Delhi High Court

Mr. Sandeep Chandra vs Lt. Col. R.R. Chandra (Retd.) & ... on 9 April, 2010

Author: Manmohan Singh

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        RFA (OS) No.99/2009

                            Judgment reserved on: 25.02.2010
%                          Judgment delivered on: 09.04.2010

MR. SANDEEP CHANDRA                       ..... Appellant
             Through: Mr. Arun Bhardwaj, Sr. Advocate
                      with Mr. S.K. Sahijpal and
                      Mr. Rakesh Kumar Singh, Advs.
                      Versus

LT. COL. R.R. CHANDRA (RETD.) & ANR.      .....Respondents
               Through: Mr. D.L. Frey, Adv. with Ms. Retika
                        Frey, Adv.

      CORAM:
      HON'BLE MR. JUSTICE VIKRAMAJIT SEN
      HON'BLE MR. JUSTICE MANMOHAN SINGH

      1. Whether the Reporters of local papers may

          be allowed to see the judgment?                                 Yes
      2. To be referred to Reporter or not?                               Yes
      3. Whether the judgment should be reported                          Yes
         in the Digest?

MANMOHAN SINGH, J.

1. The present Regular First Appeal from the Original Side under

Section 96 of the Code of Civil Procedure, 1908, has been filed by Mr.

Sandeep Chandra, the Appellant, against the Judgment and Decree

dated 9th October, 2009, passed by the learned Single Judge in CS (OS)

876 of 2008, whereby the learned Single Judge passed the decree for

possession, permanent and mandatory injunction in favour of

Respondent No. 1 father of the Appellant and also dismissed the

counter-claim filed by the Appellant. The submissions made by both

the parties in the suit for the purpose of determining the present

appeal are that the Respondent no.1 Col. R.R. Chandra (Retd.) who

was the plaintiff before the learned Trial Court filed a suit for

possession and permanent injunction against his son (Appellant herein)

who occupies a portion of the suit property, being S-207, Greater

Kailash-II, New Delhi-110048. The Respondent No.1 is a retired army

officer and is the sole and absolute owner of the entire suit property

which was purchased from his own funds and income. His wife is a

medical practitioner. Both, Respondent No. 1 and his wife are senior

citizens and are maintaining themselves with pension and rental

income received by letting out the second floor of the suit property.

The Appellant is their elder son.

2. As per Respondent No.1, the Appellant was given very good

education. The younger son Dr. Anuj Chandra, Respondent No.2 herein

is a medical practitioner settled in the United States of America.

According to Respondent No. 1, the Appellant got married in 1985 to a

Ms. Shoma. A son, namely, Vijay Vikram was born to the couple in the

year 1988. The marriage was however, dissolved in 1995. The son is

in custody of his mother. It is also stated in the plaint that the

Appellant acquired a residential property i.e. 27, Siddharth Enclave

which was mainly funded by the Respondent No.1 which was let out by

the Appellant. However, the same was sold by the Appellant in the

year 2004 and he retained the entire sale proceeds.

3. There are various other allegations made by the Respondent

No.1 against the Appellant, inter alia, that the Appellant does not show

any regard or respect to his elderly father and behaves arrogantly. He

goes as far as to not allowing the Respondent's guests to visit him and

also threatens to implicate him, his wife as well as his younger brother

in criminal cases. The Appellant occupies one room, mentioned in the

plan annexed to the plaint. Under these circumstances, the

Respondent had no option but to seek a decree for possession and

permanent injunction restraining the Appellant from disturbing his

possession.

4. The Appellant contested the claim of the Respondent No.1 by

filing the written statement and also set up a counter claim. His case

before the Trial Court was that his great grand father was a big

landlord or Zamindar who passed on a considerable estate to the

Respondent's father, late Ramachandra, who died in 1983-84 and who

had purchased a huge property No. 6A, Nemi Road, Dalanwala,

Dehradun, UP. By selling the said property of his father, the

Respondent No.1 purchased the suit property which has been bought

from the Hindu Undivided Family Funds and since the Appellant has

1/3rd share in the HUF and consequently in the suit property, as

coparcener, therefore, the relief sought by the Appellant in the counter

claim was for partition and rendition of accounts. It is alleged in the

Written Statement and Counter Claim by the Appellant that the

Respondent No.1 has concealed the above mentioned facts from this

Court regarding acquisition of the property with family funds.

