Gobind Ram Deceased Through His ... vs Jaswant Singh And Ors.
2009 Latest Caselaw 4840 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

                            + RFA No. 260/1982

                                                Date of decision : 26.11.2009
IN THE MATTER OF :


MAHENDER SINGH AND ORS.                              ..... Appellants
                  Through: Mr. Ramesh Chandra, Sr. Advocate with
                  Mr. J.N. Aggarwal, Adv. and Mr. Arun Arora, Adv.

                        versus

JASWANT SINGH AND ORS.                                ..... Respondents
                   Through: Mr. S.C. Nigam, Advocate with
                   Mr. Arabinda Nayak, Advocate for respondent No. 1.
                   Mr. H.S. Dhir, Advocate with Mr. Ataul Haque,
                   Advocate for respondent No. 3 with Mr. Gulzari Lal
                   Wadhwa, respondent No. 3 in person.


                                 AND

                + RFA No. 281/1982 and CM 5476/2006
                           & CM 2500/2008


GOBIND RAM DECEASED THROUGH HIS LEGAL HEIR          ..... Appellant
                  Through: Mr. H.S. Dhir, Advocate with Mr. Ataul
                  Haque, Advocate and Mr. Gulzari Lal Wadhwa, legal
                  heir of appellant in person.

                        versus

JASWANT SINGH AND ORS.                               ..... Respondents
                   Through: Mr. S.C. Nigam, Advocate with
                   Mr. Arabinda Nayak, Advocate for respondent No. 1.

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

    1. Whether Reporters of Local papers may
       be allowed to see the Judgment?               No.

    2. To be referred to the Reporter or not?        No.

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


RFA No. 260/1982 & 281/1982                                      Page 1 of 14
 HIMA KOHLI, J. (ORAL)

1. It may be noted at the outset that no paper book has been filed

by either of the appellants in the present appeals. However, counsel for the

appellants in RFA 260/1982 hands over a paper book in the Court, with a

copy to the other side, which is taken on the record. It is agreed by all the

parties that the said paper book shall be referred to and relied upon by the

parties for hearing both the present appeals.

2. Curtains are sought to be drawn by this common judgment, on a

painfully prolonged litigation between the parties spanning a period of over

five decades. The case of respondent No. 1 (plaintiff in the trial court), as set

out in the plaint was that he purchased land measuring 1100 square yards

out of Khewat No.78 according to the Jamabandi of 1947-48 in village

Seelampur, abadi Gandhi Nagar, Shahdara, Delhi (hereinafter referred to as

the said land), for a sale consideration of Rs.6,500/- by virtue of a sale deed

dated 10.02.1954, registered on 11.02.1954. In the year 1957, the

respondent No.1/plaintiff instituted a suit for partition of the said land

(registered as Suit No. 518/57) claiming inter alia separation of his share in

the land and mesne profit from the appellants herein and some other co-

defendants, who were in possession of the entire land, in addition to

payment of compensation. The trial court dismissed the aforesaid suit of

respondent No.1/plaintiff as not maintainable, vide judgment dated

28.12.1960. Aggrieved by the aforesaid dismissal order, respondent

No.1/plaintiff preferred an appeal in this Court, registered as RFA35-D/1961

entitled "Jaswant Singh Vs. Santokh Singh & Ors.", which was decided by

the Division Bench vide judgment dated 19.08.1971. While setting aside

the judgment of the trial court, a preliminary decree was passed by the

Division Bench in favour of respondent No. 1, for partition of the suit land.

3. By the aforesaid preliminary decree passed in favour of

respondent No. 1/plaintiff (appellant in the aforesaid appeal), the Division

Bench held that he was entitled to 36 shares out of 124 shares and it was

directed that he be given separate possession of the land falling to his share.

The matter was remanded back to the trial court for taking further steps for

separating the 36 shares of respondent No.1/plaintiff in the aforesaid lands

and for passing of a final decree. It is undisputed that the aforesaid

preliminary decree dated 19.08.1971 passed in RFA 35-D/1961 was not

challenged by any of the parties to the litigation and the same thus attained

finality.

