Sh. Gaja Nand Sharma & Anr. vs Sh. Niranjan Lal & Anr.
2011 Latest Caselaw 1047 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                  Judgment Reserved on: 18.02.2011
                  Judgment Delivered on: 22.02.2011


+            RSA No.16/2005 & CM No.10987/2009



SH. GAJA NAND SHARMA & ANR.            ...........Appellants
              Through: Mr.Dinesh Garg, Advocate.

                   Versus

SH NIRANJAN LAL & ANR.                 ..........Respondents
              Through: Mr.R.D.Sharma, 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?

     3. Whether the judgment should be reported in the Digest?


INDERMEET KAUR, J.

1. This appeal has impugned the judgment and decree dated

04.12.2004 which had endorsed the findings of the trial Judge

dated 27.07.2004 whereby the suit filed by the plaintiff seeking

mandatory and permanent injunction against his two brothers and

one sister had been decreed in his favour.

2. The case of the plaintiff is that he is the exclusive owner of

the property bearing No. A-1/15, Krishan Nagar, Delhi-110051

measuring area 42 ½ square yards and 45 square yards depicted

in the site plan. This property was originally owned by their father

Ram Chander who had received it in partition from his brothers in

terms of a decree passed on 04.01.1982 in suit No. 49/1981 titled

„Onkar Nath Vs. Ram Chander & another‟. Ram Chander had died

on 19.11.1982. After his death, the property devolved upon the

plaintiff qua his 1/3rd share as their sister had relinquished her

share in favour of her brothers. Plaintiff and defendants No. 1 & 2

had entered into a memorandum of partition dated 12.12.1984

whereby it had been agreed that two shops as shown in red colour

and yellow colour in the site plan (Annexure „B‟) of premises

bearing No. A-1/15, Krishna Nagar, Delhi (which is in occupation of

defendants No. 1 & 2) would be vacated by them and peaceful

possession of the same would be handed over to the plaintiff on or

before 01.01.1993. However this compromise was not adhered to.

Suit was accordingly filed.

3. The defendants filed their written statements. Contention

was that the property had not been partitioned; the site plan was

objected to. It was stated that the parties had agreed that they

would continue to remain in the portions which were under their

possession; the defendants would be permitted to retain the

possession of the shops from where they were carrying on their

business. It was submitted that the plaintiff had deliberately

withheld two receipts of `20,000/- and `15,000/- executed by the

plaintiff & defendant No. 2 as also further receipts of the same

amount executed between the plaintiff and defendant No. 1 which

were qua these three shops which were in possession of the

plaintiff and defendants No. 1 & 2 respectively; in terms of these

receipts it had been agreed that the properties had been sold to

one another. Suit was liable to be dismissed.

4. The following issues were framed by the Court:-

"1. Whether the plaintiff has no locus standi to file the present suit? OPD

2. Whether the plaintiff is entitled to decree of mandatory injunction as prayed for in the suit? OPP

3. Whether the plaintiff is entitled to the decree of permanent

injunction as prayed for in suit? OPP

4. Relief."

Thereafter an additional issue was also framed:-

"Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPP"

5. Oral and documentary evidence was led which included the

statement of the plaintiff as also the statement of the defendants.

On the preponderance of the probabilities, the Court relied upon

this partition agreement dated 12.12.1984 executed between the

parties and in terms of the site plan (Ex. PW-1/2) it was concluded

that the suit shops (as shown in red colour and yellow colour) in

site plan Ex. PW-1/2 had fallen to the share of the plaintiff and the

defendants were liable to be ejected from the aforenoted suit

property. The suit was decreed in favour of the plaintiff.

6. In appeal, the impugned judgment had upheld this finding.

7. This is a second appeal, It was admitted and after its

admission on 08.11.2010, the following substantial question of law

was formulated. It reads as under:-

"Whether the findings in the impugned judgment dated 4.12.2004 are perverse? If so , its effect?"

8. On behalf of the appellant, it has been urged that a valuable

right of the defendants had been lost as their application under

Order XLI Rule 27 of the Code of Civil Procedure (hereinafter

referred to as the „Code‟) had been dismissed without due

application of mind by the first appellate court. The appellant

wanted to place on record the documents dated 05.01.1989 which

were an agreement to sell, receipt and Will executed by the

plaintiff in favour of the defendants whereby the plaintiff agreed to

sell the disputed shops to the defendants. Dismissal of this

application has led to a travesty of justice. Learned counsel for the

appellant has relied upon 2008 (3) CCC 226 North Eastern Railway

Administration Vs. Bhagwan Das to support her submission that

additional evidence can be permitted even at the second appellate

stage not only to enable the Court to pronounce judgment but also

for any other „substantial cause‟. It is submitted that justice cannot

be subverted and a technical plea should not be allowed to erode

the elicitation of true facts.

9. Submissions have been countered. It is pointed out that the

defence now sought to be set up by adducing additional evidence

would contrary to the written statement and would be set up a new

case as nowhere in the written statement has there been any plea

that in terms of the agreement dated 05.01.1989, the plaintiff had

agreed to sell the aforenoted shops to the defendants.

