M/S Dream Land & Co. vs Shanti Narain Bhatnagar ...
2011 Latest Caselaw 680 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment: 04.02.2011

+      R.S.A.No.153/2007 & CM No. 7669/2007 (for stay)

M/S DREAM LAND & CO.                              ...........Appellant
                  Through:            Mr. Neeraj Malhotra, Advocate.


                   Versus

SHANTI NARAIN BHATNAGAR
(DECEASED THROUGH LRS & Ors.            ..........Respondent
                   Through:  Mr. Sanjay Goswami, 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

23.02.2007 which had endorsed the findings of the trial Judge dated

24.01.2004 whereby the three suits filed by the plaintiffs (first two

suits were for arrears of rent and the third suit was for ejectment) had

been decreed. The case of the plaintiffs was that defendant No. 1 i.e.

M/s Dream Land & Company was a tenant of the plaintiffs and

defendants No. 2 to 7 jointly on monthly rent of Rs.700/-. The suit

property comprised of land measuring 23072 sq ft. bearing

Government Survey No. 1016/647 & 645 situated within the area of

Chandauli @ Shahdara. The rent deed executed between the parties

is dated 28.04.1983. Two suits had been filed by the plaintiffs seeking

recovery of arrears of rent qua 50% of their share from defendant No.

1. The said suits had been decreed and this was confirmed in appeal.

The appellant before this Court is defendant No. 1 namely M/s Dream

Land and Company. He has no grievance to the decree of the said

suits for recovery of 50% of arrears of rent by the plaintiffs. He is,

however, aggrieved by the decree passed in the third suit which was a

suit for ejectment filed by the plaintiffs against defendant No. 1. The

contention of defendant No. 1 is that he had purchased 50% of this

suit property from defendants No. 2 to 7 vide a sale deed dated

04.12.1990 and he had become owner of 50% of this suit land by

virtue of the said sale deed. The impugned judgment directing

ejectment of defendant No. 1 from the whole of the suit property has

raised a substantial question of law as the plaintiffs are the owners of

only 50% of the suit land and they could not have obtained a decree

for the entire suit property when defendant No. 1 had purchased the

50% rights of the suit property of defendants No. 2 to 7 vide the

aforenoted sale deed.

2 Admittedly the sale deed dated 04.12.1990 did not see the light

of the courts below. It was a document not proved in evidence.

Learned counsel for the appellant has no answer to this query put by

this Court as to why this document was not proved before the court

below. It is a settled proposition at law that a single co-owner can

seek ejectment of the party from the suit property. The plaintiffs were

not barred from doing so. The decree that followed cannot thus be

assailed on this ground.

3 Learned counsel for the appellant has urged that admittedly

both appellant No. 2 Prakash Narain Bhatnagar and respondent No.

6 Jagdish Narain Bhatnagar had expired in the course of the

proceedings but no application had been filed to bring their legal

representatives on record. The suit proceedings had necessarily

abated. This has raised a substantial question of law. This contention

has been dealt with in the impugned judgment in para 9. The Court

had returned a finding that even in the absence of one of the

co-owners, the contesting co-owner cannot be deprived from seeking

his remedy. Not brining on record the legal heirs of deceased appellant

No. 2 and deceased respondent No. 6 would not affect the right to sue

as right to sue still survives; appeal would not abate. Order XI Rule 4

of the Code also permits one of the several plaintiffs or defendants to

obtain a reversal of the whole decree where it is common to all. This

has been reiterated in 1997 IV AD (Delhi) 754 Owners of Shamlal Patti

Mirza Vs. Union of India. This argument raises no substantial question

of law.

4 It has lastly been argued that the appeal before the appellate

court was time barred and no application seeking condonation of

delay has also been filed. It is pointed out that there were three suits

which had been filed and the certified copies of the judgments had in

fact been obtained by the appellant on 04.02.2004 itself but the

appeal had been filed on 07.05.2004 and the dates have been wrongly

noted in the impugned judgment; it has raised a substantial question

of law. Reference has been made to para 8 of the impugned judgment.

In para 8 of the said judgment, it had been recorded that the

judgment of the trial Judge was delivered on 24.01.2004. The

appellant had applied for certified copy on 04.02.2004 and although

copy was made available to him on 07.05.2004, the appeal was filed

on 12.05.2004 as 09.05.2004 to 11.05.2004 were the holidays in the

District Court. The Court had recorded that the delay, if any, is thus

condoned. This was on an oral request of the appellant. Nothing

precluded the Court from doing so. Submission of the learned counsel

for the appellant that the certified copy of the appeal was in fact ready

on 11.03.2004 which is evident with page 124 of the paper book has

been answered by the respondent by stating that this certified copy

was made available in another suit between the parties. Although

admittedly the judgment dated 24.01.2004 was a common judgment

delivered in all the three suits yet the record placed before this Court

shows that in the present suit which had been challenged by the

plaintiff before the first appeal Court, the certified copy had been

delivered to him only on 07.05.2004. There is no wrong reading of this

factual averment. There was no delay in filing the appeal before the

first appellate Court. No substantial question of law has arisen on this

score.

5 The substantial questions of law have been embodied on page 6

onwards of the paper book. They have been adverted to and all those

emphasized and urged by the learned counsel for the appellant have

been dealt with Supra. No other argument has been urged.

6 No such substantial question of law has arisen. Appeal as also

pending application is dismissed in limine.

INDERMEET KAUR, J.

FEBRUARY 04, 2011 A