Smt. Vidyawati & Ors. vs Sh.Kanti Prasad Aggarwal & Ors.
2011 Latest Caselaw 339 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.226/2000 & RFA 141/2008

%                                                    20th January, 2011



1.       RFA No. 226/2000

SH. RAM AVTAR AGGARWAL                                  ...... Appellant
                                Through:    Mr. R.M.Sinha, Advocate


                          VERSUS


KANTI PRASAD AGGARWAL                                  ...... Respondent

                                Through:    Mr. Pradeep Jain with
                                            Mr. Yogesh Mittal, Advocates.

                          AND

2.       RFA No. 141/2008

SMT. VIDYAWATI & ORS.                                   ...... Appellants
                                Through:    Mr. R.M.Sinha, Advocate


                          VERSUS


SH.KANTI PRASAD AGGARWAL & ORS.                        ...... Respondents
                        Through:            Mr. Pradeep Jain with
                                            Mr. Yogesh Mittal, Advocates.

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. Challenge by means of this First Appeal under Section 96 of the

Code of Civil Procedure, 1908 is to the impugned judgment and decree dated

28th March, 2000 whereby the suit of the respondent/plaintiff for recovery of

possession of a portion of the property bearing no. 498-1A, Bhola Nath Nagar,

Shadara, Delhi was decreed.

2. The facts of this case are that one Smt. Kailashwati became the

owner of a plot of 143 square yards by virtue of a sale deed dated 30.9.1957

executed in her favour by one Sh. Muralidhar Sharma. As per the sale deed,

exhibited as Ex.DW-3/A, the plot of 143 square yards was a part of a larger

plot of 333 square yards numbered as plots no. 15 and 16. Smt. Kailashwati

after purchase of this plot, wanted to make construction on the same and

therefore applied for sanction of the plans from the municipal authorities.

The plan in favour of Smt. Kailashwati for plot no. 16 was sanctioned by the

Municipal Authorities vide letter dated 23.6.1962 (Ex.PW-1/9). This document

Ex.PW-1/9 sanctions the plan of construction to Smt. Kailashwati for plot

no.16. The sanctioned plan was filed and proved as Ex.PW-1/8. It appears

that a portion of the plot which was purchased by Smt. Kailashwati, and

which was originally a part of plots no. 15 and 16, was acquired for the

purposes of road widening. For this reason, sanction which is applied for is

only with respect to plot no. 16 and which now is referred to as municipal no.

498-1A. Smt. Kailashwati died on 25.4.1980. Before her death, Smt.

Kailashwati however, executed her registered Will dated 11.5.1977 and

which has been filed and proved, through one of the attesting witnesses, as

Ex.PW-3/A. As per this Will, Smt. Kailashwati bequeathed the entire subject

property bearing no. 498-1A to the plaintiff/respondent. The

plaintiff/respondent claims that the appellant/defendant who was his brother,

that is, the son of Smt. Kailashwati was permitted to stay in a portion of the

property no.498-1A on license basis by Smt. Kailashwati. This portion of 498-

1A is one room with a bath room-cum-WC, a passage and a portion of the

Verandah. After the death of Smt. Kailashwati the respondent/plaintiff on the

appellant/defendant having constructed his own property at Shalimar Park,

Shahdara, Delhi requested the appellant/defendant to vacate the portion of

the property no.498-1A in his possession, and of which the

respondent/plaintiff had become an owner by virtue of the Will dated

11.5.1977 of their mother. On the failure of the appellant/defendant to

vacate the suit property, the suit for recovery of possession of the subject

portion of the property was filed and which has been decreed by the

impugned judgment and decree dated 28.3.2000.

3. The appellant/defendant in the suit raised various objections inter

alia of an internal family arrangement of the year 1974, that is before the

death of the mother Smt. Kailashwati, of the subject portion falling into his

share, secondly the property not being of Smt. Kailashwati but Smt.

