Delhi High Court
Sh. Chandgi Ram Through Lrs.& Ors. vs Smt.Chhoto Devi Through Lrs. & ... on 15 July, 2010
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment : 15th July, 2010
+ RSA No.28/1998
1.SH. CHANDGI RAM THROUGH LRS.
2.SH. RAM PAT
3.SH. AZAD
4.SH. PARBHATI
5.SH. HARI CHAND
6.SH. MOTI
7.SMT.GANGA DEVI
8.SMT. HARDAI
9.SMT. RAM PYARI
10.SH. TEK CHAND THROUGH LRS.
11. SH. RAGHBIR ...........Appellants
Through: Mr.S.K.Bhaduri, Mr.S.P.Pandey and
Ms.Gaurima Hazarika, Advocates
Versus
1.SMT.CHHOTO DEVI THROUGH LRS.
2.SH.RAMESHWAR
3.SMT.BHAGWATI
4.SH.KISHAN DUTT THROUGH LRS.
5.SH.BISHAN DUTTA THROUGH LRS
6.SH. RAM DUTT
7.SMT. KISHAN DEI
8.SMT. PHOOL DEI
9.SMT. SUKH DEI
10.SMT.INDRAWATI
11.SH.HARI SINGH
..........Respondents
Through: Mr.Sunil Malhotra & Mr.Dheeraj
Gupta, Advocates.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.(Oral)
CM No.2132/1999 ( u/O 5 R. 20 CPC)
Respondents have been served and they are represented.
This application has thus become infructuous. Dismissed as
RSA No.28-1998 Page 1 of 6
withdrawn.
CM No.1191/1998 ( for directions)
Not pressed. Dismissed as withdrawn.
RSA No.28/1998
1. This second appeal has been preferred against the
impugned judgment and decree dated 29.10.1997 wherein the
finding of the Trial Judge dated 7.5.1983 dismissing the suit of the
plaintiff on two preliminary issues had been endorsed.
2. On 21.3.1974 the Trial Judge had formulated six issues.
Issue no.2 was treated as preliminary issue which inter alia reads
as follows:
"2.Whether the suit is properly valued for the purpose of
court fees and jurisdiction: If not, what is the proper
valuation? OPP
3. On 6.4.1981 additional issues were framed of which issues
no.5B and 5D were again treated as preliminary issues. They inter
alia reads as follows:
"5B.Whether the suit is not maintainable as alleged in para
no.7 of preliminary objection of W.S.? OPD
5D.Whether this court has jurisdiction to try the present
suit? OPP"
4. This suit has been filed by the plaintiffs seeking joint
management of the property in dispute i.e. land measuring 2
Bighas 16 Biswas comprising in Khasra No.141/6 situated at
Dichaun Kalan, Delhi. The preliminary objection of the defendants
was that the suit is not maintainable in the present form as the
consequential relief for possession had not been prayed for. Trial
Judge had decided this issue in favour of the defendants and
against the plaintiffs; suit in the present form was held not
maintainable. While dealing with issue no.2, Trial Judge had held
RSA No.28-1998 Page 2 of 6
that the suit has also not been properly valued for the purpose of
court fees and jurisdiction. This issue was also accordingly been
decided in favour of the defendants.
5. The first Appellate Court vide its judgment dated 29.10.1997
had endorsed the findings of the Trial Judge. It was held that the
suit is barred under the provisions of Section 34 of the Specific
Relief Act as the consequential relief of possession had not been
claimed by the plaintiff. The finding on issue no.2 that the suit
had not been properly valued for the purpose of court fees and
jurisdiction had also been endorsed.
6. Before this Court learned counsel for the appellant has
urged that a substantial question of law has been arisen which has
been expounded as follows: Admittedly, the property in dispute is
an open plot of land upon which a temple and piao had been
constructed in one corner. It is submitted that the plaintiff is
deemed to be in possession with his co-owner and as such it was
not necessary for him to pray for the relief of possession. Learned
counsel for the appellant has placed reliance upon a judgment of
the Division bench of this Court reported in FAO(OS) 220 of 1995
Shri Shiv Kumar Kapahi Vs. Shri Sushil Rattan Kapahi & Ors. and
observations of the Court on page no.2 of the judgment have been
highlighted which inter alia reads as follows:-
"The appellant also claims that the land is vacant land. In
what manner he is claiming exclusive possession of the
vacant land is also a matter for consideration. Normally, the
law relating to vacant land is that possession follows title
and all the joint owners should be deemed to be in joint
possession unless one owner has physically excluded others
by partitioning the property or by demarcating the property
and entering into possession exclusively.
