Naresh Kumar Saini vs Daya Rani Dixit
2011 Latest Caselaw 1294 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RFA No.137/2011

%                                                  4th March, 2011

NARESH KUMAR SAINI                                        ...... Appellant
                                  Through:   Mr. S.P.Jha, Adv.

                           VERSUS


DAYA RANI DIXIT                                           ...... 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? Yes

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

VALMIKI J. MEHTA, J (ORAL)

CM No.4562/2011 (delay)

Delay in re-filing is condoned.

CM stands disposed of.

CM No.4561/2011 (Exemption)

Exemption allowed subject to just exceptions.

Application stands disposed of.

RFA No.137/2011

1. 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 8.9.2010 whereby the suit of the appellant/plaintiff for possession and

mesne profits has been dismissed.

2. The issue pertained to the right in the property bearing no. C-7/144,

Ground Floor, Lawrence Road, Delhi owned by late Sh. Rajinder Prasad Saini

who expired on 13.12.1987. Plaintiff/appellant claimed to be the adopted

son of late Sh. Rajinder Prasad Saini. Sh. Tilak Raj, husband of the defendant

Smt. Daya Rani Dixit also claimed to be the adopted son of Sh. Rajinder

Prasad Saini, however, through a registered adoption deed dated 10.4.1986.

The appellant/plaintiff claimed ownership to the subject property on the

basis of a Conveyance Deed dated 9.1.2002 executed by the Delhi

Development Authority (DDA) in his favour i.e., a Conveyance Deed executed

after about 13 years of the death of Sh. Rajinder Prasad Saini. The

Conveyance Deed dated 9.1.2002, Ex. P-1, is claimed to have been got

executed on the basis of a power of attorney executed by Sh. Rajinder

Prasad Saini in favour of the appellant/plaintiff.

3. The defendant, wife of Sh. Tilak Raj adopted son of Sh. Rajinder Prasad

Saini claimed to be owner in possession of the property by virtue of

documents dated 1.11.1985 executed by late Sh. Rajinder Prasad Saini in

favour of the defendant/respondent/Smt. Daya Rani Dixit.

4. After the pleadings were complete, the trial court framed the following

issues.

" i) Whether the plaintiff has locus standii to file the present suit?OPP

ii) Whether the defendant is a licencee for the plaintiff? OPP

iii) Whether the plaintiff is entitled to relief of possession of the suit property from the defendant ?OPP

iv) Whether the plaintiff is entitled to recovery of a sum of Rs.80,500/- as prayed? If yes, at what rate of interest?OPP

v) Whether the plaintiff is entitled to recovery of damages/mesne profits as prayed?OPP

vi) Relief."

5. A plaintiff in a suit for possession of an immovable property claiming

that the defendant is a licensee, obviously, has to prove his title to the

property entitling him to possession. The claim of the appellant/plaintiff to

ownership and possession of the property was not on the basis of his

adoption by late Sh. Rajinder Prasad Saini or his wife Smt. Anaro Devi, and

devolution by inheritance but the claim was on the basis of the Conveyance

Deed executed on the basis of a power of attorney executed by late Sh.

Rajinder Prasad Saini during his life time in favour of the appellant-plaintiff.

It is not the case of the appellant/plaintiff that the said power of attorney is a

power of attorney executed for consideration. Before the trial court, the

appellant/plaintiff admittedly did not prove the adoption either by filing an

adoption deed or by proving the ceremony of giving and taking and his only

ground of claim to ownership of the property was the Conveyance Deed

dated 9.1.2002. The trial court has held appellant/plaintiff not entitled to

possession and mesne profits on the ground of invalidity of the Conveyance

Deed dated 9.1.2002 because Sh. Rajinder Prasad Saini had expired way

back on 13.12.1987 and therefore, on the basis of power of attorney of a

deceased person DDA could not have executed a Conveyance Deed 13 years

after the death of Sh. Rajinder Prasad Saini on 9.1.2002, and once there is

no ownership of the appellant/plaintiff in the subject property, by means of

the Conveyance Deed, the suit for possession and mesne profits is bound to

fail.

6. Learned counsel for the appellant has raised two main submissions

against the impugned judgment and decree:-

(i) The first submission was that there was already a suit which was

pending challenging the Conveyance Deed dated 9.1.2002 and therefore, the

trial court could not have decided this issue in this particular suit.

(ii) The second submission was that the trial court ought to have decided

all issues but it decided only issues no.1 and 2 and did not decide the other

two issues, i.e. issue nos. 4 and 5, as already reproduced above.