Kailashwati being only a benami owner and lastly and most importantly that

the property no. 498-1A is in fact not constructed only on plot no.16, but has

been constructed on plot no. 16 as also on portions of plots no. 15A and 16A

which were purchased in the name of Rajender Prasad and brothers by

means of a sale deed dated 18.5.1946. It was argued, before the Trial Court

and also before this Court, that after the Government took away portions of

the plots no. 15 & 16 and 15A & 16A, whatever area remained was not only

plot no. 16 but in fact construction was on part of plot no. 16 and also on part

of the plots no. 15A and 16A. It is, therefore, argued that though, the

respondent/plaintiff would be entitled to the subject portion, but only if the

subject portion falls in the property no. 16 and not if the same falls in the

property nos. 15A and 16 A.

4. I may state that most of the facts stated in the present judgment

while dealing with this RFA are common with the facts of the connected RFA

No.141/2008 and which is also disposed of by this judgment. The connected

RFA has been filed challenging the impugned judgment and decree dated

26.2.2008 of the Trial Court whereby the suit filed by the present appellant

and others who represented the branches of the other heirs of Smt.

Kailashwati, basically against the present respondent who was the defendant

in the second suit, was dismissed. The impugned judgment and decree in

RFA No. 141/2008 dated 26.2.2008 extensively relies upon and is for a

considerable part based upon the impugned judgment and decree dated 28 th

March, 2000 which is subject matter of the appeal being RFA No.226/2000.

5. The Trial Court in the impugned judgment and the decree qua

RFA 226/2000 has relied upon basically two important aspects to decree the

suit for possession in favour of the respondent/plaintiff and against the

appellant/defendant. The first aspect is that the appellant/defendant himself

had executed two affidavits for getting the electricity connection to the

subject portion from the local authorities and which affidavits are dated

24.9.1976 (Ex.PW-2/1) and 25.8.1976 (Ex.PW-2/2). These affidavits show the

unqualified admissions of the appellant/defendant of ownership of the

complete property 498-1A being that of Smt. Kailashwati- mother. The Trial

Court has also referred to the fact that respondent/plaintiff had after the

death of Smt. Kailashwati realized rent from the tenants in the property on

the first floor and which was a Government Department. The

respondent/plaintiff had also filed various cases of eviction against the

different tenants in the property no. 498-1A claiming ownership of the same.

These facts showed that the respondent/plaintiff treated himself as an

exclusive owner of the property no.498-1A and no other legal heirs of Smt.

Kailashwati claimed any title on rent with respect to the property no.498-1A.

6. Since, the findings of the Trial Court are very detailed on this

aspect and are contained in paras no. 16 to 24 of the impugned judgment

and decree dated 28.3.2000, it is not therefore feasible to reproduce the

entire paragraphs, however, I am referring to certain portions of the said

findings and conclusions of the Trial Court which read as under :-

"17. The plaintiff relies on two affidavits admitted sworn by the defendant one on 24.9.76 vide Ex.PW2/1 and the other on 25.8.76 vide Ex.PW2/2. These affidavits were proved through the statement of PW2 P.K.Jain a clerk from the Commercial Section of District Jhilmil Karkardooma Delhi Vidyut Board. They were submitted with erstwhile Delhi Electrical Supply Undertaking in the context of grant of independent electricity connection I the name of the defendant for the suit premises. The execution of these affidavits has been admitted by the defendant, though he has some different explanation to offer. None the less the affidavits need a careful look. In the affidavit Ex.PW2/2 sworn on 25.8.76 the defendant described himself as lawful

occupant of the property in question. He stated that he was not in a position to submit any "Latest proof" for the reason that his mother Kailash wati was out of station. He expressed his desire to have a new light connection in his name and made a request in that regard for installation of such electricity supply lines in the suit property specifically referring it as a property "owned by Smt. Kailash Wati". In the affidavit Ex.PW2/1 sworn on 24.9.76 again he described himself as the lawful occupant of the property in question for about five years. He again described his mother as owner of the property No.498/1A , Mahavir Block, Bhola Nath Nagar, (sic), Delhi-32. He declared he was living in a portion of the suit property and that the owner Kailash Wati does not charge any rent from him and that her mother was not in a mood to issue No Objection Certificate for reasons not know to him. He again requested for grant of electricity connection.