5. It is also alleged that the Appellant's education expenses were

borne by his grand father and not by Respondent No.1. It is averred

that the Respondent No.1 has differences with the Appellant's wife due

to his adamant behavior and his relations with her were spoiled as the

Respondent No.1 is refusing the partition of the property. As far as the

Siddharth Enclave property is concerned, it is alleged by the Appellant

that the same was purchased from his hard earned income. In the

Written Statement it is also alleged by him that he is in occupation of

the entire ground floor of the suit property except two bed rooms

which are used by his parents.

6. In the counter claim, the Appellant has claimed that he is entitled

to his share in the suit property as coparcener as the property was

purchased out of joint family funds and the Appellant is also entitled to

a share. A prayer was made in the counter claim for partition of the

suit property by metes and bounds and decree for accounts was also

sought by the Appellant and for injunction against the plaintiff

restraining him from selling, letting out and parting with possession of

the suit property.

7. The learned counsel for the Appellant has challenged the

judgment and decree dated 09.10.2009 mainly on the following

points :

a. That the learned Single Judge in the judgment has not

considered the counter-claim filed by the Appellant

wherein the Appellant sought a decree for partition of the

property in question. The learned Single Judge has ignored

the fact that the Appellant is using the accommodation in

question since 1983-84 and is holding the said property on

behalf of all the coparceners and the suit property had

been purchased and got constructed by the Respondent

no.1 out of the money obtained by him from the

Appellant's grandfather for the benefit of all the

coparceners in the family.

b. That the learned Trial Court has not allowed the Appellant

to produce witnesses as per the list of documents filed by

him particularly in view of the defence of the Appellant as

regards the property being HUF as the same was

purchased from the sale proceeds of a large estate owned

by the grandfather of the Appellant. The Appellant by

producing the said witnesses sought to prove the nature of

the property and also various other defences taken in the

written submissions. However, the Appellant was not

allowed to produce the said witnesses and the said

procedure adopted by the learned Trial Court is in

complete violation of Order XVI of Code of Civil Procedure

read with various provisions of the Evidence Act, 1872.

c. It is argued that the learned Single Judge erroneously

rejected the application being I.A. No. 8331/2009 and

Review Application being I.A. No. 9948/2009 without

considering the earlier observations made vide order dated

06.04.2009 wherein the Appellant was given an

opportunity to examine the other witnesses after

examining himself. There was no delay on the part of the

Appellant as observed by the learned Single Judge. The

Appellant was only trying to summon the witnesses to

support his oral testimony as per law.

8. Before dealing with the submissions made by the Appellant

before us, it is necessary to refer the proceedings recorded by the

learned Trial Court from time to time in order to understand the

argument of the Appellant. The details of the same are given as

under:-

i) The suit (CS(OS)876/2008) along-with interim application was

listed for the first time listed on 9th May, 2008 when the ex-parte

ad interim order was issued against the Appellant in the

application under Order XXXIX Rules 1 & 2 of Code of Civil

Procedure.

ii) Vide order dated 9th January, 2009 the Appellant was proceeded

ex-parte as no one appeared on his behalf when the matter was

called. The Respondent No.1 was granted permission to lead ex-

parte evidence by way of affidavit before the Joint Registrar. The

interim application was allowed and order dated 9th May, 2008

was made absolute.

iii) Thereafter the Appellant filed the application to set aside the ex

parte proceedings under Order IX Rule 7 of Code of Civil

Procedure being I.A. No. 1065/2009 which was allowed by the

court vide order dated 18th February, 2009 subject to the cost of

Rs. 10,000/-. In the main suit, the following issues were framed:

"1. Whether the property No. S-207, Greater Kailash-II, New Delhi was a HUF property as alleged by the defendant ? - OPD

2. In case issue No. 1 is held in favour of the defendant, what would be the share of the defendant and whether the defendant was entitled to separate possession of his share in the property and if so, and whether the property was liable to be portioned ? - OPD

