Sh. Ram Saran & Ors. vs Sh. Ram Kumar & Ors.
2009 Latest Caselaw 4839 Del

*          HIGH COURT OF DELHI : NEW DELHI


+          O.A. No. 4/2009 and I.A. No. 8144/2009 in CS (OS) No.
           1746/2007

                                 Reserved on: October 28, 2009
%                                Decided on: November 26, 2009


Sh. Ram Saran & Ors.                                      ...Plaintiffs
                    Through      : Mr. Jagdeep Kumar Sharma, Adv.

                                 Versus

Sh. Ram Kumar & Ors.                                      ...Defendants
                  Through        : Mr. Chetan Sharma, Sr. Adv. with
                                   Mr. Ajit Nair and Mr.Sushil K.
                                   Pandey, Advs.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                    No

2. To be referred to Reporter or not?                 Yes

3. Whether the judgment should be reported
   in the Digest?                                      No

MANMOHAN SINGH, J.

1. This order shall dispose of an appeal being O.A. No. 4/2009

and an application being I.A. No. 8144/2009 filed by the defendants

herein under Rule 4 of Chapter II of the Delhi High Court (Original

Side) Rules, 1967 against the order dated 2nd September, 2009 passed in

the review application being I.A. No. 7995/2009 and under Order XII

Rule 6 read with Section 151 of the Code of Civil Procedure, 1908

respectively.

2. Brief facts of the case are as follows. The plaintiffs assert

themselves to be the owners/inheritors of land measuring 1864 sq. yds.,

situated at Khasra No. 261 min (1-3) (Municipal No. WZ-T-1) and 250

min (2-19) in the revenue estate of Village Naraina, New Delhi, now

known as W.H.S., Kirti Nagar, New Delhi-110015 (hereinafter referred

to as the „suit property‟). The said property was co-owned by father of

plaintiff no. 1 Sh. Dharam Singh along with father of the defendants Sh.

Ram Kishan. When Sh. Dharam Singh passed away in 1964 the

plaintiffs inherited his share of the suit property. In 1962, the

Government issued a notification for acquisition of the suit property and

in 1983, the constructed structure thereon was demolished by the DDA.

3. In 1984, an oral family partition took place between the

parties whereby certain portions of the entire property were taken by the

plaintiffs and certain portions were taken by the defendants and the said

oral partition was acted upon by them. Since 1984, both parties have

been using their respective shares of the entire property. In September

2004, 350 sq. yds. were let out by the plaintiffs to one Sh. Raj Kumar. It

is the plaintiffs‟ allegation that on 25th August, 2007 the afore-mentioned

tenant was threatened with death by the defendants and was told to

vacate the tenanted portion of the suit property.

4. A report was filed with the police but as per the plaintiffs,

they were hand in glove with the defendants and carried out no action

whatsoever. Thus the present suit was filed for declaration that the

plaintiffs are the absolute and exclusive owners in possession of the suit

property and for permanent injunction restraining the defendants and

their servants etc. from dispossessing the plaintiffs and from alienating,

selling or creating any third party interest thereon.

5. The defendants have filed their written statement as well as a

counter claim. It is the defendants‟ case that no oral partition took place

in 1984 as claimed by the plaintiffs. However, a family arrangement was

prepared in writing on 10th September, 1986 wherein all of the properties

of Late Sh. Dharam Singh were mentioned. After the demise of Sh.

Dharam Singh, by mutual agreement the parties decided that Khasra No.

261 (1-3) and (0-10) of Khasra No. 250 were to be owned by the

defendants and property no. 244 (0-12) and the remaining part would

belong to the plaintiffs.

I.A. No. 8144/2009

6. In the application under Order XII Rule 6 read with Section

151 of CPC the defendants have submitted that in the plaint, the

plaintiffs have contended that after the oral family partition of 1984, the

defendants were left with no right, title or interest in the suit property. In

fact, in paras 29 and 30, the plaintiffs have mentioned time and again

that they are in exclusive possession of the suit property and that they

have enjoyed exclusive possession of the same without any interference

from any corner etc. However, it has been stated in various places in the

plaint that the plaintiffs and defendants are co-owners of the suit

property and hence, a judgment may be passed having regard to the

plaintiffs‟ admissions. Further, the defendants have submitted that in the

following three documents, there is admission of facts :

(i) Certified copy of amended plaint dated 2nd September,

1992 in CS (OS) No. 245/02/83 titled as Ram Kishan

(Deceased through his LRs) & Ram Saran Vs. DDA;

(ii) Certified copy of judgment dated 30th August, 2005 in CS

(OS) No. 245/02/83 titled as Ram Kishan (Deceased through

his LRs) & Ram Saran Vs. DDA; and

(iii) Certified copy of plaint dated 8th July, 2000 in CS(OS)

No. 343/2000 titled Ram Saran & Ors. (Deceased through his

LRs) Vs. Govt. of NCT of Delhi & Ors.