18. Defendant's explanation in this regard is that he had been advised by DESU authorities that he might mention name of his father or mother as DESU had no concern with that and since there was an electricity meter already installed in the name of his mother he had to mention name of his father in the affidavit. I see this as no explanation at all. There two affidavits do contain clear admission on oath on the part of the defendant in 1976, when both of the parents of the two sides were alive, that Kailash Wati was the owner of the property in question. These affidavits are much later in terms of time to the alleged internal arrangement of 1974 referred to by the defendant. Had there been any such internal family arrangement giving exclusive rights in respect of the suit premises to the defendant, he would have asserted such right for obtaining an independent electricity connection in his name.

20. It was a fact pleaded and alleged by the defendant that the super structure on the two different plots have been developed as one unit. It was, therefore, his burden to prove this as a fact. He has not led any cogent evidence worth the name except his bare word which is not sufficient.

21. The plaintiff has proved on the strength of letter of sanction for construction of super structure of plot no. 16, Bhola Nath Nagar, Shahdara vide Ex.PW1/9 and the sanctioned plan Ex.PW1/8 that the construction was raised at the instance of Smt. Kailash Wati. The sanctioned plan indicates that what was allowed to be constructed was a

building on plot no.16, Mahavir Block, Bhola Nath Nagar Extension, Shahdara having an area of 143 sq.yds. This definitely was a property distinct from any other property. The arguments of the defendant that the site plan was filed without disclosing proper identification of the property is, therefore, totally devoid of merits. He is trying to confuse the issue by making a reference to the purchase of the lot in the name of Rajidnder Pd. And Bros. He appears to be trying to derive undue advantage on this account only because the persons under whose name the said other plot was purchased were members of the said family and because the said plot is closely located.

23. It has been admitted in the course of evidence that Kailash Wati was realizing rent from a Government department which was a tenant on the first floor and that after her death the rent was realized exclusively by the plaintiff from the said tenant. The defendant also does not dispute that plaintiff exclusively sued the tenants of different portions and obtained vacant possession thereof."

7. In my opinion, no fault can be found with the aforesaid discussion

and conclusions of the Trial Court. In a civil case, a decision is arrived at on

the balance of probabilities. When two views are possible, the Trial Court is

free to adopt one view and which view will not be interfered by this Court,

unless the said view is perverse and causes injustice. In the present case,

once we give due emphasis to the admitted position of the

appellant/defendant admitting the mother to be the complete owner of the

property without any interference from anyone the conclusion of the Trial

Court that the respondent/plaintiff after his mother Smt. Kailashwati became

the owner of the subject property no. 498-1A cannot be interfered with. I

may state that though initially, the learned counsel for the appellant sought

to contend that the Will executed by the mother dated 11.5.1977 was not a

valid document, however, this argument was given up inasmuch as in the

impugned judgment and decree dated 26.2.2008 in RFA no. 141/2008, it is

clearly recorded that the appellant, who was the one of the plaintiffs in the

said suit does not dispute the existence of the Will of the mother.

8. Before this Court, the learned counsel for the appellant laid great

emphasis on the fact that once the property nos. 15 and 16 which were

purchased by Smt. Kailashwati by means of the sale deed dated 30.9.1957

and the property nos. 15 and 16A which were purchased in the name of

Rajender Prasad by the sale deed dated 18.5.1946 have been found to be

adjacent properties and parts of both the properties were acquired towards

road widening it should be held that the present property which is standing in

the name of Smt. Kailashwati should automatically be held to be also a part

of property nos. 15A and 16A. It is argued that the present construction

which exists is in fact standing on part of the property which was purchased

by the sale deed in the name of Kailashwati and a part of the property which

was purchased in the name of Shri. Rajender Prasad.

