Mr. Roop Lalwani & Ors. vs Ms. Sunita Lalwani & Ors.
2009 Latest Caselaw 4102 Del

*          HIGH COURT OF DELHI : NEW DELHI

+                     CS (OS) No. 941/2002

                                 Reserved on: 7th October, 2009

%                                Decided on: 12th October, 2009

Mr. Roop Lalwani & Ors.                                 ...Plaintiffs
                   Through : Mr. Dheeraj Malhotra, Adv.

                                 Versus

Ms. Sunita Lalwani & Ors.                                      ...Defendants
                    Through : Ms. Karuna Nandi, Adv.


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?                                No

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

MANMOHAN SINGH, J.

1. By this order I shall decide Issues 3, 4 and 5 of the present

suit. The present suit has been filed by the plaintiffs for recovery of

possession under Section 6 of the Specific Relief Act, 1963.

2. Brief facts as per plaint are that Mr. M.N. Lalwani was the

owner of property no. R-719, New Rajinder Nagar, New Delhi

(hereinafter referred to as the „suit property‟). Mr. M.N. Lalwani died

issueless and his wife Mrs. Radhika Lalwani predeceased him. Plaintiff

no. 1 is the brother of the deceased Mr. Lalwani and plaintiff nos. 2 and

3 are his sisters. After his wife‟s death on 26 December, 2001 the late

Mr. M.N. Lalwali was brought to Mumbai on 10 January, 2002 by

plaintiff no. 2, with whom he stayed till his death. On the day that he

went to Mumbai, late Mr. Lalwani handed over the keys of the suit

property to the plaintiff and after that, the plaintiffs have been in actual

possession of the suit property. The defendants visited the suit property

on 18 April, 2002 and without the plaintiffs‟ consent, changed the locks

and dispossessed the plaintiffs by force. Repeated requests to return the

suit property yielded no result, and therefore the present suit was filed.

3. In their written statement, the defendants have stated that the

present suit is not maintainable on two grounds. First, that the suit has

not been properly valued as the suit property has not been valued per its

market value. Second, that the suit under Section 6 of the Specific Relief

Act, 1963 is not maintainable as such a suit cannot be filed against the

owners of the relevant property. The facts of the case as submitted by the

defendants are that father of defendant no. 1 and 2 and husband of

defendant no. 4 late Mr. P.N. Lalwani, younger brother of late Mr. M.N.

Lalwani, purchased the suit property out of his own funds vide a

perpetual lease deed dated 28 December, 1961 executed by the President

of India. After the death of Mr. P.N. Lalwani on 2 February, 1980, the

suit property devolved upon his legal heirs being defendant nos. 1, 2

and 4.

4. The late Mr. M.N. Lalwani at this point of time fraudulently

got his name inserted in the perpetual lease deed of the suit property, i.e.

he showed defendant no. 4 an unsigned Will of late Mr. P.N. Lalwani

bequeathing the suit property entirely to him and convinced defendant

no. 4 to sign a letter to the L & DO in the same regard and affix an

affidavit thereon. Defendant no. 4 had no reason to disbelieve the older

brother of her deceased husband, and in her state of shock over her

husband‟s premature death, did as she was asked. The names of

defendant nos. 1 and 2, being minors, were also added.

5. The defendants have further stated that when they attained

majority, they were shown the Will of their late father by late Mr. M.N.

Lalwani, who persuaded them to execute power of attorneys in his

favour allowing him to sell the suit property. The said defendants were

even made to sign blank stamp paper, stating that the same was to be

used with regard to the L & DO department. On the basis of the power

of attorneys and the stamp paper, the suit property was converted into a

freehold property and a fresh conveyance deed dated 2 January, 2002

was executed in the names of defendant nos. 1 and 2 and late Mr. M.N.

Lalwani. In a suit for partition being CS (OS) No. 872/2002 filed by the

plaintiffs, (which was later withdrawn) the plaintiffs have relied upon the

said conveyance deed and are therefore aware that the defendants are co-

owners in the suit property.

6. When late Mr. M.N. Lalwani‟s wife expired, the former came

to Mumbai where he met defendant nos. 2 and 4. Allegedly, shaken by

the deaths in the family, late Mr. M.N. Lalwani for the first time

confessed to the said defendants that the Will had been a fabricated one

and the attorneys, signatures etc. of the defendants were obtained on the

basis of this fraud. Thereafter late Mr. M.N. Lalwani became unwell and

expired on 24 February, 2002. Being issueless, his brother and sisters

inherited his estate. The defendants brought late Mr. M.N. Lalwani‟s

confession to the plaintiffs‟ notice and stated that they were the owners

of the suit property, but to no avail.

7. The defendants have denied that the keys to the suit property

were handed over to late Mr. M.N. Lalwani. It is submitted that there

were two sets of keys, and only one was handed over to Mr. M.N.

Lalwani who was allowed to reside therein, while the other set was kept

with late Mr. P.N. Lalwani. Further, it has been denied that late Mr.

M.N. Lalwani gave the possession of the suit property to the plaintiffs. It

is submitted that when he arrived at Mumbai on 10 January, 2002 he was

in good health and there was no occasion to give the keys of the suit

property to anybody. On 11 February, 2002 late Mr. M.N. Lalwani

suffered a heart stroke and went into coma. In these circumstances, a son

of the predeceased brother of late Mr. M.N. Lalwani and late Mr. P.N.