7. It is the defendants‟ contention that the admissions of the

plaintiffs clearly show that the parties are co-owners of the suit property

hence there is no question of any declaration or permanent injunction to

the contrary. In keeping with the contentions, the defendants have

prayed that the plaintiffs‟ suit with respect to the suit property be

dismissed and heavy cost be imposed on the plaintiffs for filing a

frivolous and patently false case as they are stopped from taking a

contradictory stand in their pleadings.

8. In their reply to the defendants‟ application, the plaintiffs

have contended that the averments made therein are different from the

averments made in the written statement and the application is only an

attempt to mislead the court. The plaintiffs have denied that they and the

defendants are co-owners of the suit property. Further, they have denied

that the documents as submitted by the defendants prove the factum of

co-ownership of the parties and aver that evidence shall have to be led in

order to arrive at a decision as regards the suit property.

9. In fact, as regards the documents submitted by the defendants

to emphasize the admissions made by the plaintiffs, counsel for the

plaintiffs has contended that since there was no dispute between the

parties prior to August, 2007, the two litigations referred to by the

defendants were being contested jointly so that both parties could obtain

the benefit of the suit property though both had different shares of the

same and were not co-owners. In reliance of this justification, the

plaintiffs have submitted a mutual agreement dated 10th September, 1986

between the late father of the defendants and plaintiff no. 1 wherein all

properties of late Sh. Dharam Singh have been mentioned except the suit

property, implying that the same had already been partitioned orally in

1984. The relevant portion of the said document is reproduced hereunder

(on page 15 of the additional reply on behalf of the plaintiffs) :

" Sh. Ram Kishan S/o Sh. Dharam Singh and Sh. Ram Saran S/o Sh. Dharam Singh had also agreed that all the pending court cases pertaining to land as well as houses would be dealt jointly till the cases conclude (sic) and the expenses would be borne (sic) by both brothers equally. ...Here co- operation means (sic) expenditure incurred only.

All the cases pertaining to land and property from today i.e. dated 10.09.1986 onwards would be solely faced by the concerned person."

10. The plaintiffs have pointed out a contradiction in the counter

claim and the present application which is that in the counter claim, the

defendants claimed that partition of the suit property had been affected

after the death of Sh. Dharam Singh though in the application their claim

is that they are co-owners of the property along with the plaintiffs.

11. I have perused the rival submissions of both parties. After

going through the plaint and the alleged admissions of the plaintiffs, it

seems to me that certain paras need to be read more closely than others.

In para 10 it has been stated that the plaintiffs had 1864 sq. yds. out of a

total of 4700 sq. yds. after the oral family partition and the defendants

had 2386 sq. yds. In subsequent paragraphs, the plaintiffs have

established usage of the suit property by giving details of certificates

issued by Government authorities and shop names etc. Further, in para

29 it is stated that the plaintiffs are the rightful, absolute and exclusive

owners in possession of the suit property after the family partition in

1984 and that the defendants have no right, title or interest in the same.

Para 30 also mentions that the plaintiffs occupied and used the suit

premises exclusively without any interference from any corner

whatsoever. However, in para 7 it is stated that the plaintiffs and

defendants continued to be owners and in joint possession of the entire

land.

12. Further, as regards the documents referred by the defendants‟

counsel mentioned herein in para 6 and the plaintiffs‟ justification for the

same stated herein in para 8, in Gautam Sarup v. Leela Jetly, (2008) 7

SCC 85 it has been observed that though a party cannot be allowed to

resile from or retract an admission, it is permissible to explain under

what circumstances the same was made or to state that it was made

under a mistaken belief or to clarify one‟s stand with regard to the extent

or effect of such admission.

13. The plaintiffs have asserted that they have been the exclusive

owners of the suit property since 1984, which assertion is yet to be

examined. Counsel for the plaintiffs has referred to Express Towers P.

Ltd. & Anr. V. Mohan Singh & Ors., 2007 (97) DRJ 687 (DB)

wherein as regards Order XII Rule 6, the following has been observed :

"14. Under Order XII, Rule 6 of the Code, a decree can be passed or a suit can be dismissed when admissions are clear and unambiguous and no other interpretation is possible. The Court also is vested with a right to ask for independent corroboration of facts, even when denial in the pleadings is not specific. Right to pass a judgment or order under Order XII, Rule 6 of the Code is discretionary and not mandatory. It may not be safe and correct to pass a judgment under Order XII, Rule 6 of the Code when a case involves disputed questions of fact and law which require adjudication and decision. Even when a party has made an admission, the Court need not dismiss or allow the suit. Judgment on the basis of admissions is not a matter of right but a matter of discretion for the Court. Similarly relief of specific performance is a discretionary relief. The discretion, whether or not a decree for specific performance of an immovable property should be passed, is to be exercised or rejected by taking into account several factors and circumstances. Conduct of the parties is also to be examined."