4. Pursuant to the preliminary decree dated 19.08.1971, the trial

court appointed a Local Commissioner to demarcate the portion of land

falling to the share of respondent No.1/plaintiff and to assess the mesne

profit payable by each of the defendants. The Local Commissioner took

three years to determine the mesne profits and demarcate the portion of

land to be given to respondent No.1/plaintiff by recording the evidence of all

the concerned parties, making spot visits and local enquiries stretching over

a period of three years and finally submitted his report on 25.02.1976.

Alongwith his report, spreading to over 53 pages, the Local Commissioner

submitted a site plan (Ex.C-1) suggesting the portions to be given to

respondent No. 1/plaintiff in accordance with his 36 shares. He also

determined the mesne profit payable by different defendants to the

respondent No.1/plaintiff for the period ending 31.1.1976, amounting to

Rs.87,257/-.

5. Objections were filed against the report of the Local

Commissioner by defendants No.1, 2, 3, 3A and 10 on the one hand and

defendants No. 7 and 8 on the other hand. In view of the objections filed by

the aforesaid parties, vide order dated 06.09.1979, the trial court ordered

that the plan prepared by the Local Commissioner be compared with the

Field Book and another plan was directed to be prepared. Accordingly, the

Local Commissioner prepared another site plan (Ex.C-1/A) by taking the

assistance of a retired Tehsildar and he reiterated the old report submitted

by him earlier. Objections were filed to this report as well. Defendant No. 7

(appellant in RFA 281/1982) and defendant No. 8 had admitted in the course

of the suit proceedings that they did not have any objection to the allocation

of separate possession of land as demarcated in the site plan Ex.C-1, to be

given to respondent No. 1/plaintiff. They however objected to paying any

damages to him. As per the report of the Local Commissioner, the

defendant No.7 (appellant in RFA No.281/1982) was required to pay mesne

profit to the tune of Rs. 14,928/- to the respondent No.1/plaintiff, whereas

defendant No. 8 was required to pay him damages of a sum of Rs.3,135/-,

from the date of institution of the suit, i.e., from the year 1957 to

31.01.1976.

6. Defendants No. 1, 2, 3, 3A (contesting appellants in RFA

260/1982) and defendant No.10 objected to the report of the Local

Commissioner on the ground that the property in question was impartible

and could not be partitioned and that, since it was an agricultural land, the

Civil Court had no jurisdiction to pass the preliminary decree. The trial court

rejected the objections raised by the defendants No. 1, 2, 3, 3A and 10 by

holding that a preliminary decree had already been passed by the High Court

and the trial court could not go behind the said decree. Further, it was

observed that the report of the Local Commissioner suggested that the

property was partible. The trial court thus ruled out the objections raised

by the aforesaid defendants No. 1, 2, 3, 3A and 10 that the mesne profits

had been assessed at a higher rate, by observing that the counsel for the

objectors was unable to point out as to how the damages were assessed at a

higher rate than that the land or the building would have fetched for the

period during which they were in possession.

7. The report of the Local Commissioner was accepted by the trial

court. A final decree of possession of the property demarcated as "ABCD"

and "EFGH" in the site plan, Ex.C-1 as well as Ex.C-1/A, prepared by the

Local Commissioner, was passed. A decree of mesne profits was also passed

against the defendants. The LRs of late Shri Santokh Singh were called upon

to pay to respondent No.1/plaintiff a sum of Rs.9,591/- as mesne profits

upto 31.01.1976. A decree for recovery of Rs.9,987/- was passed as mesne

profits payable upto 31.1.1976, by appellant No. 1 in RFA

No.260/1982/defendant No. 3A, Shri Mahender Singh. A decree for

recovery of Rs.14,928/- as mesne profits payable upto 31.01.1976 was

passed against the appellant in RFA NO.281/1982/defendant No.7, Shri

Gobind Ram.

