Rais Khan vs Saeeda Begum
2011 Latest Caselaw 992 Del

            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No. 327/2001

%                                                  18th February, 2011

RAIS KHAN                                        ...... Appellant
                        Through:    None.

                        VERSUS


SAEEDA BEGUM                                     ...... Respondent
                        Through:    None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

 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?


VALMIKI J. MEHTA, J (ORAL)

1.          This case is on the Regular Board of this Court since 3.1.2011.

Today this case is effective item no. 6 on the Regular Board.              No one

appears on behalf of the parties, although it is 3:00 p.m. I have, therefore

perused the record and am proceeding to dispose of the matter.


2.          The challenge by means of this Regular First Appeal under

Section 96 of the Code of Civil Procedure, 1908 is to the impugned

judgment    and   decree   dated   24.5.2001   whereby     the      suit   of   the

plaintiff/respondent for partition and rendition of accounts is decreed.

3.          The property in question is House No.322, Kabir Basti, Malka

Ganj, Delhi. The case of the    plaintiff/respondent was that she was the


RFA No. 327/2001                                                     Page 1 of 4
 daughter of Sh.Abdul Aziz who owned the property and who died intestate

in the year 1983. It was pleaded that since the appellant was refusing to

partition the property and refusing to render the accounts for the rent

receipts received from the tenants of the property, therefore the suit was

filed. The appellant/defendant contested the suit on the ground that the

respondent/plaintiff was not the daughter of Sh.Abdul Aziz. The findings

of the Trial Court on this aspect are contained in issue nos. 1 and 5 and

the relevant portion of which reads as under:-

           "ISSUES NO.1 TO 5
           7.     The question vital to all these issues is whether
           plaintiff Saeeda Begum is the real daughter of Abdul Aziz
           or not. If she is able to prove that she is the offspring of
           Abdul Aziz, she will be entitled to inherit the estate left by
           Abdul Aziz along with defendant no.1 as residuary. If, on
           the other hand, it is found that she is step daughter of
           Abdul Aziz as DW1 Rais Khan has stated at the stage of
           evidence, she will not be entitled to inherit and, therefore,
           she will have no locus standi. Defendant no.1 simply says
           in the written statement that Saeeda Begum has no locus
           standi to file the suit and that she is not his real sister. He
           does not elaborate further. When Saeeda Begum enters
           the witness box as PW1, a suggestion is made to her that
           she is the daughter of Mausi of defendant no.1. However,
           when Rais Khan examines himself as DW1, he states that
           Saeeda Begum is the daughter from the first husband of
           his mother. He admists that the n ame of his mother is
           Aniz Fatima. Aniz Fatima has been examined as PW2 and
           she has set the controversy to rest. She has categorically
           stated that plaintiff Saeeda Begum and defendant Rais
           Khan are both her children from Abdul Aziz. DW2 Mohd.
           Abrar who was produced by defendant no.1 himself,
           supports the plaintiff and states that the name of
           plaintiff's father was Abdul Aziz. Thus, the evidence
           shows beyond doubt that the plaintiff is the real sister of
           defendant no.1 and she is entitled to 1/3 rd share in the
           property left by Abdul Aziz."          (Emphasis added)

           The Trial Court has therefore rightly found the respondent to

be the daughter of Sh.Abdul Aziz because the wife of Sh.Abdul Aziz and

RFA No. 327/2001                                                  Page 2 of 4
 the mother of both the appellant and the respondent specifically admitted

that the respondent was the daughter of Sh.Abdul Aziz.              In fact the

witness of the appellant, DW2 Mohammad Abrar also supported the case

of   the   respondent/plaintiff   that   respondent's/plaintiff's   father   was

Sh.Abdul Aziz.    The Trial Court was therefore justified in arriving at a

finding that the respondent/plaintiff was the daughter of Abdul Aziz.

4.           The second defence of the appellant before the Trial Court

was that Sh.Abdul Aziz was not the owner of the property and it was the

appellant who was the owner of the property.          In this regard, the Trial

Court has rightly held that it was Abdul Aziz who was the owner of the

subject property. Para 8 of the impugned judgment deals with this aspect

and which reads as under:-

             "8.    The next question is whether Abdul Aziz was the
             owner of the suit property. In this regard, defendant no.1
             says in the written statement that he had built the
             property out of his own funds after the death of Abdul
             Aziz. At the stage of evidence, however, DW1 Rais Khan
             admits on cross-examination that the land underneath the
             property had been occupied by his father and that tin
             shades had been raised by his father. He also admits that
             the electric connection was in the name of Abdul Aziz.
             DW2 Mohd. Abrar testifies that the defendant made pakka
             construction after collecting money from tenants. Thus, it
             emerges from the evidence that defendant no.1 did not
             spend a penny from his pocket in constructing the house.
             Whatever he spent on construction was received from
             tenants occupying the tin shades raised by Abdul Aziz.
             That being the position, the pakka construction also would
             be considered to be the property of Abdul Aziz and the
             plaintiff will be entitled to have 1/3rd share therein."
                                                           (Emphasis added)

             The Trial Court has thus rightly relied upon the admission of

the appellant in his cross-examination where he stated that the land


RFA No. 327/2001                                                    Page 3 of 4
 underneath the property had been occupied by his father who built the tin

sheds upon the same and the regular construction which was made by the

appellant was only from the rent received from the tenants i.e. the

appellant did not spend a single paisa from his own pocket.          The Trial

Court was therefore justified in coming to a finding that the appellant did

not purchase or occupy the land and that he also did not spend any

money for the construction on the plot.

5.          In view of the above, I do not find any illegality or perversity in

the impugned judgment and decree which calls for interference of this

Court. The appeal being devoid of merits is therefore dismissed, leaving

the parties to bear their own costs. The Trial Court record be sent back.




FEBRUARY 18, 2011                                 VALMIKI J. MEHTA, J.

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