3. Whether the plaintiff is entitled to a decree of possession in respect of that part of the property which is in occupation of defendant, son of the plaintiff ? - OPP

4. Whether the suit has not been properly valued for the purpose of court fee ? - OPD

5. Relief."

iv) It was also recorded in the said order that the Appellant would

lead evidence first to prove that the suit property was an HUF

property. Four weeks time was given to the Appellant to produce

evidence by way of affidavit of all his witnesses. The matter was

placed before the Joint Registrar on 19th March, 2008.

v) In the meanwhile there was talk of settlement, therefore, the

matter was listed before the Court on 6th March, 2009 by which

order the Court observed that there seemed to be no possibility

of settlement and the parties were given time to file the list of

witnesses and the matter was kept before the Court on 17th

March, 2009 for examining the list of witnesses filed by the

parties.

vi) On 17th March, 2009, the Court examined the list of witnesses

produced by the Appellant and held that the defendant has filed

the list of witnesses in part -D and has filed documents which are

unnecessary and produced frivolous witnesses in order to

prolong the trial and the Appellant was granted liberty to

examine himself to prove the issue No. 1.

vii) When the matter was listed before the Joint Registrar on 19th

March, 2009, it was noticed that the affidavit filed by the

Appellant as evidence was not attested by the Oath

Commissioner. It was also indicated to the Joint Registrar that

the Appellant moved an application being I.A. 3682/09 for

modification of the order dated 18th February, 2009 for waiving

the cost of Rs. 10,000/-.

viii) Second application was filed by the Appellant being I.A. No.

3681/2009 under Order XVI Rules 1 & 2 of Code of Civil

Procedure for seeking permission to summon other witnesses.

Both the applications were listed before the Court on 30th March,

2009. On 30th March, 2009, the first application being I.A. No.

3682/2009, filed by the Appellant for reduction of cost was

dismissed. The second application being I.A. No. 3681/2009

seeking review of order dated 17.03.2009 was put before the

same Bench on 06.04.2009 which had earlier passed the order

dated 17.03.2009 allowing the Appellant to examine himself

only.

ix) The Appellant filed another application being I.A. No. 4231/2009

for review of order dated 17th March, 2009 which was listed

before the Court on 6th April, 2009 wherein the Court passed the

following order:-

             "The     defendant   has   moved   this   application
             without examining himself.    The onus of proving

the basic issue in this case "whether the property of which she claims partition was an HUF or not"

is on the defendant. Defendant had to examine himself as his own witness first and then only he can claim examination if necessary of the other witnesses.

Let the defendant first examine himself on the date already fixed, i.e., 9th April, 2009 and then revert to this Court after his cross-examination is over.

The Joint Registrar after examination of the defendant shall get this matter listed before this Court immediately."

x) On 9th April, 2009, DW-1 was examined and cross-examined

partly and the matter was adjourned to 13th May, 2009 and 14th

May, 2009. When the matter was listed before the Joint Registrar

on 13th May, 2009, a medical certificate was produced on behalf

of the Appellant and a request for adjournment was made. The

matter, despite opposition, was adjourned to 21st May, 2009 and

22nd May, 2009. On 21st May, 2009, again, OPD card of DW-1 was

produced before the Joint Registrar. The said request was

opposed by the Respondent No.1 on the ground that the DW-1 is

hale and hearty and the matter was adjourned for next day. On

22nd May, 2009, as DW-1 did not appear, an order was passed by

the Joint Registrar to the effect that the DW-1 is avoiding his

cross examination and delaying the matter and the matter was

listed before the Court for appropriate order on 26th May, 2009.

xi) On 26th May, 2009, the court issued notice to the Doctor who

issued the OCD card to DW-1. On 28th May, 2009, the statement

of Dr. Deepak Choudhary, who had issued the OPD card, was

recorded by the Court. On that the defendant withdrew his

application being I.A. No. 4231/2009 for review of order dated

17th March, 2009 and the matter was adjourned to 3rd July, 2009

for remaining cross examination of DW-1.