14. In Sh. Rajeev Mehra Vs. Sh. Sudhir Kumar Sachdev,

MANU/DE/0150/2009 leraned Single Judge of this court, while

dismissing an application under Order XII Rule 6 observed that under

Order XII Rule 6 CPC it is the discretion of the court, even where

admissions of facts have been made, whether to decree the suit or not.

The court even in the face of admission is empowered to make such

order as may be deemed fit.

15. Further, a Local Commissioner was appointed by this court

vide order dated 25th September, 2007 to ascertain the extent of physical

possession of the parties over the suit property. As per the local

commissioner‟s report, the plaintiffs had the keys of the property

situated in Khasra 261 min (1-3) and were in control of the entrance and

exit of the same. However, it was the defendants who had the keys to the

cupboards and almirahs within the property as well as a key to the front

gate, which had been stated to be a fixed gate. In such circumstances,

neither party could be said to be in exclusive possession of the property.

In the property at Khasra No. 250 min (2-19), the plaintiffs were in

possession of approximately 700-750 sq. yds. and the defendants of

about 400 sq. yds. respectively. No dispute as to possession seemed to

exist as regards this property, even though the defendants had no

separate entrance and had to reach their portion through a passage stated

to be in the plaintiffs‟ possession.

16. Having scrutinized the plaint and in view of the observation

in para 13 of this order as well as the local commissioner‟s report and

the case law on the subject, I believe that this case requires a trial. There

is no admission in the plaint as regards the allegation of co-ownership of

the defendants in so far as the suit property is concerned. With regard to

the documents wherein there is alleged admission, the plaintiffs have

prima facie tried to give a justification by referring a signed document,

the validity of which cannot be determined at this stage.

17. An order as to decreeing the suit based on contradictory

statements made by the plaintiffs would cause hardship to them, unless a

trial is conducted in the matter. Thus, without deciding the dispute in

hand on merit, due to the facts and circumstances mentioned in the

pleadings of the parties, it is my opinion that such an order would be

hasty and might prejudice the rights of the parties. In view of all these

facts, I hereby dismiss the application of the defendants. The dismissal

of the same shall have no bearing on the final outcome of the suit and

shall not prejudice the rights or contentions on merit of either party.

Application disposed of accordingly.

O.A. No. 4/2009

18. The present appeal has been filed by the defendants against

the order dated 2nd September, 2009 passed by the Joint Registrar. It

appears from the order dated 24th April, 2009, that when the matter was

listed for admission/denial of the documents, no one appeared on behalf

of the defendants, therefore, the documents filed by the plaintiffs were

ordered to be deemed to have been admitted.

19. Thereafter the defendants filed the application being I.A.

No.7995/2009 under Order 47 Rule 1 read with Section 151 CPC for

review of the order dated 24th April, 2009. The said review application

was dismissed by order dated 2nd September, 2009 on merit. The present

appeal has been filed against the said order.

20. The main grievance of the appellants in the present appeal is

that when the matter was listed before the Joint Registrar for

admission/denial on 24th April, 2009 the learned counsel for the

defendants appeared before the Joint Registrar, however, the room of the

Joint Registrar was jam-packed with a number of counsel and it was

informed by the court that pending cases would be taken up in the post

lunch session. During the lunch hour the defendants No.3 and 4 went to

the chamber of their counsel and found that the counsel for the plaintiffs

along with plaintiffs were sitting and discussing the matter in the

absence of the defendants. The defendants, who could not bear the said

scene, left the chamber of their counsel and subsequently took back the

files of the case from the said counsel and due to this incident the

defendants could not appear after lunch before the Joint Registrar, as a

consequence of which the order under Order 12 Rule 2-A of the Code of

Civil Procedure was passed by the Joint Registrar.

21. It is the further grievance of the appellants that some of the

documents filed by the plaintiffs are photostat copies, therefore, the

same could not have been admitted by the order dated 24th April, 2009.

22. Learned counsel for the plaintiffs, on the other hand, denies

the allegations of the appellants.

23. It appears that, firstly, the defendants have challenged the

order dated 24th April, 2009 against which a review petition has already

been dismissed. Secondly, the appeal challenging the order dated 24 th

April, 2009 has been filed beyond time and the appeal itself is not

maintainable and no valid justification has been given to condone the

delay, however, during the course of hearing, it was agreed by the

learned counsel for the parties that the present appeal may be disposed of

with the following directions:-

(a) Learned counsel for the defendants has agreed to

withdraw all the allegations made against the learned

counsel for the plaintiffs;

(b) The plaintiffs have no objection if the original

documents filed by the defendants subsequently are taken

on record and they are prepared to complete the

admisison/denial of the said documents;

(c) The plaintiffs are agreeable that only the original

documents may be given exhibit numbers and not the

photocopies as those need to be proved by the plaintiffs in

accordance with law.

24. Ordered accordingly. The O.A. is disposed of in view of the

above-mentioned terms as agreed between the parties.

List the matter before the Joint Registrar on 15th January,

2010 for completion of admission/denial of documents.

MANMOHAN SINGH, J.

NOVEMBER 26, 2009