Delhi High Court
Siri Chand & Anr. vs Kamla & Ors. on 20 October, 2008
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: October 20, 2008
+ RFA 143/1981
SIRI CHAND & ANR. ..... Appellants
Through: Mr. S.S.Gautam, Advocate
versus
KAMLA & ORS. ..... Respondents
Through: Mr. Hanu Bhaskar, Adv. for R-1
Ms. Arti Bansal, Adv. for R-6, 7 & 9
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
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 judgment should be reported in Digest?
PRADEEP NANDRAJOG, J. (Oral)
1. Heard learned counsel for the parties.
2. The impugned judgment and decree dated 3.4.1981
has proceeded on the basis that the suit property bearing
No.3636, Gali No.14, Regar Pura, Karol Bagh, Delhi has
devolved upon the parties through Lakhi and hence was
an ancestral property.
3. It is not in dispute between the parties that the
property was owned by the Governor General in Council and
ad-measured 50 square yards which plot was comprised in
Khasra No.1926, Block L, Basti Regar Pura and the first lease
was executed by the Deputy Commissioner of Delhi acting on
behalf of the Secretary of State for India in Council.
4. With reference to the evidence on record and in
particular Ex.D4W-1/1 a finding has been returned that the
property has devolved on the parties through Lakhi and hence
is an ancestral property.
5. Learned counsel for the respondent does not
dispute that if the property under litigation has not devolved
through Lakhi but has devolved through Gyasara, the property
cannot be treated as ancestral.
6. Ex.D4W-3/2 is a certified copy of the register of
mutations which records ownership under serial No.4 and
possessory rights under serial No.5. The Government is shown
as owner of the land. Name of the person in possession has
been written as Gyasara son of Lakhi as a lessee.
7. The said document also records the death of
Gyasara and the factum of succession. A pedigree table made
in the said document records that one Lakhi had two sons
Gyasara and Barda. Gyasara having died issueless and
intestate, the succession stands recorded in favour of the two
sons of Barda since Barda had pre-deceased Gyasara. The two
sons of Barda in whose favour mutation entry stands recorded
are Hanuman and Ruda.
8. It is thus obvious that Hanuman and Ruda acquired
the lease hold rights of their uncle Gyasara who died intestate
and issueless and thus in their hands the property cannot be
treated as ancestral. The learned Trial Judge appears to have
been misled by the pedigree table recorded in mutation entry
aforenoted on death of Gyasara. Since the parentage of
Gyasara and Barda has been recorded as sons of Lakhi, it has
been treated as if the property has devolved from Lakhi.
9. Ex.D4W-1/1 is a certified copy of the perpetual
lease deed dated 30.7.1963 executed by DDA in favour of
Ruda. The same contains a recital that the subject property,
erstwhile part of Khasra No.1926, Block L, Basti Regar Pura,
was demised under a lease dated 26.7.1915 by the Deputy
Commissioner in favour of Gyasara and that on death of
Gyasara the property devolved in favour of Ruda and
Hanuman and in respect thereof a lease was executed on
15.11.1937.
10. Thus, Ex.D4W-1/1 also establishes that the
Government of India created a lease hold right for the first
time in faovur of Gyasara son of Lakhi and not in the name of
Lakhi. Thus, the devolution of interest commenced not under
Lakhi but under Gyasara.
11. The appeal accordingly succeeds.
12. Impugned judgment and decree dated 3.4.1981 is
set aside.
13. The suit filed by the respondent is dismissed.
14. No costs.
PRADEEP NANDRAJOG, J.
J.R.MIDHA, J.
OCTOBER 20, 2008
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