Lalwani, namely Mr. Naresh Lalwani, took into his possession all the

papers and belongings of Mr. M.N. Lalwani. 8. To avoid the

usurpation of the suit property, defendant nos. 2, 3 and 4 arrived at Delhi

on 16 April, 2002 to stay therein. Mr. Naresh Lalwani then arrived with

unsocial elements and demanded vacation of the suit property. A

complaint was lodged by the defendants against the plaintiffs, and the

conveyance deed was shown to the Assistant Commissioner of Police,

after which the plaintiffs stated that they had been unaware of the

defendants‟ status and would not be any more trouble. However, visits

from unsocial elements continued and then the plaintiffs filed a suit for

partition and subsequently withdrew the same. As per the defendants, the

present case has been filed only to harass them.

9. In the replication, the plaintiffs have submitted that the

defendants never met late Mr. M.N. Lalwani during his stay in Mumbai

and that they have concocted this fact to support their lie about the

alleged confession of late Mr. M.N. Lalwani.

10. I have perused the rival contentions of both parties as well as

the pertinent documents. By this court‟s order dated 9 May, 2002 an

injunction was granted restraining the defendants from selling, alienating

or transferring the suit property. On 18 March, 2003, this court noted

that as the suit property had been let out before passing of the restraint

order, status quo would be maintained and the rent receipts and

maintenance expenses would be filed quarterly. On 4 March, 2008

Issues were framed. As per order, Issue Nos. 3, 4 and 5 are to be treated

as preliminary issues. I shall deal with each Issue separately.

11. Issue no. 3 being "Whether the plaint is liable to be rejected

on account of deficiency of Court fee?" does not arise for consideration

as it was not opposed by the Learned Counsel for the defendants during

the course of hearing of the other two issues. This being the case, I shall

now take up the other two preliminary issues.

"Whether any claim can be made by the plaintiffs qua the suit property as a consequence of the unconditional withdrawal of CS (OS) No. 872 of 2002 "Roop Lalwani & Ors. Vs. Sunita Lalwani & Ors.?"

Counsel for the plaintiffs has submitted a copy of order dated 3 May,

2002, on which date CS (OS) No. 872/2002 was withdrawn. The said

order is reproduced hereinbelow :

"Learned counsel for the plaintiff wants to withdraw the suit with liberty to file fresh suit. Suit is dismissed as withdrawn with liberty to file fresh suit."

13. No further submissions as regards this Issue are required to

be considered in view of the above-stated order. The withdrawal of CS

(OS) No. 872/2002 was not unconditional and liberty had been granted

to file a fresh suit. This Issue is decided in favour of the plaintiffs and

against the defendants.

"Whether the suit as framed is not maintainable under Section 6 of the Specific Relief Act against the defendants?" Section 6 of the Specific Relief Act, 1963 provides as under :

"6. 1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

(2) No suit under this section shall be brought--

(a) after the expiry of six months from the date of dispossession; or

(b) against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof."

15. The case of the defendants is that the plaintiffs were never in

actual possession of the suit property as claimed by them. Further,

Section 4 (1) of the Benami Transactions (Prohibition) Act, 1988 has

been referred to and the same is reproduced hereinbelow :

"4(1). No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property."

As defendant nos. 1 and 2 are the true owners of 2/3 of the suit property,

no claim of possession is maintainable against them.

16. The actual possession of the suit property cannot by any

stretch of imagination be said to have been with the plaintiffs. They were

only in possession of the keys to the same. The plaintiffs‟ contention that

they had posted a security guard at the suit property and were therefore

in possession of the same is claimed to be unfounded and wrong as the

security guard was hired on 23 March, 2002 and was posted for only

about 26 days. Further, plaintiff‟s letter dated 22 March, 2002 to the

Delhi Vidyut Board for charging basic charges clearly states that „no one

is staying in the premises form January 2002 and hence there is no

consumption of electricity."

17. Counsel for the defendants has referred to Rame Gowda v.

M. Varadappa Naidu,(2004) 1 SCC 769, wherein the following was

observed:

"9. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh case the Court clarified that it is difficult to lay down any hard-and-fast rule as to when the possession of a trespasser can mature into settled possession. The "settled possession" must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser.....The Court laid down the following tests which may be adopted as a working rule for determining the attributes of "settled possession" (SCC p.527, para 12):

(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;

(ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;

(iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and

(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to

destroy the crop grown by the trespasser and take forcible possession."

18. It is settled law that the question/existence of title in the suit

property is immaterial as far as Section 6 of the Specific Relief Act is

concerned. In view of the observation of the Supreme Court as stated

above, and under the circumstances of the present case, it seems to me

that it cannot be said that the plaintiffs were in „settled possession‟ of the

suit property. The plaintiffs never actually resided in the suit property

and are asserting their „actual possession‟ of the same on the basis of the

security guard deployed there for a mere 26 days. Though the defendants

did not reside in the suit property for much time either, the onus of

proving „settled possession‟ is on the plaintiffs and I believe that the

same has not been satisfactorily discharged.

19. Such being the circumstances of the present suit, I find that

the present suit is not maintainable under Section 6 of the Specific Relief

Act, 1963. Thus issue No.4 is decided in favour of the defendants and

against the plaintiffs. Consequently, the suit of the plaintiffs is

dismissed. All pending applications, if any, also stand disposed of in

view of the orders passed in Issue No. 4. No costs.

MANMOHAN SINGH, J.

OCTOBER 12, 2009 nn