In my opinion, this contention of the learned counsel for the

appellant is misconceived because by virtue of the documents being the

sanction letter and sanction plan, Ex.PW-1/9 and Ex.PW-1/8, it is clear that

sanction was granted only to Smt. Kailashwati and that too for plot no. 16.

Therefore, it is Smt. Kailashwati who would be the owner of the construction.

If the construction was not only on the plot of Smt. Kailashwati but the

construction was also on the plot belonging to the other sons in whose names

there exists the sale deed dated 18.5.1946, then, the application for sanction

of construction would have been made not only by Smt. Kailashwati but also

the other sons making them the co-applicants in the application for sanction

of construction and the sanction letter for construction would have referred

to not only plot no. 16 but would have referred to also plot nos. 15A and/or

16A. This, however, is not the position. Merely because there appears to be

confusion with regard to some part of the property having been acquired for

the road widening should not lead to the conclusion that the property in

question on which construction has been made in the name of Smt.

Kailashwati should not be held to be the property of Smt. Kailashwati. A lot

of time has passed since the purchase of the plots by Kailashwati and

Rajender Prashad & Bros. Layout has changed by virtue of acquisition of land

for road widening. Roads both in the front and sides have been widened.

The appellant cannot be allowed to take advantage of certain ambiguities as

to what areas were acquired for road widening in view of his own admissions

admitting the mother Kailashwati as the owner and also that in the municipal

records this property has always been shown to be that of Kailashwati. Also

as stated in the judgment disposing of RFA 141/2008 if really the property

498-1A was a property of the other brothers also then these other brothers

would surely have pushed their rights on this property and which they have

not.

9. In view of the above, I do not find any error in the impugned

judgment and decree. The appeal is devoid of merits and is therefore

dismissed, leaving the parties to bear their own costs.

10. The respondent has been depositing with this Court a sum of

Rs.3,000/- per month pursuant to the order dated 2.4.2008. The amount

deposited by the respondent in this Court along with accrued interest, if any,

be released to the respondent.

11. All interim orders, if any, are vacated.

12. The Trial Court Record be sent back

RFA No.141/2008

1. As already stated while dealing with RFA No.226/2000, the

challenge by means of the present appeal is to the impugned judgment and

decree dated 26th February, 2008 of the Trial Court whereby the suit of the

appellants for partition of the property nos.15A and 16A, Bhola Nath Nagar,

Shadara, Delhi was dismissed.

2. I may note at the outset that in the impugned judgment and

decree, the following relevant observations exist and which are noted for

disposal of the appeals :-

"She has very fairly contended before the Court that plaintiffs are not asserting their right over plot No.15 and 16 or on any construction raised thereupon and they have sought partition with respect to the property which has been erected in part upon plot No.15A and 16A. It has been claimed that the description of the properties as given in the two sale deeds and the boundaries described therein would clearly specify that both the properties were adjacent to each other. It has also been argues by her that construction was raised by consolidated efforts and funds of both the sides and, therefore, the plaintiffs are justified in seeking partition with respect to the property which had been purchased in the name of Rajinder Prasad and brothers." ...............................

"It had also been claimed that legal representatives of Shri Rajinder Prasad Aggarwal never consented to the filing of the suit and their signatures had been obtained by playing a

fraud and misrepresentation. He had also argued that none of them have either signed the replication or have entered into witness box which reveals that they are hardly concerned with the present matter."

..............................

"It has been claimed before me that plaintiffs are not staking their claim over any portion on plot No.15 and plot No.16. Such plots were owned by Smt. Kailashwati and by virtue of her last will, the same were bequeathed in favour of defendant No.1 herein and, therefore, defendant No. 1 is the sole and exclusive owner of plot No.15 and plot No.16 and also of the construction raised over plot No.15 and plot No.16."