8. Insofar as the claim of respondent No. 1/plaintiff for passing a

decree of mesne profits from 01.02.1976 till the date of delivery of the

possession of the property was concerned, the trial court held that as the

delivery of possession of the property demarcated and allocated to the

respondent No.1/plaintiff was yet to be made and an enquiry was required to

be conducted under the provisions of Order 20 Rule 12 CPC, as to the rate of

mesne profit from the date of institution of the suit till the date of delivery

of possession to the decree holder, the decree in respect of the said mesne

profit could only be passed after holding such an enquiry. Accordingly, a

Local Commissioner was appointed to make an enquiry and find out the

mesne profit payable by each of the defendants from 01.02.1976, till

delivery of possession of the demarcated property to the respondent

No.1/plaintiff.

9. Aggrieved by the aforesaid judgment and decree dated

09.08.1982, the present appeals were filed. RFA 260/1982 was filed by 10

appellants. While appellants No. 1 to 7 are the legal heirs of late Shri

Santokh Singh (defendant No. 1 in the trial court), appellant No.1(defendant

No.3A) has also instituted the present appeal in his own right and as the

legal heir of the deceased defendant No.1. Appellant No. 8 (defendant No.

2), appellant No. 9 (defendant No. 3) and appellant No. 10 (defendant No.

10A) have also filed the present appeal. However, counsel for the

appellants states that he is appearing only for appellant No. 1 now as the

appellants No. 7, 8 and 9 have expired and their legal heirs have not

bothered to contact him. It may be relevant to note that as the appellants

No.2 & 10 did not appear in the appeal proceedings, the appeal qua them

was dismissed, vide order dated 29.11.2002. The said order also noted that

appellants No.8 & 9 had expired but their legal heirs were not brought on

the record and therefore the appeal qua them was dismissed as having

abated. RFA 281/1982 has been instituted by Shri Gobind Ram (defendant

No. 7 in the suit proceedings). Shri Gobind Ram expired during the

pendency of the present appeal and his sole legal heir, Sh.Gulzari Lal

Wadhwa was brought on the record and an amended memo of parties was

filed.

10. The appellants in RFA 260/1982 have assailed the impugned

judgment and decree on the ground that there was no question of

demarcation of the land as respondent No. 1/plaintiff had claimed that he

had possession of the land in question. Learned counsel for the appellants

Mr. Ramesh Chandra, Sr. Advocate urges that the trial court ought to have

rejected the report of the Local Commissioner as respondent No. 1/plaintiff

was already in possession of 1100 square yards of land, which he had

claimed in the suit proceedings. In support of the said submission, he

draws the attention of this Court to para 2 of the amended plaint wherein,

respondent No. 1/plaintiff in the suit had stated as below:-

"2. That in pursuance of the sale in favour of the plaintiff, he obtained actual and constructive possession of the same and since then is in possession in his own right as an owner."

11. The aforesaid submission made on behalf of the appellants is

falsified by their own stand as taken by them in their written statement. In

the corresponding para of their written statement, they stated as below:-

"2. Para 2 of the plaint is denied. Plaintiff has never been in possession of any land in Khasra No. 333/40 referred to by him, nor does the plaintiff now possess any 1100 sq. yds. in the said Khasra, nor does he possess any part thereof."

12. Similarly, in para 2 of their preliminary objections, the

appellants/defendants No.1 to 3 in the trial court, stated as below:-

"2. Plaintiff is not in possession of the land in suit and in particular over the land purchased by these defendants. Suit as framed is not maintainable and is barred by proviso to Section 42 Specific Relief Act."

13. In view of the aforesaid clear, categorical and unequivocal denial

on the part of the appellants that respondent No.1/plaintiff was never in

possession of the suit land, they cannot be permitted to change their stand

which is at complete variance to their averments in the written statement.

It does not lie in their mouth to allege at this belated stage that respondent

No.1/plaintiff could not claim demarcation in the suit proceedings as he was

in possession of the land in question. Doctrine of approbation and

reprobation is applicable against the appellants. The aforesaid argument is

held to be devoid of merits and is rejected.