xii) On 3rd July, 2009, DW-1 was cross examined and discharged and

the matter was listed before the Court for further directions on

14th July, 2009. On 8th July, 2009 again, the defendant filed the

application being I.A. No. 8331 of 2009 under Order XVI Rules 1

& 2 of the Code of Civil Procedure. The said application was also

listed before the Court on 14th July, 2009 which was dismissed by

the Court with cost of Rs. 30,000/-.

xiii) In the said order, the Trial Court observed that the earlier

application filed by the defendant was declined by the Court vide

order dated 17th March, 2009 and the second application was

also dismissed being infructuous by the subsequent order dated

30th March, 2009. It was also observed that the I.A. No.

8331/2009 virtually sought the Court to revisit the same issue.

Therefore, the application was dismissed.

xiv) On 20th July, 2009, it was recorded by the learned Single Judge

that the cost was not paid by the Appellant and the matter was

finally listed for 28th August, 2009 for hearing of the main matter.

xv) In between one more application being I.A. No. 9948/2009 was

filed by the Appellant under Order XLVII Rule 1 CPC seeking

review of order in I.A. No. 8331/2009, again praying for

summoning the witnesses listed in part-D of list of witnesses. On

the said date, it was also informed by the Respondent No.1 to

the Court that the Advocate of the Appellant has addressed a

letter to the Federal Bureau of Investigation (FBI) Headquarters

in Washington, U.S.A. and to the Chief Immigration Officer, East

Block-VIII, R.K. Puram, New Delhi giving indication that Mr Anuj

Chandra, the elder brother of defendant is being summoned as

prime witness in the High Court and his address was verified

from the said department to serve notice on him.

xvi) Learned Single Court clarified the position that the Court had

never required the presence of any witness named in part-D, in

the list of witnesses, filed by the defendant. On 2nd September,

2009, the learned counsel for the Appellant confirmed before the

Court that he had issued the said notices at the instructions of

his client. After hearing the parties, the judgment was reserved

and by judgment and decree passed on 9th October, 2009, the

suit filed by the Respondent No.1 was decreed.

9. Now coming to the merit of the present Appeal, it is a matter of

record that order dated 17th March, 2009 was not challenged by the

appellant in an appeal. It further appears from the said order that in a

way the right to produce the other witnesses by the Appellant,

mentioned in part-D in the list of witnesses, was closed, and even

review filed against the order was withdrawn on 28.05.2009 by the

appellant. After withdrawal of the review, I.A. No. 4231/2009 ipso facto

became infructuous and no further orders were required to be passed.

Thus, the submission of learned senior counsel has no merit in this

regard.

10. After withdrawal of the review petition, the Appellant filed one

more application being I.A. No. 8331/2009 for the same relief which

was also dismissed vide order dated 14th July, 2009 with cost of Rs.

30,000/-. The said order was not challenged by the Appellant in appeal

at that time. On the other hand, the Appellant filed one more

application being I.A. No. 9948/2009 for review of the order dated

14.07.2009 passed in I.A. No. 8331/2009 praying for summoning the

said witness listed in part-D of list of witnesses.

11. The main defence of the Appellant before the learned trial court

was that the suit property was a HUF property. The burden of issue

No.1 was upon the Appellant. The decision as regards the rest of the

issues was obviously dependent upon the result of Issue No.1 and

nature of the evidence to be adduced by the Appellant. Therefore, in

the order dated 6.4.2009, the learned Single Judge had observed that

the Appellant should first examine himself and only then can he can

claim examination, if necessary, of the other witnesses. The court, no

doubt, left open an option at that time. It might have been done by

the court in order to examine the evidence adduced by the Appellant

so that, if necessary, more witnesses are allowed to be examined

however, the Appellant himself lost that opportunity when he withdrew

his review petition on 28.05.2009. Thus, the Appellant is not correct

while making his submission before us that the procedure adopted by

the trial court is contrary to the provisions of Code of Civil Procedure

and Evidence Act.