10. Record has been perused. The first appellate Court has dealt

with these submissions urged by the appellant. In the written

statement, there is a denial about the partition of the suit

properties on 12.12.1984, submission being that the parties had

agreed that the possession of one another shall not be disturbed

and the shops which were in possession of defendants No.1 & 2

would be continued to be retained by them. There is, however, not

a whisper in the entire written statement that any document i.e.

agreement to sell, receipt or Will had been executed between the

parties on 05.01.1989 whereby the plaintiff had agreed to sell

these shops to the defendants. Even otherwise, the impugned

judgment had correctly noted that a perusal of the certified copy of

these documents (receipts, GPA and agreement to sell) which the

appellant was seeking to place on record were in his possession on

06.08.2004; first appeal had been filed on 20.08.2004; the

application under Section under Order 41 Rule 27 of the Code had

been filed on 06.11.2004 at the time when the matter was fixed for

final arguments. This was after a trial which had remained pending

for nine years. The plaintiff in para 4 of his plaint had stated that

the cause of action has arisen on 05.01.1989 when defendants No.

1 & 2 had received ` 20,000/- from the plaintiff as a pre-condition

for vacating the aforenoted suit shops. In the corresponding para

of the reply, there was a mere denial of this date of 05.01.1989. It

is evident that this date of 05.01.1989 was well within the

knowledge of the defendants at that time as it was the specific

contention of the defendants that on the said date, `20,000/- had

been paid by them to the plaintiff; even at this stage, there was no

averment in the written statement that the aforenoted documents

i.e. GPA, Will and receipts had been executed between the parties

wherein the plaintiff had agreed to sell the disputed shops to the

defendants. It is obvious that this defence has been set up later on

only to fill in a lacuna for which the provisions of Order 41 Rule 27

of the Code cannot be resorted to. A party seeking to adduce

additional evidence must establish that notwithstanding the

exercise of due diligence, such evidence was not within his

knowledge or could not, after the exercise of due diligence, be

produced by him at the time when decree appealed against was

passed. The present is by no means one such case where in the

absence of these documents, the appellate Court could not

pronounce judgment; it also does not fall in the category of

„substantial cause‟. In fact, interest of justice demands that the

aforenoted documents should not be permitted to be placed on

record as on 6.8.2004 these documents were in fact in possession

of the defendants i.e. before filing the appeal. Further he had

never set up this plea in his written statement that no such

documents were executed on that date although he had mentioned

the date of 5.1.1989. By permitting these documents to be placed

on record, the defence of the defendants would be changed in its

entirety; the appellant is only trying to fill in lacuna and gaps in his

defence which is not permitted. The said application was rightly

rejected.

11. The second submission made by learned counsel for the

appellant is that the trial court while decreeing the suit of the

plaintiff had permitted extension of time for payment of court fee

by the plaintiff which was not permissible; it was incumbent upon

the Court to have framed a preliminary issue on the question of

valuation and it could not have been decided along with the other

issues. The law is settled; the averments made in the plaint have to

be looked into to determine the valuation of the suit. In the written

statement a feeble defence had been taken that the suit has not

been correctly valued for the purpose of court fee and jurisdiction.

Thereafter an additional issue had been framed on this ground.

This was after the framing of issues in the main suit. Issues had

been first framed on 11.08.1999. Additional issue had been framed

on 27.03.2003 by which time the evidence already stood recorded.

On 30.10.2002, the matter had been fixed for final arguments for

12.12.2002 when the aforenoted application under Order XLI Rule

5 of the Code had been filed by the defendants pursuant to which

the additional issue was framed. It was in these circumstances that

this additional issue was decided along with main suit. Provisions

of Order VII Rule 11(c) of the Code permit the Court to grant time

to the plaintiff to correct the valuation of the suit and to furnish the

requisite stamp papers. This power had been exercised in terms of

the aforenoted statutory provision. Decree had been directed to be

prepared only after payment of the court fee for which four weeks

time was granted. The order does not suffer from any infirmity.

12. Bar of Section 41 (h) of the Specific Relief Act is also not

attracted. The question whether an equally efficacious relief can

certainly be obtained by any other usual mode of proceedings

within the meaning of this section is a question of fact to be

determined in each case on its own circumstances and no hard and

fast rule can be laid down in the matter In the instant case as per

the averments made in the plaint, the plaintiff already had a vested

right in the property in terms of the memorandum of partition; in

these circumstances the relief sought by way of mandatory

injunction was well maintainable.

13. The last contention raised by learned counsel for the

appellant is that the provisions of Sections 17 & 49 of the Indian

Registration Act, 1949 are attracted and no partition could have

been affected of immoveable properties without adhering to the

aforenoted provisions i.e. a compulsory registration. The partition

deed dated 12.12.1984 had necessarily to be registered. This

argument has been noted only to be rejected. The suit of the

plaintiff was based on a memorandum of partition dated

12.12.1984 entered into between three brothers. The pre-existing

right of each brother in the aforenoted immoveable properties is

not in dispute. They had pre-existing shares in the said properties

and by way of partition they had merely agreed to re-allocate those

shares. Such a partition memo does not require any compulsory

registration. In AIR 1975 SC 1119 Munna Lal (Dead) by LRs Vs.

Suraj Bhan the Apex Court had held that a document which simply

acknowledges or makes an admission as to a prior partition is not

compulsorily registrable.

14. Substantial question of law is answered accordingly. There is

no merit in this appeal. Appeal as also pending application is

dismissed.

INDERMEET KAUR, J.

FEBRUARY 22, 2011 a