14. The other ground taken to assail the report of the Local

Commissioner is that respondent No.1/plaintiff is entitled to claim a total

sum of Rs.47,500/- only as mesne profit. In support of the said submission,

counsel for the appellants draws the attention of this Court to ground No.9

taken in the Grounds of Appeal. In the aforesaid ground, it is stated on

behalf of the appellants that the counsel for respondent No. 1 had made a

statement on 31.01.1979, restricting the total payment of mesne profits to a

maximum sum of Rs.43,500/-. Repeated requests have been made to the

counsel for the appellants to show the relevant statement made on behalf of

respondent No. 1/plaintiff. However, he has not been able to point out the

said statement either from the appeal paper book or from the trial court

record. In the absence of any document to establish that such a statement

was made on behalf of respondent No. 1/plaintiff before the trial court on

31.1.1979, this Court has no option but to turn down the aforesaid

objection.

15. It is next urged on behalf of the appellants that the mesne

profits ought to have been fixed by the Local Commissioner only for the

open space and not for the constructed portion. It is stated that such a

submission was made before the Local Commissioner, but was not taken into

consideration. A perusal of the report of the Local Commissioner belies the

said stand. There is a detailed discussion in that regard in para 50 of the

said report wherein, after taking into consideration the objection raised by

the objectors/appellants, the Local Commissioner turned the same down by

holding that the suit was filed by the respondent No.1/plaintiff in the year

1957 and the entire construction on the land was made by the defendants

after the said date and that if a co-sharer makes construction of his own free

will and accord and without the express consent of the other co-sharer on

the common land, there is risk of the other co-sharer demanding partition of

the property constructed by him and in such case, such a party would also

be entitled to rents and other realizations from constructions carried out on

the common land. This Court finds no reason to differ with the view

expressed by the Local Commissioner in his report. Pertinently, the said

plea does not appear to have been raised by the appellants before the trial

court, as no mention is made in the impugned judgment of such an objection

taken on the part of the appellants. Rather, the only ground taken before

the trial court was with regard to mesne profit and the plea that the amount

assessed as damages was on the higher side, which was duly considered and

rejected.

16. Lastly, it is urged by the counsel for the appellants that while

assessing the damages, the property tax and other expenses incurred by the

appellants on the built up portion ought to have been excluded by the Local

Commissioner. Upon being asked as to whether the said objection was

taken by the appellants before the Trial Court, the reply is in the negative.

The appellants cannot be permitted to urge a ground to assail the impugned

judgment, which was never taken by them while arguing the objections

taken by them to the report of the Local Commissioner, before the trial

court.

17. In so far as Mr. Govind Ram, defendant No. 7 in the trial court,

appellant in RFA No.281/82 is concerned, it is pertinent to note that in para

5 of the impugned judgment, a statement was made by his counsel on his

behalf and on behalf of defendant No. 8 that they had no objection to the

allocation of separate possession of the land demarcated by mark "ABCD" &

"EFGH", to the respondent No.1/plaintiff and that his objection was that his

clients should not be asked to pay any damages. The Local Commissioner

had assessed the mesne profits of Rs.14,928/- as payable by the appellant,

from the date of institution of the suit, i.e., from the year 1957 to

31.1.1976.

18. The other objection taken on behalf of the appellant/defendant

No.7 was that as he was not in possession of any part of the suit property,

his clients could not be asked to pay any mesne profits. The said submission

was duly taken note of by the trial court and it was recorded that when the

appellant/defendant No.7 and defendant No.8, Sh Mool Chand Mistry as also

their counsel were called upon to give a statement to the effect that they

were not in possession of any part of the suit property at any time, so that

they may not claim any part of the land, out of which the respondent

No.1/plaintiff had been given the demarcated portion in accordance with his

share, the aforesaid defendants declined to do so. The trial court rightly

observed that it was clear from the demeanour of the aforesaid parties that

they were in possession of the suit property and that their objection that

they were not in possession of any part of the total land, out of which

respondent No.1/plaintiff had been allocated the demarcated land, was

frivolous. The learned ADJ was justified in overruling the objections raised

by the appellant/defendant No.7 to the report of the Local Commissioner.