3. The Trial Court has dealt with the core issue in the impugned

judgment and decree as issue no. 4 as to "whether the plaintiffs/appellants

are entitled to the relief of partition?" While discussing the said issue,

reference is made to the judgment and decree dated 28.3.2000 passed

earlier in the suit filed by the respondent in this appeal and who was the

defendant no. 1 in the suit from which this appeal is preferred and who was

the plaintiff in the suit in which the judgment and decree dated 28.3.2000

was passed. In a sum and substance, the Trial Court has said that there is a

big question mark as to what is the exact location and identification of

property nos.15A and 16A and therefore there can be no question of granting

the relief of partition. I have already discussed this aspect at the end of para

8 in the judgment in RFA 226/2000. The contention of the

respondent/defendant has been noted by the Trial Court that the suit was in

fact a counter blast to the earlier suit which was filed against one of the

appellant Sh. Ram Avtar Aggarwal by the defendant no. 1/Kanti Prasad

Aggarwal and which was decided by the judgment and decree dated

28.3.2000. It has been held that the appellant failed to discharge his onus

that the property of which partition is sought is property no. 15A & 16A. The

fact that the other brothers i.e. other sons of Kailashwati did not pursue the

suit because none of them stepped into the witness box in support of their

claim to the property which is alleged to be on plot 15A & 16A although they

were the plaintiffs who claimed rights in this immovable property.

4. I must note that the decision in the present appeals has been

fraught with certain uncertainties and which uncertainties also existed before

the Trial Court which passed the impugned judgments and decrees dated 28 th

March, 2000 and 26th February, 2008. This is because enough clarity has not

emerged as to what is the exact area and portion which was acquired by the

Government for road widening and whether the property nos. 15A/16A still

continues to exist or if it exists, then does it still exist pursuant to the sale

deed of the year 1946. But for the reasons I have already given at the end of

para 8 of the judgment in RFA 226/2000, and not repeated here to avoid

repetition, the appellant cannot take advantage of the apparent confusion

created by him.

5. A civil case is decided once the entire evidence is led by both the

parties and after putting the same in a melting pot. A picture which emerges

is then taken into consideration by the Court to pass a judgment on balance

of probabilities. I do not feel that the impugned judgments and decrees

should be interfered with especially because of the clear cut admissions in

the affidavits executed by the appellant Sh.Ram Avtar Aggarwal of the year

1976 where he had admitted the mother Smt. Kailashwati to be the complete

and exclusive owner of the property no. 498-1A. Also, if there existed

actually as of today property on plot nos. 15A and 16 A, the onus was upon

the appellants to discharge as to where is the sanction plan for construction

of the said property and if that was so why the same has been treated all

times in the ownership only of Smt. Kailashwati. Also after the death of the

mother, the same has been dealt with as the exclusively owned property of

the respondent no. 1 at all points of time and at no point of time any

objection was raised to the same.

In my opinion, enough litigation has been carried on between the

family members in this case and which has continued from 1996 for a portion

of just one room with bath room and WC along with a Verandah and a portion

of passage. This portion/value is not of such high stakes that a quietus

should not be given to the litigation, more so because the appellant Sh. Ram

Avtar Aggarwal is not living in the subject property but is having his own

property at Shalimar Park, Shadara, Delhi.

6. Once again while dealing with this appeal I would seek to

reiterate that merely because two views are possible and one view is

adopted by the Trial Court, this Court is not entitled to interfere in the

impugned judgment and decree unless there is gross illegality or perversity.

I do not find that there is any such illegality or perversity in the impugned

judgment and decree and in fact equity is quite clearly in favour of the

respondent Sh. Kanti Prasad Aggarwal in view of the documents pertaining to

sanctioning and construction on the property no. 16, now referred to as

property no. 498-1A and also the affidavits executed by Sh.Ram Avtar

Aggarwal admitting the mother to be the exclusive owner of the property.

7. In view of the above, I do not find any merit in this appeal also

and the same is dismissed leaving the parties to bear their own cost.

8. All interim orders, if any, are vacated.

9. The Trial Court Record be sent back.

JANUARY 20, 2011                                 VALMIKI J. MEHTA, J.
ak