7. From the trial court record, the impugned judgment and decree, and

the arguments of the learned counsel for the appellant, the following

admitted position emerges:-

(i) Mr. Rajinder Prasad Saini was the admitted owner of the suit

property. Either the property of Sh. Rajinder Prasad will devolve by Will or by

devolution on his death to his legal heirs or if the property is sold to the

plaintiff/appellant in the life time of Sh. Rajinder Prasad Saini.

(ii) The appellant/plaintiff did not file any adoption deed in the trial

court nor led any evidence to prove the factum of adoption by any giving

and taking ceremony. Plaintiff did not claim devolution on the basis of a Will.

(iii) The Conveyance Deed executed by DDA in favour of the

appellant /plaintiff is only on the basis of a power of attorney executed by

the deceased Rajinder Prasad Saini in favour of the appellant/plaintiff, and

which power of attorney would come to an end on the death of Sh. Rajinder

Prasad Saini. The power of attorney is not a power of attorney executed for

consideration which could continue even after the death of Sh. Rajinder

Prasad Saini in view of Section 202 of the Contract Act, 1872.

8. Issues no.1 and 2 as framed in the suit as to whether the

appellant/plaintiff has locus standi to file the suit and whether the defendant

was a licensee of the plaintiff/appellant, very much include in such issues is

the requirement for the plaintiff/appellant to prove his ownership of the

property and only on proving the ownership of the property, would the

plaintiff succeed in the suit for possession and mesne profits by holding the

defendant to be only a licensee. The contention of the learned counsel for

the appellant/plaintiff that the trial court could not have decided the validity

of the Conveyance Deed as another suit was pending, flies in the face of

Explanation-1 to Section 11 of the CPC which says that there can surely be

two suits involving the same issue and the decision in the first suit will

operate as res-judicata for the other suit, although the other suit may have

been instituted prior to the decision in the suit in which the issue is decided.

Therefore, merely because another earlier suit was pending would not mean

that the trial court is prevented from looking into the validity of the claim of

the plaintiff to possession, because after all, it is the plaintiff who has to

prove his case so as to be entitled to possession and mesne profits, and

which entitlement can surely and only be proved by showing that the

appellant/plaintiff was the owner. It is the plaintiff who claimed ownership

on the basis of the Conveyance Deed and therefore the trial had to

pronounce on the issue of the validity of the Conveyance Deed which was

disputed by the respondent/defendant. It does not lie in the mouth of the

appellant-plaintiff to say that the validity of the Conveyance Deed should not

have been pronounced upon by the trial court. Therefore, the trial court has

rightly gone into the aspect of the ownership of the appellant claimed on the

basis of the Conveyance Deed dated 9.1.2002, Ex.P-1, and which has been

held not to confer a valid title on the appellant/plaintiff as the same was

executed more than 13 years after the death of Sh. Rajinder Prasad Saini

and on the basis of a power of attorney which came to an end on the death

of Sh. Rajinder Prasad Saini.

9. The second argument of learned counsel for the appellant is also

equally misconceived that the trial court in terms of Order 14 Rules 1 and 2

CPC, ought to have decided all the issues and since there is no decision on

issues 4 and 5, the impugned judgment and decree must fall. The issues

no.4 and 5 are issues with regard to the entitlement of the plaintiff to

recover of mesne profits. Once issues no.1 and 2 have been held against the

plaintiff obviously, the issues no.4 and 5 also stand decided, because if the

plaintiff is not the owner of the subject property, and therefore was not

entitled to possession obviously, therefore, he would not be entitled to

mesne profits also. Though, the trial court seems to say that these issues do

not require decision, in my opinion, these issues automatically stand decided

by virtue of decision on issues no.1 and 2. In fact, the trial court which dealt

with the issues no.3 to 5 has clearly held that since the plaintiff failed to

establish the right, title and interest in the suit property, therefore, he is not

entitle to damages and mesne profits. Therefore, the contention of the

learned counsel for the appellant is misconceived and is bound to fail.

10. In view of the above, I do not find any necessity to summon the trial

court record in view of the admitted factual position in both facts and law as

has emerged from the impugned judgment and the arguments of the learned

counsel for the appellant.

11. The appeal being devoid of merit is therefore misconceived and is

dismissed, leaving the parties to bear their own costs.

MARCH 04, 2011                                          VALMIKI J. MEHTA, J.
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