Had the appellant/defendant No. 7 genuinely not been in possession of any

part of the suit property, he ought to have agreed to make a statement to

the said effect before the trial court. Having declined to do so, the trial court

cannot be faulted in drawing an adverse inference against him.

19. Mr. H.S. Dhir, counsel for the appellant/defendant No.7 submits

that the trial court ought not to have accepted the recommendations of the

Local Commissioner for assessment of the mesne profits particularly since

the area was in their personal occupation and was never let out and hence,

there was no question of their being called upon to pay any mesne profits.

The aforesaid objection was also taken by the appellant along with other

defendants before the Local Commissioner. The Local Commissioner, in para

49 of his report, had categorically mentioned the details of the tenants of

appellant/defendant No. 7 and the respective rents received and had very

well assessed the reasonable rate of rent that the particular portion would

fetch. Though it was contended that mesne profit in this case should be

assessed only in respect of the land and not the building thereof, the Local

Commissioner observed that in case of co-sharers, rents and other

realizations have to be accounted for, and that if a co-sharer makes

construction of his free will and accord and without the express consent of

the other co-sharer on the common land, he runs the risk of the other co-

sharers demanding partition and the property constructed by him going to

the share of the other co-sharer. It was also observed by the Local

Commissioner in para 56 of his report that when a co-sharer himself carries

out improvements on the common land during the pendency of a suit, he

does so at his own peril and even if the construction is made within the

knowledge of the co-sharer, it does not alter the legal position. Fact

remains that the appellants were in occupation of portion of the land to

which the respondent No.1/plaintiff was entitled and that they had carried

out constructions in the said portion which they were enjoying. Having

constructed on common land and enjoyed possession thereof to the

exclusion of the respondent No.1/plaintiff, the latter was entitled to being

compensated monetarily as well. This Court therefore concurs with the

decision of the trial court, which ruled out the aforesaid objection of the

appellant.

20. The only other plea raised on behalf of the appellant/defendant

No.7 is that the damages assessed by the Local Commissioner were on the

higher side. The trial court examined the report of the Local Commissioner

and observed that he had assessed the damages on cogent evidence and

that they were rather on the lower side. Even in the case of the

appellant/defendant No.7 herein, the damages in respect of a particular

portion in his occupation was assessed @ Rs.75 p.m., as against @ Rs.125

p.m. claimed by the respondent No.1/plaintiff. As the counsel for the

appellant/defendant No.7 has failed to fortify this submission by pointing out

the basis on which it is contended that the damages assessed by the Local

Commissioner in his report as upheld by the trial court, were on a higher

side, the said plea is also turned down. No other ground has been taken by

the appellants in both the appeals, to assail the impugned judgment.

21. In view of the aforesaid facts and circumstances, the impugned

judgment and decree dated 9.8.1982 are affirmed. The appeals, along with

the pending applications are dismissed with costs quantified at Rs.10,000/-

in each case.

22. In view of the fact that mesne profits payable by the

appellants/defendants in the suit from 01.02.1976, till the delivery of

possession of the demarcated property to the respondent No.1/plaintiff have

yet to be finalized and an enquiry in that regard has yet to be undertaken

despite order dated 22.11.1982 passed in RFA No.260/1982, permitting the

Local Commissioner to continue the task of assessing the mesne profits

payable by each of the defendants in the suit proceedings from 1.2.1976

onwards, the Registry is directed to release the trial court record forthwith

and remit the same to the District Judge, who shall assign the matter to the

appropriate court for undertaking further enquiries, in terms of the judgment

dated 9.8.1982, and for further proceedings in that regard. Considering the

vintage of the present litigation, the trial court is requested to complete the

enquiry as expeditiously as possible.

23. The parties are directed to appear before the District Judge,

Delhi on 14.12.2009.

                                                             (HIMA KOHLI)
NOVEMBER 26, 2009                                              JUDGE
rkb/mk