was raised and none was settled

pertaining to legality or otherwise of the orders passed by the

authorities under the Displaced Persons (Compensation and

Rehabilitation) Act, 1954. The suit sought a declaration based

on a family settlement partitioning the house. The subject

matters was clearly within the jurisdiction of the Civil Court.

Thus the instant shit is clearly an abuse of the process of law

and is no maintainable.

25. The appeal is dismissed with exemplary costs. We

impose cost of Rs.50,000/- on the appellants. Rs.25,000/-

shall be paid to the respondents for harassment and

Rs.25,000/- would be deposited with the Delhi High Court

Legal Services Authority as recompense to the state for waste

of valuable judicial time.

PRADEEP NANDRAJOG, J

J.R. MIDHA, J DECEMBER 02, 2008 aj