12. The appellant has not produced any cogent evidence to establish

that there existed any coparcenary in which Appellant and

Respondents are coparceners or that the Suit property was purchased

out of joint family funds despite the fact that the Appellant was given

opportunities by the Trial Court to place on record proof thereof, he

failed to establish the same. In fact, he has not filed even single

document. In his cross-examination, he merely gave an oral testimony

mainly stating that the documentary evidence is with the respondent

no.1 but he however, did not move any application for discovery of

documents from the respondent no. 1 in this regard. During cross-

examination he was questioned upon why he had not declared the Suit

property as HUF in any of his income tax returns and his reply was that

"till now my returns were being handelled (sic handled) by the plaintiff and this can be verified from the handwriting of the plaintiff written on the income tax returns.....Regarding the HUF property, I have to consult my income tax consultant, since this HUF property came into being when I was a minor."

13. Admittedly, the appellant had given the names of the other

witnesses as Part -D of the list of witnesses. As per Delhi High Court

(Original Side) Rules, 1967, Part-D witnesses are required to give oral

evidence but no documents are required to be proved. In the present

case admittedly the Appellant did not place documents either along

with written-statement or by way of evidence. Thus, the question of

proving the documents does not arise.

14. On the other hand, the respondent no.1 was able to prove his

ownership of the Suit property by way of sale deed and by production

of certificate proving that he cleared the loan secured by him for

acquiring the asset. The documents placed on record of the Trial Court

by respondent no.1 who has proved Ex. PW-1/1 which is a certified

copy of the registered sale deed dated 28.12.1973 executed by DLF

United Ltd. in favour of the plaintiff for a sum of Rs. 5,700/-. Ex. PW-1/2

is the certificate issued by the HDFC bank to the plaintiff, stating that

he repaid the amount obtained by him as housing loan in terms of the

loan certificate dated 13.10.1982 after mortgaging the suit property

plot as security (for the said loan). Ex. PW-1/3 is the copy of the

Wealth Tax assessment order for the suit property, issued in the name

of the plaintiff alone.

15. As per settled law that there is no presumption of a

property being a joint family property on account of existence of a Joint

Hindu Family. The one who asserts that it is so has to prove that the

property is a joint family property.

16. We find no evidence in this regard except the oral

statement made by the Appellant in is pleadings that the suit property

had been purchased and got constructed by the respondent no. 1 out

of the money received by him from the appellants' grandfather. We

also feel that after withdrawal of the review petition on 28.05.2009, the

learned trial court has rightly dismissed the subsequent

applications/review petition seeking the same relief.

17. In Srinivas Vs. Narayan, AIR 1954 SC 379, the Supreme Court

held that:

i) Proof of existence of joint family does not lead to a presumption

that property held by any member of the family is joint, and the

burden rests upon anyone asserting that any item of property

was joint to establish that fact. But where it is established that

the family possessed some joint property which from its nature

and relative value may have formed the nucleus from which the

property in question have been acquired, the burden shifts to the

party alleging self-acquisition to establish that property was

acquired without the aid of joint family funds.

ii) The mere proof of existence of joint family nucleus out of which

acquisitions should have been made is not sufficient. The

important thing to consider is whether the income which the

nucleus yields is sufficient to lead to an inference that

acquisitions were made with that income. A building in the

occupation of the members of a family yielding no income could

not be a nucleus out of which acquisitions could be made even

though it might be of considerable value.

18. The above decision was applied in M. Girimallappa Vs. R.

Yellappagouda AIR 1959 SC 906. In Rukmabai Vs. Laxminarayan,

AIR 1960 SC 335, the Supreme Court held that:

"...there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu Family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property."

19. When the appeal was listed before the court at the initial stage,

the learned counsel for the Appellant sought an adjournment to place

on record the affidavits of witnesses who were intended to be

produced by the Appellant before the learned Trial Court. The

Appellant thereafter filed two affidavits of Sh. Alakhendra Raj Rajesh

and Sh. Ishwar (two witnesses). The Appellant also filed his own

affidavits along with copy of the manuscript of a conversation.

20. These affidavits have been filed without moving the requisite

application for production of additional evidence. They were not found

in the Trial Court record, therefore, in the absence of the application

for additional evidence, can not be considered. Even otherwise these

affidavits contain no credible evidence suggesting that the suit