RSA No.28-1998 Page 3 of 6
7. These observations of the Divisions Bench are of no help to
the appellant in view of the pleadings made by him in the plaint
itself. Para 6 of the plaint reads as follows:-
"That however, in January, 1973, when a temple was
constructed with the help of the joint funds, in a corner of
the Khasra Number in dispute, Shri Pyare Lal at the time of
opening ceremony got installed a stone slab of his own name
written with the year 1969. The plaintiffs objected to this
act of Shri Pyare Lal but henceforth late Shri Pyare Lal
claimed an exclusive possession in himself in collusion with
defendants no.2 to 5. He and now defendants 1(i to vii) have
no right to be in exclusive possession of the Khasra number
in dispute and the plaintiffs are entitled to joint possession
of the said Khasra number with all the constructions on it
including the tube-well and the electric motor. The
defendants however do not concede to the plaintiffs
demand, and they therefore, file this suit."
8. These averments clearly show that the plaintiff himself has
alleged that the defendant no.1 in collusion with defendants no.2
to 5 are now in exclusive possession of the aforestated disputed
property. In this view of the matter the submission of the learned
counsel for the appellant that he was deemed to be in joint
possession with the other co-owners is incorrect as he had himself
pleaded that the exclusive possession of the property had been
taken over by the defendants. It were these facts which had
weighed in the mind of both the fact finding Courts below while
disposing of this issue with regard to the maintainability of the
suit. The first Appellate Court had also rightly and correctly relied
upon the provisions of Section 34 of the Specific Relief Act.
9. The findings of the two Courts below that the admission of
the plaintiff in his pleadings that a temple and piao had been built
in the suit property admittedly evidenced that this property would
have some market value and as such the court fees affixed on the
plaint not being affixed as per the market value of the property,
this issue was also decided against the plaintiff. Findings of the
RSA No.28-1998 Page 4 of 6
Court that the court fee should have been fixed as per the
provisions of Section 7(v)(e) of the Court Fee 1870 Act was the
correct legal proposition. The fixed court fee of Rs.50/- paid on
the plaint was accordingly held to be not the correct value for the
purpose of court fee and jurisdiction.
10. There are no errors committed in the findings of fact given
by the two Courts below and which had been appreciated on the
basis of the pleadings made in the plaint. In view of these
admissions made by the plaintiff in his plaint, the suit was
dismissed as being not maintainable.
11. The questions of law as formulated in the memo of appeal by
the appellant finds mention on page 7 of the appeal. They border
on the submission that the suit could not have been decided only
on preliminary issues without giving an opportunity to the plaintiff
to lead evidence to show his joint possession of the land along
with the other defendants; these are grave errors which have
raised substantial question of law. These submissions of the
appellant merit no consideration. It is from the extract of the
pleadings made by the plaintiff himself in his plaint which had led
the Courts below to decide the suit on the two preliminary issues
raised before it, relating to its maintainability and the value of the
suit for the purpose of court fee and jurisdiction. Suit was clearly
not maintainable in view of the specific bar under Section 34 of
the Specific Relief Act; the suit had been filed by the plaintiff
seeking joint management of a temple in respect of Khasra
No.141/6 in a portion of which a temple and piao had been
constructed. Plaint had expressly admitted that the defendants
had taken over the exclusive possession of the said properly. In
RSA No.28-1998 Page 5 of 6
view of this, the prayer made in the suit as aforenoted i.e. for joint
management of the property without the consequential prayer for
possession was not maintainable. No question of law much less
any substantial question of law has arisen in this matter.
12. Appeal is dismissed.
13. File be consigned to record room.
INDERMEET KAUR, J.
JULY 15, 2010
nandan
