Shri Tilak Raj vs Smt. Kaushalya & Ors
2011 Latest Caselaw 2114 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment delivered on: 20.04.2011

+                       RSA No.395/2006

SHRI TILAK RAJ
                                                    ........Appellant
                  Through:    Mr. R.K. Shukla, Advocate.
                  Versus

SMT. KAUSHALYA & ORS
                                                  .......Respondents
                  Through:    Mr. L.K. Singh, Advocate.

      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

1 This appeal has impugned the judgment and decree dated

05.09.2006 which had endorsed the findings of the trial Judge

dated 30.09.2004 whereby the suit filed by the plaintiff Tilak Raj

seeking possession of the suit property i.e. property bearing No.

1289, Mohalla Ghasian, Pan Mandi, Sadar Bazar, Delhi along with

damages had been dismissed.

2 The case of the plaintiff is that at present he is a co-sharer

and in exclusive possession of the aforenoted suit property. Jamuna

Devi was the co-sharer of this property; in terms of her Will dated

03.08.1992, she had bequeathed her share to the plaintiff. Jamuna

Devi was otherwise in exclusive possession of this property. After

her death, the aforenoted property came to the share of the

plaintiff in terms of her registered Will. In January 1996, since

defendant No. 1 (elder brother of the plaintiff) was having strained

relations with his wife and son, the plaintiff permitted his brother

to occupy a portion of this property; defendant had agreed to

vacate it on demand. Inspite of legal notice dated 05.02.1997,

defendant No. 1 had failed to vacate the suit property. Present suit

was accordingly filed.

3 The defendant contested the suit. It was stated that the

plaintiff is only a co-sharer in the suit property having obtained his

title from Jamuna Devi, he is not the exclusive owner; the

defendant is also a co-sharer in the suit property. Suit is liable to

be dismissed as the bequest in terms of the Will dated 03.08.1994

can only be qua the share of the testator Jamuna Devi; she could

have bequeathed only her co-share; she could not have bequeathed

the entire suit property. Suit is liable to be dismissed.

4 From the pleadings of the parties, the following five issues

were framed:-

1. Whether the plaintiff is entitled to the decree of possession of the suit premises? OPP

2. Whether the plaintiff is entitled to the decree of Rs.18,000/- for damages? OPP

3. Whether the plaintiff is entitled to the damages/mesne profit, if yes, at what rate and for what period? OPP

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

5. Relief.

5 Oral and documentary evidence was led. Two witnesses were

examined on behalf of the plaintiff and three witnesses were

examined on behalf of the defendant. While disposing of issue No.

1, the Will of Jamuna Devi dated 03.08.1992 was examined. The

Court disbelieved the document; it was held that Jamuna Devi was

otherwise signing documents; her thumb impression on the

disputed Will raised a doubt on the veracity of the document;

further the testator could not bequeath the entire property as she

was admittedly only a co-sharer in the suit property. The suit of the

plaintiff was dismissed.

6       This was affirmed in the second appeal.


7       This is a second appeal. It had been admitted and on

04.02.2011,       the   following    substantial   question   of   law     was

formulated:-

"Whether the registered Will of Jamuna Devi Ex. PW-2/A dated 03.08.1992 had been misconstrued? IF so, its effect? "

8 On behalf of the appellant, it has been urged that the Will

stood adequately proved; the Will has been proved as Ex. PW-2/A

and the attesting witness to the Will (PW-2) had on oath stated that

this Will had been thumbed marked by Jamuna Devi in his

presence. The valid requirement of a Will stood duly proved. It

could not have been disregarded.

9 Arguments have been rebutted. It is pointed out that even

assuming that the Will stood adequately proved, the testator

Jamuna Devi could have bequeathed only that portion which was

owned by her. Admittedly she was a co-sharer and she could not

have bequeathed the entire property. The defendant is also a

co-sharer.

10 It is not in dispute that the plaintiff and the defendant are

real brothers. They are sons of one Chottey Lal. This property had

originally been in the name of Chedhi Lal, the great grandfather of

the parties. Chedhi Lal have three issues of whom Jamuna Devi was

the daughter in law of his pre-deceased son. Chottey Lal was the

father and Chedhi Lal was the grandfather of the plaintiff. Even

assuming that Will dated 03.08.1992 had bequeathed a portion of

this property (one-share) to the plaintiff, the defendant was also a

co-sharer in terms of his right of inheritance claimed from Chottey

Lal (who was the son of Chedhi Lal). The property is also

admittedly undivided; it has not been partitioned. The case of the

defendant all along was that he was living in this suit property

since his childhood. Contention of the plaintiff on the other hand

was that the defendant was living in suit property No. 1286 and the

Electoral Roll Ex. PW-4/1 has evidenced this factum. This document

had been examined by the courts below. In fact the entire oral and

documentary evidence had been adverted to by both the courts

below to return a finding that a co-sharer cannot ask for possession

from an other co-sharer. Admittedly, both the parties are co-

sharers in the suit property. Suit property has not been partitioned.

Without relief of partition, of which particular portion the plaintiff

was claiming possession has not been detailed.

11 Being only a co-sharer he not entitled for possession of the

entire suit property. The legal notice dated 05.02.1997 has been

proved as Ex. PW-1/1; it was stated that the defendant is a licensee

and his license had been terminated vide the aforenoted notice.

This has been denied in the reply dated 19.02.1997.

12 Be that as it may, it is not in dispute that the defendant is

also a co-sharer of the suit property and the plaintiff is not the

exclusive owner of the suit property. This fact had been admitted

by the plaintiff in her plaint. In this view of the matter, the property

not having partitioned and no specific share having been allotted to

the plaintiff, the question of seeking possession of the suit property

from the defendant did not arise. Both the courts below had rightly

held so.

13 Learned counsel for the appellant has placed reliance upon a

judgment of the High Court of Punjab & Haryana reported in AIR

1984 P & H 58 Ajmer Singh Vs. Shamsher Singh & Others to

support his submission that the suit by a co-owner seeking

possession is maintainable. There is no doubt to this proposition;

this was against a trespasser. In the present case, the plaintiff is

claiming possession against an other co-sharer; the property is also

undivided. Reliance placed upon the judgment reported in AIR

1991 Calcutta 405 Sri Bhadreswar Pandit & Others Vs. Smt. Puspa

Rani Pandit is also misplaced. This is clearly not a case of „no

evidence‟. Both the courts below had correctly appreciated the

evidence and had drawn a conclusion that the suit is liable to be

dismissed.

14 Substantial question of law is answered in favour of the

respondent and against the appellant. There is no merit in this

appeal. Dismissed.

(INDERMEET KAUR) JUDGE APRIL 20, 2011 A